The Asset Tracing and Recovery Review: India

Overview

India is a common-law jurisdiction with a federal legal system and covers a vast network of courts and tribunals administering central and state laws. There are a variety of remedies under various legislations that deal with fraud and permit asset tracing. It is therefore important for organisations to understand the risks and evaluate their options carefully while initiating the process of asset tracing and recovery.

Legal rights and remedies

i Civil and criminal remedies

Civil law remedies

The procedural law with respect to civil remedies in India is captured under the Civil Procedure Code 1908 (the Civil Procedure Code). In addition, the Limitation Act 1963 provides for the period within which a claim can be brought before the courts for adjudication. Any suits filed beyond the limitation period shall be dismissed irrespective of any claim on the merits.2 In certain exceptional circumstances, a party may seek to sustain a claim by demonstrating bona fide reasons. In the case of fraud, the limitation period shall be computed from the time a party discovers the fraud or from the period when the party theoretically, with due diligence, could have discovered the fraud.3 Subject to the framework under the Civil Procedure Code and Limitation Act, remedies for tracing and fraud can be pursued under certain specific statutes elaborated below.

Contract law

Contracts in India are governed by the principles enshrined in the Indian Contract Act 1872 (the Contract Act). In addition, certain contracts, including contracts for transfers of immovable property and lease or rent agreements, are compulsorily required to be registered4 and duly stamped.5 A record of registered contracts and details of stamp certificates are maintained by the authorities as mandated under law and are subject to certain procedural limitations6. Accordingly, the veracity and authenticity of contracts can be established by seeking certified copies from the registration authority or verifying the details of a stamp certificate. Such mechanism can be immensely helpful in tracing efforts and in asset discovery with respect to a target.

Further, fraud has been defined in the Contract Act as any act committed by a contracting party or his or her agent with an intention to deceive a party or to induce him or her to enter into a contract. The various natures of actions covered within the ambit of fraud include:

  1. suggesting false facts;
  2. suppression of a fact;
  3. making a promise without the intention of performing it;
  4. undertaking any action to deceive; or
  5. any action that is considered to be fraudulent under the law.

However, it must be kept in mind that mere silence is not construed as fraud unless the circumstances require that it is the duty of a person keeping silent to speak, or if the person's silence in itself is equivalent to speech. 7

A party that has been the subject of fraud and whose consent may have been obtained by coercion or misrepresentation has an option to void or nullify the fraudulent agreement. An exception to this rule is that when the party had the means of discovering the truth with ordinary diligence, the contract, nevertheless, is not voidable.8 Further, if the party does not choose to void the contract, then he or she may insist that the contract be performed, and that he or she be put in the position in which he or she should have been had the representations been true. Additionally, a suit for damages can be brought by a party suffering fraud, although damages are usually awarded based on actual loss suffered. The judgment or decree obtained may be relied upon for execution for the recovery of any assets acquired fraudulently or the examination of a person concealing any asset.9

Corporate law

The Companies Act 2013 (the Companies Act) is the principal legislation governing the conduct of the affairs of a company. It is administered by the Ministry of Corporate Affairs. The Ministry also maintains a publicly accessible online central database of the details of a company, including:

  1. the names of the directors of the company;
  2. its authorised share capital;
  3. the date of incorporation; and
  4. details of any charges.

The database may be instrumental in tracing efforts as it also co-relates the director of a specific company to other entities where he or she also occupies the position of a director.

The Companies Act also defines fraud, which it defines as including any act or omission, or the concealment of any fact or the abuse of a position, with the intent to deceive, gain undue advantage from or injure the interests of a company or its shareholders or its creditors or any other person, whether or not there is any wrongful gain or wrongful loss.10 Further, if a false statement is made in the financial statements, prospectus or reports of a company, this would also be considered as a fraud against the company.11

Liability for fraud in India extends to both the company as well as the individuals involved in a fraud. However, liability in relation to individuals is usually confined to those individuals who may be said to be a person in charge of the affairs of a company or who have had direct knowledge of an offence.

