2022 (6) TMI 1507

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.... order passed by the Debt Recovery Tribunal refusing to grant permission to travel abroad for a limited time from 09.06.2022 to 17.06.2022 to attend the marriage of the petitioner's sister- in-law. 4. The brief facts giving rise to the present petition are as under : The Petitioner is the personal guarantor of a private limited company (respondent No. 2) engaged in electricity and power generation. To establish the Power Plant, a consortium led by Axis Bank Limited and another group of lenders, namely L & T Infrastructure Finance, State Bank of Mysore, Corporation Bank, State Bank of India and respondent No.1, financed the project. Proceedings under the Insolvency & Bankruptcy Code, 2016 are pending in relation to the respondent No.2 - Company before NCLT, Mumbai and the same is under liquidation order passed by the NCLT dated 15.03.2018. 5. Original Application No.330/2016 came to be filed before the Debt Recovery Tribunal, Nagpur, for recovery of amount against the Petitioner and other directors of respondent No. 2 - Company for a sum of Rs. 110,15,00,000/-. In the said Original Application, respondent No.1 - Bank sought interim relief restraining the Petitioner fr....

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....ited our attention to Section 22(2) of the Act and submitted that Tribunal is vested with the same powers vested in Civil Court under Civil Procedure Code. He placed reliance on Section 19(25) of the said Act and Rule 18 of Debt Recovery Tribunal (Procedure) Rules, 1993, to contend that the Tribunal has the power to pass such orders which are necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure ends of justice. In support of his submission, he placed reliance upon the following judgments in the cases of Smt. Annai Jayabharathi Vs. Debt Recovery Tribunal (Kerala and Lakshadweep), Ernakulam and Anr. reported in AIR 2005 Kerala 137 and ICICI Bank Ltd. vs. Debts Recovery Appellate Tribunal, Chennai and Ors. reported in AIR 2012 Madras 111. 12. We have carefully considered the submissions raised on behalf of both sides. To adjudicate the issue involved in the present petition, it is necessary to consider the relevant Article of the Constitution as Article 21. It reads: "21. No person shall be deprived of his life or personal liberty except according to procedure established by law." 13. It is now well settled that the express....

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....ight to travel abroad of a citizen of India in the case of Smt. Maneka Gandhi Vs. Union of India reported in AIR 1978 SC 597. In the said case, it is held that the expression 'personal liberty' in Article 21 is of the widest amplitude, which includes the right to go abroad. It has also been held that the expression "Law" under Article 21 means "Enacted Law" or "State Law". Therefore, the Hon'ble Apex Court authoritatively held that no person could be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for depriving a citizen of his right to go abroad. It has also been held that the procedure contemplated under the said Article cannot be arbitrary, unfair or unreasonable. 18. The Hon'ble Apex Court, in a recent judgment in the case of Satish Chandra Verma Vs. Union of India and Ors in Civil Appeal No.3802/2019 decided on 09.04.2019 reiterated aforesaid position by observing as under. "5. The right to travel abroad is an important basic human right for it nourishes independent and self- determining creative character of the individual, not only by extending his freedoms of action, but also by extending the s....

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....ment 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. 22. Procedure and powers of the Tribunal and the Appellate Tribunal.- (1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure, including the places at which they shall have their sittings. (2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c)....

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....fendant with an intent to obstruct or delay or frustrate the execution of any order or the recovery of debt passed against him, or is about to dispose of the whole or any part of the property, or is about to remove to whole or any of the part of the property, or is likely to cause any damage or mischief to the property or affect its value by misuse or creating third party interest. On careful consideration of the language of Sub Section 12, 13(A), 17 and 18 of Section 19, we are of the considered view that the Tribunal is not conferred with specific power to restrain a person from leaving the country. 21. Insofar as the submission of respondent No.1 that the Tribunal has powers under Section 22 of the Said Act to pass orders restraining a person from travelling abroad is concerned, the Hon'ble Apex Court in the case of Industrial Credit Investment Corporation of India Limited Vs. Grapco Industries Ltd. And Ors. reported in 1999 (3) SCR 759 in paragraphs No. 11 and 12 held as under : "11. We, however, do not agree with the reasoning adopted by the High Court. When Section 22 of the Act says that the Tribunal shall not be bound by the procedure laid by the Code of Civil P....

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.... both judgments and, by detailed judgment, has dissented from the views taken by Kerala and Madras High Court. A similar matter fell for consideration before a Division Bench of the Gujarat High Court in State Bank of India (supra), which held that the Debt Recovery Tribunal has no power to restrain a person from travelling abroad in the absence of specific powers to that effect. Special Leave to Appeal (Civil) No.16714/2011 against the judgment of the High Court of Gujarat has been dismissed by the Hon'ble Supreme Court on 15.07.2011. We fully agree with the views expressed by the Delhi High Court in the case of ICICI Bank Ltd. (supra) and Gujarat High Court in State Bank of India (supra) that the Debt Recovery Tribunal has no power to restrain a person from travelling abroad. 24. Respondent No.1 has filed a reply before the Debt Recovery Tribunal. A copy of the reply has been produced on record by the Advocate for the Petitioner. Having perused the said reply, we do not find any apprehension expressed by respondent No.1 that the Petitioner is likely to abscond from the country is possible. The Petitioner has stated in paragraph 8-C that the Petitioner's daughter is studyin....