2023 (4) TMI 1306

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....ng Act, 2002 (hereinafter referred to as 'PMLA Act'). 3. Pursuant to the Provisional Attachment Order dated 02.09.2019, Original Complaint No.1201/2019 was filed by the Directorate of Enforcement on 26.09.2019. The Appellant/Bank approached this Court by filing W.P.(C) 10048/2019 challenging the Provisional Attachment Order dated 02.09.2019 seeking the following relief:- "(a) Issue an appropriate writ, order or direction, more particularly a writ of Certiorari thereby setting aside/quashing the Impugned Order dated 02.09.2019 passed by Deputy Director, Enforcement of Directorate, DLZO-II, New Delhi in Provisional Attachment Order No.12/2019;" 4. This Court vide Order dated 13.01.2020 in W.P.(C) 10048/2019 stayed the proceedings of the adjudicating authority qua the Appellant herein observing as under:- "...In the meantime, there shall be a stay on further proceedings before the Adjudicating Authority qua the petitioner and the properties claimed to have been mortgaged to the petitioner." 5. The Adjudicating Authority confirmed the PAO by an order dated 21.02.2020. Since the proceedings qua the Appellant herein was stayed by this Court, the Adjudicating Authority obse....

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....d, shall be considered and adjudicated in accordance with law. (iv) The Respondent No.1- The Directorate of Enforcement shall take the necessary steps post the passing of the PAO qua the Petitioner. (v) The time spent, in the writ petition i.e. from 17th September, 2019 till today shall stand excluded for the purposes of calculating the limitation of 180 days under Sections 5 & 8 of the PMLA Act, 2002." 8. The Appellant/bank, thereafter, approached this Court by filing the instant LPA challenging the Impugned Order dated 22.03.2023 passed by the learned Single Judge in W.P.(C) 10048/2019. 9. Learned Counsel appearing for the Appellant/bank submits that the subject property was mortgaged to the bank even prior to the transactions entered into by the owners of the subject property and, therefore, the property could not have been termed as proceeds of crime. It is submitted on behalf of the Appellant/bank that the Provisional Attachment Order (PAO) No.12/2019 dated 02.09.2019 in ECIR NO.ECIR/O5/DLZO-II/2018 has been passed by the Deputy Director, Directorate of Enforcement in a mechanical manner without appreciating that facts of the case in the correct perspective. He submit....

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....onfirmed by the Adjudicating Authority by its Order dated 21.02.2020 passed under the PMLA Act in respect of the properties as stated in the PAO Order dated 02.09.2019 except for the subject property, as the attachment of the subject property was stayed by the learned Single Judge vide Order dated 13.01.2020. 14. The Appellant approached this Court praying for a relief that the Appellant/bank ought to be permitted to sell the subject property. The subject property has been sold by the Appellant/Bank and the proceeds of the sale are lying with the Appellant/Bank. The learned Single Judge vide the Impugned Order has directed the Appellant/Bank to approach the Adjudicating Authority under Section 8(2) first proviso of the PMLA Act, 2002. Sections 8(2) and 8(8) of the PMLA Act, 2002 read as under: "8(2) The Adjudicating Authority shall, after- (a) considering the reply, if any, to the notice issued under sub-section (1); (b) hearing the aggrieved person and the Director or any other officer authorised by him in this behalf; and (c) taking into account all relevant materials placed on record before him, by an order, record a, finding whether all or any of the properties refer....

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....e exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of th....