The Companies Act also deals with the aspect of beneficial owners of shares in a company and provides for their details to be maintained by the company. Recently, the Companies (Significant Beneficial Owners) Rules 2018 were also introduced to provide for a framework to identify the ultimate beneficial owners exercising control or ownership of a company.12

In addition to recourse to the police authorities, to deal with offences in relation to companies the Companies Act also provides for the establishment of the Serious Fraud Investigation Office. The Office is mandated with detecting and prosecuting white-collar crimes and fraud, and draws on the experience of experts from various fields for its functions.13

The Companies (Amendment) Act 2020 has brought in multiple changes regarding the penalties prescribed under the Companies Act and has also introduced a requirement that certain class of unlisted companies are required to prepare and file their audited financial results periodically.14

Criminal law remedies

The Indian Penal Code 1860 (IPC), which is the principal legislation for criminal offences in India, defines fraudulently to mean a thing done by a person with an intent to defraud and 'not otherwise'.15 Courts in India have examined the meaning of not otherwise to mean that an act will be considered to be fraudulent only if it was done with an intent to defraud.16 Even the abetment of an offence by an individual shall render him or her punishable for the offence as if the offence was committed by said abettor.17

The offence of cheating, which is, in principle, an offence in cases of fraud, is defined to include circumstances where a person:

  1. cheats or dishonestly induces another person to deliver any property to any person;
  2. grants his or her consent for that property to be retained by any person; or
  3. commits an act or omission that causes or is likely to cause damage to the property.18

The offence of cheating is punishable with imprisonment for a period of up to seven years and a fine.19

Apart from the offence of cheating, the IPC provides separately for other offences of fraud related to property. It punishes fraudulent withdrawal or concealment, or the transfer or removal of property so as to defeat the just claims of those who have or may have a right over it.20 It also seeks to punish fraudulent transfers of properties and fraudulent claims, as well as the person who seeks to practice any deception touching any right to any property, or any interest therein. Even the receipt21 and retention of stolen property constitute offences. However, there is a limitation period of three years for filing a complaint against an offence related to fraud, although the same applies only for offences where the punishment prescribed is imprisonment for a period of up to three years only.22

Further, certain specific statutes such as the Prevention of Money Laundering Act 2002 (PMLA) have been introduced to deal with specific actions. The PMLA has a stringent framework to deal with the offence of money laundering, including:

  1. attachment of property before conviction;23
  2. mandatory reporting requirements with respect to financial transactions;24
  3. search and seizure without notice;25 and
  4. arrest.26

Seizure and evidence

In situations where an organisation has reasonable grounds to believe that a borrower is resorting to fraudulent means, an investigation can be carried out to assess the existence of any foul play. This can involve extensive searches on various local and international databases, comprehensive public domain checks and checks on local government websites with a view to collating information and correlating it with financial data. In addition, a combination of strategies can be used to trace an asset. For instance, a money trail could be followed to trace the flow of an asset to its conclusion. In a reverse approach, discreet checks can be conducted on an individual who is the target of an asset recovery enquiry to gather intelligence on his or her lifestyle with an objective of understanding the source of funds for maintaining this lifestyle and tying it back to the asset under investigation. These strategies can be further extended to identify friends and relatives of the target and their corresponding holdings and directorships in other entities or companies. A correct blend of such strategies can yield excellent results even in cases where round-tripping is suspected. For multi-jurisdictional cases, a discreet multijurisdiction asset discovery investigation can be performed.

i Securing assets and proceeds

Civil law

The most common method in relation to securing assets is to seek a temporary injunction through the court. The law in relation to the same is captured in Order 39 Rules 1 and 2 of the Civil Procedure Code. Broadly stated, the court relies on a three-principle test of a prima facie case, a balance of convenience and irreparable harm or injury27 to determine whether a party seeking a temporary injunction should be granted the injunction.

Further, the parties to a civil action may also seek attachment of a property28 before judgment or the appointment of a receiver29 for the protection or preservation of a property. It may be kept in mind that attachment of a property before judgment or the appointment of a receiver is an uncommon relief resorted to only in rare circumstances where a party is able to establish that the defendant is about to dispose of or remove the property from the jurisdiction of the court to evade the execution of any decree that may be passed against him or her. Further, such attachment does not protect the attached property from the right of a third party to seek liquidation of an asset to recover his or her debts.

