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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Acts
  • provisions of Prevention of Money Laundering Act, 2002 including Section 2(1)(u) and 3 Company Appeal (AT) (Insolvency) No. 493 of 2018 Sections 3
  • SECTION 14 INSOLVENCY AND BANKRUPTCY CODE 2016
  • Section 2(1) (u) of the Prevention of Money Laundering Act, 2002
  • Section 14. 14. As the Prevention of Money Laundering Act, 2002
  • PREVENTION OF MONEY LAUNDERING ACT 2002
  • Security Interest Act, 2002; 6
  • Security Interest Act, 2002; (d)
  • Section 238 of the I&B Code.
  • provisions of sub-section (1)
  • sub-section (1) of section 31
  • Section 14 of the I&B Code
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Acts
  • provisions of Prevention of Money Laundering Act, 2002 including Section 2(1)(u) and 3 Company Appeal (AT) (Insolvency) No. 493 of 2018 Sections 3
  • SECTION 14 INSOLVENCY AND BANKRUPTCY CODE 2016
  • Section 2(1) (u) of the Prevention of Money Laundering Act, 2002
  • Section 14. 14. As the Prevention of Money Laundering Act, 2002
  • PREVENTION OF MONEY LAUNDERING ACT 2002
  • Security Interest Act, 2002; 6
  • Security Interest Act, 2002; (d)
  • Section 238 of the I&B Code.
  • provisions of sub-section (1)
  • sub-section (1) of section 31
  • Section 14 of the I&B Code
Smart Summary

Factual and Procedural Background

The Directorate of Enforcement of the Central Government, New Delhi, attached certain properties of Varrsana Ispat Limited (Corporate Debtor). Subsequently, the Resolution Professional filed an application before the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, seeking the release of the attachment of certain assets of the Corporate Debtor made by the Deputy Director of Enforcement. The Adjudicating Authority observed that the attachment order was issued on 10th July 2017, prior to the declaration of the Moratorium in the insolvency proceedings. Therefore, the Adjudicating Authority held that the order releasing the attachment was not maintainable and passed an order dated 12th July 2018, which was challenged in this appeal.

Legal Issues Presented

  1. Whether Section 14 of the Insolvency and Bankruptcy Code, 2016 (I&B Code), which declares a Moratorium, has overriding effect over the provisions of the Prevention of Money Laundering Act, 2002 (PMLA) during the Corporate Insolvency Resolution Process.
  2. Whether the Directorate of Enforcement can confirm or continue the attachment of assets under the PMLA during the Moratorium period declared under the I&B Code.
  3. Whether the Resolution Professional can seek release of attachment orders made prior to the Moratorium under Section 14 of the I&B Code.

Arguments of the Parties

Appellant's Arguments

  • Section 14 of the I&B Code has an overriding effect over the provisions of the Prevention of Money Laundering Act, 2002.
  • During the Moratorium period, creditors and authorities cannot take any action that disrupts the Corporate Insolvency Resolution Process.
  • The provisional order of attachment by the Directorate of Enforcement cannot be confirmed during the Moratorium period.

Respondent's Arguments (Directorate of Enforcement)

  • The provisions of the Prevention of Money Laundering Act, 2002, including Sections 2(1)(u), 3, and 4, allow the Directorate of Enforcement to take action even during the Moratorium period.
  • The PMLA relates to penal and criminal proceedings involving proceeds of crime, which are distinct from the civil insolvency proceedings under the I&B Code.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court analyzed the scope and effect of Section 14 of the I&B Code, which declares a Moratorium prohibiting institution or continuation of suits, proceedings, execution of judgments, and transfer or disposal of assets by the Corporate Debtor during the insolvency resolution process. The Court emphasized that Section 14 does not apply to criminal proceedings or penal actions arising from criminal offenses.

The Court examined the Prevention of Money Laundering Act, 2002, noting that it deals with proceeds of crime and penalizes money laundering offenses with rigorous imprisonment and fines. Since the PMLA concerns criminal proceedings and confiscation of crime-derived property, it operates in a different legal domain than the I&B Code's insolvency process.

Therefore, the Court held that Section 14 of the I&B Code does not apply to proceedings under the PMLA. The attachments made by the Directorate of Enforcement prior to the initiation of the Corporate Insolvency Resolution Process were valid and not subject to the protections of the Moratorium. Additionally, individuals such as ex-directors and shareholders implicated under the PMLA are not entitled to protection under Section 14.

Consequently, the Court found that the PMLA and the I&B Code operate simultaneously without one overriding the other, rejecting the contention that Section 14 has overriding effect over the PMLA.

Holding and Implications

The appeal is dismissed.

The Court upheld the validity of the attachment orders made by the Directorate of Enforcement under the Prevention of Money Laundering Act, 2002, even during the Moratorium period declared under the Insolvency and Bankruptcy Code, 2016. The Resolution Professional cannot claim protection under Section 14 of the I&B Code for attachments made prior to the Moratorium. No costs were awarded. This decision clarifies that the Moratorium under the I&B Code does not extend to penal proceedings under the PMLA, and both statutes operate in their respective spheres without one overriding the other. No new precedent beyond the facts of this case was established.

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    Varrsana Ispat Limited v. Deputy Director, Directorate Of Enforcement .

