9911796707
TMI Blog2017 (3) TMI 1895X X X X Extracts X X X X X X X X Extracts X X X X ..... ial to show to the Tribunal that if the respondents 1 and 2 are permitted to travel abroad, they are not likely to return back. The same is a finding of fact and nothing has been shown to us nor any material placed in support of this stand of the petitioner Bank. There are no merit in the present petition. The same is dismissed. - W.P. (C) 10765/2015 & CM. No. 27682/2015 (for Stay) - - - Dated:- 8-3-2017 - HON'BLE MS JUSTICE INDIRA BANERJEE AND HON'BLE MR JUSTICE V. KAMESWAR RAO For the Petitioner : Mr. Abhinav Vasisht, Sr. Adv. with Mr. E.R. Kumar, Ms. Raveena Rai Mr. Abhiram Naik, Advs. For the Respondent : Mr. Kamal Mehta with Mr. Sunil Choudhary, Advs. JUDGMENT V. KAMESWAR RAO, J 1. The challenge in this petition by the ICICI Bank Limited is to the order dated June 12, 2015 of the Debt Recovery Appellate Tribunal (DRAT) passed in Appeal No. 196/2015, whereby the appeal filed by the respondents 1 and 2 challenging the orders of the Debt Recovery Tribunal (DRT) dated May 9, 2014 and February 23, 2015 directing respondents 1 and 2, if they will go out, they will inform the Tribunal and seek its permission as well, in other words, restrain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ( Act of 1993 in short) being O.A No. 125 of 2014 before the Debt Recovery Tribunal against respondents 1 to 4. The said OA was filed as the respondents 1 to 3 had failed to repay the credit facilities. Apart from other reliefs sought, the petitioner prayed for an interim relief including an ad-interim relief that till the final disposal of the application, respondents 1 and 2 be directed not to travel outside India without the prior permission of the Tribunal. 4. The learned Tribunal vide its order dated May 09, 2014 passed an ex parte interim order allowing the prayer to the extent that as and when the guarantors i.e respondents 1 and 2 will go out of India, they will inform the Tribunal and seek its permission. Respondents 1 and 2 again filed applications before the learned Tribunal with the prayer to vacate the interim order dated May 09, 2014. However, these applications were also dismissed by the learned Tribunal vide order dated February 23, 2015 on the ground of them having become infructuous. Respondents 1 and 2 preferred an appeal against the orders dated May 09, 2014 and February 23, 2015 before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that every procedure is permitted to the Court for doing justice unless expressly prohibited. He would submit that even otherwise the Tribunal is empowered by virtue of Section 22(1) of the Act of 1993 to travel even beyond CPC. Even otherwise, although the jurisdiction of the Tribunal is limited to deciding the disputes arising under the Act of 1993, to that extent it discharges the judicial functions of the State, inasmuch as the DRT/DRAT decide the lis between the Banks/Financial Institutions and their debtors. This limited jurisdiction, until the enactment of the Act of 1993, was being exercised by the Civil Courts. Even today, the money claims by Banks/Financial Institutions/petitioner below Rs.10 Lakhs can be filed only before the Civil Courts and powers can be exercised under Section 151 of the CPC. 7. He would state, the Tribunal has the power to restrain a person from travelling abroad. In this regard, he would rely upon the judgments in the case reported as AIR 2005 Ker 137 Smt. Annai Jayabharathi vs. Debt Recovery Tribunal (Kerala and Lakhadweep) Ernakulam (2011) 6 CTC 70 ICICI Bank Limited vs. The Debts Recovery Appellate Tribunal. 8. It is his submission, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate Proceedings) Rules, 1962, and held that the Tribunal is empowered to order interim detention pending enquiry relating to final detention in jail to recover the debt amount. He would rely upon Section 25 of the Act of 1993, which provides for the arrest of the judgment debtor as one of the modes of attachment. He heavily relies upon the conclusion in the judgment of Annai Jayabharathi to contend that the power to arrest judgment debtor for recovery of the debt due also gives rise to an incidental power to order restraint on travels abroad as an interim measure. 10. In his rejoinder submissions Mr. Vashist would state that the Gujarat High Court in AIR 2011 Guj 81 State Bank of India v. Praful Chandra V. Patel, even though referred to the judgment of the Supreme Court in Allahabad Bank case (supra) and Grapco (supra) and the decision of the Division Bench of the Kerala High Court in Annai Jayabharathi (supra) it did not give reasons to differ from the same. He would state that the argument of the respondents that the order of the Tribunal restraining the respondents 1 and 2 from travelling abroad, violates their Fundamental Right to travel abroad as envisaged in 1978 (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power and jurisdiction to pass, if deem necessary an order restraining respondents 1 and 2 from travelling abroad without seeking its prior permission for the same in order to inter- alia secure the ends of justice. 