Madras High Court
54 vs Joint Director on 17 June, 2021
Rev.Appln Nos. 21 and 22 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 17-06-2021
Coram :
THE HONOURABLE MR. JUSTICE R. SUBBIAH
and
THE HONOURABLE MR. JUSTICE R.PONGIAPPAN
Review Application No. 21 of 2021 in W.P.No.25231 of 2019
and
Review Application No.22 of 2021 in W.P.No.25177 of 2019
----
1. M/s.Martin Property Developers Pvt. Ltd.,
Rep. by its Authorised Signatory,
54, Mettupalayam Road,
G.N.Mill P.O., Coimbatore-641 029.
2. M/s.Martin Builders Pvt. Ltd.,
Rep. by its Authorised Signatory,
54, Mettupalayam Road,
G.N.Mill P.O., Coimbatore-641 029.
3. M/s.Charles Modular Homes Pvt. Ltd.,
Rep. by its Authorised Signatory,
54, Mettupalayam Road,
G.N.Mill P.O., Coimbatore-641 029.
4. M/s.Martin Reality Pvt. Ltd.,
Rep. by its Authorised Signatory,
54, Mettupalayam Road,
G.N.Mill P.O., Coimbatore-641 029.
5. M/s.Charles Housing Pvt. Ltd.,
Rep. by its Authorised Signatory,
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Rev.Appln Nos. 21 and 22 of 2021
54, Mettupalayam Road,
G.N.Mill P.O., Coimbatore-641 029.
6. M/s.Martin Homes Pvt. Ltd.,
Rep. by its Authorised Signatory,
54, Mettupalayam Road,
G.N.Mill P.O., Coimbatore-641 029.
7. M/s.Martin Housing Developers Pvt. Ltd.,
Rep. by its Authorised Signatory,
54, Mettupalayam Road,
G.N.Mill P.O., Coimbatore-641 029.
8. M/s.Martin Plaza Pvt. Ltd.,
Rep. by its Authorised Signatory,
54, Mettupalayam Road,
G.N.Mill P.O., Coimbatore-641 029
.. Review Applicants in Rev.A.No.21 of 2021
1. A.John Kennedy
2. M/s.Charles Promoters Pvt. Ltd.,
Represented by its Director,
54, Mettupalayam Road,
G.N.Mill Post, Coimbatore-641 029.
3. M/s.Daison Construction India Pvt. Ltd.,
Represented by its Director,
54, Mettupalayam Road,
G.N.Mill Post, Coimbatore-641 029.
4. M/s.Martin Dwellers Pvt. Ltd.,
Represented by its Director,
G.N.Mill Post, Coimbatore-641 029.
5. M/s.Martin Hi-Tech Constructions Pvt. Ltd.,
Represented by its Director,
https://www.mhc.tn.gov.in/judis/
Rev.Appln Nos. 21 and 22 of 2021
54, Mettupalayam Road,
G.N.Mill Post, Coimbatore-641 029.
6. M/s.Martin Real Estate Pvt. Ltd.,
Represented by its Director,
54, Mettupalayam Road,
G.N.Mill Post, Coimbatore-641 029.
7. M/s.Martin Realcon Pvt. Ltd.,
Represented by its Director,
54, Mettupalayam Road,
G.N.Mill Post, Coimbatore-641 029.
8. M/s.Martin Township Developers Pvt. Ltd.,
Represented by its Director,
54, Mettupalayam Road,
G.N.Mill Post, Coimbatore-641 029.
.. Review Applicants in Rev.A.No.22 of 2021 \
Versus
Joint Director
Directorate of Enforcement
Cochin Zonal Office
Kanoos Castle
Mullassery Canal Road West
Cochin-11. .. Respondent in both Review Applications
Review Application No.21 of 2021 filed under Order 47 Rule 1 read
with Section 114 of the Civil Procedure Code (CPC) against the order dated
17.12.2020 passed in W.P.No.25231 of 2019 on the file of this Court.
Review Application No.22 of 2021 filed under Order 47 Rule 1 read
with Section 114 of the Civil Procedure Code (CPC) against the order dated
17.12.2020 passed in W.P.No.25177 of 2019 on the file of this Court.
For Review Applicant in Rev.A.No.21 of 2021:
Mr.B.Kumar, Senior Counsel for M/s.R.Murali
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Rev.Appln Nos. 21 and 22 of 2021
For Review Applicant in Rev.A.No.22 of 2021 :
Mr.E.Om Prakash, Senior Counsel for M/s.V.Venkatasamy
For Respondent in both the Review Applications:
Mr.R.Sankara Narayanan,
Addl. Solicitor General of India
assisted by Mr.N.Ramesh, Spl.P.P.
