Date of Decision : 21.01.2020
1. MP-PMLA-3996/CHN/2017 (Misc.) MP-PMLA-3545/CHN/2017 (Stay) MP-PMLA-3546/CHN/2017 (Stay) FPA-PMLA-1813/CHN/2017
M/s. Sri Aiswariya Rock Exports … Appellant Versus
The Deputy Director
Directorate of Enforcement, Chennai … Respondent
2. MP-PMLA-3548/CHN/2017 (Stay) MP-PMLA-3549/CHN/2017 (Stay) FPA-PMLA-1814/CHN/2017
Shri S. Sankaranarayanan … Appellant Versus
The Deputy Director
Directorate of Enforcement, Chennai … Respondent
3. MP-PMLA-3551/CHN/2017 (Stay) MP-PMLA-3552/CHN/2017 (Stay) FPA-PMLA-1815/CHN/2017
Smt. S. Madhvi Selva Nachiar … Appellant Versus
The Deputy Director
Directorate of Enforcement, Chennai … Respondent
Advocates/Authorized Representatives who appeared
For the Appellants : Mr. Naveen Malhotra, Advocate Mr. Nilansh Malhotra, Advocate
For the Respondent (ED) : Mrs. Shilpi Satyapriya Satyam, Advocate
4. MP-PMLA-3554/CHN/2017 (Stay) MP-PMLA-3556/CHN/2017 (Stay) FPA-PMLA-1816/CHN/2017
Shri P.K.M. Selvam … Appellant Versus
The Deputy Director
Directorate of Enforcement, Chennai … Respondent
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5. MP-PMLA-3557/CHN/2017 (Stay) MP-PMLA-3558/CHN/2017 (Stay) FPA-PMLA-1817/CHN/2017
Smt. Poonguzhali … Appellant Versus
The Deputy Director
Directorate of Enforcement, Chennai … Respondent
Advocates/Authorized Representatives who appeared
For the Appellants : Mr. Nitin Saravanan, Advocate Ms. Arunima singh, Advocate
For the Respondent (ED) : Mrs. Shilpi Satyapriya Satyam, Advocate
CORAM
SHRI G.C. MISHRA : ACTING MEMBER
JUDGMENT
In MP-PMLA-3996/CHN/2017 (Misc.)
The Enforcement Directorate, Respondent/Petitioner has filed a miscellaneous petition on 13.11.2017 under Section 35(2)(f) of PMLA, 2002 to review the decision dated 19.06.2017 with regards to the decision on the payment of deposit of Rs.15,000/- (Rupees Fifteen Thousand only) per month per property in respect of properties let out on rent and directed the appellants/non-petitioners to pay Rs.55,000/- (Rupees Fifty Five Thousand only) monthly rent against first rented out property i.e., "Residential Flat viz., Flat No.CCE-151, DLF Commanders Court, Ethiraj Salai, Chennai 600 008", and to pay Rs.65,000/- (Rupees Sixty Five Thousand only) against second rented out property i.e.,
"Residential Flat viz., Flat No.CCE-141, DLF Commanders Court, Ethiraj Salai, Chennai 600 008" as user charges for the above mentioned properties each month with effect from 09.06.2017 and also to deposit
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one time security collected by them from their tenants i.e., Rs.3,00,000/- (Rupees Three Lacs only) against each property.
2. The relief has been sought by the petitioner/respondent is mainly on the ground mentioned in Para no.10 of the said review application which is reproduced below:
"10. As per the interim order, the counsels for the respondents have stated that property Nos. 1 & 4 are let out and properties Nos. 2, 3 & 4 are self-occupied. The Respondent No.1 herein filed a letter dated 01.07.2017 before the Petitioner herein stating that the mentioning of property no.1 as let out on rent is a mistake and that the said property is not actually let out on rent and is self- occupied during his visits to Chennai. He further stated that Sl. No. 2 which has been mentioned before the Tribunal as self-occupied is actually let out on rent. The Respondent enclosed the rental agreement in respect of property No. 2 which on perusal is seen that the said property has been let out on a monthly rent of Rs. 55,000/- to Mrs. V.Yamini of Chennai. It is also noticed that Respondent-1 had received a sum of Rs.3,00,000/- as security deposit for letting out the said property. The respondent-1 also enclosed copy of the rental agreement in respect of property at Sl. No. 4 above which evidences letting out the said property to M/s. Karthikeya Trading Pvt. Ltd. on a monthly rent of Rs.65,000/-. The security deposit received with regard to the said property is also Rs.3,00,000/-."