13. On the other hand, Mr. Kamal Mehta, learned counsel for the respondents 1 and 2, apart from the facts narrated above, would submit that the respondents 1 and 2 thrice filed applications before the Tribunal seeking permission to go abroad to meet certain urgent situations on May 17, 2014, October 7, 2014 and December 12, 2014 citing reasons being respondents son s examinations in U.K as he is studying abroad; respondents son having fallen resulting in fractured hand requiring surgical intervention and respondent No.1 needed to attend his important business interest in U.K. His first submission that the present petition being under Articles 226 and 227 of the Constitution of India is not maintainable as the impugned order is neither perverse, nor passed by Appellate Tribunal without jurisdiction, nor it is in violation of the principle of natural justice. It is a well reasoned judgment with strong foundation in law and the writ petition needs to be dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been laid down by the Supreme Court with all its checks, balances and safeguards. 15. He would also state that there is no scope of reading any implied power under the said provisions of the Act of 1993 and Rules framed there under, to restrict a person from travelling abroad. Hence, the DRT had no jurisdiction to prohibit the respondents to leave the country. He would justify the order of the Appellate Tribunal in setting aside the order of the Tribunal. He would also state, the Legislature never intended to confer such a power on the Tribunal, otherwise it would have provided for it when the Act was amended in the year 2000. He states, that the power under Section 19(25) of the Act of 1993 read with Rule 18 of the DRT (Procedure) Rules, 1993 as also under Section 151 CPC cannot be exercised in relation to a subject with respect of which specific statutory provisions, powers and detailed procedure has been duly laid down through a specialized central legislative enactment being Passport Act, 1967. He would also state that the procedural power cannot override or cannot be exercised in derogation of the substantive power and/or rights found to exist in other statute dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ole or any part of his property; or (ii) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Tribunal; or (iii) is like to cause any damage or mischief to the property or affect its value by misuse or creating third party interest, the Tribunal may direct the Defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Tribunal, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the certificate for the recovery of debt, or to appear and show cause why he should not furnish security. (B) where the Defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Tribunal, the Tribunal may order the attachment of the whole or such portion of the properties claimed by the applicant as the properties secured in his favour or otherwise owned by the Defendant as appears sufficient to satisfy any certificate for the recovery of debt. (17) In the case of disobedience of an order made by the Tribunal u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) setting aside any order of dismissal of any application for default or any order passed by it ex parte; (h) any other matter which may be prescribed. (3) Any proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceedings within the meaning of Sections 193 and 228, and for the purposes of Section 196, of the Indian Penal Code (45 of 1860) and the Tribunal or the Appellate Tribunal shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). 25. Modes of recovery of debts.- The Recovery Officer shall, on receipt of the copy of the certificate under Sub-section (7) of Section 19, proceed to recover the amount of debt specified in the certificate by one or more of the following modes, namely: (a) attachment and sale of the movable and immovable property of the Defendant; (b) arrest of the Defendant and his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex parte, if it is so in the interest of justice......... 21. A similar question arose in Allahabad Bank, Calcutta (supra), wherein the Supreme Court referred to its earlier decision in the case of Industrial Credit and Investment Corporation of India Ltd. (supra). The facts as noted in Allahabad Bank, Calcutta (supra) were that the Bank filed a suit under Section 19(1) of the Act before the Tribunal on March 27, 1997 for recovery of monies in a sum of Rs.46.54 lakhs and odd from respondents 1 to 3 and for other reliefs. Pending the case, the Bank applied on March 29, 1997 seeking temporary injunction restraining the respondents from taking any monies or sums from M/s. Braitewaite and Co. When the advance copy of the IA was sought to be served on the learned counsel for respondents, the same was refused. The Tribunal passed an interim injunction on April 30, 1998 directing In the meantime, the respondents 1, 2 and 3 are restrained from recovering any money from M/s Braitewaite and Co. Ltd., till disposal of the interim matter . The following were the conclusion in paras 9 and 10:- 9. The scope and the extent of the powers of the Tribunal are mainly referred to in Sub-clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction or stay orders is not exhaustive but the width and amplitude of the powers can be gathered from Section 22(1). The Supreme Court also observed Rule 18 of the Tribunal enables the Tribunal to pass orders to secure ends of justice. 23. No doubt, the Supreme Court was considering the scope of the provisions of Section 19(6) (as it stood) and Section 22 of the Act of 1993. The facts as noted above would reveal in none of the cases, the facts were, relatable to injunction granted by the Tribunal injuncting the guarantor/borrower from travelling abroad. But were against orders, where the Tribunal granted ex parte order (in Industrial Credit and Investment Corporation of India Ltd.) and restraining the respondents from recovering money from M/s. Braitewaite and Co. Ltd till disposal of the interim matter, (in Allahabad Bank, Calcutta). 