Bombay High Court
Rajendra Kaimal vs Bank Of Baroda And 2 Ors on 9 December, 2021
Author: Madhav J. Jamdar
Bench: G.S. Patel, Madhav J. Jamdar
Digitally signed
by HEMANT P3 OSWP 28726-21.DOC
HEMANT CHANDERSEN
CHANDERSEN SHIV
SHIV Date:
2021.12.10
17:50:19 +0530
hcs
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 28735 OF 2021
Rajendra Kaimal ...Petitioner
Versus
Bank of Baroda and Ors. ...Respondents
WITH
WRIT PETITION (L) NO. 28736 OF 2021
Ajit Kamath ...Petitioner
Versus
Bank of Baroda and Ors. ...Respondents
Mr Venkatesh Dhond, with Mr Shrey Fatterpekar, Mr Bhalchandra
Palav, Ms Grishma Dalvi and Mr Aniket Dighe i/b Link Legal
for the Petitioners.
Mr Madhur Rai, i/b PRS Legal for the Respondents.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 9th December 2021
PC:-
1. The Petitioners in these two matters are Indian citizens. Both are residents of Mumbai, where they are well settled and have deep roots for several decades. Both are Directors of a company called Page 1 of 8 9th December 2021 P3 OSWP 28726-21.DOC Arch Pharma Labs Limited ("APL"). The 1st Respondent in these Petitions is the Bank of Baroda.
2. There is no dispute that APL had credit facilities from the Bank of Baroda. In 2018, the Bank of Baroda filed recovery proceedings against APL and its guarantors before the Debt Recovery Tribunal, Delhi. Those proceedings are still pending. There are also some cases under the Negotiable Instruments Act in regard to dishonoured cheque or cheques.
3. These are the only proceedings between APL and the Bank of Baroda.
4. The cause for filing this Petition is that on 30th November 2021, when the Petitioners reached the International Airport at New Delhi, they were stopped by officials from the Bureau of Immigration from boarding their flights. This was on the basis that, at the instance of the Bank of Baroda, what is called a lookout circular or LOC had been issued. This restrains the Petitioners from travelling or going past immigration. The Bank of Baroda's communication of 24th November 2021 to the Petitioner in Writ Petition (L) No 28375 of 2021 is at page 164(A). (The Petitioner will replace this with the legible copy or typed copy and they are granted leave to amend.) But what it seems to say is that because, according to the Bank, APL was indebted to the Bank therefore, the bank had caused a lookout circular to be issued.
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5. We have today listed a large number of cases all challenging such LOCs. In some, there is a challenge to the vires of the circular and we have previously issued notice to the Attorney General. The Additional Solicitor General is present even now in the Court. According to us, these Petitions raise important questions for consideration.
6. This is not the first such case. We note an order of 21st August 2019 in Writ Petition (L) No 2351 of 2019 by a the Division Bench of which one of us (GS Patel, J) was a member. The order in question reads thus:
"1. Having heard both sides we are of the view that this Writ Petition raises arguable questions. It deserves to be admitted.
2. Rule.
3. Respondents waive service.
4. Mr Dwarkadas, learned Senior Counsel appearing on behalf of the Petitioner, applies for an urgent ad-interim relief. He submits that ad-interim orders in terms of prayer clause (d) be granted as the Petitioner has pending commitment abroad. The Petitioner is required to travel on 29th August 2019 and he will be returning India on 8th September 2019. That commitment has to be fulfilled and if the Petitioner is not acting bonafide, then, there is enough evidence in the undisputed fact that this Petitioner has travelled out of India on twelve occasions from February 2019. He has returned back to India each time. He has his business and family in India. Thus, he is deeply rooted in India and has never misused this liberty. The endorsement on the Passports are evidence of the fact that the Petitioner has not misused his liberty.Page 3 of 8
9th December 2021 P3 OSWP 28726-21.DOC
5. On the other hand the counsel appearing on behalf of the 2nd Respondent bank, on instructions, says that the bank would file an Affidavit to justify its request to issue a lookout notice.
6. Mr Bisht argues that the Petitioner has defaulted in payment of loans. The Petitioner has also huge amounts due and payable apart from being a guarantor to the dues of the bank. If the Petitioner goes out of India and there is no likelihood of his return, then, the economic interests of the nation are jeopardised for the State Bank of India is second only to the Reserve Bank of India in terms of the hierarchy. It is the number one nationalised bank and allowing a defaulter of that bank to go out of the jurisdiction of a competent Court/Tribunal would definitely send a wrong message. Therefore, the Petitioner should not be allowed to go abroad and no ad-interim order be granted.
