The Battle for Control over Corporate Assets in the Shadow of Crime: The Interplay between IBC and PMLA

The ED has consistently argued that proceeds of crime never lawfully vest in the corporate debtor and therefore do not form part of the insolvency estate.

Introduction

The interface between the Prevention of Money-Laundering Act, 2002 (PMLA) and the Insolvency and Bankruptcy Code, 2016 (IBC) raises one of the most fundamental questions in contemporary Indian commercial law: Can the State, acting through criminal confiscation, dismantle the insolvency estate that Parliament has statutorily insulated for corporate rescue?

Over the last few years, Indian Courts, and especially the Supreme Court, have answered this question with increasing clarity. While criminal prosecution must proceed, corporate assets undergoing insolvency resolution cannot be fragmented by parallel enforcement action.

This article examines the statutory framework and the evolution of judicial doctrine that has led Indian law to give precedence to insolvency resolution over penal attachment.

Two statutes in different operating fields governing a single asset pool, and the conflict for control

The conflict between PMLA and IBC is not a routine problem of overlapping jurisdiction. It arises from the collision of two public law regimes, each claiming control over the same corporate asset. The PMLA embodies the State’s punitive authority to identify, attach and confiscate “proceeds of crime” so that no offender is allowed to benefit from unlawful activity. IBC, on the other hand, embodies the State’s regulatory-economic authority to curtail value destruction of the corporate enterprise and restore and revive such enterprise through a collective, time-bound resolution process.

When a company accused of financial wrongdoing and is entangled in economic offences enters the corporate insolvency resolution process (CIRP), PMLA and IBC come into direct conflict. The Enforcement Directorate (ED) seeks to remove the company’s assets from commercial circulation through attachment. The insolvency regime seeks to preserve those same assets through the resolution mechanism so that creditors may be paid, and the enterprise may be revived. If both statutes were allowed to operate simultaneously on the same property, the insolvency process would collapse. It is therefore the law, not administrative discretion, that must determine which regime should prevail.

The IBC is a complete code for the revival and resolution of an enterprise, and the PMLA is a hindrance to such revival

IBC was enacted as a complete code to resuscitate distressed companies. Section 14 imposes a moratorium that bars any action to recover, foreclose, or enforce any right against the assets of the corporate enterprise undergoing resolution. It is thus the legislative intention to suspend all external enforcement so that the enterprise’s value can be preserved for complete resolution, and that once revived, it starts on a clean slate.

Section 238 IBC reinforces this framework by giving the Code an overriding effect over all inconsistent laws. Parliament was acutely aware that India’s economy was plagued by fragmented recovery regimes, and it therefore created a single, dominant insolvency framework to which all claims must yield once CIRP begins. In that statutory design, there is no room for parallel asset seizures, whether by banks or by enforcement agencies.

PMLA, although also containing a non obstante clause, operates in a different legal universe. It is a penal statute aimed at punishment and confiscation, not at corporate governance or economic reconstruction. When the two statutes collide, the latter and more specialised insolvency code must prevail within its field.

The ED’s ”tainted property” theory and its doctrinal infirmity

The ED has consistently argued that proceeds of crime never lawfully vest in the corporate debtor and therefore do not form part of the insolvency estate. This theory, though rhetorically attractive, is legally unsustainable. Insolvency law does not operate on moral title but on legal and economic reality. Assets standing in the name and control of the corporate debtor are part of its estate until a competent court finally declares otherwise.

If mere allegation of criminality were sufficient to remove assets from CIRP, any company could be stripped of its property by initiating criminal proceedings. The insolvency framework would then become hostage to enforcement agencies, and resolution would be rendered commercially meaningless. The Supreme Court has, therefore, rejected the idea that “taint” displaces the statutory creation of the insolvency estate.

Section 32-A and the constitutional legitimacy of the clean slate

Parliament decisively addressed this conflict by inserting Section 32-A into the IBC. This provision grants immunity to the corporate debtor and its assets from offences committed prior to the commencement of CIRP, once a resolution plan is approved and the management changes. In Manish Kumar v. Union of India¹, the Supreme Court upheld this provision, recognising that insolvency law would fail if new owners were exposed to endless criminal and confiscatory proceedings for the sins of past promoters.

The Court held that Parliament was constitutionally entitled to prioritise economic revival over retrospective punishment and that insulating the corporate debtor’s assets was essential to attract resolution applicants. Section 32-A thus became the statutory pivot around which the entire PMLA–IBC conflict turned.

The limits of PMLA supremacy after Vijay Madanlal

The ED has sought to rely on Vijay Madanlal Choudhary v. Union of India² to assert supremacy of PMLA. That reliance is misplaced. The case of Vijay Madanlal was a constitutional challenge to the validity of the PMLA; it did not concern insolvency or the overriding effect of IBC. Upholding PMLA as a valid penal statute does not mean that it displaces a later special economic code operating in a different field. At present, a review petition is pending adjudication in Vijay Madanlal case before the Supreme Court.

The Kalyani Transco doctrine and the final settlement of jurisdiction

The Supreme Court brought doctrinal clarity in Kalyani Transco v. M/s Bhushan Power and Steel Ltd.³. The Court held that once CIRP is initiated, ED cannot continue attachment proceedings in a manner that removes or immobilises assets forming part of the insolvency estate. While criminal prosecution may proceed, the power of confiscation must yield to the insolvency framework.

This principle aligns with earlier decisions such as Ghanashyam Mishra & Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd.⁴, where the Court held that a successful resolution applicant acquires the corporate debtor on a “clean slate”, free from all past claims, including statutory and governmental claims. Likewise, in JSW Steel Ltd. v. Mahender Kumar Khandelwal⁵, the National Company Law Appellate Tribunal (NCLAT) held that PMLA attachments cannot survive a resolution plan approved under IBC.

Together, these decisions establish a coherent doctrine: Insolvency law governs corporate assets, while criminal law governs individual culpability.

Conclusion

The jurisprudence on the PMLA–IBC interface reflects a profound and deliberate recalibration of State power in the economic sphere. By holding that insolvency law must control corporate assets once CIRP is triggered, the Supreme Court has affirmed that economic reconstruction is a higher public good than immediate confiscation. This does not mean that crime is condoned. Individuals remain fully liable to prosecution and punishment. What the Court has refused to permit is the destruction of corporate value through parallel enforcement that defeats the very purpose of insolvency law.

The doctrinal thread running from Manish Kumar⁶ through Ghanashyam Mishra⁷ to Kalyani Transco⁸ is unmistakable. IBC creates a legal quarantine around corporate assets. Within that quarantine, all claims, private and public alike, must be resolved through the collective process designed by Parliament. The ED is not a parallel insolvency authority. It must submit to the discipline of IBC, which is aimed towards revival and resolution.