It must be kept in mind that the onus for the production of evidence or the burden of proof in support of a claim, including fraud, is upon the party bringing an action to court.30 Further, a foreign party seeking relief in India may have to establish the cause of action or its locus to seek relief before the concerned court. Accordingly, a party seeking relief under any civil law must discharge the burden based on the information available to it and that it may secure through the aid of a court process.

Criminal law

The process under criminal law generally empowers the investigation authorities to seize and attach property during an investigation under the Code of Criminal Procedure 1973 (the Code of Criminal Procedure). It is also relevant to note that certain special statutes also empower the investigation authorities to seize and attach properties pending an investigation.31 Broadly, the investigating authorities are empowered to undertake search without notice and to take possession of any property that is suspected to be stolen property.32 The courts are also empowered after the conclusion of a trial to order the delivery of property to the person entitled to possession thereof.33

ii Obtaining evidence

Civil law

The Civil Procedure Code provides for the rights of parties in securing information from private individuals in an adjudication before the courts. It provides various rights to seek information from individuals including:

  1. issuing interrogatories;34
  2. serving notice upon any other person to produce any document or record proved to be within his or her possession;35 and
  3. serving notice to an individual to appear as a witness and disclose information within his or her knowledge.36

In cases where a party to a civil action fails to produce a document or disclose information that is reasonably believed to be in his or her knowledge or possession, an adverse inference37 may be drawn by the courts in relation to said document or information.

However, in practical terms it may be difficult to secure the presence of a third-party witness, as the service of summons upon him or her may be time-consuming, and the witness may even successfully evade service. Further, the party is required to discharge the burden of relevancy of the witness to justify the co-related time delay in the adjudication of the matter. Notwithstanding the same, the tools can be effectively used along with private efforts for a successful judgment or execution.

Criminal law

The rules for obtaining evidence are encapsulated within the Code of Criminal Procedure. The investigation authorities have been given vast powers to, inter alia, compel the production of persons38 and documents39 before the Investigation Officer, and search premises and persons without notice.40 However, it should be kept in mind that statements given before the investigation authorities are not admissible as evidence, and witnesses are required to testify in court for their testimony to be treated as evidence.41

Fraud in specific contexts

i Banking

There has been a decline42 in both the amount and number of fraud cases in the financial year 2020–2021 (7,363 cases amounting to 1,384.22 billion rupees) as compared to financial year 2019–2020 (8,703 cases amounting to 1,854.68 billion rupees).43 However, considering the significant cases of financial frauds and public interest in banking, RBI (which is the regulator of the banking sector in India) issued the Master Directions on Frauds – Classification and Reporting by commercial banks and select financial institutions (FIs) on 1 July 2016.

The Directions also provide for regular fraud reporting by banks using a prescribed form referred to as a fraud monitoring return (FMR) and the constitution of a Central Fraud Registry, which is an online searchable database containing all accounts of frauds reported using an FMR. This Registry is, however, only accessible by banks.44

In line with the direction, a state-of-the-art common wireframe (prototype) has been developed for Central Fraud Registry (CFR) under Centralised Information Management System (CIMS) and is being refined. The CFR portal of Scheduled Commercial Banks (SCBs) was implemented on 1 April 2021. Further, RBI aims at enhancing the Fraud Risk Management System, including improving efficacy of the Early Warning Signal (EWS) framework, strengthening fraud governance and response systems, augmenting the data analysis for monitoring of transactions, introduction of a dedicated market intelligence (MI) unit for frauds, implementation of an automated unique system-generated number for each fraud and implementation of the Central Fraud Registry (CFR) for non-banking financial companies (NBFCs).

Further, it has been observed that certain borrowers from financial institutions in India have been fleeing to foreign jurisdictions to evade the due process of law. To check the practice, the government had to introduce the Fugitive Economic Offenders Act 2018 (the FEOA Act). The FEOA Act provides for a person who has left India and has an outstanding arrest warrant to be declared a fugitive economic offender.45 The FEOA Act enables the attachment and confiscation of properties of the fugitive economic offender in India and in the foreign jurisdiction.46

