Full Text
HIGH COURT OF DELHI
Date of Decision: 16th February, 2023
PRPL ENTERPRISES PVT LTD( FORMERLY KNOWN AS PIRAMAL REALTY PVT LTD) ..... Petitioner
Through: Mr. Vijay Aggarwal, Advocate along with Mr. Pankush Goyal and Mr. Anuj Kapoor Advocates (M:
8800192008).
Through: Mr. Anurag Ahluwalia CGSC for ED (M: 9811418995).
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present petition is connected with Writ Petition Civil 11473/2022 titled ‘Omkar Realtors and Developers Private Limited v. Adjudicating Authority, Prevention of Money Laundering through its Registrar and Ors.’ The Petitioner is aggrieved by the impugned Provisional Attachment Order dated 14th January, 2022 i.e., PAO No. 1/2022 by which one of the properties which was mortgaged with the Petitioner was attached/seized by the Directorate of Enforcement (ED) under Section 5 of the Prevention of Money Laundering Act (hereinafter ‘PMLA’). The basis of the PAO is FIR No. 109/2020 dated 7th March, 2020 registered with City Chowk Police Station Aurangabad invoking Sections 420, 406 and 34 of the Indian Penal Code, 1860. The details of the properties attached in the impugned PAO are set out below:- 6.[2] Ms. Loveleen Behera, Vice President, Yes Bank Ltd. during her statement recorded on 01.09.2021 under the provisions of Section 50 of PMLA, has interalia stated that during the year 2015, the then saleable area of Omkar 1973 Project was mortgaged with Yes Bank Ltd. and M/s Piramal Realty Pvt. Ltd; that in the year 2016, M/s Surana Developers (Wadala) LLP, a company of M/s ORDPL, approached the Yes Bank Ltd. for an additional loan of Rs. 410 crores for Anand Nagar SRA CHS Scheme; that Yes Bank Ltd. disbursed an amount of Rs. 410 crores and against the said loan, a saleable area of 3.[5] lakhs sq ft. to be loaded in Omkar 1973 project, Worli, was mortgaged with the Yes Bank Ltd and therefore, the specific saleable area of 3.[5] lakhs sq ft. of M/s Surana Developers (Wadala) LLP for Anand Nagar SRA CHS Scheme was mortgaged only with the Yes Bank Ltd. and the other saleable area of identified units of area 5 lakhs sq ft. in Omkar 1973 Worli was mortgaged with M/s Piramal Realty Pvt. Ltd. only with residual charge on Yes Bank Ltd. and the rest of saleable area of Omkar 1973 project, Worli was mortgaged with both Yes Bank Ltd. and M/s Piramal Realty Pvt. Ltd. She further stated that earlier the saleable area of 3.[5] lakhs sq ft of Anand Nagar SRA CHS Scheme was mortgaged only with the Yes Bank Ltd; that by the year 2019, the development right of Surana Developers (Wadala) LLP’s LOI for Anand Nagar SRA CHS Scheme, was also cross collateralised for Rs. 1300 crores which was the other loans of Yes Bank Ltd. and therefore, the total saleable area mortgaged for Rs. 1300 crores and the total saleable area of Anand Nagar SRA CHS Scheme were now mortgaged with both Yes Bank Ltd. and M/s Piramal Realty Pvt. Ltd. due to cross collateral; that Yes Bank Ltd. has primary charge on the Omkar 1973 Project for an outstanding amount of Rs. 1300 crores and a residual charge for Rs. 410 crores of Surana Developers which means if Rs. 1300 crores given as loan to M/s ORDPL is paid by them and still there are some more saleable area left to be sold, then the same could be used for the payment of Rs. 410 crores given as loan by Yes Bank Ltd. to M/s Surana Developers; that Yes Bank Ltd. and M/s Piramal Realty Pvt. Ltd. has entered into Inter Creditor Agreement dated 02.03.2021; that Yes Bank Ltd. loan exposure of Rs. 1810 crores was classified as NPA in the year 2019; that the loan exposure of Rs. 872 crores of M/ s Piramal Realty Pvt. Ltd. was not paid by M/s ORDPL and the same were still outstanding. 6.[3] From the above, it is revealed that for the constructions of Tower A, B & C in Omkar 1973 Worli, the Project has been financed by M/s Yes Bank Ltd. and M/s Piramal Realty Pvt. Ltd. and accordingly both have created their charges on the said project. 6.[4] From the investigation conducted so far it is revealed that the Proceed of Crime to the extent of Rs. 330 crores has been spent for the constructions of Tower A, B & C in Omkar 1973 Worli. However, as per the statement given by Shri Pradeep Jain, the construction work in all the three towers was going on simultaneously and the vendors were common in all the towers, and thus the tower-wise utilization of Rs. 330 crores could not be identified. In view of the above, it is impossible to earmark any specific flats in any of the Towers where the said Proceed of Crime could have been utilized, hence the property as mentioned below have been identified as the Proceed of Crime as per the concept of value of such property as defined under Section 2(1)(u) of the PMLA, 2002 to the extent of Rs. 330 crores (approx.):