3. In response to above application, the appellants/non-petitioners have submitted their replies filed on dated 01.05.2018 and affidavits filed on dated 11.10.2019. The portions which are common and relevant in the replies as well as affidavits are reproduced as below:
"10. That the contents of para 10 is correct to this extent that property No.2 and 4 i.e. residential Flat no. 2 & 4 are let-out and rent is being received. The property and 1, 2 & 5 are self occupied regarding the property No.2 i.e. residential flat this Flat No. Residential Property CCE 151- DLF, Commander's Court, Ethiraj Salai, Chennai- 600008
has been let out on rent of Rs.55,000/- per month and Security deposit of Rs.3,00,000/- has been received from tenant which is refundable.
The above property was bough with financial assistance from
HDFC Bank to the tune of Rs.2.25 Crores. It is submitted that the appellant are paying an equated monthly due to the bank to the tune of Rs.2,52,269/- per month.
Rent Deposited with Paid EMI For
Collected ED loan availed
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Rs.55,000/- Rs.15,000/- Rs.2,52,269/- It is submitted that the appellant may be exempted from paying the difference of the rent received and the amount paid to the ED, as already we are paying a much bigger sum to HDFC Bank - Rs.2.52 Lacs / month as Home Loan EMI and the property is attached with ED.
Regarding Residential Property CCE 141-DLF, Commander's Court, Ethiraj Salai, Chennai -600008. This property had been let out to M/s. Karthikeya Trading Pvt. Ltd. for a rental of Rs.65,000/- per month and refundable
security deposit Rs.3,00,000/- was also received as per the agreement.
Subsequently they have vacated the premises and their
Security deposit was adjusted against their last 4 months rent. The property was vacated by the tenant on 31st
January in the year 2018. The documentary proof is to this effect is being placed on record. No rent has been received in this property and is self occupied. Mr.P.K.M. Selvam's daughter is planning to shift over there with family as her husband is taking up a posting in Chennai. This property has been acquired with the help of a loan from
HDFC for Rs.2.00 Crores and we are paying a monthly EMI of Rs.2.39 Lacs / month.
| Rent Collected previously |
Deposited with ED |
Paid EMI For loan availed |
| Rs.65,000/- |
Rs.15,000/- |
Rs.2,39,594/- |
It is respectfully submitted that the appellant may be exempt
from paying the difference of the rent received and the amount
paid to the ED, as already we are paying a much bigger sum to
HDFC Bank - Rs. 2.39 Lacs / month as Home Loan EMI and
the property is attached with ED."
4. The appellants/non-petitioners have filed copy of unregistered rental agreement dated 01.11.2016 executed between Mr. S. Shankarnarayanan and Mrs. V.Yamini W/o Mr. K. Vishnu in respect of Apartment No. CCE-151, (Fifteenth floor), E - Block, DLF Commander's Court No.49 (Old No.22), Ethiraj Salai, Egmore, Chennai 600 008 with built up area about 1706 sq. ft and 1 covered car parking spot (Parking Spot basement 2. No: PB-E-218).
5. The appellants/non-petitioners have also filed copy of unregistered rental agreement dated 01.04.2017 executed between Mrs. S.Poonguzhali W/o Mr.P.K.M. Selvam and M/s. Karthikeya Trading Private Limited in
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respect of Apartment No. CCE-141, (Fifteenth floor), E - Block, DLF Commander's Court No.49 (Old No.22), Ethiraj Salai, Egmore, Chennai 600 008 with built up area about 1706 sq. ft. and 1 covered car parking spot (Parking Spot No: PB-E-319).
6. As it appears from the above the review application filed by the respondent/petitioner is with regards to only two properties as described above. It is seen from the interim order dated 19.06.2017 that after hearing both the parties an interim order was passed in which the appellants were asked to deposit Rs.15,000/- (Rupees Fifteen Thousand only) per month as user charges for each of the five properties mentioned in the order. Thereafter, the Tribunal went on to pass the direction that no coercive action shall be taken in view of the notice issued on 09.06.2017 under Section 8(4) of the PML Act. It was clearly mentioned in Para 9 of the said order dt.19.06.2017 that the aforesaid arrangement is purely interim and is subject to the verification regarding the rent, etc. In Para no.10 of the said order, the appellants/non-petitioners were directed to file the affidavit alongwith the copies of the rent deed/lease deed, if executed. In Para no.8 of the order dated 19.06.2017, liberty was granted to the petitioner/respondent to verify the position of the properties, rent, etc. and inform the correct position. The petitioner/respondent was also given liberty to file an affidavit in that regard.
