Varrsana Ispat Ltd Through The Rp Of Anil ... vs Deputy Director, Directorate Of ...

(Arising out of Order dated 12th July, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata in CA (IB) Nos. 563, 399 & 550/KB/2018 in CP (IB) No. 543/KB/2017)

IN THE MATTER OF:

Varrsana Ispat Limited Through the Resolution Professional Mr. Anil Goel ...Appellant

Vs.

Deputy Director, Directorate of Enforcement ...Respondent

Present: For Appellant:- Mr. Sumant Batra and Mr. Udit Prakash Potaliya, Advocates and Ms. Kiran Sharma, C.S.

For Respondents:- Mr. K. Dutta, Mr. Shivam Takia, Mr. Cheitanya Madan, Advocates. Mr. Amresh Kumar Jha, Advocate. Mr. Atul Tripathi, Advocate.

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The Directorate of Enforcement of Central Government, New Delhi,

attached some of the properties of 'Varrsana Ispat Limited'- ('Corporate

Debtor'). The 'Resolution Professional' filed application before the

Adjudicating Authority (National Company Law Tribunal), Kolkata 2

Bench, Kolkata, for releasing the attachment of certain assets of the

'Corporate Debtor' by Deputy Director of Enforcement.

2. On-going through the order of attachment, the Adjudicating

Authority observed that the attachment order was issued on 10th July,

2017 prior to the order of declaration of the 'Moratorium' in the case in

hand. Therefore, an order releasing the order of attachment by the

Directorate of Enforcement is not maintainable. The aforesaid order dated

12th July, 2018 is under challenge in this appeal.

3. Learned counsel appearing on behalf of the Appellant- 'Resolution

Professional' submitted that Section 14 of the Insolvency and Bankruptcy

Code, 2016 ("I&B Code" for short) has an overriding effect on the

provisions of the 'Prevention of Money Laundering Act, 2002'. Reference

was made to Section 238 of the 'I&B Code'. It was submitted that during

the period of 'Moratorium' the creditors and all authorities causing any

disruption in the 'Corporate Insolvency Resolution Process' cannot be

allowed to do so.

4. Further, according to counsel for the Appellant, the provisional

order of attachment cannot be confirmed by the Directorate of

Enforcement during the period of 'Moratorium'.

5. On the other hand, according to learned counsel appearing on

behalf of the Directorate of Enforcement, in view of the provisions of

'Prevention of Money Laundering Act, 2002' including Section 2(1)(u) and

Company Appeal (AT) (Insolvency) No. 493 of 2018 3 Sections 3 & 4, the action can be taken under 'Prevention of Money

Laundering Act, 2002' even during the period of 'Moratorium'.

6. Section 14 of the 'I&B Code' relates to declaration of 'Moratorium'

for prohibiting some of the action as mentioned therein and reads as

follows:

"14. Moratorium─ (1) Subject to provisions of sub-

sections (2) and (3), on the insolvency commencement

date, the Adjudicating Authority shall by order declare

moratorium for prohibiting all of the following,

namely:--

(a) the institution of suits or continuation of

pending suits or proceedings against the

corporate debtor including execution of any

judgment, decree or order in any court of law,

tribunal, arbitration panel or other authority;

(b) transferring, encumbering, alienating or

disposing of by the corporate debtor any of its

assets or any legal right or beneficial interest

therein;

(c) any action to foreclose, recover or enforce any

security interest created by the corporate debtor

in respect of its property including any action

Company Appeal (AT) (Insolvency) No. 493 of 2018 4

under the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security

Interest Act, 2002;

(d) the recovery of any property by an owner or

lessor where such property is occupied by or in

the possession of the corporate debtor.

(2) The supply of essential goods or services to the

corporate debtor as may be specified shall not be

terminated or suspended or interrupted during

moratorium period.

(3) The provisions of sub-section (1) shall not apply to-

(a) such transactions as may be notified by the

Central Government in consultation with any

financial sector regulator.

(b) a surety in a contract of guarantee to a

corporate debtor.]

(4) The order of moratorium shall have effect from the

date of such order till the completion of the corporate

insolvency resolution process:

Provided that where at any time during the

corporate insolvency resolution process period, if the

Adjudicating Authority approves the resolution plan

Company Appeal (AT) (Insolvency) No. 493 of 2018 5

under sub-section (1) of section 31 or passes an order

for liquidation of corporate debtor under section 33, the

moratorium shall cease to have effect from the date of

such approval or liquidation order, as the case may

be."

