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2014 Supreme(Bom) 1195

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. VAZIFDAR & A.K. MENON, JJ.
Brizo Reality Company Pvt. Ltd. – Petitioner
Versus
Aditya Birla Finance Ltd. – Respondents
Writ Petition (L) No. 1575 of 2014
Decided on : 20.6.2014

Advocates appeared:
Mr. Manoj Singh with Mr. Vijay Singh and Mr. Vinay Bhanushali for the Petitioner.
Ms. Benedicta Lobo i/b M/s. Katariya & Associates for Respondent No. 1.
Ms. Purnima Kantharia with Mr. M.S. Bhardwaj for Respondent Nos. 2 and 3.
Mr. Sanjay Kinjwadekar, Assistant Director, Enforcement Directorate, Mumbai for Respondent No. 2 present.

Headnote:Prevention of Money Laundering Act, 2002 - Sections 3, 5(5) and 8 Notice under Section 8. Since complaint under Section 5 of Act itself contains reasons to believe for serving show cause notice hence notice under Section 8 of Act proper. Show-cause notice was served upon the petitioner on its name as the said property is reflected in the complaint and attachment order. The final order on the show-cause notice will determine the rights in the property qua the various persons concerned, including Aastha, the said Mohit Agarwal and the petitioner. The hearing on the show cause notice has proceeded. The petitioner has been heard. There is, any event, no warrant for exercising our extraordinary jurisdiction in setting aside the attachment order before the final orders which are due to be passed shortly.

       In the circumstances, Court is not inclined to exercise extra-ordinary jurisdiction to quash the show-cause notice or the provisional attachment order on the ground that show-cause notice itself does not set out the reasons. In the circumstances, the writ petition is disposed of.

       

JUDGMENT

S.J. VAZIFDAR, J.

1. The Petitioner seeks a writ to quash an order of provisional attachment dated 31.01.2014, passed by Respondent No.2 - Directorate of Enforcement, of its property, a show cause notice dated 29.04.2014 issued by Respondent No.3 – Adjudicating Authority constituted under Money Laundering Act, 2002 and a public notice dated 26.11.2013, issued by Respondent No.4 – Senior Inspector of Police, Economic Offence Wing. Alternatively, the Petitioner seeks to have the said order and notices quashed upon it creating a charge in favour of this court over the said premises (No.1102, Peninsula Business Park, Lower Parel, Bombay 400 013) over and above the charge of Respondent No.1 and to the extent of Rs.6.5 crores. The alternative relief cannot even be considered as Respondent No.1 is not agreeable to the same.

2. The main contention is that the show cause notice dated 29.04.2014, issued to the Petitioner does not contain any reason for the Adjudicating Authority to believe that the petitioner has committed an offence under section 3 or is in possession of proceeds of crime as required by section 8 of The Prevention of Money Laundering Act, 2002. Section 8 reads as under:

“Section 8 : Adjudication—

(1) On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (4) of section 17 or under sub-section (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an [offence under section 3 or is in possession of proceeds of crime], he may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5, or, seized under section 17 or section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government: Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person: Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property.

(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 referred to in the notice issued under sub-section (1) Are involved in money-laundering: Provided that if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money-laundering.

(3) Where the Adjudicating Authority decides under subsection (2) that any property is involved in money laundering, he shall, by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or record seized under section 17 or section 18 and record a finding to that effect, such attachment or retention of the seized property or record shall—

(a) Continue during the pendency of the proceedings relating to any scheduled offence before a court;

(b) Become final after the guilt of the person is proved in the trial court and order of such trial court becomes final.

(4) Where the provisional order of attachment made under sub-section (1) of section 5 has been confirmed under sub-section (3), the Director or any other officer authorized by him in this behalf shall forthwith take the possession of the







































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