COMMON ORDER
(The Common Order of the Court was made by R.Subbiah, J)
These Review Applications have been filed seeking to review the
common order dated 17.12.2020 made in the Writ Petitions in WP Nos.
25177 and 25231 of 2019. The said writ petitions were filed praying to
question the validity and/or legality of the registration of Enforcement Case
Information Report (ECIR) in proceedings in ECIR.No.KCZO/4/2014,
dated 19.08.2014 and consequential Provisional Attachment Order No.02-
/2019 (for short, "the PAO") issued in ECIR/04/KCZO/2014/1137, dated
22.07.2019 under Section 5(1) of the Prevention of Money Laundering Act
(for short, "PMLA") on the file of the respondent and quash the same.
2. After elaborate order, this Court dismissed the writ petitions mainly
on two grounds namely (i) the review applicants have an effective
alternative remedy under Section 8 of The Prevention of Money Laundering
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Rev.Appln Nos. 21 and 22 of 2021
Act and (ii) the High Court of Madras has no territorial jurisdiction, though
a minuscule cause of action has arisen within the jurisdiction of this Court
and that the Special Court at Kerala is seized of the matter. Therefore, it was
held that the Writ Petitions filed before this Court are not maintainable.
3. Now, Mr.Om Prakash, learned Senior Counsel appearing for the
review Applicant No. 22 of 2021 submitted that the above reasons of this
Court are error apparent on the records. The provisions of the PMLA would
show that two different clauses are contemplated under the Scheme of the
Act, first one is with regard to the criminal prosecution under Section 3 of
the PMLA. Second is with reference to the attachment and confiscation of
the property identified under the proceeds of the crime. According to the
learned Senior counsel, the procedure(s) in respect of both the processes are
apparently different except to the fact that on the decision of conviction by
the Special Court, the power of confiscation of the attached property is also
provided for.
4. It is further submitted by the learned Senior Counsel that PMLA
clearly demarcates the jurisdiction of the Court in respect of both the
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Rev.Appln Nos. 21 and 22 of 2021
processes. So far as offence of money laundering is concerned, the
prosecution is only before the Special Court by filing of a complaint. In the
event of conviction, the party has a remedy of appeal provided in terms of
Code of Criminal Procedure and also to the High Court as could be seen
under Section 44 and 47 of PMLA. So far as the attachment of the property
is concerned, Section 5 provides provisional order of attachment. Section
16 enables carrying out survey and arriving at a conclusion as regards
money laundering. Section 17 provides for search and seizure. Section 18
provides for search on person. According to the learned Senior counsel for
the petitioners, the actions to be initiated in terms of Sections 5 or 16 to 18
of the PMLA are confined with the jurisdiction only on the concerned
authority where the property is situated. Therefore, the respondent has no
jurisdiction to issue Provisional Order of attachment at all since the persons
against whom it is issued are residing and/or having registered office at
Tamil Nadu and the properties covered under the provisional order of
attachment are also situated within the State of Tamil Nadu. Similarly, in
all the three instances the filing of original complaint before the
Adjudicating Authority under Section 8 of the PMLA is also uniformly
provided. As against the decision of the Adjudicating Authority under
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Rev.Appln Nos. 21 and 22 of 2021
Section 8, an appeal remedy is provided to the Appellate Tribunal under
Section 26 of the PMLA and a further right of appeal is provided before the
concerned High Court under Section 42 of PMLA Act. Interestingly, in this
case, the provision to Section 42 of the PMLA clearly states that the High
Court having territorial jurisdiction on the property or the place of residence
or business of the concerned person alone will determine the jurisdiction of
the High Court. Thus, a clear demarcation of jurisdiction is made in respect
of criminal proceedings for trying the offence of money laundering and in
respect of attachment and confiscation in the nature of civil proceedings
vesting the power on different High Courts. Therefore the findings of this
Court with regard to territorial jurisdiction is an error apparent on the face
of record.
5. The learned Senior Counsel further submitted that the jurisdiction
of this Court is also demonstrated by the fact that against the confirmation
order of the first provisional order, the Review Applicants filed an appeal
before the Appellate Authority under Section 26 of PMLA on the ground
that there is a delay in forwarding the copy of the order to the adjudicating
authority and it vitiates the order of attachment. The Appellate Court,
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Rev.Appln Nos. 21 and 22 of 2021
accepting the submissions of the Review Applicants, allowed the appeal.
