Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945 WP(C) NO. 31726 OF 2023 PETITIONER:
JOY VARGHESE ALUKKAS AGED 66 YEARS, S/O. VARGHESE ALUKKAS, ALUKKAS HOUSE, JOY ALUKKAS MANSION, SOBHA CITY, PUZHAKKAL P.O., THRISSUR, PIN - 680553 BY ADVS.
P.A.MOHAMMED SHAH RENOY VINCENT SHAHIR SHOWKATH ALI CHELSON CHEMBARATHY ABEE SHEJIRIK FASLA N.K MUHAMED JUNAID V.
ADITH KRISHNAN.U.
FATHIMA AFEEDA P.
NABEEL SHAH IBRAHIM SHIBU V.M.
AYISHA T.S.
RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI, PIN - 110001 2 ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT, COCHIN ZONAL OFFICE, KANOOS CASTLE, MULLASSEERY CANAL ROAD WEST, ERNAKULAM, PIN - 682011 3 COMPETENT AUTHORITY (FEMA), OFFICE OF THE COMMISSIONER OF CUSTOMS (APPEALS) - 1, 3RD FLOOR, NEW CUSTOM HOUSE, GST ROAD, MEENAMBAKKAM, CHENNAI, PIN - 600016 4 IDBI BANK KACHERIPADY, CHITOOR ROAD, ERNAKULAM, PIN – 682018, REPRESENTED BY ITS MANAGER.
5 IDFC BANK LTD, EAST FORT TOWER, OPP.LOURDE CHURCH, EAST FORT JUNCTION, THRISSUR, PIN - 680005 REPRESENTED BY ITS MANAGER.
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6 ICICI BANK LTD 3RD FLOOR, EMGEE SQUARE, PADMA JUNCTION, MG ROAD, ERNAKULAM, PIN - 682035 REPRESENTED BY ITS MANAGER.
7 HDFC BANK LTD, GLOBAL CENTRE, MG. ROAD, NR.COLOUR HOUSE STUDIO, KOTTAPPURAM, THRISSUR, PIN - 680004 REPRESENTED BY ITS MANAGER.
BY ADVS.
JAISHANKAR V.NAIR MINI GOPINATH -CGC .
C.AJITH KUMAR SATHISAN P.
DONA AUGUSTINE(K/180/2016) JAVED HAIDER(K/001709/2018) ABHIRAM SUNISH(K/001195/2022) SHIBU B.S(K/001060/2021) BIJU P.PAUL(K/000648/2022) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT The petitioner has approached this Court seeking a declaration that his property – which was seized by the 2nd respondent vide Ext.P1 seizure order, issued under Section 37A(1) of the Foreign Exchange Management Act, 1999 ('FEMA', for short) – is free from any lien / charge, consequent to Ext.P2 order of the Commissioner of Customs (Appeals-I), who is the competent Authority as per Section 37A(3) of 'FEMA'.
2. Sri.P.A.Mohammed Shah – learned counsel for the petitioner, argued that, once Ext.P2 order has been issued by the competent Authority, the rigour of Ext.P1 would stand totally obliterated; and hence that the properties mentioned therein can only be construed to be free of any lien / attachment / charge, under the provisions of 'FEMA' or any other corollary Act.
3. Sri.Jaishankar V.Nair – learned Standing Counsel for the Directorate of Enforcement, on the other hand, while conceding that Ext.P2 order had been issued by the competent Authority, argued that, nevertheless, the properties cannot be construed to be free, until such time as the designated Tribunal under the 'FEMA' decides the appeal filed by his client against Ext.P2. He asserted that such an appeal has already been moved and is
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pending before the competent Tribunal; and hence prayed that this writ petition be not allowed in any manner at this juncture.
4. The records of this case would reveal that this writ petition was moved on 27.09.2023 for admission; and thereafter listed several days, including on 28.11.2023, when the submissions of Sri.Jaishankar V.Nair were recorded to the effect that, he would inform this Court of the fate of the Appeal his client had filed against Ext.P2. The matter, thereafter, came up on 12.12.2023, on which day, as also on the subsequent four or five postings – Sri.Jaishankar V.Nair was unable to inform this Court whether the Tribunal had issued any orders confirming or protecting Ext.P1, either finally or through interim measures.
5. This matter was taken by this Court yesterday (08.01.2024), on which day also, Sri.Jaishankar V.Nair sought time till today to confer with his client as to whether they have been able to obtain any interim orders in the appellate remedy invoked by them against Ext.P2. Today, Sri.Jaishankar V.Nair confirmed that the competent Tribunal has not issued any orders; and that as matters now stand, Ext.P2 order of the competent Authority under Section 37A of the 'FEMA' holds the field.
6. Indubitably, therefore, it does not require this Court to issue any declaratory orders because, the factum of Ext.P1 seizure
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order, issued under Section 37A(1) of the 'FEMA', having been refused to be confirmed by the competent Authority under Section 37A(3) thereof, would render the position inescapable, that the rigour of the former order, as at this time, stands suspended.
7. Of course, this would not mean that the Directorate of Enforcement is without remedies because, they certainly can obtain orders from the Tribunal in due course, which they are entitled to do, edificed on legal and factual contentions which they may have impelled.
8. Suffice to say, as matters now stand, Ext.P2 holds the field;
and obviously, therefore, it can only be construed that the effect of Ext.P1 stands eclipsed by it, at least temporarily, until such time as any orders are issued by the Tribunal.
With the afore clarification, this writ petition is disposed of.
Sd/- DEVAN RAMACHANDRAN JUDGE anm
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APPENDIX OF WP(C) 31726/2023 PETITIONER EXHIBITS Exhibit-P1 THE TRUE COPY OF THE SEIZURE ORDER PASSED BY THE RESPONDENT NO.2 DATED 24.02.2023 Exhibit-P2 THE TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 18.08.2023 Exhibit-P3 THE TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO.2 DATED 04.09.2023 Exhibit-P4 THE TRUE COPY OF THE LETTER SUBMITTED BEFORE RESPONDENT NO.4 DATED 18.09.2023 Exhibit-P5 THE TRUE COPY OF THE LETTER SUBMITTED BEFORE RESPONDENT NO.5 DATED 18.09.2023 Exhibit-P6 THE TRUE COPY OF THE LETTER SUBMITTED BEFORE RESPONDENT NO.6 DATED 18.09.2023 Exhibit-P7 THE TRUE COPY OF THE LETTER SUBMITTED BEFORE RESPONDENT NO.7 DATED 18.09.2023 RESPONDENTS' EXHIBITS : NIL.