3. The petition was first listed before this Court on 27th July, 2022, when status quo was directed. The relevant extract of the said order reads as under:
4. It is submitted by ld. Counsel for the Petitioner that on 18th January, 2023, the closure report has been filed by the Mumbai Police has been accepted by the ld. Trial Court and that even the case instituted by the Enforcement Directorate has been closed.
5. The case of the Petitioner is that it was merely one of the lenders to M/s Omkar Realtors and Developers Pvt. Ltd. (“ORDPL”), which extended credit facility to ORDPL for construction of the ‘Worli Project’ and in a completely improper manner, its flats have been attached by the ED in the impugned PAO.
6. It is submitted by ld. Counsel for the Petitioner the ECIR i.e., ECIR/ MBZO-II/20/2020 which was registered against M/s Omkar Realtors and Developers Pvt. Ltd. (“ORDPL”) has itself been closed and ORDPL has been discharged.
7. The Court has considered the submissions of the parties. A perusal of the impugned PAO in the present case shows that the origin of the said PAO is an FIR No. 109/2020 which was registered in the PS: City Chowk, Aurangabad, Maharashtra under Sections 420, 406 and 34 of the Indian Penal Code, 1860.
8. A perusal of the order dated 18th October, 2022 passed by the Special Court under PMLA, Greater Bombay shows that M/s Omkar Realtors and Developers Private Limited which was arrayed as A-2, to whom the Petitioner had extended credit facility for the construction of the ‘Worli Project’, has also been discharged. Owing to this connection, the assets of the Petitioner were attached. The relevant extract of the said order reads as under:
9. The Supreme Court in Vijay Madanlal Choudhary & Ors. v. UOI & Ors., 2022 SCC OnLine SC 929, has categorically held that when the accused person has been discharged/acquitted in the scheduled offence or the criminal case against the accused person has been quashed, there can be no offence of money laundering against the accused person. Further, in the said judgement it has also been stated that no offence of money laundering can be made out against any person having property linked to the person accused in the scheduled offence. The relevant extract of the judgement is this regard reads as under:
10. This legal position has been subsequently affirmed by the Supreme Court in the following cases. i. Parvathi Kollur v. Enforcement Directorate [Criminal Appeal No. 1254/2022, decided on 16th August, 2022], ii. Adjudicating Authority v. Shri Ajay Kumar Gupta & Ors. [Criminal Appeal Nos. 391-392/2018, decided on 2nd December, 2022], iii. Directorate of Enforcement v. M/s Obulapuram Mining Company Pvt. Ltd [Criminal Appeal No.1269/2017, decided on 2nd December, 2022].
11. Vide order dated 16th August, 2022, in Criminal Appeal No.154 of 2022 titled ‘Parvathi Kollur v. Enforcement Directorate’, the Supreme Court also specifically referred to the paragraph as mentioned above in Vijay Madanlal Choudhary (supra) and held that when the accused person has been acquitted in the scheduled offence under the PMLA, the closure of the proceedings under the PMLA against persons said to connected to the accused person would be the natural consequence. The relevant portion of the said judgment reads as under:
6. Aggrieved by the said discharge order, the Directorate preferred a revision petition before the High Court. The High Court proceeded to set aside the discharge order while observing that the allegations made in the complaint and the material produced, prima facie, made out sufficient ground for proceeding against the Appellants for offences under the Act of 2002.
