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Directorate Of Enforcement vs Kec Internationaal Limited And Ors

National Company Law Appellate Tribunal16 December 2024

Ratio decidendi

The rule this decision rests on

A stay order granted in a statutory appeal operates prospectively from the date it is passed; it does not retrospectively invalidate acts already completed before that date under an order that was in force at the time. Where a direction given under Section 60(5) of the Insolvency and Bankruptcy Code to a Resolution Professional to hand over goods has been complied with before a stay of the underlying attachment-related order is granted, the subsequent stay has no effect on the earlier direction or on the completed handover, and no basis remains for an appeal challenging that direction.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No. 1121 of 2022&I.A. No. 3338 of 2022

IN THE MATTER OF: Deputy Director Directorate of Enforcement ...Appellant Versus KEC International Ltd. & Anr. ...Respondents

Present: For Appellant : Mr. Zoheb Hossain, Advocate.

For Respondents : Mr. Ashish Dholakia, Sr. Advocate with Ms. Shreya Jain, Mr. Gaurav Tanwar, Mr. Rohan Chawla and Ms. Ananya, Advocates for R-1.

Mr. Udit Gupta, Ms. Amarnath Sahoo and Ms. Deepshika Kumar, Advocates for R-2.

ORDER

(Hybrid Mode)

Per: Justice Rakesh Kumar Jain (J) (Oral)

16.12.2024 : This Appeal is directed against an Order dated

04.09.2020, by which an Application bearing I.A. No. 139/2019 filed by KEC

International Ltd. (Respondent No. 1) under Section 60(5) of the Insolvency

and Bankruptcy Code, 2016, (Code) for a direction to the Resolution

Professional (RP) of the Corporate Debtor M/s. Diamond Power

Infrastructure Limited to hand over the goods of the Applicant (raw

material/semi-finished/finished to Respondent No. 1 within the time bound

manner has been allowed.

2. Shorn of unnecessary details, a Job Work Agreement dated

04.11.2017 was entered into between Respondent No. 1 and the Corporate

Debtor. As per the said Agreement, the goods were to remain under the ownership of the Respondent No. 1 and the Corporate Debtor was only a

bailee having a temporary possession over it.

3. The premises of the Corporate Debtor was searched by the

Enforcement Directorate (ED) under the provisions of the Prevention of

Money Laundering Act, 2002 (for short `The Act'). A Provisional Attachment

Order was passed on 24.04.2018 qua attachment of many things including

the raw material/semi-finished/finished goods of Respondent No. 1 which

were lying in the premises of the Corporate Debtor. The Order dated

24.04.2018 was confirmed on 01.10.2018 but on 18.02.2019, the Appellate

Authority under the Act, quashed not only the Provisional Order dated

24.04.2018 but also the Confirmation Order dated 01.10.2018 and hence

there was no eclipse on the rights of Respondent No. 1 regarding the raw

material/semi-finished/finished goods.

4. On 04.09.2020, the Application bearing I.A. No. 139/2019 was

allowed and a direction was issued to the RP to handover the goods to the

Applicant (raw material/semi-finished/finished goods) within seven days

from the date of the Order passed and the RP and representative of the

Applicant (Respondent No. 1) were directed to identify the goods and make

inventory.

5. It is submitted by Mr. Dholakia, appearing on behalf of Respondent

No. 1, that pursuant to the Impugned Order dated 04.09.2020, the goods

were handed over by RP to Respondent No. 1 on 28.10.2020.

6. Mr. Hussain appearing on behalf of the Appellant has however

submitted that the ED filed a statutory Appeal under Section 42 of the Act

before the Hon'ble High Court of Gujarat at Ahmedabad bearing First Appeal

Comp. App. (AT) (Ins.) No. 1121 of 2022 & I.A. No. 3338 of 2022 2 of 6 No. 5180/2019 to challenge the Order dated 18.02.2019, by which, the

Appellate Authority of the PMLA had quashed the Order dated 24.04.2018

and 01.10.2018.

7. In the Appeal, an Interim Order was passed on 02.12.2020, which

read thus:

"7. In the aforesaid view, the order dated 18th June, 2019 passed by the Appellate Tribunal, PMLA, New Delhi, which is impugned in this appeal whereby attachment of the properties of M/s. DPIL is released shall remain stayed till the final outcome of this appeal. As the said order is stayed, the original order dated 24th April, 2018 by the competent authority confirmed on 01st October, 2018 by the Adjudicating Authority attaching the properties of M/s. DPIL shall remain in operation during the pendency of the present appeal."

8. Mr. Hussain has submitted that in view of the fact that the aforesaid

Order is still continuing and the Order dated 18.02.2019 has been stayed,

therefore, direction issued in the Impugned Order to deliver back the raw

material, semi-finished/finished goods to Respondent No. 1 is erroneous

and illegal.

9. In this regard, Counsel for Respondent No. 1 has submitted that

though there is no dispute that the aforesaid Order has been passed by the

Hon'ble High Court of Gujarat on 02.12.2020 but before that date, pursuant

to Order dated 04.09.2020, the goods have been handed over by RP to

Respondent No. 1.

10. In this regard, he has drawn our attention to Annexure R-19,

appended with the Reply, which is a letter dated 28.10.2020, as per which

the RP has handed over the raw material, semi-finished/finished goods to

Respondent No. 1. The text of the letter is also reproduced as hereunder:

Comp. App. (AT) (Ins.) No. 1121 of 2022 & I.A. No. 3338 of 2022 3 of 6 Comp. App. (AT) (Ins.) No. 1121 of 2022 & I.A. No. 3338 of 2022 4 of 6

11. Although, this case was adjourned on the request of the Counsel for

the Appellant to seek instructions of the Department as to whether the

present Appeal has to be pursued or withdrawn in view of the aforesaid

developments, as per which the goods have already been given back to

Respondent No. 1 before the Order of stay by the High Court but despite

adjournments given in this regard, no concrete Reply has been given,

therefore, this Court has decided to adjudicate this issue as to whether, in

the given facts and circumstances, the Appeal should continue or not.

12. We have heard the Counsel for the Parties and perused the record

with their able assistance.

13. The issue travels in a narrow compass as to whether the Order dated

02.12.2020, passed by the Hon'ble High Court of Gujarat, staying the

operation of 18.06.2019, shall have any impact, after the Order dated

04.09.2020 has been passed and the goods have been received by

Respondent No. 1 in terms of the said Order. In this regard it is suffice to

mention that the Order dated 24.04.2018 which was confirmed on

01.10.2018 was quashed by the Appellate Authority of the PMLA on

18.02.2019, thereafter the Application filed by Respondent No. 1 was

allowed on 04.09.2020 directing the RP to release the semi-finished/finished

goods to Respondent No. 1 which has been done by the RP on 28.10.2020

and by that time there was no stay Order against the RP not to deliver the

goods to Respondent No. 1.

14. The Order of stay was rather passed on the statutory Appeal filed by

the Appellant on 02.12.2020 i.e., almost after a period of more than one

Comp. App. (AT) (Ins.) No. 1121 of 2022 & I.A. No. 3338 of 2022 5 of 6 month, therefore, it has no effect so far as the Order dated 04.09.2020 is

concerned as the goods were returned by the RP on 28.10.2020.

Therefore, in such circumstances, we do not find merit in the present

Appeal and the same is hereby dismissed. No order as to costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Naresh Salecha] Member (Technical)

[Indevar Pandey] Member (Technical) himanshu/rr

Comp. App. (AT) (Ins.) No. 1121 of 2022 & I.A. No. 3338 of 2022 6 of 6

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