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Liquidator of M/s. Devas Multimedia Pvt. Ltd., Represented by M. Jayakumar, Bengaluru v/s Directorate of Enforcement, Represented by its Assistant Director, Bengaluru & Others

    Writ Petition No.12118 Of 2021 (GM-RES)

    Decided On, 26 July 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE P.S. DINESH KUMAR

    For the Petitioner: Dhyan Chinnappa, Senior Advocate, Anuradha Agnihohri, Advocate. For the Respondents: R1, M. Unnikrishnan, CGC, R3 to R5, M.P. Priyanka, Advocate.



Judgment Text

(Prayer: This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to allow application filed U/S 8(7) of PMLA Act Annx-B and direct the complainant to release the interest and income accrued and receivable on the attached assets of DMPL, Worth Rs.79,76,00,311/- attached vide PAO dated 27.02.2017 and Rs.3,10,20,831 attached vide PAO No.7 Of 2019 dated 18.07.2019 and etc.)

1. This writ petition is filed with following prayer:

"To allow the application filed under Section 8(7) of the Prevention of Money Laundering Act, 2002 ('the Act' for short) and direct the complainant/ED to release the interest and income accrued and receivable on the attached assets of DMPL worth Rs.79,76,00,311/- attached vide PAO dated 27.02.2017 and Rs.3,10,20,831/- attached vide PAO No.7 of 2019 dated 18.07.2019."

2. Shri Dhyan Chinnappa, learned Senior Advocate for the Official Liquidator submitted that the designated Court for the PMLA matters, namely Court No.4, City Civil Court, Bengaluru, is not functioning. He further submitted that the National Company Law Tribunal ('the NCLT' for short), vide order dated 25.05.2021 has allowed the petition filed by M/s Antrix Corporation Ltd., to wind up M/s Devas Multimedia Pvt.Ltd.

The NCLT has appointed the Official Liquidator attached to this Court to take expeditious steps to liquidate Devas*. The petitioner does not have any money for expenditure to comply with NCLT's order. Therefore, petitioner has filed an application before the designated Court as per Annexure-B with a prayer inter alia to direct the Enforcement Directorate ('ED' for short) to release the interest and income accrued and receivable on the attached assets of the company. The designated Court is not functioning. In view of the urgency, this Court may consider allowing this writ petition.

3. Shri Unnikrishnan, learned CGC for the complainant-ED, has no objection for releasing the interest portion.

4. Ms.Priyanka, learned advocate for respondents No.3 to 5 submitted that as per Section 8(7) of the Prevention of Money- Laundering Act, 2002 ('the Act' for short), where the trial cannot be conducted, the Special Court on an application moved by the ED, pass appropriate orders regarding confiscation or release of the property as the case may be. According to her, in * M/s Devas Multimedia Pvt.Ltd. this case, the trial has not begun. Therefore, it cannot be inferred that trial cannot be conducted. Hence, petitioner's application is not maintainable.

5. She further submitted that under Rule 85 of the Companies (Winding up) Rules, 2020 ('the Winding up Rules' for short), the Central Government may provide expenses to be incurred by the Official Liquidator.

6. I have carefully considered rival submissions and perused the records.

7. Undisputed facts of the case are, Devas has been wound up by the NCLT. Rule 85 of the Winding Up Rules reads as follows:

"85. Where the company has no available assets.- (1) Where a company against which a winding up order has been made has no available assets, the Company Liquidator may, with the leave of the Tribunal, incur any necessary expenses in connection with the winding up, out of any permanent advance or other fund provided by the Central Government, and the expenses so incurred shall be recouped out of the assets of the company in priority to the debts of the company.

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8. The above Rule shows that where the company has no available assets, funds can be provided by the Central Government. In the instant case, the ED has seized the money belonging to Devas. The ED has filed an affidavit signed by the Assistant Director and the relevant portion reads as follows:

"3. I submit that the Directorate of Enforcement has no objection in releasing the interest portion of the attached amount in accordance with law. It is relevant to submit that by virtue of the provisions of the Prevention of Money Laundering Act, it is the Special Court trying the offences of Money Laundering who has to pass orders for release of the same."

9. At this stage, Ms.Priyanka submitted that Delhi High Court in W.P.(C) No.9521/2020 filed by Devas against the Directorate of Enforcement and others, has stayed the proceedings before the adjudicating authority.

10. In reply, Shri Dhyan Chinnappa submitted that the background of the case before the Delhi High Court is, Devas had filed an application for release of seized amount and the same was rejected. The said order was challenged before the Delhi High Court. The Delhi High Court has stayed the proceedings before the adjudicating authority. Therefore, the said case has no bearing insofar as present writ petition is concerned. He is right in this submission.

11. In the circumstance, it would be appropriate to direct first respondent to release the interest and income accrued on the attached sum of Devas.

12. Hence, the following:

ORDER

i) Writ petition is allowed;

ii) The application under Section 8(7) of PML Act filed before t

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he Principal City Civil & Sessions Judge, Bengaluru and Special Court under the Prevention of Money Laundering Act, 2002, is allowed; iii) Respondent No.1(ED) shall release the interest and income accrued and receivable on the attached sum of Rs.79,76,00,311/- attached vide PAO dated 27.02.2017 and Rs.3,10,20,831/- attached vide PAO No.7 of 2019 dated 18.07.2019 to the Official Liquidator of Devas; iv) The amount so released to the Official Liquidator of Devas shall be subject to superintendence and further orders by the NCLT. No costs.
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