7. Vide order dated 03.11.2017, this Tribunal again directed the non- petitioners/appellants to file the copy of the rent deed/lease deed within two weeks and liberty was granted to the learned counsel for the petitioner/respondent to move for modification of the interim order. However, it is seen from the record that the affidavit sworn by the appellant Mr. S. Shankarnarayanan alongwith the copy of the rent
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agreement dated 01.11.2016 and the affidavit sworn by the appellant Mr. P.K.M. Selvam alongwith the copy of the rent agreement dated 01.04.2017, were filed in the Tribunal on 24.07.2017 and 25.07.2017 respectively. The property of Mr. S. Shankarnarayanan has been rented out for a sum of Rs.55,000/- (Rupees Fifty Five Thousand only) per month and a security deposit of Rs.3,00,000/- (Rupees Three Lacs only) was taken from the tenant. Whereas in the case of the property of Mrs. S.Poonguzhali W/of Mr. P.K.M. Selvam, the property was rented out for a sum of Rs.65,000/- (Rupees Sixty Five Thousand only) per month and as security deposit of Rs.3,00,000/- (Rupees Three Lacs only) was taken from the tenant.
8. It appears from the records that neither in the stay applications nor in the appeal memo there is any specific mention about the renting out of the aforesaid two properties to Mrs. V. Yamini and M/s. Karthikeya Trading Private Limited. Rather, it is mentioned in the order dated 19.06.2017 that the learned counsel for the appellants made statement that the properties at Serial No.1 & 5, have been rented out. As per the list of properties reflected in the said order, the properties at Serial No.1 & 5 are different from the aforesaid two properties.
9. There is a clear admission by the appellants Mr. S. Shankarnarayanan and Mr. P.K.M. Selvam through their affidavits and their rent agreements that they were/have been getting Rs.55,000/- & Rs.65,000/- per month as rents from the said house properties. That means the rental value of the said properties are Rs.55,000/- & Rs.65,000/- per month.
10. That after filing of the petition for review of the order dated 19.06.2017 by the petitioner/respondent, the non-petitioners/appellants
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filed another affidavit on dated 01.05.2018 stating that the property which was rented out for Rs.65,000/- has been vacated by the tenant and the refundable security deposit of Rs.3,00,000/- was adjusted against the last four months rent. The date of vacation has not been mentioned nor has the period against which the security deposit has been adjusted been revealed. It has been stated in the affidavit filed on dated 11.10.2019 that the daughter of Mr. P.K.M. Selvam has shifted over there with family as her husband has taken up a posting in Chennai. No proof has been filed that the daughter of Mr. P.K.M. Selvam is staying in Apartment No. CCE-141, (Fifteenth floor), E - Block, DLF Commander's Court No.49 (Old No.22), Ethiraj Salai, Egmore, Chennai 600 008. During the course of hearing, the learned counsel for the appellant/non-petitioner submitted that her husband is an IAS Officer and has been transferred to Chennai. The details of the posting, date of shifting of family, etc. have not been provided.
11. Heard both sides. Considered the materials available on record. On 19.06.2017, interim order was passed keeping in view the urgency of the matter in view of the notice issued under Section 8(4) of the PMLA. Liberty was granted to the petitioner/respondent to verify the position of the properties and may move for modification of the interim order. The appellants were also directed to file affidavit alongwith copies of the rent deed. As an interim measure the non-petitioners/appellants were directed to deposit Rs.15,000/- each month as user charges for each of the five properties mentioned in the order and the petitioner/respondent was directed not to take any coercive action in view of the notice dated 09.06.2017 issued under Section 8(4).
12. The petitioner/respondent has filed the review application only with respect to two properties mentioned below:
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(i) Residential Flat viz., Flat No.CCE-151, DLF Commanders Court, Ethiraj Salai, Chennai 600 008.
