TaxTMI 
TaxTMI 
TaxTMI 
2020 (6) TMI 283
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....judicate upon the issues sought to be raised before it through the applications filed by the first respondent before us, the factual matrix to the least extent possible are to be placed. 2.2. The Central Bureau of Investigation, BS & FC, Bangalore, has registered three criminal cases in FIRs vide RC.No.4(E)/2016/CBI/BS & FC/BLR dated 01.02.2016, RC No.04/2017 dated 03.02.2017 and RC No.14/2018 dated 16.07.2018 against M/s Best and Crompton Engineering Project Ltd., and their officials for the offences punishable under Sections 420, 468 and 471 of Indian Penal Code, 1960, among other offences on a complaint given by the Consortium of Banks lead by the Central Bank of India. 2.3. The crux of the complaint is that the officials of the said concern along with others hatched a criminal conspiracy at Chennai and Hyderabad during the period from 2010 to 2013 with the object of defrauding the consortium of the bankers lead by the Central Bank of India. In furtherance of the said conspiracy, Central Bank of India was made to submit a fraudulent Letter of Credit and the amount sanctioned was diverted for some other purpose other than the one sanctioned. Based upon the charge sheet laid, a ....
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...., invoking Section 7 of the Insolvency & Bankruptcy Code, 2016(hereinafter referred to as "the IBC"). The third respondent was appointed as the interim Resolution Professional, which was later confirmed as a Resolution Professional. The resolution plan was approved in terms of Section 36 of the IBC. 2.9. Upon knowing the order of attachment made by the petitioner professionally on 26.03.2019, the Resolution Professional filed an application in Application No.286 of 2019 while another one was filed by the financial creditor in I. A.No.413 of 2019, who have been arrayed as respondents 3 and 1 in this writ petition respectively. Another Application has also been filed by the Corporate Debtor seeking to implead the petitioner as the respondent in I.A.No.287 of 2019, which is filed to raise the attachment. Consequent upon the order passed in the impugned applications, this application was also allowed. 2.10. Before the Tribunal, respondents 1 and 3 contended that it has got jurisdiction to go into the said issue under Section 65 of the IBC. The property attached has not been purchased from the proceedings of the crime. It has been purchased much prior to that. There is an embargo unde....
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.... Submissions of the Respondent: 4. The learned Senior Counsel appearing for respondents 1 and 3 submitted that the Tribunal was also dealing with the disbursement of the public money. The petitioner ought not to have initiated and proceeded further in view of moratorium available under Section 14 of the IBC. Section 65 read with Section 63 of the IBC gives sufficient power to the Tribunal. The Tribunal has passed a reasoned order. The impleadment of the petitioner has not been challenged. The petitioner is not a creditor. The professional attachment order would come within the purview of the civil proceeding. In any case, the matter can be adjudicated before the appellate forum. Therefore, the discretionary power available under Article 226 of the Constitution of India is not required to be exercised. The learned Senior Counsels on their part placed reliance on the following decisions. 1. Punjab National Bank v. Deputy Director, Directorate of Enforcement (2019 SCC Online ATPMLA 5); 2. Alchemist Asset Reconstruction Company Limited v. Hotel Gaudavan Private Limited and others ((2018) 16 Supreme Court Cases 94); and 3. Solidaire India Limited v. Fairgrowth Financial Services....
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....r a proceeding under the PMLA. 9. Section 32-A of the IBC deals with the liability for prior offences. This provision would get attracted in a case where the resolution plan has been approved by the Adjudicating Authority under Section 31 of the IBC. Therefore, when no such approval has taken place, the Adjudicating Authority will not have any power or authority to exercise the power under Section 32-A of the IBC. We may note, this insertion by way of an amendment came into being with effect from 28.12.2019 onwards. 10. Section 60 of the IBC comes under Chapter VI. Chapter VI of the IBC deals with the Adjudicating Authority for corporate persons. Section 65 of the IBC gives jurisdiction to the Tribunal to entertain and dispose of any application on proceeding by or against the Corporate Debtor. Even this proceeding would not apply to a statutory Authority in another enactment and that too, a special one. As observed, the scope of enquiry under PMLA is rather wide and comprehensive. 11. Section 63 prohibits a Civil Court from having jurisdiction over which the National Company Law Tribunal exercises. In the case on hand, we are not either dealing with the Civil Court or an author....
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....n Judicial Accountability vs. Union of India, 24 flows from the concept of a higher law, namely the Constitution. Paragraph 61 of the said decision captures this position as follows: "But where, as in this country and unlike in England, there is a written Constitution which constitutes the fundamental and in that sense a "higher law" and acts as a limitation upon the legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited government'. Judicial review is, indeed, an incident of and flows from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under the Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. It 24 (1991) 4 SCC 699 is to be noted that the British Parliament with the Crown is supreme and its powers are unlimited and courts have no power of judicial review of legislation." 29. The NCLT is not even a Civil Court, which has j....
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....crime under PMLA is in the nature of civil sanction which runs parallel to investigation and criminal action vis-a-vis the offence of money-laundering. ** ** ** (vi) The objective of PMLA being distinct from the purpose of RDBA, SARFAESI Act and Insolvency Code, the latter three legislations do not prevail over the former. ** ** ** (viii) The PMLA, RDBA, SARFAESI Act and Insolvency Code (or such other laws) must co-exist, each to be construed and enforced in harmony, without one being in derogation of the other with regard to the assets respecting which there is material available to show the same to have been "derived or obtained" as a result of "criminal activity relating to a scheduled offence" and consequently being "proceeds of crime", within the mischief of PMLA. ** ** ** (xii) An order of attachment under PMLA is not illegal only because a secured creditor has a prior secured interest (charge) in the property, within the meaning of the expressions used in RDBA and SARFAESI Act. Similarly, mere issuance of an order of attachment under PMLA does not ipso facto render illegal a prior charge or encumbrance of a secured creditor, the claim of the latter for release (or r....