AI TextQuick Glance (AI)Headnote
Resolution-plan assets receive restitution protection, while corporate-debtor immunity preserves proceedings against former management and other liable persons.
Attached assets covered by an approved resolution plan may be restored to successful resolution applicants under the second proviso to Section 8(8) of the Prevention of Money Laundering Act where they are bona fide claimants with a legitimate interest. The consensual restitution arrangement released the covered bank balances and residential units, and excluded any enforcement lien over assets forming part of the plan. Section 32A of the Insolvency and Bankruptcy Code protected the corporate debtor after resolution, provided the successful applicants lacked links to former management and were not beneficiaries of proceeds of crime. The corporate debtor was removed from the prosecution complaint, while proceedings against former management and other liable persons continued. Questions of law remained open and the order was non-precedential.
Immunity to corporate debtors and their assets, upon approval of a resolution plan - jurisdiction of NCLT to release the attached properties by invoking Section 32A of the IBC, 2016 - approval of resolution plan under Section 31 - non-obstante provision - NCLT jurisdiction under Section 60(5) - moratorium under Section 14 - attachment under the PMLA, 2002 Whether attached properties of the corporate debtor covered by an approved resolution plan could be restored to the successful resolution applicants by consent under the second proviso to Section 8(8) of the Prevention of Money Laundering Act, 2002? - HELD THAT:- The present restitution order is deemed to have been passed in terms of the second proviso to sub-Section (8) of Section 8 of PMLA. In view of Section 32A of the IBC, the name of the Corporate Debtor shall be deleted from the array of accused in the Prosecution Complaint before the Special PMLA Court, Mumbai, while continuing with the prosecution of the erstwhile directors and/or persons in control or conspirators or abettors and confiscation of their attached/restrained properties/entitlements, if any. Needless to state, the benefit of Section 32A of the IBC is subject to the condition that the SRA is neither connected with the erstwhile Directors of the Corporate Debtor nor is the SRA a beneficiary of proceeds of crime derived from the alleged scheduled offence. If this foundation is eroded in the ongoing investigation, the Directorate of Enforcement shall be at liberty to take appropriate steps in accordance with law, including by way of questioning the resolution plan. Any challenge of the Directorate of Enforcement to the approval of the Resolution Plan by the National Company Law Tribunal, Mumbai, shall stand closed, and accordingly the Directorate of Enforcement shall have no right or lien either on the properties of the Corporate Debtor attached under Provisional Attachment Order, or on any other assets of the Corporate Debtor that form part of the resolution plan approved by the NCLT. The Resolution Plan already stands substantially implemented in accordance with law. The attached properties shall be released by the appellant within a period of two weeks from the date of receipt of a copy of this order. This order is being passed based on the peculiar facts and circumstances of the case and with the consent of the parties under the second proviso to sub-Section (8) of Section 8 of the PMLA, and shall not be treated as a precedent. We once again make it clear that the questions of law shall remain open to be decided in an appropriate case. We place on record our appreciation for the earnest efforts made by the officers of the Directorate of Enforcement in restoring the attached properties to secure the interests of justice. We also reiterate that the ECIR against the erstwhile directors and promoters would continue and, thus, the present order will have no bearing on those proceedings.