NSEL case: Bombay HC raps Maharashtra govt on 63 Moons' property attachment

Says total attached properties' value is Rs 85.48 bn against defaulted amount of Rs 56 bn, further attachment is 'arbitrary'

The Bombay High Court has restrained the Maharashtra government from attaching further immovable properties and investments owned by 63 Moons Technologies (formerly Financial Technologies) in the Rs 56 billion payment default case involving its subsidiary, National Spot Exchange Ltd (NSEL).

A two-judge bench of Justice Ranjit More and Justice Bharati H Dangre observed that various government agencies, including the Economic Offences Wing (EOW) of the Mumbai Police and Enforcement Directorate have attached immovable properties owned by the defaulters, promoters and former employees of NSEL till November 2017. The value of the properties attached is worth Rs 85.48 as against a defaulted amount of Rs 56 billion.

The order grants interim relief to 63 Moons in the MPID matter and a stay on various notifications issued by the Maharashtra government attaching the properties of 63 Moons. In its 25-page order, the high court order also asserted when the state has options other than attaching the properties of the brokers/defaulters, it cannot be said that the investors can be paid only by selling the properties owned by 63 Moons.

The high court further ruled, “We are therefore of the prima facie view that the said attachment is arbitrary, unreasonable and unjustified and needs to be excluded at this stage on two counts viz, 63 Moons itself had made a categorical statement before the Court that the EOW had no objection if the company utilised the funds secured for attachment by the impugned notice dated 18th July, 2016 for incurring just expenses, necessary towards running of its day-to-day business including payment of salaries and clearing all statutory dues.”

The counsel appearing for the Maharashtra government had argued that the agencies are not sure the realisation will be sufficient to meet the defaulted amount after selling the attached properties.

On the attachment of ODIN, the widely popular brokerage trading terminal of 63 Moons, the high court order stated, “ODIN and its receivables cannot be a subject matter of attachment” and doing that “by way of attachment by the state government by issuing various notifications would be contrary to the spirit of the enactment.” 

“Those properties of 63 Moons which have been attached on the account of periodically accrued returns from the properties/bonds as well as the amount earned from the non-ODIN business and the revenue accruing from ODIN need not be brought within the purview of attachment,” the order said.

Senior counsel Mukul Rohatgi, arguing for 63 Moons, submitted to the court that the state government had “mis-directed itself and misconstrued” the provisions of the Maharashtra Protection of Interest of Depositors (MPID) Act, and attached the properties of 63 Moons worth Rs 22 billion. Rohatgi also submitted that although the state government had proceeded against the defaulter members and their directors/ promoters as well as directors and employees of NSEL.

The high court also rejected the state government’s plea for a stay on the present order stating, “we are prima facie convinced that the notification issued by the State Government purporting to attach the properties of the petitioner company in the year 2018 is in excess of the defaulted amount and also since we are satisfied that the state government has acted in arbitrary manner in as much as it initially excluded certain attachments from the purview of the notification and subsequently included the same without following the due procedure.”