TaxTMI 
TaxTMI 
2019 (4) TMI 137
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....ts mortgaged the below mentioned property as a collateral security. a. Entire 2nd Floor, Yshodhan Building, CTS No. 1332, 1332/1 to 4, final Plot No. 103 of Town Planning Scheme No. II OF Vile Parle (East), Mumbai -400057, in the name of Mrs. Varsha M. Patel and Mrs. Manish C. Patel. b. Flat No. 1/4th Floor, "B‖ Wing, jai hind Estate Building No. 1, Co- op, Hsg. Society Ltd. C.S. 2298 of Bhuleshwar Division, Dr. Atmaram Merchant Road, Bhaskar Gali, Bhuleshwar, Mumbai-400002; in the name of Mrs. Varsha M. Patel. 5. The owners of the above mentioned properties visited the registrar office on 11.09.2012 and deposited the Original title deeds of their properties in favour of Bank of India (consortium member) as a Mortgage, in order to secure the credit facilities availed by the Appellant Bank. 6. The complaint against the Respondent Nos. 5&6 was registered on 16.02.2017 by the Anti corruption Branch of Central Bureau of Investigation, Mumbai vide RC, BA1.2017/A0009 dated 16.02.2017, stating that based on the investigation it was found that during the period of demonetization from 15.11.2016 to 26.12.2016, huge cash amount in old currency were deposited in the account of Respo....
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....t or Local Authority. 16. The amended provisions of Section 26E of the SAR-FAESI Act, 2002 as amended by the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 which reads as under:- "26E. Priority to secured creditors. - Notwithstanding anything contained in any other law for the time being in force, after the registration of security interest, the debts due to any secured creditor shall be paid in priority over all other debts and all revenues, taxes, cesses and other rates payable to the Central Government or State-Government or local authority." 17. The amended provisions of Section31B of the Recovery of Debts due to Banks and Financial' Institutions Act, 1993 as amended by the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment)Act, 2016 which reads as under:- "31B. - Priority to secured creditors. Notwithstanding anything contained in any other law for the time being in force, the rights of secured creditors to realize secured debts due and payable to them by sale of assets, over which security interest is created, shall have priority and shall be paid in prio....
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....ourtJudgment:- "Where there are two special statues which contain non-obstante clauses, the later statute must prevail. This is because at the time of enactment of the later statute, the Legislature was aware of the earlier Legislation and its non-obstante clause. If the legislature. still confers the later enactment with a non-obstante clause, it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail, then it could and would provide inthe later enactment that the provisions of the earlier enactment continue to apply." 24. The afore-stated principle laid down by the Hon'ble Supreme Court has been followed by the Full Bench of the Hon'ble Madras High Court in a recent decision dated 10.11.2016 in W.P. Nos. 2675 (authored by Hon'ble Mr. Justice S.K. Koul, who is now the Hon'ble Judge of Supreme Court). TheAssistant Commissioner (Commercial Taxes) Vs. Indian Overseas Bank], in which the Hon'ble High Court upheld the provisions of the amended Section 31B of Recovery of Debts due to Banks and Financial Institutions Act, 1993. The following is the relevant portion of the said decision:- "3. There is, thu....
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....having a probative value that his acquisition is bona fide, legitimate and for fair market value paid thereof the adjudicating authority must carefully consider the material and evidence on record (including the Reply furnished by a noticee in response to a notice issue under Section 8(1) and the material or evidence furnished along therewith to establish his earnings, assests or means to justify the bona fides in the acquisition of the property); and if satisfied as to the bona fide acquisition of the property, relieve such property from provisional attachment by declining to pass an order of confirmation of the provisional attachment." 29. The Adjudicating Authority also has no power to confirm the Attachment under Section8(2) of PMLA. Similarly, it is a simple case of recovery by the Appellant-Bank from its Borrower its own stressed Asset, since the Bank had already lent the money owned by it, which the Bank is entitled to recover the same. 30. The principle laid down in the above decisions of the Hon'ble Supreme Court and the Hon'ble Madras High Court has been followed by this Appellate Tribunal, Prevention of Money Laundering Act, New Delhi, in its catena of decision....
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....hus no case of money-laundering is made out against banks who have sanctioned the amount which is untainted and pure money. They have priority as secured creditors to recover the loan amount/debts by sale of assets over which security interest is created, which remains unpaid." This Tribunal in the above Judgment dated 14.07.2017 has also relied upon its own earlier Judgment dated 22.06.2017 in the case Indian Performing Right Society Ltd. vs. The Deputy Director, Directorate of Enforcement,Mumbai, wherein the Tribunal held as follows :- "55. Whether innocent party whose properties i.e.movable or immovable are attached can approach the Adjudicating Authority for release of attached property. "The Scheme of Prevention of Money Laundering Act clearly provides the mechanism whereby the innocent parties can approach the Adjudicating Authority for the purpose of release of properties which have been attached in terms of the provisions of Section 5 of the Act. This can be seen by reading Section 8(1) and the proviso to Section 8(2) of the Act whereby Adjudicating Authority has to rule whether all or any of the properties referred to in the notice are involved in money laundering or no....
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....derived or obtained directly or indirectly; b) By any person;& c) As a result of criminal activity relating to a scheduled crime. 37. However, in the present matter the properties under question were mortgaged with the banks as collateral for working capital facility, the same is obtained by following the procedure laid down under the Banking rules, set out by Reserve Bank of India and is not illegal or as a result of criminal activity. There is no contrary available on record. 38. This Tribunal in State Bank of India Vs. Joint Directorate of enforcement, the Court held that: "However in the present cases, the banks are innocent parties. They are not involved in criminal proceedings. If they are asked to await till the trial is over, the systems in these types of cases, the economy would collapse. " In the FPA-PMLA-1026/KOL/2015 State Bank of India Vs. Joint Directorate of enforcement, Kolkata, the Court held as under: "65. From the entire gamut of the matter we are of the view that there is no nexus whatsoever between the alleged crime and the two bank who are mortgagee of all the properties which were purchased before sanctioning the loan. Thus no case of moneylaundering ....