Aggrieved against the order, the department filed an appeal under Section
42 of PMLA only before this Court which would show that this Court alone
has got the jurisdiction to entertain the writ petition. Hence, the
observations made in para No.19 of the order that the jurisdiction vests with
the High Court of Kerala is contrary to the stand taken by the respondent in
Civil Miscellaneous Appeal filed before this Court.
6. As next fold of submission, the learned Senior counsel for the
Review Applicant submitted that this Court dismissed the writ petitions also
on the ground that there is an alternative remedy of appeal, which is also an
error apparent on the face of record. According to the learned Senior
Counsel, Section 8 of PMLA provides for filing of original complaint by the
Enforcement Directorate/respondent seeking confirmation of the
Provisional Order of Attachment. As such the adjudication provided under
Section 8 of PMLA does not provide for examining the legality or
impropriety of ECIR or provisional Order of Attachment issued to the
Review Applicants. In fact, there is no remedy provided under Section 8
except to the extent pointed above and as provided under sub-sections (2)
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Rev.Appln Nos. 21 and 22 of 2021
and (3) of Section 8 of PMLA. Further, the provisions of the statute do not
provide any remedy or adjudication to an aggrieved person to challenge the
ECIR. Therefore, there is no alternative remedy at all available to assail the
ECIR and the only remedy available is to file the writ petition before this
Court.
7. It is further submitted that offence under the PMLA will be triable
by the Special Court constituted under PMLA for violation of Section 3
investigated by Enforcement Directorate. It is completely different from the
scheduled offence contained under the PMLA such as Section 420 and 120-
B of IPC. This Court, in para No.19 of the order under review observed that
CBI has filed a final report before the Chief Judicial Magistrate,
Erunakulam, Kerala, therefore offence has to be tried only by the Special
Court at Kerala. It is pertinent to note that both the parties to the writ
petition have not raised a plea about the complaint pending before the
Special Court, Kerala under PMLA. Therefore, the observations made in
the order under review affects the rights of the petitioners, who have
challenged the jurisdiction of the Special Court, Kerala constituted under
PMLA, before the Kerala High Court in Criminal Revision Petition Nos. 17
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Rev.Appln Nos. 21 and 22 of 2021
and 33 of 2021, which are pending till date. The Review Applicants have
demonstrated that the observations made by this Court in the order passed in
the Writ Petitions are error apparent on the face of the record. Therefore,
the order passed by this Court is required to be reviewed and the Review
Applications have to be allowed.
8. Mr.B.Kumar, learned Senior counsel appearing for the Review
Applicant in Review Application No. 21 of 2020 submitted that in para
No.19 of the order passed in the writ petitions, this Court has observed that
the investigation was done by CBI and final report has been filed before the
Chief Judicial Magistrate, Erunakulam at Kerala. It is no doubt CBI
investigated the scheduled offence under Sections 420 and 120-B of IPC
and the contravention of Lotteries (Regulation) Act. But this observation is
not relevant in this case. In Para No.19, this Court also observed that
"Therefore the complaint complaining alleged commission of offences
under PMLA has to be tried only before the Special Court at Kerala."
However, the complaint under PMLA before the Special Court at Kerala
and complaint by CBI before the Chief Judicial Magistrate, Erunakulam are
entirely different. The complaint filed under PMLA before the Special
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Rev.Appln Nos. 21 and 22 of 2021
Court was not produced before this Court because no argument was
addressed by either parties touching upon the same. Therefore, the
observations made by this Court in para No.19 to the effect that "the offence
under PMLA has to be tried by the Special Court, Kerala" is based on no
evidence and arguments. Therefore, the said finding has to be deleted.
Thus, the learned Senior counsel sought for reviewing the order passed by
this Court in the writ petition.
9. Countering the submissions of the learned Senior counsel
appearing for the Review Applications, Mr.R.Sankara Narayanan, learned
Additional Solicitor General appearing for the respondent-Enforcement
Directorate would submit that the writ petitions were filed challenging the
provisional order of attachment (POA) as well as ECIR. Therefore, the
question of deleting the findings of this Court in para No.19 does not arise.
This Court has considered all the aspects and rendered findings. Absolutely
there is no error apparent on the order passed in the writ petitions. The
ECIR cannot be challenged before this Court and it has to be challenged
only before the High Court of Kerala.
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Rev.Appln Nos. 21 and 22 of 2021
10. According to the learned Additional Solicitor General, Section 3
of the Act deals with offences under PMLA. It is an independent offence
and this has to be tried before the Special Court within whose jurisdiction
the offence is committed. Section 8 of the Act provides that on conclusion
of trial of the offences under this Act, if the Court finds that the offences
have been committed, it can order confiscation of assets. Section 8 (3) deals
with the cases where the Adjudicating Authority decides that any property is
involved in money laundering, he shall by an order in writing confirm the
order of the Adjudicating authority made under Section 51 (1) of PMLA.
