Calcutta High Court stays ED’s Provisional attachment order against the Corporate Debtor before commencement of CIRP

Calcutta High Court

Calcutta High Court | While awarding the injunction, Sabyasachi Bhattacharyya, J. restrained the Enforcement Directorate from giving effect to the impugned order dated 16.02.2022 which provided for provisional attachment protecting corporate debtor for an offence committed before Corporate Insolvency Resolution Process (CIRP) begin.

The instant writ petition was filed by the petitioners against the order of provisional attachment dated 16.02.2022 passed by the respondent authorities. The point of discussion was the mutual interplay between two statutes – the Prevention of Money Laundering Act, 2002 (‘PMLA’) and the Insolvency and the Bankruptcy Code, 2016 (‘IBC’).

The factual matrix of the case is that the corporate insolvency resolution process of petitioner no. 2 regarding petitioner no. 1-corporate debtor, started on 08.01.2018. The resolution plan got approval from the National Company Law Tribunal (‘NCLT’) on 04.09.2019. The National Company Law Appellate Tribunal (NCLAT) affirmed the approval on 04.03.2021. The respondent authorities on 16.02.2022 passed an order of provisional attachment of one property located in Kharagpur where the Steel Plant of the Corporate Debtor was situated.

The contention of the petitioners was that the order of provisional attachment was passed in relation to an FIR dated 11.09.2014 and since S. 32-A of the IBC protects the corporate debtor from any liability for an offence committed prior to the commencement of the Corporate Insolvency Resolution Process (CIRP), the said order of attachment was illegal. It was further contended that the entire proceeding under the PMLA against the corporate debtor has been rendered infructuous upon approval of the Resolution Plan by the NCLT.

The respondent authorities challenged the maintainability of the writ petition for there being availability of an equally efficacious alternative remedy by way of an appeal under S. 26 of the PMLA before the Appellate Tribunal. The respondent further argued that “the petitioners are not prevented in any manner from their enjoyment of the said property due to the attachment order.”

The Court while staying the impugned order stated that the writ petition is required to be heard on merits and asked the respondents to submit affidavits and file reply. [Ramsarup Industries Ltd. v. Union of India, 2022 SCC OnLine Cal 2571, decided on 26.08.2022]


Advocates who appeared in this case :

Mr. Ratnanko Banerji, Mr. Joy Saha, Mr. Jishnu Chowdhury, Mr. S. Mitra, Ms. Sristi Barman Roy, Ms. Vaibhavi Pandey and Mr. K. Tibarewal, Counsel for the Petitioners;

Mr. Shailendra Kr. Mishra, Counsel for the Union of India;

Mr. Phiroze Edulji, Ms. Anamika Pandey, Counsel for the Enforcement Directorate.


*Ritu Singh, Editorial Assistant has put this report together.

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