IN THE NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH, COURT NO. V IA/2041/2021 IN CP No. 1168/(IB)-MB-V/2020 Under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 Piyush Kisanlal Jani ……..Applicant/Resolution Professional V/s Directorate of Enforcement ………Respondent In the matter of Mangalam Vanijya Private Limited Office No. 14, 1st Floor, Plumber House, 557, J.

S. S. Road, Chira Bazar, Mumbai - 400002 … Petitioner/Financial Creditor V/s Reward Business Solutions Private Limited Caculo Enclave St. Inez Panaji Goa -403001.

… Respondent/Corporate Debtor Order Pronounced on: 18.12.2023 Coram:

Hon’ble Reeta Kohli, Member (Judicial)

Hon’ble Sanjiv Dutt, Member (Technical)

Appearances through Hybrid Mode:

For the Applicant/Resolution Professional: Adv. Neha Bhide (Physical Mode)

For the Respondent: Adv. Ashish Kamat (Video Conference

ORDER

Per: Reeta Kohli Member (Judicial)

Brief Facts of the case

1. The Applicant in this case was appointed as the Resolution Professional of the Corporate Debtor at the meeting of the Committee of Creditors held on 28.04.2021. This Application is filed by the Applicant Resolution Professional with the prayer of getting two assets of the Corporate Debtor, namely Current Account bearing Bank Account Number 3179xxxxxxxx309 maintained with Union Bank of India, Fort Branch and Property situated at Unit Nos. 801 and 802, Tower B, Peninsula Business Park, Lower Parel, Mumbai, released from Provisional Attachment by the Enforcement Directorate (ED). The abovementioned assets were provisionally attached by the ED under section 5(1) of Prevention of Money Laundering Act, 2002 (PMLA 2002)

on 27.11.2020 vide Provisional Attachment Order No. 15/2020.

2. The contention of the Counsel for the Applicant/Resolution Professional is that as per section 5(3) of PMLA 2002, the provisional attachment stands valid until the expiry of 180 days from the date of the order or till it is confirmed [under Section 8(3)] by the ED, whichever is earlier. In the instant case, the said 180 days had lapsed on 26.05.2021 and the provisional attachment was never confirmed by the ED. Therefore, it is argued that ED had become functus officio vis a vis the said properties of the Corporate Debtor.

The Counsel representing the Applicant/Resolution Professional submitted that in view of the fact that no Attachment Order under Section 8(3) of PMLA, 2002 had been issued so far by the ED, therefore, on expiry of 180 days from the date of Provisional Attachment Order, the order had become non-existent. It is contended that the asset has already stood released on account of failure of ED to confirm the provisional attachment within the statutory time limit of 180 days as expressly and clearly mentioned in Section 5(3) of the PMLA, 2002. The Counsel further submitted that the indulgence of extension of time granted by the Hon’ble Supreme Court in view of Covid 19 is not available to ED. To substantiate this argument, reference was made to the case of Hiren Panchal and Anr. Vs. Union of India and Ors [WPA 9699 of 2022] wherein the Hon’ble Supreme Court has held that extension of time limit on account of the Covid 19 Pandemic will not extend the statutory time limit of 180 days available to the ED under the PMLA, 2002 to confirm an order of provisional attachment.

3. On the other hand, the Counsel for the ED has vehemently argued that National Company Law Tribunal (NCLT) lacks the jurisdiction to entertain this Application. The Counsel submitted that PMLA 2002 being a Special and Central Act would supersede IBC, 2016. The Counsel further submitted that ED has already approached the Hon’ble Delhi High Court for relaxing the statutory time limit of 180 days as the order of provisional attachment could not be confirmed within the said period of 180 days on account of Covid 19 pandemic. The said subject matter is thus said to be subjudice before the Hon’ble High Court. Hence, in view of this fact also, the Hon’ble NCLT ought not to grant any indulgence in the p