7. From a plain reading of Section 14, it is clear that the provision

relates to

(i) institution of suits;

(ii) continuation of pending suits;

(iii) proceedings against the 'Corporate Debtor' including execution

of any judgment;

(iv) decree of order in any court of law, tribunal, arbitration panel

or other authority;

(v) transferring, encumbering, alienating or disposing of by the

corporate debtor any of its assets or any legal right or beneficial

interest therein;

(vi) any action to foreclose, recover or enforce any security interest

created by the corporate debtor in respect of its property including

any action under the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act, 2002;

Company Appeal (AT) (Insolvency) No. 493 of 2018 6

(vii) the recovery of any property by an owner or lessor where such

property is occupied by or in the possession of the corporate debtor.

8. Section 14 is not applicable to the criminal proceeding or any penal

action taken pursuant to the criminal proceeding or any act having

essence of crime or crime proceeds. The object of the 'Prevention of Money

Laundering Act, 2002' is to prevent the money laundering and to provide

confiscation of property derived from, or involved in, money-laundering

and for matters connected therewith or incidental thereto.

9. Section 2(1) (u) of the 'Prevention of Money Laundering Act, 2002'

defines "proceeds of crime" which reads as follows:

"2. Definitions. ─ (1) In this Act, unless the context

otherwise requires,─

xxx xxx xxx

(u) "proceeds of crime" means any property derived or

obtained, directly or indirectly, by any person as a

result of criminal activity relating to a scheduled

offence or the value of any such property"

10. Chapter II relates to 'offence of money-laundering' and Section 3

therein relates to 'offence of money-laundering, which reads as follows:

Company Appeal (AT) (Insolvency) No. 493 of 2018 7

"3. Offence of money-Laundering.- Whosoever

directly or indirectly attempts to indulge or knowingly

assists or knowingly is a party or is actually involved in

any process or activity connected with the proceeds of

crime including its concealment, possession, acquisition

or use and projecting or claiming it as untainted property

shall be guilty of offence of money-laundering."

11. 'Punishment for money-laundering' is prescribed under Section 4

as follows:

"4. Punishment for money-laundering. ─ Whoever

commits the offence of money-laundering shall be

punishable with rigorous imprisonment for a term

which shall not be less than three years but which may

extend to seven years and shall also be liable to fine:

Provided that where the proceeds of crime

involved in money-laundering relates to any offence

specified under paragraph 2 of Part A of the Schedule,

the provisions of this section shall have effect as if for

the words" which may extend to seven years", the

words "which may extend to ten years" had been

substituted."

Company Appeal (AT) (Insolvency) No. 493 of 2018 8

12. From the aforesaid provisions, it is clear that the 'Prevention of

Money-Laundering Act, 2002' relates to 'proceeds of crime' and the

offence relates to 'money-laundering' resulting confiscation of property

derived from, or involved in, money-laundering and for matters connected

therewith or incidental thereto. Thus, as the 'Prevention of Money

Laundering Act, 2002' or provisions therein relates to 'proceeds of crime',

we hold that Section 14 of the 'I&B Code' is not applicable to such

proceeding.

13. In so far as penalty is concerned, offence of money-laundering is

punishable with rigorous imprisonment which is not less than three

years and has nothing to do with the 'Corporate Debtor'. It will be

applicable to the individual which may include the Ex-Directors and

Shareholders of the 'Corporate Debtor' and they cannot be given

protection from the 'Prevention of Money Laundering Act, 2002' and such

individual cannot take any advantage of Section 14 of the 'I&B Code'. This

apart, we find that the attachments were made by the Deputy Director of

Directorate of Enforcement much prior to initiation of the 'Corporate

Insolvency Resolution Process', therefore, the 'Resolution Professional'

cannot derive any advantage out of Section 14.

14. As the 'Prevention of Money Laundering Act, 2002' relates to

different fields of penal action of 'proceeds of crime', it invokes

simultaneously with the 'I&B Code', having no overriding effect of one Act

Company Appeal (AT) (Insolvency) No. 493 of 2018 9

over the other including the 'I&B Code', we find no merit in this appeal.

It is accordingly dismissed. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial)

NEW DELHI 2nd May, 2019

AR

Company Appeal (AT) (Insolvency) No. 493 of 2018