    SUDHANSU JYOTI MUKHOPADHAYA, J. The Directorate of Enforcement of Central Government, New Delhi, attached some of the properties of Varrsana Ispat Limited- (Corporate Debtor). The Resolution Professional filed application before the Adjudicating Authority (National Company Law Tribunal), Kolkata Company Appeal (AT) (Insolvency) No. 493 of 2018 Bench, Kolkata, for releasing the attachment of certain assets of the Corporate Debtor by Deputy Director of Enforcement.

    2. On-going through the order of attachment, the Adjudicating Authority observed that the attachment order was issued on 10th July, 2017 prior to the order of declaration of the Moratorium in the case in hand. Therefore, an order releasing the order of attachment by the Directorate of Enforcement is not maintainable. The aforesaid order dated 12th July, 2018 is under challenge in this appeal.

    3. Learned counsel appearing on behalf of the Appellant- Resolution Professional submitted that Section 14 of the Insolvency and Bankruptcy Code, 2016 (I&B Code for short) has an overriding effect on the provisions of the Prevention of Money Laundering Act, 2002. Reference was made to Section 238 of the I&B Code. It was submitted that during the period of Moratorium the creditors and all authorities causing any disruption in the Corporate Insolvency Resolution Process cannot be allowed to do so.

    4. Further, according to counsel for the Appellant, the provisional order of attachment cannot be confirmed by the Directorate of Enforcement during the period of Moratorium.

    5. On the other hand, according to learned counsel appearing on behalf of the Directorate of Enforcement, in view of the provisions of Prevention of Money Laundering Act, 2002 including Section 2(1)(u) and Company Appeal (AT) (Insolvency) No. 493 of 2018 Sections 3 & 4, the action can be taken under Prevention of Money Laundering Act, 2002 even during the period of Moratorium.

    6. Section 14 of the I&B Code relates to declaration of Moratorium for prohibiting some of the action as mentioned therein and reads as follows:

    14. Moratorium (1) Subject to provisions of sub- sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action Company Appeal (AT) (Insolvency) No. 493 of 2018 under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to- (a) such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (b) a surety in a contract of guarantee to a corporate debtor.] (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan Company Appeal (AT) (Insolvency) No. 493 of 2018 under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may

    7. From a plain reading of Section 14, it is clear that the provision relates to

    (i) institution of suits;

    (ii) continuation of pending suits;

    (iii) proceedings against the Corporate Debtor including execution of any judgment;

    (iv) decree of order in any court of law, tribunal, arbitration panel or other authority;

    (v) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein;

    (vi) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; Company Appeal (AT) (Insolvency) No. 493 of 2018

    (vii) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.

    8. Section 14 is not applicable to the criminal proceeding or any penal action taken pursuant to the criminal proceeding or any act having essence of crime or crime proceeds. The object of the Prevention of Money Laundering Act, 2002 is to prevent the money laundering and to provide confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto.

    9. Section 2(1) (u) of the Prevention of Money Laundering Act, 2002 defines proceeds of crime which reads as follows:

    2. Definitions. (1) In this Act, unless the context otherwise requires, xxx xxx xxx (u) proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property

    10. Chapter II relates to offence of money-laundering and Section 3 therein relates to offence of money-laundering, which reads as follows: Company Appeal (AT) (Insolvency) No. 493 of 2018

    3. Offence of money-Laundering.- Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.

    11. Punishment for money-laundering is prescribed under Section 4 as follows:

    4. Punishment for money-laundering. Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine: Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words which may extend to seven years", the words "which may extend to ten years" had been substituted. Company Appeal (AT) (Insolvency) No. 493 of 2018

    12. From the aforesaid provisions, it is clear that the Prevention of Money-Laundering Act, 2002 relates to proceeds of crime and the offence relates to money-laundering resulting confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. Thus, as the Prevention of Money Laundering Act, 2002 or provisions therein relates to proceeds of crime, we hold that Section 14 of the I&B Code is not applicable to such proceeding.

    13. In so far as penalty is concerned, offence of money-laundering is punishable with rigorous imprisonment which is not less than three years and has nothing to do with the Corporate Debtor. It will be applicable to the individual which may include the Ex-Directors and Shareholders of the Corporate Debtor and they cannot be given protection from the Prevention of Money Laundering Act, 2002 and such individual cannot take any advantage of Section 14 of the I&B Code. This apart, we find that the attachments were made by the Deputy Director of Directorate of Enforcement much prior to initiation of the Corporate Insolvency Resolution Process, therefore, the Resolution Professional cannot derive any advantage out of Section 14.

    14. As the Prevention of Money Laundering Act, 2002 relates to different fields of penal action of proceeds of crime, it invokes simultaneously with the I&B Code, having no overriding effect of one Act Company Appeal (AT) (Insolvency) No. 493 of 2018 over the other including the I&B Code, we find no merit in this appeal. It is accordingly dismissed. No costs. [Justice S.J. Mukhopadhaya] Chairperson [Justice Bansi Lal Bhat] Member (Judicial) NEW DELHI 2nd May, 2019

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    Varrsana Ispat Limited v. Deputy Director, Directorate Of Enforcement .
    (May 2, 2019)