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2021 Supreme(Online)(ATFP) 5
APPELLATE TRIBUNAL FOR SAFEMA, FERA, PMLA, NDPS & PBPT ACT AT NEW DELHI Date of Decision :- 01.01.2021 MP-PMLA-6636/KOL/2019 (Stay)
FPA-PMLA-3332/KOL/2019 Enforcement Directorate, Kolkata Through Assistant Director … Appellant/Applicant Versus M/s. Shree Ganesh Jewellery House(I) Ltd. … Respondent no. 1 Sh. Nilesh Parekh … Respondent no. 2 M/s Nischay Jewels … Respondent no. 3 M/s Sumit Jewels … Respondent no.4 M/s Liberson Dealcomm Pvt. Ltd. … Respondent no. 5 M/s Dhanteras Estates Pvt. Ltd. … Respondent no. 6 M/s Kalinadi Enclave Pvt. Ltd. … Respondent no. 7 M/s K R Associates … Respondent no. 8 M/s Swastik Wheat Product … Respondent no. 9 (Agencies ) Pvt. Ltd.
M/s Safal Properties … Respondent no. 10 Smt. Ratna Parekh … Respondent no. 11 Shri Karan Parekh … Respondent no. 12 Shri Umesh Parekh … Respondent no. 13 Shri Kamlesh Parekh … Respondent no. 14 Corporation Bank … Respondent no.15 Axis Bank Ltd., … Respondent no.16 Stressed Asset Group (East)
M/s Bata India Ltd. … Respondent no. 17 M/s Jhonson & Jhonson Pvt. Ltd. … Respondent no. 18 M/s Aero Club … Respondent no. 19 M/s Ambuja Reality … Respondent no. 20 Shri Anup Kumar Singh, … Respondent no. 21 Insolvency Professional Advocates/Authorized Representatives who appeared For the Appellant (ED) : Mr. N.K. Matta, Advocate Mr. Akshay Sinha, I.O.
For the Respondent No(s).01 & 21 : Ms. Pratiksha Sharma, Adv Mr. Ankit Acharya, Adv.
For the Respondent No(s).02 & 4-12 : Mr. S.A. Saud, Adv.
For the Respondent No(s).03 & 13 : None For the Respondent No.14 : Mr. Arun Kumar Agarwal, Adv For the Respondent No.15 : Mr. Alok Kumar, Adv.
For the Respondent No.17 : Mr. Neeraj Grover, Adv.
For the Respondent No.19 : Ms. Poonam Lau, Adv.
For the Respondent No(s).16,18 &20: None CORAM SHRI G. C. MISHRA : ACTING CHAIRMAN
JUDGMENT
FPA-PMLA-3332/KOL/2019
That the Hon‟ble High Court of Calcutta in the matter of FMAT 343 of 2020 filed by Nilesh Parrekh (Respondent no. 2 herein) passed the following order on 18.08.2020:-
“The point involved in this appeal is very short. Hence we have taken up the appeal for hearing dispensing with all formalities.
Mr. Sarkar, learned senior advocate appearing for the appellant, contends that the point of maintainability which goes to the root of the appeal, had not been considered by the tribunal while passing orders from time to time directing status quo of the properties of the appellant and extending the same.
The maintainability point is that the appellant, Deputy Director, ED, Kolkata, had no power to file the appeal before the appellate tribunal in question. He submits that his point had been raised but not dealt with in the said interim orders.
We have heard Mr. Banerjee for the Ed, who apprised us of the gravity of the issues involved in this appeal. We have also learnt that because of the situation created by the COVID-19 virus, the appeal, although ready for hearing, could not be taken up.
However, we have been shown an order of the tribunal dated 1st July 2020 made during this period, which satisfies us that the tribunal is functional.
The interim order made on 21st February 2020 records that the appeal would be taken up on 13th July 2020.
We think the interest of justice would be sub-served if we direct the Tribunal to hear out the appeal as expeditiously as possible, preferably with three months from the date by video link or any other mode. We order accordingly.
The maintainability point shall be formally raised by the appellant by filing a supplementary affidavit before the tribunal by 7th September 2020, serving copies thereof on the respondents. The tribunal shall decide the point of maintainability as a preliminary issue.
There cannot be indefinite continuance of the interim order. It is extended only till 31st December 2020 by which time the appeal should be disposed of by the tribunal.
With the above directions, the appeal (FMAT No. 343 of 2020) and the connected application (CAN No. 2691 of 2020 ) are disposed of.”
The copy of the aforesaid order was received in this Tribunal through e-mail from the respondent on 01.09.2020 and the appeal was pre-poned to 17.09.2020 through physical hearing by cancelling the date 12.11.2020 already fixed then. In the order of Hon‟ble High Court their lordships have directed to this tribunal to hear the maintainability of the appeal as a preliminary issue. In the said order their lordships have also asked the appellant to formally raise the point of maintainability before this Tribunal by filing a supplementary affidavit by 07.09.2020, serving copies thereof on the respondents.
That, on 07.09.2020, Shri Syed Ahmed Saud (S.A. Saud), ld. counsel for the respondent no. 2 (Sh. Nilesh Parekh) has filed an index with a petition dated 03.09.2020 on 07.09.2020 signed by Shri Nilesh Parekh (Respondent no. 2) under the heading the supplementary affidavit but without sworn affidavit and also the signature of Shri Nilesh Parekh was not identified. The same defect was pointed out to the ld. counsel for the respondent no. 2 by the Tribunal and the same was cured by filing sworn affidavit dated 03.09.2020 in the Tribunal on 08.12.2020.
During this period, Sh. S.A. Saud, ld. counsel who is also appearing for respondent no. 5 filed miscellaneous application on 12.10.2020 with a prayer to allow the respondent no. 5 to repair the attached flats which are damaged during „Amphan‟ cyclone. Reply to the said application was filed on 26.11.2020 and the application was heard and decided on 08.12.2020.
There are 21 respondents in the present appeal. Beside Mr. Nilesh Parekh (Respondent no. 2), the respondent no. 14 has also raised the issue of maintainability of the appeal. The respondent no. 2 & 14 made their submissions on the issue of maintainability of the appeal on 08.12.2020. The arguments on main
