HAMILTON HOUSEWARE PVT. LTD  Vs UNION OF INDIA & ANR.

W.P.(C) 766/2021 Page 1 of 4$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18thJanuary, 2021
+ W.P.(C) 766/2021 & CM APPLs.1926-27/2021
HAMILTON HOUSEWARE PVT. LTD. ….. Petitioner
Through: Mr. Vijay Aggarwal, Ms. Urfee
Haider and Mr. Talib Khan,
Advocates (M: 9971515733)
versus
UNION OF INDIA & ANR. ….. Respondents
Through: Mr. Vikram Jetly, CGSC for R-1.
Mr. Ravi Prakash, Advocate for R-2.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through video conferencing.
2. The Petitioner has filed the present writ petition challenging the final
order dated 28thDecember, 2020, passed by the Adjudicating Authority
under Section 8 of the Prevention of Money Laundering Act, 2002
(hereinafter referred as “PML Act” ), by which the attachment of the bank
account of the Petitioner has been confirmed by the Adjudicating Authority.
3. Mr. Vijay Aggarwal, ld. counsel for the Petitioner, submits that the
Petitioner had moved a specific application dated 14thDecember 2020, in
OA no. 396/2020, with the following prayers:
“1. Pass necessary order and direction hereby
directing the Applicant (ED) to supply the
following document at the earliest:
A.Letter of request dated 12.11.2018, received
from central authority of brazil seeking legal
assistance in criminal matter from the
Applicant (ED) along with all the
2021:DHC:196W.P.(C) 766/2021 Page 2 of 4communication to and from the Brazilian
Competent Authority. (Para 1 of original OA)
B.Order dated 02.10.2018, passed by the 7th
Federal Criminal Court, Rio De Janerio,
Brazil. (Para 2.7 of original OA)
C.Forwarding letter by Central Authority of India
(i.e. Ministry of Home Affairs) given to the
Applicant (ED) (Para No.5 of Original OA).
D.File of Central Authority of India (I.e. Ministry
of Home Affairs) where the request by brazil
was Processed.
E.Copy of Reason to believe recoded by the
Applicant (ED) for seizure U/s 17(1) of the
PMLA, 2002.
F.Authorisation issued by the Deputy Director as
mentioned in the punchnama at Page 34 of the
Original OA.
G.Clarification sought from the Central Authority
of Brazil (mentioned in Para 5 of the amended
OA)
H.Amended letter of request dated 08.09.2020
from the Central Authority of Brazil (para no.6
of the amended OA)
So that an effective reply can be filed as per the
direction of the Hon’ble AA.
2. Pass any other order/direction as the
Hon’ble Adjudicating Authority deem fit. ”
4. The grievance of Mr. Aggarwal, ld. counsel, is that the said
Application has neither been considered nor disposed of by the Adjudicating
Authority, while passing the final order dated 28thDecember 2020. He
further submits that the impugned order is without any application of mind,
inasmuch as page 83 of the paper book i.e. internal page 34 of the order,
continues to set out the bank details of the Petitioner and attachment/
2021:DHC:196W.P.(C) 766/2021 Page 3 of 4freezing of the said bank account to the tune of Rs.5.81 crores. It is a matter
of record that when the initial attachment of the bank account had taken
place, the Petitioner had approached this Court by filing a writ petition
bearing no. W.P.(C) 5235/2020 , titled M/S Hamilton Housewares Pvt. Ltd.
v. Directorate of Enforcement , in which, vide order dated 26thAugust,
2020, the amount which was frozen was restricted to a sum of USD 20,000.
Despite this order continuing to be operating in favour of the Petitioner, the
entire bank account of the Petitioner has been attached by the Directorate of
Enforcement, subject to directions of the High Court in the writ petition.
5. Mr. Ravi Prakash, ld. counsel appearing for the Directorate of
Enforcement/ Respondent No. 2, submits that the impugned order is an
appealable order under Section 26 of PML Act, and the Petitioner ought to
be relegated to the Appellate Tribunal to pursue his prayers and remedies
thereto. He further submits that the Adjudicating Authority is conscious of
the orders passed in the writ petition filed by the Petitioner, bearing no.
W.P.(C) 5235/2020 .
6. Heard ld. counsels for the parties. A perusal of the impugned order
shows that the application filed by the Petitioner has not been considered by
the Adjudicating Authority. According to ld. counsel for the Petitioner, the
question as to whether “reasons to believe” have to be be supplied or not,
has been decided by two judgments i.e. the Division Bench of this court in
J. Sekar v Union of India (WP(C) 5320/2017) and the Punjab and Haryana
HC in Seema Garg v. Deputy Director (PMLA Appl. No. 1/2019) . Ld.
counsel for the Respondent No. 2, however has submitted that the judgment
inJ. Sekar has been stayed by the Supreme Court and is pending thereto.
7. Be that as it may, the Adjudicating authority ought to have decided
2021:DHC:196W.P.(C) 766/2021 Page 4 of 4the application and thereafter proceeded to finally adjudicate the matter.
However, the submission as to availability of an alternate remedy is not
without merit. Under Section 26 of the PML Act, an appeal lies to the
Appellate Tribunal against an order of the Adjudicating Authority. Merely
because of the fact the application was not decided by the authority would
not be sufficient ground to entertain the present writ petition. The same
could be a plea that the Petitioner can raise before the PMLA Appellate
tribunal as well.
8. Accordingly, this Court directs the Petitioner to approach the
Appellate Tribunal under Section 26 of PML Act. The said Appellate
Tribunal would firstly take a view on the Application filed by the Petitioner,
and after adjudicating upon the said Application, the Appellate Tribunal
shall proceed to hear the appeal on merits, against the order passed by the
Adjudicating Authority. Insofar as the attachment of Petitioner’s bank
account is concerned, the order dated 26thAugust, 2020 passed in W.P.(C)
5235/2020 , titled M/S Hamilton Housewares Pvt. Ltd. v. Directorate of
Enforcement , would continue to apply and the attachment would only be in
terms of the said order, during pendency of the appeal before the Appellate
Tribunal. If there is any modification of the said order in the writ petition
pending before this Court, the said modification would then be placed before
the Appellate Tribunal.
9. The present petition along with all pending applications is disposed of
in the above terms.
PRATHIBA M. SINGH
JUDGE
JANUARY 18, 2021/ dk/Ak
2021:DHC:196