ii Securities laws

Fraud in relation to dealing in securities

The SEBI Act 1992 and regulations thereunder provide for remedial actions by the Securities and Exchange Board of India (SEBI) against any fraudulent action concerning the securities markets. Such actions are restricted to matters relating to or in connection with dealing in securities.47 Section 12A of the SEBI Act provides a broad legislative mandate to prohibit fraudulent practices, while the SEBI Prohibition of Fraudulent Unfair Trade Practices Regulations 2003 (PFUTP) provide some detail as to what constitutes fraud in relation to the securities market. The definition of fraud is broadly phrased in Regulation 2(1) of the PFUTP, and the common law requirements of intention, deception, damages and so forth to prove fraud is expressly done away with under the PFUTP. Some cases of fraud with respect to dealing in securities recognised by the Supreme Court of India include aspects such as front running48 and synchronised trading.49 It is to be noted that no private action is permissible, and only SEBI is empowered to take remedial actions relating to fraud in the securities markets.

Powers and enforcement remedies

SEBI has broad powers to investigate, including powers to summon, inspect records and direct the production of documents, and if an investigation officer believes that evidence or documents, or both, may be destroyed, he or she may carry out search and seize operations (subject to the satisfaction of a judge).

SEBI, under Section 11B of the Act, is empowered to take a broad array of remedial actions that include:

  1. disgorgement;
  2. asset and share freezes;
  3. debarring access to the securities markets and dealing in securities;
  4. mandatory divestment of shares;
  5. freezing of voting rights of shares.

iii Insolvency

The Insolvency and Bankruptcy Act 2016 (IBC) has become an important tool for financial institutions to recover bad debts through the insolvency mechanism. As per the Report on Trend and Progress of Banking in India 2019–2020 released by RBI on 29 December 2020, recoveries by SCBs through the Insolvency and Bankruptcy Code 2016 (IBC) increased to about 61 per cent of the total amount recovered through various channels in 2019–2020 against 56 per cent in 2018–2019. RBI data also indicates that as a percentage of claims, SCBs have been able to recover 45.5 per cent of the amount involved through IBC for the financial year 2019–2020, which is the highest as compared to recovery under other modes and legislations.50

IBC also provides for treatment of fraudulent activities discovered during the insolvency process. Section 66 of the IBC provides creditors with an avenue for recovery against rogue promoters who have engaged in fraudulent activity. Under this provision, the adjudicating authority may direct contributions to a corporate debtor's estate from persons or parties who were knowingly involved in the conduct of business of the corporate debtor with the intent to defraud creditors or for any other fraudulent purpose. Further, the adjudicating authority may also direct contributions to the corporate debtor's estate from a director who knew or ought to have known that the commencement of insolvency proceedings was inevitable and did not exercise due diligence in minimising the potential loss to the creditors of the corporate debtor.

As per Section 236 of the IBC, the offences identified under Chapter VI are to be tried by special courts established under the provisions of the Companies Act that may take cognisance of an offence under the IBC on a complaint made by the IBBI or the central government. Some of the offences proscribed under Chapter VI are:

  1. concealment of property;
  2. transactions defrauding creditors;
  3. falsification of books of the corporate debtor;
  4. wilful and material omissions from statements relating to the affairs of the corporate debtor; and
  5. false representations to creditors.

Thus, where the adjudicating authority, on an application made to it by the insolvency professional appointed to manage the corporate debtor, believes that circumstances exist that require an investigation, it may pass an order under Section 213 of the Companies Act referring the matter to central government to investigate the affairs of the corporate debtor. However, such an order may only be made after the persons accused are given a due hearing before the adjudicating authority.51

iv Arbitration

The issue of arbitrability of claims of fraud has not been addressed in the principle statute, that is, the Arbitration & Conciliation Act 1996 (the Arbitration Act). However, the Supreme Court of India through judicial interpretation initially held that fraud cannot be the subject matter of an arbitration as it requires the adducing and elaborate examination of evidence, and is therefore beyond the competence of an arbitrator.52

However, the position changed in 2014, and subsequently the Supreme Court, in A Ayyasamy v. A Paramasivam & Ors,53 differentiated between cases where a mere allegation of fraud has been made as opposed to cases where the allegations of fraud are complex and serious enough that they could only be decided by evidence.54 The Supreme Court has also, while examining the issue of arbitrability of fraud, held that fraud as the basis of non-arbitrability of claim can only be accepted when:

