TaxTMI 
TaxTMI 
2021 (5) TMI 1037
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....d a flight ticket to travel from Bengaluru to Abu Dhabi on 14.11.2020, was denied immigration clearance and was not permitted to travel by respondent Nos. 1 and 2. Being aggrieved by the said action of respondents, petitioner filed W.P. No. 13862/2020 during December 2020. On 10.12.2020 respondent Nos. 1 and 2 filed a memo enclosing the impugned endorsement dated 08.12.2020, informing the writ court that petitioner had been stopped from traveling by the respondents due to the Look Out Circulars dated 08.05.2020 and 18.07.2020 issued by respondent Nos. 3 and 4. Hence, challenging the said impugned endorsement namely, dated 08.12.2020 (Annexure-A) and issuance of Look Out Circular/Communication dated 08.05.2020 and 18.07.2020 issued by respondent Nos. 3 and 4 respectively, W.P. No. 15032/2020 came to be filed by the petitioner and said writ petition was heard and dismissed by the learned Single Judge by order dated 12.02.2021. Hence, this intra-court appeal. FACTS OF THE CASE AS PLEADED BY THE WRIT PETITIONER IN THE WRIT PETITIONS 3. It was contended by the petitioner that he is a promoter of various companies in the field of pharmaceutical, hospitality, healthcare and foreign ....
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....uru to Dubai on 14.11.2020 and on proceeding to immigration clearance, he was denied permission and thereby his immigration clearance in the passport was cancelled. 7. Petitioner contends that act of the Foreign Regional Registration Officer (FRRO) was challenged by filing W.P. No. 13862/2020 with a prayer inter alia to declare the endorsement dated 14.11.2020 issued by the Bureau of Immigration not permitting him to travel to UAE as illegal. The learned Central Government Counsel vide memo dated 10.12.2020 produced the endorsement/communication dated 08.12.2020 wherein it was stated that respondent Nos. 3 and 4 had issued Look Out Notices (hereinafter referred to as 'LOC' for short) dated 08.05.2020 and 18.07.2020 and as such, petitioner sought for the endorsement dated 08.12.2020 being quashed including the LOCs by filing W.P. No. 15032/2020. 8. On respondents being notified, statement of objections came to be filed by respondent Nos. 3 and 4 denying the averments made in the writ petition, except to the extent expressly admitted thereunder. In nut-shell respondent Nos. 3 and 4 contended that writ petitioner has been in egregious breach of his obligation under the v....
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.... of the loans had occurred due to mismanagement of his companies and the financial institutions are bound to recover the public money and as such, LOCs have been issued against the petitioner. It is also held that petitioner has conceded to the Bank's power to issue LOCs. 11. The learned Single Judge taking note of the Official Memorandum dated 27.10.2010 (Annexure-AA) in general and paragraph 7 in particular noticed that, a person against whom LOC is issued can approach the officer who ordered for issuance of such LOC and explain the same was erroneously or wrongly issued against him and without approaching respondent Nos. 3 and 4, prematurely, petitioner had knocked the doors of the writ court and as such, there is no cause of action to consider the prayer sought for in the writ petition. 12. The learned Single Judge after taking into consideration that petitioner would be liable to repay about Rs. 2800 Crores lent by public sector Banks and the money belonging to this country had been utilised by the petitioner in a foreign country to run his businesses and there was no material on record which establishes that money lent by respondent Nos. 3 and 4 had resulted in any ....
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....rtailment of petitioner's right to trade as enshrined in Article 19 of the Constitution of India and it is very much necessary for the petitioner to be physically present at UAE to save the business empire built by him over a period of 4 decades. The very fact that Banks at UAE require physical presence of the petitioner and are pressing for the same in the Courts of Dubai and simultaneously preventing the petitioner from leaving the territory of India, amounts to adopting double standard methods. These acts of the respondents are in violation of Article 14 of the Constitution of India. 14.3. He would further contend that none of the respondents have issued notice to the petitioner, prior to issuance of LOCs and failure to give notice is in violation of principles of natural justice and also depriving the petitioner from exercising his fundamental right to a fair hearing following due process of law as enshrined in Article 14 and 21 of the Constitution of India. 14.4. He would submit though violation of fundamental rights enshrined under Article 14, 19 and 21 including but not limited to the right to travel had been violated by the respondents, had been urged in the writ ....