7. Having heard counsel on this point, we are of the view that the power to issue such a notice is traceable to an Office Memorandum issued by the Government of India, Ministry of Home Affairs, Foreign Division (Immigration Section). This memorandum has been issued under an existing practice. That practice may have been prevalent for decades together but what this Office Memorandum prima facie cautions is that the various authorities would like a watch to be kept on arrival and departure of Indians and Foreigners. The departments concerned include the Customs and Finance, Directorate of Revenue Intelligence etc. That is to ensure that undesirable anti-national elements do not misuse the liberty and cause damage to the larger national interest. A reference in this G.R. is made to the order of Hon'ble High Court of Delhi. After summarising the object and purpose in issuing this Office Memorandum, pertinently the purpose thereof is to cause the appearance of the person in question. The High Court of Delhi had before it an issue where investigating agency Page 4 of 8 9th December 2021 P3 OSWP 28726-21.DOC desired to interrogate certain persons in cognizable offences punishable under the Indian Penal Code or other penal laws. They were deliberately evading arrest or not appearing before the Trial Court despite non-bailable warrants and other coercive measures and there was a likelihood of the accused leaving the country to evade trial/arrest. The Government of India through this Ministry states that in accordance with the order passed by the High Court of Delhi the matter was discussed with the agency concerned and guidelines were laid down regarding issuance of lookout circulars in respect of Indian citizens and foreigners. Prima facie, this Office Memorandum is issued to facilitate the appearance or rather to deal with non-appearance or disappearance of those against whom criminal prosecutions are launched or are pending. That may be in relation to economic offences as well. There financial deals are thus under the scanner.
8. However in the case before us the Petitioner has been subjected to this lookout notice only because the State Bank of India has instituted civil/legal proceedings for recovery of monies. It may be that Chairman/Managing Directors/Chief Executive of all public sector banks are empowered to request the issuance of such circulars but by itself and without anything more, that does not mean that in every case of the nature pending before the Debt Recovery Tribunals, (DRT Jabalpur in this case, OA No. 107 of 2019) resort to this circular is permitted.
9. Apart from this, we find that there are arguable questions with regard to the applicability and invocation of this Office Memorandum. We are concerned with the facts and circumstances peculiar to this case. We are not as yet considering any larger issue. To our mind therefore, if the statements of Mr Dwarkadas are accepted as undertakings to this Court, we can balance the rights and equities. A prima facie case having been made out, we find that if a Page 5 of 8 9th December 2021 P3 OSWP 28726-21.DOC businessman is prevented from travelling abroad for business commitments, this will cause him irreparable harm and injury. The balance of convenience is thus also in favour of the Petitioner.
10. Hence we direct and we pass the following order:
(a) That the lookout circular will not come in the way of the Petitioner undertaking a foreign tour from 29th August 2019 to 8th September 2019 provided the itinerary of the foreign tour with all details, contact numbers are furnished in a sealed cover to the Prothonotary and Senior Master of this Court.
(b) All concerned, including the Immigration Authorities at all airports, will act on an authenticated copy of this order.
11. Given that this Court's dockets and numbers are full and very many cases are listed in the week commencing 26th August 2019, we are presently unable to accede to the request to place this matter on 27th or 28th August 2019. We list it on 18th September 2019 on the supplementary board."
7. This order briefly sets out the legal framework. For the purposes of the two present Petitions, we note that the Petitioners have travelled in and out from Bombay to foreign destinations and returned dozens of times in last 10 years without incident or restraint. One of the Petitioners has been abroad and returned at least 40 times in last decade. Both are settled herem, have families, property, assets and deep roots in India.
8. We are inclined to make an order similar to one we made on 21st August 2019.
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9. Both the Petitioners need to be in Chicago, USA between approximately 12th December 2021 and 20th December 2021 for work. For these reasons we pass the following interim order:
(a) The lookout circular will not come in the way of the Petitioners going overseas from 12th December 2021 until approximately 20th December 2021, provided that the itinerary of the overseas tour with all details, contact number etc. are furnished to the Prothonotary and Senior Master of this Court.
(b) We accept the undertaking that on the date mentioned above, he will return to this country.
(c) If a further extension is required it will be granted only after the Petitioner has returned to this country and not otherwise.
(d) We make it clear that we will not accept any application for extension while the Petitioner is overseas.
(e) The Immigration Authorities at all ports of departure including airports are directed to permit the Petitioners to clear immigration and board their flights.
(f ) The Bank of Baroda will inform the Bureau of Immigration so that the necessary instructions can be issued.
(g) The Bureau of Immigration will update its systems to permit the free passage of the Petitioners in accordance with this order.
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(h) All concerned including all Immigration Authorities at all Airports will act on an authenticated copy of this order.
10. His exact itinerary, including contact details places of stay will be submitted before departure to the Prothonotary & Senior Master.
11. For the rest of the challenges in the Petition, we will tag these two Petitions along with others in the group and post them for final hearing on 4th February 2022.
12. All concerned will act on production of a digitally signed copy of this order.
(Madhav J. Jamdar, J) (G. S. Patel, J) Page 8 of 8 9th December 2021