  1. the allegations of fraud were serious enough to constitute a criminal offence;
  2. the allegations of fraud and resulting issues were so complex that they could only be decided by a civil court upon a review of voluminous evidence; and
  3. fraud is alleged against the arbitration provision itself or the parent contract.

v Fraud's effect on evidentiary rules and legal privilege

The Indian Evidence Act 1872 (the Evidence Act) is the principal legislation governing the rules of evidence that can be adduced before courts. Principally, documents proved before the court in the ordinary course of a hearing cannot be rebutted by oral evidence. However, the exception to the same is when a party alleges fraud as an element in the execution of the document itself such that the same invalidates the document itself.55

Professional communications, including any communications with lawyers, are also privileged and protected under the Evidence Act. The only exception to said rule is when such communication is made for the furtherance of an illegal purpose or when knowledge of any fraud or crime committed after the engagement of a professional comes to notice.56

International aspects

i Conflict of law and choice of law in fraud claims

While undertaking multi-jurisdictional investigations, it is important that organisations collect and analyse information to ensure that it is actionable. Analysis of this information can help in supporting legal actions and identifying avenues of investigation such as non-public information sources, for example informants and witnesses who have insights into the lifestyle of key subjects, their activities and ultimately their assets. This, combined with a paper trail, can be of significant assistance in gathering more evidence and further formulating a legal strategy for tracing the assets at hand. Based on our preliminary research, there appear to be several English common law-based jurisdictions that may be relevant to a global investigation involving any large-scale 'missing' or misappropriated loan capital taken from a bank in India. These include the British Virgin Islands, Hong Kong, Singapore, the United States, the United Kingdom, Dubai (Dubai international financial centre courts), Mauritius, the Seychelles, Australia, the Cayman Islands and Cyprus.

Further, no express rules have been laid down with respect to the choice of law in fraud claims in India. However, as a matter of general practice, the Indian courts respect any express choice of law by a party to an agreement subject to such choice being made in a bona fide manner and the choice not being opposed to public policy.57 In practice, evidence may need to be led on the applicability of a foreign law to an agreement to determine whether Indian courts have jurisdiction.58

ii Collection of evidence in support of proceedings abroad, and seizure of assets or proceeds of fraud in support of the victims of fraud

The Civil Procedure Code and the Criminal Procedure Code59 have ample provisions to facilitate investigations and assist adjudication in relation to matters involving cross-border aspects. However, the procedure is to be routed through the government and the contracting state party, which may sometimes lead to delays.

Certain special laws provide mechanisms for cooperation in the attachment of assets and the examination of witnesses. PMLA, for instance provides a mechanism by which the courts in India, through the government, may request a foreign state to take such steps as requested, including the forwarding of evidence.60 The government may execute any request for the investigation and forwarding of evidence through special courts or the appropriate authority.61 In addition, the Enforcement Directorate, as the investigative authority, is empowered under PMLA to provisionally attach properties located outside India that are derived from illegal activity.62

iii Enforcement of judgments granted abroad in relation to fraud claims

Section 44A of the Civil Procedure Code provides for the filing and execution of judgments passed by the superior courts of any reciprocating territory63 in the district courts in India. It must be kept in mind, however, that there is a limitation period for the execution of a foreign decree of 12 years from the date of a judgment. Another pre-condition for enforcement of a foreign judgment is that it must be conclusive with respect to the subject matter adjudicated between the parties and satisfy the following conditions:64

  1. it must be pronounced by a court of competent jurisdiction;
  2. it must be adjudicated based on the merits of the case;
  3. it must not be based on an incorrect view of international law, or have been refused to be recognised under the law in India where applicable;
  4. it must not be based on proceedings opposed to principles of natural justice;
  5. it must not have been obtained by fraud; and
  6. it does not sustain a claim founded on a breach of any law in force in India.

Accordingly, in view of the above a foreign decree from a reciprocating territory can be directly executed in India. On the other hand, a party from a non-reciprocating territory would need to file a suit based on the foreign decree, or on the original underlying cause of action, or both, and obtain a domestic decree from a domestic Indian court of competent jurisdiction. He or she can only execute the resultant domestic decree. The limitation period for the filing of a suit and accordingly seeking a domestic decree based on a foreign decree for a non-reciprocating country is only three years.

