NILLESH PARREKH Vs. ASSISTANT DIRECTOR, ENFORCEMENT DIRECTORATE, KOLKATA

JUDGEMENT

(1.) This appeal is directed against an order dated January 1, 2021 passed by the learned Appellate Tribunal, Prevention of Money Laundering Act, 2002 in Appeal No. FPA-PMLA-3332/KOL/2019, thereby, inter alia, holding that the appeal preferred by the Enforcement Directorate, Kolkata, through the Assistant Director, purportedly under section 26 of the Prevention of Money Laundering Act, 2002 (the "PML Act", for short) was maintainable.

(2.) By an order dated 9th October, 2019, the learned Adjudicating Authority, among other things, held that the defendants therein did not commit the scheduled offences or generate proceeds of crime and hence, the complaint filed against them was dismissed and the provisional attachment order was also not confirmed. Being aggrieved by the order passed by the learned Adjudicating Authority under Section 8 of the PML Act, the Enforcement Directorate, Kolkata filed an appeal through the Assistant Director. The present appellant contended that the Enforcement Directorate was not competent to file such appeal. By an order dated 18th August, 2020, a Division Bench of this Court in an appeal being FMAT 343 of 2020 preferred by the present respondent no. 2, inter alia, held that the maintainability point shall be formally raised by the appellant by filing a supplementary affidavit before the Tribunal by 7th September, 2020 and serving copies thereof on the respondents and the Tribunal shall decide the point of maintainability as a preliminary issue. Accordingly, a supplementary affidavit was filed. After hearing the parties, the learned Tribunal passed the impugned order.

(3.) Mr Deb, learned senior counsel appearing on behalf of the appellant, submitted as follows. Section 26 of the PML Act provides that the Director or any person aggrieved by an order made by the learned Adjudicating Authority under the Act, might prefer an appeal to the Learned Appellate Tribunal. But, Section 48 of the PML Act specified the authorities under the Act and the Enforcement Directorate was not mentioned therein as an authority. The only authority which could file an appeal under Section 26 of the Act was a Director. In fact, the term "person" mentioned in Section 26 is defined in Section 2(s) of the said Act and it does not include the authorities of the Directorate. Therefore, the appeal preferred by the Enforcement Directorate through the Assistant Director was not maintainable. While deciding the issue, the Tribunal erroneously relied on the case of Amarjit Singh alias Billa, 2009 SCC Online Del 995. It failed to consider that in that case the appeal was filed under Section 54 of the Foreign Exchange Regulation Act, 1973, which was not in pari materia with Section 26 of the PML Act. Moreover, in Amarjit Singh (supra), the appeal was filed by the Union of India through the Director of Enforcement. The Union of India was sui juris and section 79 of the Code of Civil Procedure provided for initiation of litigation by the Central government in that matter. The learned Tribunal further erred in placing reliance on the decision of the Hon'ble Apex Court in the case of Sugandhi (Dead) by LRs, (2020) 10 SCC 706, in as much as the observations made therein were because the defendant wanted to file some documents which were left out in the written statement. This was not the case here. Reliance was placed on a decision of the Hon'ble Supreme Court passed in the case of Opto Circuit India Limited vs. Axis Bank and Ors., reported in 2021 SCC Online SC 55. There it was held that if a statute provided for a thing to be done in a particular manner then it had to be done in that manner alone and in no other manner. Within the scheme of Section 26 of the PML Act, only the Director was empowered to file an appeal and by necessary implication any other authority would be barred. Reliance was also placed on a decision of the Hon'ble Supreme Court in Northern Plastics Ltd vs Hindustan Photo Films Mfg Co Ltd and Ors, (1997) 4 SCC 452.