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TMI Blog2022 (6) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficiently protect the rights of Respondent No. 1 to recover the amount of dues from Petitioner. The order refusing permission to travel abroad has been made in contravention of the provisions of Article 21 of the Constitution and is violative of the right guaranteed to the petitioner under Article 21. The State has not made any law or provision in the said Act seeking to deprive or regulate the right of a person to travel abroad. The order is, therefore, liable to be set aside. The Debt Recovery Tribunal has no power to restrain a person from travelling abroad in the absence of specific powers to that effect - Petitioner is permitted to travel to Turkey from 09.06.2022 to 17.06.2022 subject to furnishing undertaking as stated - Petition allowed. - A. S. CHANDURKAR AMIT BORKAR, JJ. For the Appellant : Mr. Akshay Naik a/w Mr. D.V. Chauhan and Mr. C.J. Dhruv, Advocates Mr. A. T. Purohit, Advocate for Respondent No. 1 Mr. D. Gupta, Advocate for Respondent No. 2 (Official Liquidator) PER : [AMIT BORKAR, J.] 1 Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties. 2. The present petition raises an important question as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.06.2022. 8. On 06.06.2022, Mr A. T. Purohit, learned Advocate for respondent No.1, appeared and sought time to prepare himself regarding the position of the law considering the questions involved in the petition. The matter was therefore fixed at 2.30 p.m. 9. We have heard Mr. Akshay Naik, learned Advocate for the Petitioner, along with Mr. D. V. Chauhan, learned Advocate and Mr. A. T. Purohit, learned Advocate for the respondent No.1 -Bank. 10. Mr. Naik, learned Advocate for the Petitioner, submitted that right to travel abroad had been recognised as the fundamental right enshrined under Article 21 of the Constitution of India. He submitted that a person could not be deprived of his personal liberty in the absence of specific enacted law'. According to him, existing provisions of the Recovery of Debts Due To Banks and Financial Institutions Act, 1993 (Hereinafter referred to as said Act ) do not confer power on the Tribunal to issue a direction restraining a person from travelling abroad. In support of his submission, he placed reliance on the following judgments in the cases of State Bank of India Vs. Prafulchandra V. Patel and 8 reported in 2011 SCC OnLine Guj. 1055, ICIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restrictions thereon could be imposed by law in a limited manner stated in the said clauses. Article 21 comprises all the personal liberties which are not included in Article 19. The rest of the personal rights are conferred not only on the citizens but on all, including citizens. Every person could be deprived of these rights in their totality according to procedure established by law . The mandate of Article 21 is that the deprivation of personal liberty has to be according to procedure established by law. 15. If the right to travel is a part of the personal liberty of a person, he cannot be deprived of his right except according to the procedure established by law. The right to travel abroad is right distinct and separate from the right of freedom of movement in a foreign country. The right to travel abroad by its necessary implications means the right to leave the home country and visit a foreign country. The right to travel abroad has been spelt out from the expression personal liberty in Article 21 of the Constitution. 16. The Hon'ble Apex Court, in the case of Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer, New Delhi, reported in 1967 AIR 1836 has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o debar him from transferring, alienating or otherwise dealing with, or disposing of, any property and assets belonging to him without the prior permission of the Tribunal. (13) (A) Where, at any stage of the proceedings, [the Tribunal on an application made by the applicant along with particulars of property to be attached and estimated value thereof, or otherwise is satisfied], that the defendant, with intent to obstruct or delay or frustrate the execution of any order for the recovery of debt that may be passed against him,-- (i) is about to dispose of the whole or any part of his property; or (ii) is about to remove the whole or any part of the property from the local limits of the jurisdiction of the Tribunal; or (iii) is likely 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 recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more of the following modes, namely: - (a) attachment and sale of the movable or immovable property of the defendant; (aa) taking possession of property over which security interest is created or any other property of the defendant and appointing receiver for such property and to sell the same;] (b) arrest of the defendant and his detention in prison; (c) appointing a receiver for the management of the movable or immovable properties of the defendant; (d) any other mode of recovery as may be prescribed by the Central Government.] 20. Under Section 19(25), the Tribunal is empowered to make such orders and give such directions as may be necessary or expedient to give effect to its orders or prevent abuse of its process or secure the ends of its justice. Sub Section (12) of Section 19 conferred the powers on Tribunal to pass interim orders during the pendency of proceedings by way of injunction or stay or attachment against the defendant restraining him from transferring, alienating or otherwise dealing with or disposing of any property and assets belonging to him without prior permission of the Tribunal. The Tribunal is also empowered under Sub Section 13(A) of Section 19 to direct t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, is limited to the extent of passing interim order by way of injunction or stay which are expressly conferred on it. The Tribunal can travel beyond the powers conferred by the Code of Civil Procedure with a view to observe the principle of natural justice. In our view, Section 22 confers the procedural right to regulate proceedings before it. In the absence of a specific provision conferred on the Debt Recovery Tribunal by statute, the Debt Recovery Tribunal has no power to restrain a citizen from travelling abroad, particularly when the said right has been recognised as a facet of Article 21 of the Constitution of India. In our view, the provisions under the Recovery of Debts Due To Banks and Financial Institutions Act, 1993, as they stand, do not even impliedly confer such powers on the Debt Recovery Tribunal to restrain a person from travelling abroad. 23. Mr. Purohit, learned Advocate for respondent No.1, has placed reliance upon judgment in the case of ICICI Bank Ltd. (supra) and Smt. Annai Jayabharathi (supra), in support of his submission, that the Tribunal has power under Section 22 and Section 19 of the said Act to pass an order restraining a person from travelling abro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 27.02.2004 to extradite any person who has been accused or convicted of an offence as described under Article 2 of the said Agreement. It is stated that the Petitioner had already travelled to Abu Dhabi to attend his friend's marriage in the month of October 2019 for three days and had returned to India. The above factors, in our opinion, sufficiently protect the rights of Respondent No. 1 to recover the amount of dues from Petitioner. 27. On consideration of the scheme of the said Act, we hold that the order refusing permission to travel abroad has been made in contravention of the provisions of Article 21 of the Constitution and is violative of the right guaranteed to the petitioner under Article 21. The State has not made any law or provision in the said Act seeking to deprive or regulate the right of a person to travel abroad. The order is, therefore, liable to be set aside. 28. Before parting with the case, we would like to say that we were not unmindful of the necessity of regulating the issue of recovery of public money. On the other hand, we are fully conscious that in certain cases, it may be necessary for the interests of the country and the public interest to prev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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