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What is property attachment?
Property attachment is often in the news with reports that the property of politician being investigated has been attached. Recently the Supreme Court gave the enforcement directorate powers to attach the property of the people it is investigating.
In law, attachment refers to the seizing of a property. This seizing only happens, however, when the chances of succeeding in a claim case are in the favour of the plaintiff. This plaintiff is someone who has claimed that they have certain monetary claims against the defendant.
What happens to the attached property?
The property cannot be sold, leased or mortgaged. No encumbrance can come on it. But plaintiff can live there, rent it out or collect rent.
When does attachment happen?
Property attachment usually happens upon the plaintiff succeeding in establishing his claim and he or she seeks the attachment of property from the court to discharge the claim. But if the plaintiff fears that the defendant may dispose off property belonging to him and not settle his claims, then the court can attach the defendant’s property prior to final judgment. If the chances of the defendant winning are high then court may not order seizure of property. While this is the situation in civil cases, court can order property attachment to ensure the accused appears in court in criminal cases.
What all can be seized?
Real estate, vehicles and even bank accounts can be seized or if the defendant seems like a flight risk and might make a run for it without fulfilling the order of the court.
How does the attachment process work?
If the civil court rules in favour of the plaintiff and the defendant refuses to comply with the claims, then the plaintiff can either attach property, arrest defendant, deliver property or sell it.
Who can order attachment of property?
Only the court can order property attachment. Recently, the Supreme Court gave the enforcement directorate power to attach property without a court order. But the court has the powers to review and later rescind the order. SC also gave the agency the power to arrest just like the police.
Real estate, vehicles and even bank accounts can be seized or if the defendant seems like a flight risk and might make a run for it without fulfilling the order of the court
Can property attachment happen in criminal cases too?
In most cases such as theft, misappropriation, cheating etc, movable properties are seized and returned at the end of the trial to its owners. Criminal courts or prosecuting agencies are generally not vested with the power to attach immovable properties or deal with them either as a preventive measure or a remedial measure. But during conviction, an order to confiscate property can be issued.
So what is the news saying nowadays about property attachment?
From the attachment of VK Sasikala’s 14 ‘benami’ assets by the IT department to Justice N Satish Kumar’s quashing of the proceedings brought on by South Chennai RDO about the AIADMK party headquarters, the debate of property attachment is an ongoing one.
On July 26, the Supreme Court of India interpreted the Prevention of Money Laundering Act 2002 (PMLA). The Supreme Court said the enforcement directorate that prosecutes these cases has the power to arrest, attach property, search and seize it if necessary.
The court ruled that money laundering harms the country and victims don’t get remedy even if the accused is punished. Often the accused disposes off property and conviction does not help to bring back the money. For that reason, it gave the power to attach property to ED.
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