Current developments

The covid-19 pandemic has also adversely affected Indian businesses, which has necessitated drastic interventions by the government on various fronts. One such intervention came in the form Section 10A of the IBC inserted through the IBC (Amendment) Ordinance 2020 on 5 June 2020, which has the effect of suspending the operation of Sections 7, 9 and 10 of the IBC for at least six months from 25 March 2020.

The Reserve Bank of India in response to the pandemic empowered the banks to offer a six month loan repayment moratorium and retain asset classifications of accounts. Section 10A of the IBC inserted through the IBC (Amendment) Act 2020 (the IBC Amendment Act 2020) on 23 September 2020, which had the effect of suspending the provisions for initiation of insolvency against companies. The suspension lasted for a period of one year between 25 March 2020 and 25 March 2021. The IBC Amendment Act 2020 also relaxed the duty of a director to make a contribution to the corporate debtor who knew or ought to have known of the inevitability of the initiation of insolvency proceedings and did not exercise due diligence in minimising the loss caused to the company's creditors.65 While this move may be intended to protect the promoters or directors of those companies that are likely to fall victim to the difficult circumstances of the covid-19 pandemic, one cannot rule out the possibility of promoters exploiting this exemption to misappropriate assets, divert funds and fudge books and records.

It is also important to take note of the Report of the Colloquium on Civil Asset Tracing and Recovery held on 6 December 2019 by the United Nations Commission on International Trade Law in cooperation with other relevant international organisations. The report examined various aspects of the practice of asset tracing and recognised the relevance of insolvency proceedings, among others, for the practice of asset tracing and recovery. Certain important developments regarding the Indian Insolvency regime are therefore highlighted below.

The recent decision of the Hon'ble Supreme Court of India in Lalit Kumar Jain v. Union of India66 on 21 May 2021 upholding the validity of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules 2019 is significant as it empowers the creditors to pursue insolvency proceedings against personal guarantors to companies. The decision also clarified the recourse available to creditors while simultaneously pursuing insolvency proceedings against companies' debts and the guarantors. Separately, the amendment to the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations in 2020 is also significant. The amendment gives the liquidator the power to assign or transfer a not readily realisable asset through a transparent process, to any person who is eligible to submit a resolution plan for insolvency resolution of the corporate debtor.67 The newly inserted regulation defines 'not readily realisable asset' as including any asset in the liquidation estate that could not be sold through available options and includes contingent or disputed assets underlying proceedings for preferential, undervalued, extortionate credit and fraudulent transactions. The amendment increases the prospect of disputed and fraudulent claims related to companies under liquidation to be purchase and pursued by third parties.

The Insolvency and Bankruptcy Code (Amendment) Ordinance 2021 aims to provide an efficient alternative insolvency resolution framework for corporate persons classified as micro, small and medium enterprises (MSMEs) under the Code, ensuring quicker, cost-effective and value maximising outcomes for all the stakeholders through the incorporation of a pre-packaged insolvency resolution process.68

Footnotes

1 Sandeep Baldava is a senior partner at EY India and Shreyas Jayasimha is counsel, arbitrator and mediator at Aarna Law LLP (India) and arbitrator and mediator at Aarna ADR (Singapore). The authors thank Aakash Sherwal, Saurabh Singh and Harshit Shah for their assistance and Krishnan Shakkotai for his inputs.

2 Section 3 and 5, Limitation Act 1963.

3 Section 17, Limitation Act 1963.

4 Section 17, Indian Registration Act 1908.

5 Section 3, Indian Stamp Act 1899.

6 Section 57, Indian Registration Act 1908.

7 Section 17, Indian Contract Act 1872.

8 Section 19 of the Indian Contract Act 1872.

9 Order XXI, Code of Civil Procedure 1908.

10 Section 447, Companies Act.

11 Section 448, Companies Act 2013.

12 Sections 89 and 90, Companies Act.

13 Sections 211 to 212, Companies Act 2013.

14 Section 129A, Companies Act 2013.

15 Section 25, the Indian Penal Code 1860.

16 66 CrLJ 459 (SC).

17 Section 109, Indian Penal Code 1860.

18 Section 415, Indian Penal Code 1860.

19 Section 420, Indian Penal Code 1860.

20 Section 206, Indian Penal Code1860.

21 Section 411 and 412, Indian Penal Code 1860.

22 Sections 467–468 of the Code of Criminal Procedure 1973.

23 Section 5, Prevention of Money Laundering Act 2002. However, the attachment needs to be confirmed within 180 days by an adjudicating authority.