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....= (2018) 2 SWC 609: KARTI P. CHIDAMBARAM v. BUREAU OF IMMIGRATION, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, REP. BY ITS COMMISIONER (IMMIGRATION), EAST BLOCK-VIII, LEVAL-V, SECTOR -1, R.K. PURAM, NEW DELHI - 100 066 (viii) WRIT PETITION No.55157/2018: ASIFKHADER v. CENTRAL BUREAU OF INVESTIGATIONS BANK SECURITIES AND FRAUD CELL (ix) WRIT PETITION NOS.10678-79 OF 2019 (GM-RES): SRI. PRASHANTH B HEGDE AND ANOTHER v. BUREAU OF IMMIGRATION AND ANOTHER (x) WRIT PETITION No.38488 OF 2016 (GM-RES): SRI. SAI RAMAKRISHNA KARUTURI v. UNION OF INDIA AND OTHERS (xi) (2967) 3 SCR 5265 = AIR 1967 SC 1836: SATWANT SINGH SAWHNEY v. D.RAMARATHNAM, ASSISTANT PASSPORT OFFICER, NEW DELHI AND OTHERS (xii) (1978) 1 SCC 248: MRS. MANEKA GANDHI v. UNION OF INDIA AND ANOTHER (xiii) (2008) 3 SCC 674: SURESH NANDA v. CENTRAL BUREAU OF INVESTIGATION (xiv) CIVIL APPEAL NO.3802 OF 2019: SATISH CHANDRA VERMA v. UNION OF INDIA (UOI) AND ORS. (xv) 1965 SCC ONLINE KER 37 = AIR 1966 KER 20: FRANCIS MANJOORAN AND OTHERS v. GOVERNMENT OF INDIA, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI AND OTHERS (xvi) (1978) 3 SCC 544: MADHAV HAYAWAD....
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....ntents of LOC can be questioned and as such he submits that neither the Writ Court was required to go into the said aspect nor this Court in the present intra-court appeal is required to address the said issues. 15.3. He would also draw the attention of the Court to the commercial suit - O.S. No. 1/2020 filed by the third respondent and this Court in COMAP Nos. 26/2020 c/w 27/2020 and 28/2020 wherein this Court has held there is a prima facie case in favour of Bank and has granted an order of temporary injunction against the petitioner in terms of prayer made in the interlocutory applications-I.A. Nos. 1 and 2 in Commercial O.S.1/2020. 15.4. He would submit in the event of said order being violated, the right of Bank available to proceed against the petitioner is either under Order 39 Rule 2-A CPC or under Section 12 of Contempt of Courts Act, would be curtailed or in other words, third respondent-Bank would not be in a position to seek enforcement of said order, once petitioner leaves this country. 15.5. He would submit that track record of the petitioner is very doubtful and by referring to the past incidents of debtors having fled from the Indian soil, was itself suffic....
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....WATI TONDON AND OTHERS (xii) (2010) 8 SCC 129: INDIAN BANK v. BLUE JAGGERS ESTATES LIMITED AND OTHERS (xiii) 2021 SCC ONLINE CAL 440: HEMANTA KUMAR BANKA v. UNION OF INDIA AND OTHERS CONTENTIONS RAISED BY SRI. D.R. RAVISHANKAR, LEARNED COUNSEL APPEARING FOR RESPONDENT NO. 4: 16. Endorsing the contentions raised by Sri. Aditya Sondhi, Sri. D.R. Ravishankar, learned counsel appearing for respondent No. 4 has contended that when OMs are not under challenge this Court is not required to examine the validity of the same. He would rely upon the OM dated 05.12.2017 to contend that expression "if it appears" found in the said OM would indicate that subjective satisfaction of the officer issuing, is the requirement for issuing LOC and in the instant case such subjective satisfaction has been arrived at as could be seen from the LOC itself. 16.1. He would also rely upon the OM dated 27.10.2010 to contend that it provides for two (2) stages of consideration for issuance and continuance of the LOC issued against a person namely, (i) at the stage of issuing; and (ii) on LOC being issued the aggrieved person approaching the officer who issued LOC to seek for its revoca....
