9911796707
TMI Blog2023 (8) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... on record in the instant case, this Court is of the opinion that no exceptional case of adverse effects on India's economic interest exist - In the present case, there is no LOC against the Petitioner. The LOC was issued against the petitioner who, along with his company M/s AR Intl (Hong Kong) Limited, had already been adjudged Bankrupt by the Hon'ble High Court of Hong Kong. Additionally, the company's creditors, during a General Body meeting held on 22.03.2019 had appointed joint and several Trustees to take over and manage the estate of the bankrupt with immediate effect, being a process in which the Respondent bank had already partaken. The issuance of LOC, despite the respondent bank already participating in the securing of the rights via winding up process on M/s AR Intl (Hong Kong) Limited which took place in Hong Kong and the subsequent declaration of discharge of the petitioner thereof, is excessive and without any due merit. It is amply evident that the petitioner has no criminal case mentioned against him by the respondent in India. All civil, criminal and recovery proceedings were undertaken by the Respondent Bank against the petitioner in Hong Kong, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n all loans of the company due to slump in the business thereby causing the accounts of the company to being declared as Non-Performing Assets by the Hong Kong Branch of Punjab National Bank on 01.04.2012. c. It is stated that a complaint was filed by the creditor banks to the Commercial Crimes Department of the Hong Kong Police on 12.01.2018, the investigation for which was completed after a period of six months, and subsequently, the legal notices recalling the loan amount was issued and a case was filed in the High Court of Hong Kong by the Hong Kong branch of Respondent No. 3, Punjab National Bank. It is additionally stated that the Hon'ble High Court of Hong Kong on 18.02.2019 passed an order for the winding up of M/s AR Intl (Hong Kong) Limited and on 20.02.2019 passed an order declaring the petitioner bankrupt, thereby appointing the Official Receiver as the Provisional Trustee of the Petitioner. Moreover, the creditors including the Hong Kong branch of Respondent No. 3, Punjab National Bank appointed joint and several Trustees to take over and manage the petitioner's estate with immediate effect via a general Meeting held on 22.03.2019. d. It is stated that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law for the time being in force and has neither been declared as a proclaimed offender by any Indian court nor is evading/has evaded any court proceeding pending trial in India. It is also stated that assuming the purpose of the Look Out Circular is to secure the presence of an individual facing prosecution, the same is not available in the present case as even the investigation initiated in Hong Kong has already been completed. 4. It is further stated that by participating in the winding up proceeding initiated against the petitioner in the High Court of Hong Kong, the Respondent No. 3 becomes barred by principles of estoppel and Res Judicata from issuing an LOC against the petitioner. Moreover, it is also stated that the series of transactions having taken place in Hong Kong where the amount of recoverable were accrued to the Punjab National Bank, Hong Kong Branch, the issuance of LOC at the instance of Petitioner No. 3, Punjab National Bank, New Delhi is without any cause of action arising in India and is therefore severally invasive and grossly violating the rights to free movement of the petitioner. 5. It is further stated by the petitioner that because of the order dated 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profits and losses of PNB Hong Kong are routed to India, and is also governed by the Reserve Bank of India. It was therefore submitted that by virtue of the abovementioned and his residence in India, Indian law is also applicable on the petitioner and since he is yet to relinquish and disclose his estate rights in India, nothing precludes the respondent bank from issuing an LOC, which was done here in pursuance of a circular issued by the Foreigners Division (Immigration Section) Ministry of Home Affairs, Government of India vide their OM No. 25016/10/2017-Imm(Pt) dated 22.03.2021. 9. Heard the parties and perused the material on record. 10. The issuance of LOCs in respect Indian Citizens and foreigners was governed by an Office Memorandum No. 25016/31/2010-Imm dt.27.10.2010, which permits Look Out Circulars to be opened essentially against persons involved in cognizable offences who are evading arrest and their appearance in trial courts despite coercive measures with the likelihood that they would leave the country to evade trial or arrest. The intention of issuing an LOC was to act as a coercive measure to make a person surrender to the Court of Law or investigating agency. With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent that despite the loan being taken for an entity in Hong Kong from the Hong Kong Branch of PNB, there is a sharing of profits and losses being brought in from Hong Kong to India, there exists reasonable nexus between the operations of the two entities and that the default in Hong Kong may have an impact on public funds in India, that is, the amount lost will have a cascading effect on Indian public money cannot be accepted. 14. It is well settled that the purpose of opening an LOC is to ensure that if a person, against whom the LOC has been opened, is allowed to leave the country then that person should come back. LOC is issued to secure the presence of the person so that the person can cooperate with the investigation and he is there to attend the court proceedings. 15. In the present case, there is no LOC against the Petitioner. The LOC was issued against the petitioner who, along with his company M/s AR Intl (Hong Kong) Limited, had already been adjudged Bankrupt by the Hon'ble High Court of Hong Kong. Additionally, the company's creditors, during a General Body meeting held on 22.03.2019 had appointed joint and several Trustees to take over and manage the es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney-General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law.... 19. In Chandra Verma vs. Union of India Ors; ; (2019) SCC Online SC 2048, the Apex Court has also hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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