All these aspects have been considered by this Court in the order under
review. The Review Applications are nothing but an attempt to re-argue the
case and prayed for dismissal of the Review Applications.
11. Heard the submissions of the learned counsel for both sides in
detail and perused the materials available on record.
12. At the outset, it has to be observed that the scope of the Review
petition is very limited. The learned Additional Solicitor General appearing
for the respondent-Enforcement Directorate submitted that under the guise
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Rev.Appln Nos. 21 and 22 of 2021
of Review, the review applicants are only trying to re-argue the case.
Therefore, we are not traversing into the submissions made by the parties.
13. For the purpose of reviewing the matter, the matter has to fall
within Order 47 of CPC. In the guise of seeking review, it cannot be re-
argued. This Court has dismissed the writ petition on the ground that there
is alternative remedy and there is no jurisdiction vested with this Court. If
at all the petitioners are aggrieved, an appeal has to be filed against the
order passed in the writ petition even if the review applicants feel that the
conclusion is erroneous in nature. The Review Applications are nothing but
an attempt to re-argue the case, which cannot be permitted.
14. With regard to the appeal in CMA filed by the Department before
this Court, it is submitted that Section 42 of the PMLA deal with the appeals
to the High Court. It is reiterated that Appeal under Section 42 has its
beginning with a provisional order of attachment under Section 5. A
confirmation or rejection of the same is provided under Section 42 against
which an appeal remedy is provided before the Appellate Authority under
Section 26. An order passed by the Appellate Authority is appellable under
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Rev.Appln Nos. 21 and 22 of 2021
Section 42 of the Act before the concerned High Court. The High Court is
designed under the explanation to Section 42, which means, the place where
the aggrieved party ordinarily resides or carries on business or personally
works for gain. The criteria is not the place where the properties are
situated and the jurisdiction is person centric and not property centric. If the
appeal is filed by the Central Government, then the jurisdiction will be
where the respondent resides or carries on business. Thus, Section 42 is
purely person centric whereas a writ petition challenging an order passed
under Section 5 of PMLA is based on cause of action and not where the
person resides. Therefore, the appeal filed under Section 42 of the PMLA
will be filed before this Court and this Court has jurisdiction. Such
provision cannot be applied for challenging the provisional order of
attachment or ECIR in this case. Therefore, we are not inclined to accept
the submission made by the Review Applicants.
15. The scope of review application is limited and it cannot be
entertained only if there is an error apparent on the face of the record. In
this context, we gain strength from the decision of the Honourable Supreme
Court in the case of Kamlesh Verma vs. Mayawati and others, reported
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Rev.Appln Nos. 21 and 22 of 2021
in (2013) 8 SCC 320, wherein the Supreme Court, after examining various
judgments, has laid down the circumstances, as to when the Court can
review its own judgments. The relevant portion of the judgment is extracted
as under:
"12.This Court has repeatedly held in various Judgments
that the jurisdiction and scope of review is not that of an appeal
and it can be entertained only there is an error apparent on the
face of record. A mere repetition through different counsel, of
old and overrulled arguments, a second trip over ineffectually
covered grounds or minor mistakes of inconsequential import
are obviously insufficient......."
... ... ...
"19. Review proceedings are not by way of an appeal and
have to be strictly confined to the scope and ambit of Order XL
VII Rule 1 of CPC. In review jurisdiction, mere disagreement
with the view of the Judgment cannot be the ground for
invoking the same. As long as the point is already dealt with
and answered, the parties are not entitled to challenge the
impugned Judgment in the guise that an alternative view is
possible under the review jurisdiction.
16. In the light of the above, we refuse to review the order dated
17.12.2020 made in WP Nos. 25177 and 25231 of 2019. Accordingly, the
Review Applications are dismissed. No costs.
(R.P.S.J.,) (R.P.A..J)
17-06-2021
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Rev.Appln Nos. 21 and 22 of 2021
Index: Yes/no
Speaking Order: Yes
rsh
To
Joint Director
Directorate of Enforcement
Cochin Zonal Office
Kanoos Castle
Mullassery Canal Road West
Cochin-11.
https://www.mhc.tn.gov.in/judis/
Rev.Appln Nos. 21 and 22 of 2021
R.SUBBIAH, J
and
R.PONGIAPPAN, J
rsh
Rev.A.Nos.21 and 22 of 2021
in W.P.Nos.25231 and 25177 of 2019
17.06.2021
https://www.mhc.tn.gov.in/judis/