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.... warranted. He would submit that petitioner is having more than 50 to 60 immovable properties in India and to safeguard the interest of the Banks, the petitioner has been injuncted from alienating and/or encumbering said properties and as such there would be no need or necessity for the petitioner being detained in India. 17.1. He would submit that respondents have referred to the contents of the sealed cover furnished to the Court and claims that inputs have been received by the Banks, which is not in the know-how of the petitioner and as such much reliance cannot be placed on the said material. He would submit that any reasons beyond what is contained in the LOC cannot be the ground on which LOC can be sustained as the impugned order should speak for itself and it cannot be supplemented. In support of this proposition he relies upon the judgment of the Apex Court in the matter of MOHINDER SINGH GILL & ANR. vs. THE CHIEF ELECTION COMMISSIONER, NEW DELHI & ORS. reported in (1978) 1 SCC 405. 17.2. He would contend that if on the basis of LOC petitioner is prevented from traveling abroad, it would amount to restricting his right to travel and he cannot be a hostage at the insta....
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....in the writ petition and reiterated in this intra-court appeal by the petitioner, merits acceptance or rejection? DISCUSSION AND FINDING ON THE POINTS FORMULATED HEREINABOVE: 18. The petitioner having promoted and run various companies like pharmaceutical, hospitality, healthcare and foreign exchange businesses at UAE and other countries are not in dispute. Petitioner also candidly admits in the writ petition itself that during late 2019 and early 2020 the companies promoted by him were mismanaged by the persons in-charge and the companies owned, controlled, managed by the petitioner and his family members were unable to repay the debts borrowed from several financial institutions including respondent Nos. 3 and 4 herein. 19. The list of cases at Annexure-E would disclose the proceedings pending against the petitioner. In fact, according to the respondent Nos. 3 and 4 petitioner owes a sum of Rs. 2800 Crores. In fact, listing and trading in shares of some of the companies owned and controlled by the petitioner has been suspended by the London Stock Exchange. Likewise, the Central Bank of UAE (equivalent to Reserve Bank of India) has initiated regulated proceedings against ....
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....anteed under Article 19(1)(a) on the theory of peripheral or concomitant right. This theory has been firmly rejected in the All India Bank Employees Association's case and we cannot countenance any attempt to revive it, as that would completely upset the scheme of Article 19(1) and to quote the words of Rajagopala Ayyanger, J., speaking on behalf of the Court in All India Bank Employees Association's case "by a series of ever expending concentric. circles in the shape of rights concomitant to concomitant rights and so on, lead to an almost grotesque result". So also, for the same reasons, the right to go abroad cannot be treated as part of the, right to carry on trade, business, profession or calling guaranteed under Article 19(1) (g). The right to go abroad is clearly not a guaranteed right under any clause of Article 19(1) and section 10(3) (c) which authorises imposition of restrictions on the right to go abroad by impounding of passport cannot be held to be void as offending Article 19(1) (a) or (g), as its direct and inevitable impact is on the right to go abroad and not on the right of free speech and expression or the right to carry on trade, business profession or c....