24. Insofar as the other two judgments relied upon by Mr. Vasisht i.e Raj Narain Saxena (supra) and Rajendra Prasad Gupta (supra), even though not relatable to provisions of Section 19(6) (as it stood), 22(1) or 19(25) of the Act of 1993 or Rule 18 of the Rules but to Section 151 of the Code of Civil Procedure, in these judgments also, the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of the Tribunal under Section 19 of the Act to include the power to impound a passport, whereas on an identical issue, the High Court of Gujarat in State Bank of India vs. Praphul Chandra V. Patel (supra), has in paras 25 to 27, held as under:- 25. From the reasons mentioned in the aforesaid case, it follows that under Article 21 of the Constitution, no person can be deprived of his right to travel except according to the procedure established by law. The law means 'enacted law' or 'State law'. 26. In the present case, there is nothing on record to show that a law has been made by the State regulating or depriving a person of such right in case proceeding under Section 19 of the DRT Act, 1993 is pending. Section 19(25) read with Rules 18 of the Debts Recovery Tribunal (Procedure), Rules, 1993 empowers the Tribunal to make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. It is an enabling provision empowering the Tribunal to pass interim order to prevent abuse of its process or to secure the ends of justice. Section 19(25) or Rule 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no more. In this view of the matter, I set aside the order dated 4th May, 1999. However, the petitioner is directed to make himself available before the Tribunal as and when he is required, for which purpose he shall give an undertaking to the Tribunal. 29. The said judgment was also considered by the Division Bench of this Court in Sanjeev R. Apte (supra), wherein the Division Bench of this Court in paras 5 and 6 has confirmed and endorsed the judgment of the learned Single Judge in A.S. Mittal (supra) and held as under:- 5. The law laid down by the learned Single Judge is clear that the Tribunal does not have any power to restrain a citizen from travelling. This determination of law by the learned Single Judge that the Tribunal had no authority whatsoever to either impound the passport of the petitioner or to put any restriction on the travel of the petitioner abroad in exercise of its powers to pass an interim order under Section 19(6) of the Act is not dependent upon determination of liability by the Tribunal. In our view, the judgment has been totally misconstrued by the DRAT in confining it to matters where the liability has not been determined. 6. In our view, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have the occasion to consider Section 19(25) of the Act of 1993 is concerned, even this provision would not support the order of the DRT and in this regard we agree with the following reasoning of the DRAT:- The Debts Recovery Tribunal being a creature of statute would have power as conferred on these Tribunals by the statute. If the intention was to confer such power allowing the Tribunal to restrain a person from travelling abroad, it ought to have been so conferred on the Tribunal. Here notice can be taken of the provisions of Section 19(17) of the RDDDBFI Act which empowers the Recovery Tribunal to order detention of a person in civil prison for a period not exceeding three months if such person is found guilty of disobedience or breach of any order made by the Tribunal. Apparent reason for not bestowing power to the Tribunal to restrain the borrower from travelling abroad may be because borrower is not needed to remain present in person before the Tribunal when the recovery proceedings are in progress. It is his property only which is the security for recovery of the debt and his presence may be need at much later stage during the recovery proceedings as and when ordered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned there is no doubt on the proposition of law laid down by the Supreme Court. Surely, the Deeds of Guarantee being contractual in nature would bind the respondents 1 and 2 but a closure look of the stipulation would reveal that the respondents 1 and 2 have contracted not to leave India for employment or business or for long stay abroad, so long as any amount remain outstanding without the permission of the petitioner. The eventualities have been stipulated i.e employment or business or for long term stay abroad, surely reveals that as long as the visit is not for employment or for business or for a long stay abroad, they can leave India. The order of the Tribunal dated May 9, 2014 does not take into consideration these aspects but it is a general order that as and when they would go out of India, they will inform the Tribunal and seek permission of the Tribunal and such a blanket order is unjustifiable nor the Tribunal drew sustenance from the provisions of the Deeds of Guarantee as, the term of contract stipulates without the permission of ICICI, which surely would not empower the DRT to direct, that the respondents 1 and 2, would seek its permission. It is surely an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
