PMLA Section 5: Kerala High Court Mandates Exhaustion of Statutory Remedies Before Writ Challenge to Provisional Attachment - 2025-05-20

Kerala High Court Dismisses Writs Against ED's PMLA Action, Emphasizes Exhaustion of Statutory Remedies

Ernakulam, Kerala – May 9, 2025: The Hon'ble Mr. Justice K. Babu of the Kerala High Court today dismissed a batch of writ petitions challenging actions taken by the Directorate of Enforcement (ED) under the Prevention of Money Laundering Act, 2002 (PMLA), including a provisional attachment order. The Court firmly held that the petitions were not maintainable, underscoring the principle of exhausting available statutory remedies before approaching the High Court under its writ jurisdiction.

The petitions were filed by Mohan Rao (former CEO of Vipul Shipyard Pvt. Ltd.), Dinesh Parshuram Amin (partner), Vipul Shipyard Pvt. Ltd. (VSPL), and Vipul Shipping Engineering Works, challenging the ED's proceedings in ECIR/KCZO/04/2021, particularly the Provisional Attachment Order No. 14 of 2024 dated May 10, 2024, which attached properties worth Rs. 12,20,48,611.

Case Background: From Barge Construction Dispute to PMLA Probe

The case originates from alleged irregularities in a contract for the construction of six landing barges for the Union Territory of Lakshadweep Administration (UTLA), awarded to M/s Vipul Shipyard Pvt. Ltd. (VSPL). A CBI investigation (PE No.2/2014) into alleged criminal negligence, malpractices, and corruption by officials of Lakshadweep Administration , Shipping Corporation of India Limited (SCIL), and VSPL led to an FIR alleging offences under Sections 120B, 420, and 471 of the IPC, and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

The CBI's final report accused Mohan Rao and Vipul Amin of conspiracy to cheat UTLA by fraudulently obtaining the contract for VSPL (Goa), which was allegedly not eligible, and by failing to renew Bank Guarantees, causing a wrongful loss of Rs. 12,20,60,000/-.

Based on these predicate offences, the ED recorded an Enforcement Case Information Report (ECIR/KCZO/04/2021) and initiated an investigation under the PMLA. The ED alleged that the accused derived proceeds of crime in the form of immovable and movable properties, leading to the provisional attachment of assets valued at Rs. 12,20,48,611 under Section 5 of the PMLA.

Arguments Before the Court

The petitioners, represented by Adv. Paul Jacob (P), raised several grounds: 1. The ED was illegally prosecuting a civil/commercial claim. 2. The writ petitions were maintainable under Article 226 of the Constitution. 3. Proceedings under PMLA could not continue as the predicate offences were stayed by the High Court (Ext.P10). 4. The ED failed to comply with safeguards under Section 5(5) of the PMLA. 5. The alleged predicate offences occurred in 2007, and thus could not be prosecuted under the Act.

The Directorate of Enforcement, represented by Adv. Jaishankar V. Nair , countered that: 1. The writ petitions were not maintainable as petitioners had not invoked statutory remedies under PMLA. 2. The stay of scheduled offences was inconsequential for PMLA proceedings. 3. The period of PMLA violation commenced in 2007 and extended through 2010.

Court's Reasoning: PMLA a Self-Contained Code with Efficacious Remedies

Justice K. Babu , in his judgment, extensively detailed the procedural framework of the PMLA, particularly Chapter III dealing with attachment, adjudication, and confiscation. The Court noted:

> "The order passed under Section 5(1) of the Act is only provisional in nature. The life of the provisional attachment order is only for 180 days subject to confirmation by an independent Adjudicating Authority."

The Court emphasized the step-by-step process: * The officer passing the provisional attachment order must forward it to the Adjudicating Authority (Sec 5(2)). * A complaint must be filed before the Adjudicating Authority within 30 days (Sec 5(5)). * The Adjudicating Authority issues a show-cause notice, considers the reply, hears parties, and then decides whether the properties are involved in money-laundering (Sec 8(1) & 8(2)). * The Adjudicating Authority's order is appealable to the Appellate Tribunal (Sec 26(1)), and further to the High Court (Sec 42).

Citing the Supreme Court in Vijay Madanlal Choudhary v. Union of India [(2023) 12 SCC 1] , the High Court reiterated that Section 5 of the PMLA "provides for a balancing arrangement to secure the interest of the person as well as to ensure that the proceeds of crime remain available."

The Court then applied the principles governing the exercise of writ jurisdiction when alternative remedies exist, referring to Radha Krishan Industries v. State of H.P. [(2021) 6 SCC 771] :

> "When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion."

The Court found that none of the exceptions to the rule of alternative remedy (e.g., violation of natural justice, order wholly without jurisdiction) were applicable.

Addressing the petitioners' specific arguments:

* Stay on Predicate Offence: The Court observed that Ext.P10 order only deferred the framing of charges in the predicate offence case and did not affect the existence of the scheduled offence itself, thus being "inconsequential for the proceedings under the Act."

* Non-compliance with Sec 5(5) PMLA & Timing of Offences: These were deemed "disputed questions of fact" that the High Court could not decide under writ jurisdiction and were matters for the statutory authority to consider.

Decision and Implications

Concluding that the PMLA provides a self-contained code with an efficacious system of remedies, the Court held the writ petitions to be not maintainable.

> "In the light of the above discussion, I am of the considered view that the objection raised by the respondents on the maintainability of the writ petitions is to be upheld. Therefore, the writ petitions are held to be not maintainable based on the rule of exhaustion of statutory remedies."

The Court dismissed the writ petitions, granting liberty to the petitioners to challenge the impugned provisional attachment order before the statutory authorities under the PMLA. This judgment reinforces the judiciary's deference to specialized statutory mechanisms for adjudication, particularly in complex fiscal and criminal statutes like the PMLA.