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....embered, without the due process clause, I prefer to be content with a decision directly in point, All India Bank Employees' Association(4) In which this Court rejected the contention that the freedom to form associations or unions contained in article 19(1)(c) carried with it the right that a workers' union could do all that was necessary to make that right effective, in order to achieve the purpose for which the union was formed. One right leading to another and that another to still other, and so on, was described in the abovementioned decision as productive of a "grotesque result". 56. I have nothing more to add to what Brother Bhagwati has said on the other points in the case. I share his opinion that though the right to go abroad is not included in the right contained in article 19(1)(a), if an order made under section 10(3)(c) of the Act does in fact violate, the right of free speech and expression, such an order could be struck down as unconstitutional. It is well- settled that a statute may pass the test of constitutionality and yet an order passed under it may be unconstitutional. But of that I will say no more because in this branch, one says no more tha....
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....artem rule is a highly effective tool devised by the courts to enable a statutory authority to arrive at a just decision and it is calculated to act as a healthy check on abuse or misuse of power and hence its reach should not be narrowed and its applicability circum-scribed. He rightly did not plead for reconsideration of the historic advances made in the law as a result of the decisions of this Court and did not suggest that the Court should re-trace its steps. That would indeed have been a most startling argument coming from the Government of India and for the Court to accede to such an argument would have been so act of utter retrogression. But fortunately no such argument was advanced by the learned Attorney General. What he urged was a very limited contention, namely that having regard to the nature of the action involved in the impounding of a passport, the audi alteram partem rule must be held to, be excluded, because if notice were to be given to the holder of the passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded, he might immediately, on the strength of the passport, make good his exit from the country and the objec....
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....e tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to-secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True rue it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under....
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....d the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports, Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be fight, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure 'established' by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and does not fall foul of that article. 25. This view also gets fortified from the law laid down by the Apex Court in the matter of MANEKA GANDHI vs. UNION OF INDIA reported in (1978) 1 SCC 248 referred to herein supra whereunder Justice Krishna Iyer concurring with the opinion r....
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....ultiple banking arrangement. Mr. Bavaguthu Raghuram Shetty @ B.R. Shetty is the Promoter/Director of the Borrower Companies and also the guarantor to the credit facilities sanctioned to the Companies. The accounts are at present in the category of SMA (Special Mentioned Account) and the aggregate balance outstanding in the accounts is 757.137 AED Mn (Rs. 1552.13 crores). 1 Neo Pharma LLC 137.42 20.00 157.42 142.75 2 NMC Speciality Hospital LLC 10.00 0.00 10.00 9.88 3 UAE Exchange Centre LLC 223.45 175.00 398.45 361.41 4 Delta for Heavy Equipment 1.00 4.60 5.60 0.99 5 BRS Ventures & Holdings Ltd. 125.54 0.00 125.54 129.53 6 NMC Healthcare LLC (*) 74.41 0.00 74.41 74.41 7 B.R.Shetty 38.16 0.00 38.16 38.17 Total (AED Mn) 609.98 199.6 807.58 757.137 Total (Rs. Crs) (IAED=INR 20.50) 1250.46 409.18 1655.54 1552.13 (*) in Oman Territory M/s. NMC Healthcare LLC, Oman is having exposure of AED Mn 74.412. Dr. B.R. Shetty is the founder promoter of NMC Group and our Bank has taken sizeable exposure in ....
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....ank's efforts for recovery of dues." 28. By not intimating the petitioner about issuance of LOC would not infringe upon any of the rights of petitioner guaranteed under the Constitution of India. The OM dated 27.10.2010 (Annexure-AA) would clearly indicate that LOC can be issued subject to the guidelines prescribed therein. OMs dated 27.10.2010 has been revised/amended from time to time by issuance of OMs dated 05.12.2017, 19.07.2018 and 19.09.2018 by the Ministry of Home Affairs, Government of India. The amended OMs are dated 04.10.2018, 12.10.2018 and 22.11.2018 (Annexures-R1 to R3), which discloses the respondent Nos. 3 and 4 are entitled to issue LOC against a person, in the facts and circumstances of the case that may be obtained. The extant OM dated 12.10.2018 (Annexure-R2) would clearly indicate that Chairman/Managing Director/Chief Executive of all public sector Banks are empowered to request Bureau of Immigration (first respondent) to issue LOCs vide Clause-8B and 8J. Same has been referred to by the learned Single Judge under the order under challenge and as such we refrain from extracting the same. It would suffice to state that the said amended OM provides for: ....