7. Learned Counsel for the Appellants has contended that the issue as involved in this matter is no more res integra, particularly for the view taken by a 3-Judge Bench of this Court in the case of Vijay Madanlal Choudhary and Ors. v. Union of India and Ors. decided on 27.07.2022 where, the consequence of failure of prosecution for the scheduled offence has been clearly provided in the following terms: 187........(d) The offence Under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.
8. Learned ASG appearing for the Respondent, in all fairness, does not dispute the above position of law declared by this Court.
9. The result of the discussion aforesaid is that the view as taken by the Trial Court in this matter had been a justified view of the matter and the High Court was not right in setting aside the discharge order despite the fact that the accused No. 1 had already been acquitted in relation to the scheduled offence and the present appellants were not accused of any scheduled offence.
10. In view of the above, this appeal succeeds and is allowed. The impugned judgment and order dated 17.12.2020 is set aside and the order dated 04.01.2019 as passed by the Trial Court, allowing discharge application of the appellants, is restored”
12. The ld. Division Bench of this Court, in Harish Fabiani and Ors. v. Enforcement of Directorate and Ors., 2022 SCC OnLine Del 3121 has also taken a similar view. The relevant portion of the said judgment is set out below:
13. The Supreme Court in W.P.(C) 368/2021 titled ‘Indrani Patnaik & Anr. v. Enforcement Directorate and Ors.’ has recently held that there cannot be any prosecution in relation to an offence for which the accused person has already been discharged. The relevant portion of the said order of the Supreme Court reads as: Learned senior counsel has submitted that in the present case, prosecution of the petitioners in relation to the scheduled offence, on which the proceedings under the Prevention of Money-laundering Act, 2022 (PMLA) were based, have already come to an end with the petitioners having been discharged from V.G.R. Case No. 59 of 2009(T.R. Case No. 80 of 2011) by the order dated 27.11.2020, as passed by the High Court of Orissa in Criminal Revision No. 831 of 2018. Learned counsel would submit that in the given state of facts and the law declared by this Court, there cannot be any prosecution for the alleged offence of moneylaundering in relation to the said offence for which, the petitioners have already been discharged. Learned Additional Solicitor General appearing for the respondents though has not disputed the order dated 27.11.2020 passed by the High Court, discharging the petitioners from the scheduled offence but has submitted that he has not received further instructions as to whether the prosecuting agency has challenged the said order or not. The record as it stands today, the petitioners stand discharged of the scheduled offence and therefore, in view of the law declared by this Court, there could arise no question of they being prosecuted for illegal gain of property as a result of the criminal activity relating to the alleged scheduled offence. That being the position, we find no reason to allow the proceedings against the petitioners under PMLA to proceed further.
14. This position of law in terms of proceedings under the PMLA has been recently considered by this Court in EMTA Coal Limited and Ors. v. The Deputy Director of Directorate of Enforcement, 2023/DHC/000277. In the said judgement it was held that once the closure report in the offences under respective FIRs has been filed, no criminality is ascertainable and the respective PAOs as well as the ECIRs are liable to be quashed.
15. After hearing all the ld. Counsels for the parties and considering the judgements of the Supreme Court as also this Court, the Court is clearly of the opinion that the impugned PAOs against the properties of Piramal cannot continue as the Petitioner was not arrayed as an accused and was merely a lender to M/s Omkar Realtors and Developers Pvt. Ltd. (“ORDPL”). Accordingly, the flats which were attached by the ED, as extracted in Table No. 9 extracted above are thus, released.
16. With these above observations, the present petition with all pending applications, if any, is disposed of.
17. The Court grants liberty to the ED to seek revival of the PAO in accordance with law, if there is any change in the circumstances. Liberty is also granted to the Petitioner to move an appropriate application if the properties are not released.
PRATHIBA M. SINGH JUDGE FEBRUARY 16, 2023 MR/Am