TaxTMI 
TaxTMI 
2019 (6) TMI 329
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....t is the case of the petitioner that the aforesaid act of the Enforcement Directorate in attaching the property provisionally valued to the tune of more than Rs. 120 crores is gross misuse and blatant abuse of the provisions of law whereby in an arbitrary and capricious manner circumventing all provisions of law the impugned action has been taken. 3. Apart from challenging the impugned order, prayer is also made for declaring Section 5(1), 5(5), 8(3), 8(5) and 8(6) of the PMLA to be unconstitutional, arbitrary and ultra vires of Articles 14, 19 and 21 of the Constitution of India. It is also pointed out that identical petitions not only challenging the provisional orders of attachment but constitutional validity of the statutory provisions are pending before this Court and in the matter of attachment made certain interim protections have been granted. 4. Accordingly, when the matter was taken up by us for consideration on 27.05.2019, Shri Tushar Mehta, learned Solicitor General along with Shri Amit Mahajan, learned Central Government Standing Counsel raised a preliminary objection with regard to maintainability of the petition. It was the case of the Union of India in the pre....
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....;and [email protected] available with the Respondent. The first Summon was delivered at [email protected]. However, it could not be delivered at another email address [email protected] as per "Delivery Status Notification‟ which stated that it was not delivered. In case of second Summon, it was sent to both of the above said emails of Aditya Talwar and delivered at [email protected]. The third Summon was also sent to Aditya Talwar through both of the aforesaid email Ids. In this case the "Delivery Status Notification‟ sent by both of the email teams stated that it was not delivered. That simultaneously, a Copy of all the three Summons were also sent By Hand to 6/14, Shanti Niketan, New Delhi, which Aditya Talwar had declared as his permanent residence in his Passport No. Z3367247 and his last known address in India. 8. It is submitted that later, the documents recovered during investigation by the Respondent revealed that Aditya Talwar had acquired the citizenship of Antigua and Barbuda in October, 2017 as evident from his passport bearing number AB006672 but the said document did not contain his address. 9. That however, the said claim was no....
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....nd liabilities, so also entitled to own property in its name, it is said that it is the petitioner company which is aggrieved by attachment of its property and merely because some proceedings are initiated against the shareholders of the company like Shri Deepak Talwar or Aditya Talwar, the same cannot come in the way of the company ventilating their grievance and exercising their constitutional right to protect their property. 8. Placing reliance on a judgment of the Supreme Court in the case of Electronics Corporation of India Ltd. & Ors. v. Secretary, Revenue Department, Govt. of Andhra Pradesh & Ors., (1999) 4 SCC 458, it is said that a clear distinction must be drawn between the company and its shareholder even though the shareholder may be a different person in the eyes of law, a company registered under the Companies Act is a distinct entity other than the legal entity or entities that hold the shares. Referring to paras 15, 16, 17, 18 and 19 of the aforesaid judgment, learned counsel argues that in this case the objection of the respondents with reference to the conduct of the shareholders cannot be a ground for dismissing the petition by upholding the preliminary object....
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....t, it is stated that earlier Mr. Deepak Talwar had filed a habeas corpus petition which was withdrawn on 04.04.2019. It is further said that Smt. Deepa Talwar, wife of Mr. Deepak Talwar has been granted interim protection by way of anticipatory bail in the subjected case by the designated court itself and a copy of the same is filed as 'Annexure P11'. As far as Mr. Aditya Talwar s/o Mr. Deepak Talwar is concerned, that pursuant to his being summoned under Section 50 of the PMLA he has also invoked the jurisdiction of this Court under Section 482 Cr.P.C. and the proceedings are pending before this Court. Accordingly, it is said that as far as the allegations with regard to Mr. Aditya Talwar absconding and not co-operating in the investigation process is concerned, it is stated that they are not correct. He has already invoked the legal remedies available to him and that apart, once the right of the petitioner company is taken away in an illegal manner, the company can always invoke the jurisdiction of this Court. 10. Shri Tushar Mehta, learned Solicitor General during the course of hearing in support of his contention invited our attention to a judgment of the Hon'ble Supreme Cou....
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.... vehement submission made in support thereof at the time of hearing. 12. Even though this petition is by the petitioner M/s. Wave Hospitality Pvt. Ltd. and the law laid down by the Supreme Court in the cases referred to by Shri Vikram Chaudhary, learned Senior Counsel, it is clearly laid down that there has to be a clear distinction between a company and its shareholders, a company registered under the Companies Act is a legal person, separate and distinct from its individual members. We cannot lose sight of the fact that with regard to applicability of this principle, an exception in the form of applying the theory of lifting of the veil can be invoked and there are catena of judgments which hold that the principle of lifting of the veil theory can be applied. This concept has been discussed in para 24 of the judgment rendered by the Division Bench of this Court in Digital Radio (Mumbai) Broadcasting Ltd. & Anr. (supra) and in para 24 the observations made have already been reproduced above. 13. It is clear from the aforesaid that even though the theory of a company or a corporate entity being a separate juristic legal person different from its shareholders has been approved....
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....regard to exercise of discretionary jurisdiction or inherent jurisdiction in such matters are considered, we are of the considered view that the exercise of discretion in the matter of issuing a writ or matter of granting equitable relief is a remedy in equity and we can always refuse to exercise our jurisdiction in case we find that the conduct of the parties or persons invoking jurisdiction of this Court are not genuine or bona fide, possibilities of misusing the process of law cannot be ruled out and when the action taken itself is subjected to efficacious procedural safeguard under the statute itself by way of efficacious alternate remedy, this Court can always refuse to exercise its discretionary jurisdiction. 14. In our considered view, if we take note of the preliminary objections raised by the respondents and we apply them in the peculiar facts and circumstances of this case, we have to hold that it is not an appropriate case where the discretion, extraordinary in nature available to this Court should be exercised in favour of persons against whom there are serious allegations of money laundering and who are prima facie found to be not co-operating in the matter of inves....