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....outright rejection for reasons more than one. Firstly, petitioner did not raise his little finger immediately after the drawing up of the said minutes. Secondly, till date he has not intimated or informed the third respondent-Bank about the said minutes having come into existence under duress. Thus, plea now sought to be put forward is a clear after thought and to stave-off the liability resting on petitioners shoulders. 31. In fact, petitioner and his wife have thereafter executed a letter of undertaking with Negative Lein Clause and Creation of Mortgage dated 21.04.2020 (Annexure-R15) whereunder both have agreed to do or perform the acts as morefully indicated in the said letter of undertaking. In this background, the third respondent had called upon the petitioner to comply with the personal guarantees and discharging his obligation as agreed to under the Negative Lein Letter by issuance of a legal notice dated 03.05.2020, which came to be evasively replied by petitioner on 06.05.2020 (Annexure-R17), in which there is not even a whisper of petitioner having not affixed his signature to the minutes of the meeting held on 18.03.2020 or letter of undertaking with Negative Lein C....
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....charged in the criminal prosecution launched by CBI and petitioners contract of employment itself stipulated the outer limit within which the petitioner had to return to India namely, five (5) months. Hence, said judgment would not come to the rescue of the petitioner. 33. It would be apt and appropriate to note that Courts exercising extraordinary jurisdiction, while examining the claim of a person who is alleged to have committed an economic offence, would not treat him with kid gloves. Non pendency of any criminal case, by itself would not be a ground on which the Look Out Notice/Circular not being issued. The extant circular in the instant case would clearly indicate that if it appears to the authorities based on inputs received that departure of a person is detrimental to the bilateral relations with any country or to the strategic and/or economic interests of India or if such person if allowed to leave the country, he may potentially indulge in an act of terrorism or offences against the State and/or that such departure ought not be permitted in the larger public interest at any given point of time, then in such circumstances his right to go abroad can be curtailed or rest....
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....l institutions, financial liquidity is essential failing which there is a blockade of large sums of amounts creating circumstances which retard the economic progress followed by a large number of other consequential ill effects. Considering all these circumstances, the Recovery of Debts Due to Banks and Financial Institutions Act was enacted in 1993 but as the figures show it also did not bring the desired results. Though it is submitted on behalf of the petitioners that it so happened due to inaction on the part of the governments in creating Debt Recovery Tribunals and appointing Presiding Officers, for a long time. Even after leaving that margin, it is to be noted that things in the concerned spheres are desired to move faster. In the present day global economy it may be difficult to stick to old and conventional methods of financing and recovery of dues. Hence, in our view, it cannot be said that a step taken towards securitisation of the debts and to evolve means for faster recovery of the NPAs was not called for or that it was superimposition of undesired law since one legislation was already operating in the field namely the Recovery of Debts due to Banks and Financial Insti....
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....huraneethi-Chapter 5, Shloka No. 17: "tyajedekam kulasyarthe gramasyarthe kulam tyajet gramam janapdasyarthe hyatmarthe prthivim tyajet" "Renounce one person for the sake of family, a family for the sake of village; Village for the sake of country and even the (Kingdom of) earth for one's own sake." In other words, "renounce smaller selfish interest for the sake of bigger good". 36. Thus, the national interest is paramount and all other interests including the individual interest will have to yield or kneel before the national interest. In fact, the economic offences constitute a class by itself and the approach to said issue has to be from a wider angle, as economic offence if it goes unchecked, it would lead to serious consequences affecting the economy of the country as whole and it would pose a serious threat to the financial stability of the country. This Court cannot lose sight of the fact that cause of the community deserves equal treatment at the hands of the Courts. The Hon'ble Apex Court in the case of MOHANLAL JITMALJI's case referred to supra has observed: "the community or the state is not a person-non grata w....