Banks, which expect to recover their money by disposing off properties attached by ED, are also suffering, the people added on condition of anonymity.(Getty Images/iStockphoto (Representative Image))
Banks, which expect to recover their money by disposing off properties attached by ED, are also suffering, the people added on condition of anonymity.(Getty Images/iStockphoto (Representative Image))

Attachments up to Rs 40k-crore remain pending as key tribunal stays headless

Worse still, it has only one member, out of a sanctioned strength of four members and a chairman. This member, GC Mishra, formerly a top bureaucrat in the law ministry is its acting chairman.
By Neeraj Chauhan | Hindustan Times, New Delhi
UPDATED ON NOV 27, 2020 06:55 AM IST

The country’s top tribunal that hears cases under the money laundering law and other key laws has been without a head for the past 14 months, seriously affecting its functioning.

Called just the Apellate Tribunal under SAFEMA Act, the forum hears appeals from individuals and businesses facing seizure and attachment of their properties under Prevention of Money Laundering Act (PMLA) by the Enforcement Directorate (ED), the Smugglers and Foreign Exchange Manipulators Act (SAFEMA), and Narcotic Drugs & Psychotropic Substances (NDPS) Act.

Worse still, it has only one member, out of a sanctioned strength of four members and a chairman . This member, GC Mishra, formerly a top bureaucrat in the law ministry is its acting chairman.

People familiar with the functioning of the tribunal and lawyers who appear before it said that attachments worth approximately Rs 30,000 to Rs 40,000 crore , across hundreds of cases, are pending, significantly affecting the value of these assets.

Banks, which expect to recover their money by disposing off properties attached by ED, are also suffering, the people added on condition of anonymity.

Some high profile money laundering cases pending before the tribunal include ED’s attachment of properties of former finance minister P Chidambaram, his son Karti Chidambaram, Sandesara brothers of Sterling Biotech Group, former Haryana Chief Minister O P Chautala, the accused in the 2G scam and the coal block case, the AgustaWestland case, the Nirav Modi bank fraud, and a case involving Rashtriya Janata Dal (RJD) leader Lalu Prasad Yadav’s daughter Misa Bharti among others.

Most appeals filed in the tribunal relate to the quashing of orders of the adjudicating authority confirming attachments by ED or banks . ED too often approaches the tribunal against any court order where its action to attach an asset is questioned.

The appellate tribunal, the only body where individuals and companies, even banks, can appeal against any attachment of a property, usually comprises a Chairman (who is or has been a Judge of the high court or Supreme Court) and four members. The four members can be from the judiciary or Indian Revenue Service (IRS) and held the post of Commissioner/Joint Secretary or equivalent in the Indian Legal Service, Income Tax department, Indian Economy Service, Indian Customs and Central Excise Service or Indian Audit and Account Service.

The previous Chairman Justice Manmohan Singh retired on September 21, 2019. Several people HT spoke to said Mishra has been deferring the finalization in majority of cases. “The Acting Chairman has, on days, 50-60 cases listed before him. Because he Acting Chairman, or maybe because his decisions can be challenged since he doesn’t have a judicial background, he isn’t going into the interpretation of law in PMLA or SAFEMA cases,” said a lawyer who didn’t want to be named.

It isn’t clear why a new chairman is yet to be appointed. When contacted, a Ministry of Finance Spokesperson said - “There is a case in Supreme Court pertaining to appointments to Tribunals”. The ministry didn’t elaborate further.

Advocate Vijay Aggarwal, who is defending several high profile accused including Chanda Kochhar, Ratul Puri, Nirav Modi, and Mehul Choksi said: “Men are fallible, judges are also men. The right of appeal is in accordance of principle of natural justice. When there is no appellate authority, this right of appeal is being denied”.

“When there are so many retired judges already, why can’t government appoint them in tribunal”? he added.

Samudra Sarangi, Partner at Panag and Babu, said:- “There are several cases with thousands of crores of attached property currently pending before the appellate tribunal. The tribunal is burdened with a voluminous caseload. In the absence of it operating in full strength, private parties, public and private sector banks and financial institutions potentially face delays in the matters being finally decided”.

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