Back
2021 Supreme(Del) 2417
IN THE HIGH COURT OF DELHI
Yashwant Varma, J.
Nitin Jain Liquidator PSL Limited - Appellant
Versus
Enforcement Directorate - Respondent
W.P.(C) 3261 of 2021, CM Appls. 32220 of 2021, 41811 of 2021, 43360 of 2021 and 43380 of 2021
Decided On : 15-12-2021
Subject
Corporate Law - Insolvency and Bankruptcy
Act Referred
CONSTITUTION OF INDIA: Art.226
CRIMINAL PROCEDURE CODE: S.173
INSOLVENCY AND BANKRUPTCY CODE: S.5, S.7, S.9, S.10, S.14, S.17, S.18, S.25, S.29, S.30, S.31, S.32-a, S.33, S.35, S.36, S.53, S.58-b, S.60, S.238
PREVENTION OF MONEY LAUNDERING ACT: S.2, S.3, S.4, S.5, S.6, S.8, S.9, S.17, S.18, S.24, S.25, S.42, S.58-b, S.60, S.71
Headnote
(B) Division of roles under IBC and PMLA - Clear separation of purposes; IBC aims for timely resolution and asset maximization, while PMLA focuses on criminality and asset confiscation based on proceeds of crime - The Legislature aims to protect bona fide resolution applicants from past liabilities. (Paras 3, 60, 89)
| Table of Content |
|---|
| 1. jurisdiction of authorities under pmla and ibc. (Para 1 , 2 , 3) |
| 2. petitioner's arguments regarding section 32a's applicability. (Para 10 , 11 , 12) |
| 3. respondent's standpoint on criminal liability and attachment. (Para 13 , 14 , 15) |
| 4. court's analysis of section 32a and pmla interactions. (Para 40 , 41 , 42 , 43) |
| 5. final verdict allowing ongoing liquidation process. (Para 101 , 102) |
JUDGMENT
For the purposes of convenience and ease of reference, this judgment is being divided into the following Sections detailed below:
| PART | TABLE OF CONTENTS | PARAGRAPH NOS. |
| A | PREFACE | 1-3 |
| B | THE BACKGROUND | 4-9 |
| C | PETITIONER`S CONTENTIONS | 10-12 |
| D | SUBMISSIONS OF THE RESPONDENT DIRECTORATE | 13-21 |
| E | THE PRELIMINARY OBJECTION | 22-26 |
| F | SUBMISSIONS OF THE SECURED CREDITORS | 27-32 |
| G | SUBMISSIONS OF LUCKY HOLDINGS | 33-34 |
| H | SCHEME OF THE IBC | 35-39 |
| I | SECTION 32A AND THE LEGISLATIVE INTENT | 40-51 |
| J | LIQUIDATION UNDER THE IBC | 52-61 |
| K | STATUTORY PROVISIONS UNDER PMLA | 62-72 |
| L | ISSUE OF PRIMACY | 73-88 |
| M | THE RESOLUTION AND LIQUIDATION CAUSEWAYS | 89-94 |
| N | SECTION 32A AND THE DEFINING MOMENT | 95-98 |
| O | ANCILLARY ISSUES | 99-100 |
| P | SUMMATION | 101 |
| Q | OPERATIVE DIRECTIONS | 102 |
A. PREFACE
1. The principal question which falls for determination in this writ petition is whether the authorities under the Prevention of Money Laundering Act, 2002 [PMLA], would retain the jurisdiction or authority to proceed against the properties of a corporate debtor once a liquidation measure has come to be approved in accordance with the provisions made in the Insolvency and Bankruptcy Code, 2016 [IBC]. The Petitioner is the Liquidator appointed by the National Company Law Tribunal [NCLT] [the Adjudicating Authority under the IBC] to administer the affairs and the estate of M/S PSL Ltd. [Corporate Debtor] The petition has been preferred seeking the following reliefs:-
"1) Allow the present petition;
2) Issue a Writ of Mandamus of any other appropriate Writ, restraining the Respondent from giving directions to the Liquidator for stopping E-Auction Process and not to take any coercive steps against the Petitioner for performing his duties under the Code, and/or;
3) Allowing the Liquidator to conduct the process of Liquidation, including the e-auction of assets of the corporate debtor as per the Code and/or;
4) Issue a writ of Mandamus or any other appropriate Writ restraining the Respondent from passing any attachment Orders in respect of assets of the corporate debtor and/or;
5) Pass any other order(s) may kindly be passed, which this Hon`ble Court deems fit and proper, towards the ends of equity, justice and good conscience."
2. It appears that the Liquidator was compelled to approach this Court upon a receipt of summons issued by the respondent who was investigating the affairs of the corporate debtor under the provisions of the PMLA. When the petition initially came up for consideration before the Court on 17 March 2021, a learned Judge upon hearing counsels for respective parties proceeded to pass the following order:-
"CM APPL. 9943/2021 (for exemption)
1. Allowed, subject to all just exceptions. Application is disposed of.
WP(C) 3261/2021
2. The present petition has been preferred by the Petitioner, who has been appointed as the Liquidator of M/s PSL Limited/Corporate Debtor (hereinafter, `Corporate Debtor').
3. The Petitioner was initially appointed as the Resolution Professional on 30th August, 2019. After the Committee of Creditors proposed a Liquidator, vide order dated 11th September, 2020, the NCLT passed orders directing liquidation of the Corporate Debtor. The process of liquidation was under way when the Petitioner received summons dated 15th January 2021, issued by the Directorate of Enforcement (hereinafter, `ED'). The said summons was, thereafter, followed up by an email dated 25th January, 2021, by which the Assistant Director (PMLA), Delhi Zonal Office, called upon the Petitioner not to dispose of the assets of the said company. The said email reads as under:
"Kind Attention to:Mr. Nitin Jain, Official Liquidator of M/s. PSL Limited. It i