24 Section 12, Prevention of Money Laundering Act 2002.

25 Section 17, Prevention of Money Laundering Act 2002.

26 Section 19, Prevention of Money Laundering Act 2002.

27 Gujarat Bottling Co Ltd v. Coca Cola Co, AIR 1995 SC 2372.

28 Section 60 and Order XXXVIII of the Civil Procedure Code 1908.

29 Order XL of the Code of Civil Procedure 1908.

30 Section 101, Indian Evidence Act 1872.

31 Section 5(1), Prevention of Money Laundering Act 2002.

32 Section 94, Code of Criminal Procedure 1973.

33 Section 452, Code of Criminal Procedure 1973.

34 Order XI of Civil Procedure Code 1908.

35 Order XII, Rule 8 of the Civil Procedure Code 1908.

36 Section 30(b), Code of Civil Procedure 1908.

37 Section 114, Indian Evidence Act 1872.

38 Section 160, Code of Criminal Procedure 1973.

39 Section 91, Code of Criminal Procedure 1973.

40 Section 94, Code of Criminal Procedure 1973.

41 Section 161, Code of Criminal Procedure 1973.

42 The decline may be attributable to change in the reporting period by RBI. The latest report covers the period of nine months from 1 July 2020 to 31 March 2021.

43 RBI Annual Report 2020-21, available at https://rbi.org.in/Scripts/AnnualReportMainDisplay.aspx.

44 Master Directions on Frauds – Classification and Reporting by commercial banks and select FIs, available at www.rbi.org.in/SCRIPTS/BS_ViewMasDirections.aspx?id=10477#10.

45 Section 4, FEOA Act.

46 Section 5 and 12, FEOA Act.

47 Price Waterhouse & Co and Ors v. SEBI, SAT Order dated 9 September 2019 – wherein the appellants as statutory auditors were not dealing in securities either directly or indirectly and thus did not fall within the purview of the anti-fraud provisions of the SEBI regulations.

48 SEBI v. Kanaiyalal Baldevbhai Patel, (2017) 15 SCC 1.

49 SEBI v. Rakhi Trading, (2018) 13 SCC 753.

50 Quarterly Newsletter of the IBBI for Jan–Mar 2021 available at www.ibbi.gov.in/publication.

51 See Committee of Creditors of Amtek Auto Ltd v. Dinkar T Venkatasubramanian, judgment of the National Company Law Appellate Tribunal dated 16 August 2019 in Company Appeal (AT) (Insolvency) 219 of 2019.

52 N Radhakrishnan v. Maestro Engineers & Ors, 2009 (13) SCALE 403.

53 AIR 2016 SC 4675; Also see Rashid Raza v. Sadaf Akhtar (2019) 8 SCC 710.

54 Swiss Timing Limited v. Organising Committee, Commonwealth Games; AIR 2014 SC 3723.

55 Section 92, Indian Evidence Act 1872.

56 Section 126, Indian Evidence Act 1872.

57 National Thermal Power Corporation v. Singer Company, AIR 1993 SC 998.

58 See British India Steam Navigation Co. Ltd v. Shanmughavilas Cashew Industries & ors (1990) 3 SCC 481.

59 See Order XXVI Rule 18 to 22, Civil Procedure Code, 1908; Section 166B, Code of Criminal Procedure 1973.

60 Section 57, Prevention of Money Laundering Act 2002.

61 Section 58, Prevention of Money Laundering Act 2002.

62 Section 5 r/w Section 2(1)(u), Prevention of Money Laundering Act 2002.

63 Illustratively, United Kingdom, the United Arab Emirates, Singapore, Burma, Aden, Fiji, Malaysia, etc.

64 Section 13, Code of Civil Procedure 1908.

65 Section 66(3), IBC 2016.

66 2021 SCC OnLine SC 396.

67 Regulation 37A of the IBBI (Liquidation Process) (Fourth Amendment) Regulations 2020.

68 The Insolvency and Bankruptcy Code (Amendment) Ordinance, 2021 available at https://ibbi.gov.in/legal-framework/act.

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