(ii) Residential Flat viz., Flat No.CCE-141, DLF Commanders Court, Ethiraj Salai, Chennai 600 008.
13. The first property is owned by Mr. S. Shankarnarayanan, the appellant in appeal no.FPA-PMLA-1814/CHN/2017 and is receiving a sum of Rs.55,000/- as rent per month from the tenant. Whereas, the second property is owned by Mrs. Poonguzhali, wife of Mr. P.K.M. Selvam the appellant in appeal no.FPA-PMLA-1817/CHN/2017 and was receiving a sum of Rs.65,000/- as rent per month from the tenant. The aforesaid two appellants executed the rent agreements on 01.11.2016 and 01.04.2017 respectively. Both the agreements were prior to passing of the interim order dated 19.06.2017 but they did not reveal the aforesaid facts of renting out the properties, execution of rent agreements, the amount of rent received and the parties to whom the properties have been rented out. I have considered the pleadings of both the parties including the EMI paid by the appellants. No documents have been produced by these two appellants regarding the borrowing of loans by mortgaging these two properties. The appellants to bear the cost of EMI, if any, to be paid to the concerned Banks from whom they stated to have borrowed the loans. No affidavits has been filed by Smt. Poonguzhali, who is the owner of the property at serial no.(ii) above in Para no12.
14. Since, the liberty was granted to the petitioner/respondent on 19.06.2017 as well as on 03.11.2017 for filing of the modification of interim order, so the present application has been filed. The property at serial no.(i) in Para no.12 above have been rented out on the basis of unregistered rent agreement. As per Rule 5(3) of the Prevention of
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Money-Laundering (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013, without prejudice, the appellant Mr. S. Shankarnarayanan is directed to deposit a sum of Rs.55,000/- per month with the respondent w.e.f. the date of confirmation of Provisional Attachment Order after deducting the amount already paid in terms of the interim order dated 19.06.2017. The appellant Mr. S. Shankarnarayanan is allowed eight weeks time to pay the arrears from the date of confirmation order till 31.12.2019. The current and future rents shall be deposited by the appellant Mr. S. Shankarnarayanan before 7th
of next month.
15. The property at serial no.(ii) in Para no.12 above was rented out on the basis of unregistered rent agreement. Admittedly Mrs. Poonguzhali, appellant in appeal no.FPA-PMLA-1817/CHN/2017 is the owner of the aforesaid property. She had executed the unregistered rent agreement on 01.04.2017. According to the said agreement, she was getting Rs. 65,000/- as rent per month from the tenant. She has not filed any affidavit though an affidavit has been filed by another appellant namely Mr. P.K.M. Selvam, who is her husband and appellant in appeal no. FPA- PMLA-1816/CHN/2017 stating that the tenant has vacated the aforesaid property. The affidavit does not say as when the property has been vacated. The affidavit also does not reveal as to when the daughter of the appellant has shifted. No proof has been provided regarding the posting of the husband of the appellant's daughter at Chennai. However, it is clear from the pleadings of the non-petitioner/appellant that the rental value of the aforesaid property is Rs.65,000/- per month. This fact was not revealed by the appellants when the matter was heard by this Tribunal on 19.06.2017, even though the property at serial no.(ii) was given on rent w.e.f. 01.04.2017.
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16. In the light of the admission of the rental value of the said property per month, without prejudice, the appellant Smt. Poonguzhali is directed to deposit a sum of Rs.65,000/- per month with the respondent w.e.f. the date of confirmation of Provisional Attachment Order as user and occupation charges after deducting the amount already paid in terms of the interim order dated 19.06.2017. The appellant Smt. Poonguzhali is allowed eight weeks time to pay the arrears from the date of confirmation order. The current and future rents shall be deposited by the appellant Smt. Poonguzhali before 7th
of next month.
17. Subject to above, the respondent shall not take any coercive action in view of the notice issued on 09.06.2017 under Section 8(4) of PMLA,
2002.
18. Accordingly the application filed by the petitioner/respondent is allowed and interim order dated 19.06.2017 is modified in the aforesaid terms. This order shall remain in force till further order.
FPA-PMLA-1813-1817/CHN/2017
List these appeals on the date already fixed for hearing i.e. on 29th July, 2020.
Copy of the order be given 'dasti' to both the parties.
(G. C. Mishra) Acting Chairman New Delhi,
21st
January, 2020
'AS'
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