Gujarat High Court
Bank Of Baroda vs Nimish Kalyanbhai Vasa on 25 October, 2019
Equivalent citations: AIRONLINE 2019 GUJ 941
Author: Vikram Nath
Bench: Vikram Nath, A.J. Shastri
C/LPA/1761/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1761 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 15328 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/LETTERS PATENT APPEAL NO. 1761 of 2019
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BANK OF BARODA
Versus
NIMISH KALYANBHAI VASA
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Appearance:
MS NALINI S LODHA(2128) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3,4
MR SN SOPARKAR, SENIOR ADVOCATE for NANAVATI
ASSOCIATES(1375) for the Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 25/10/2019
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH)
1. Present Letters Patent Appeal under Clause 15 of the Letters Patent is submitted by the original respondent No.4 Bank of Baroda for challenging the correctness of the order passed by learned Single Judge on 17.10.2019.
2. The substantial question raised by the appellant Bank is that despite the fact that there are recovery proceedings pending against the respondent No.1 to the tune of decretal dues of more than 98 crores and despite the fact that the lookout circular is in operation, the original petitioner is permitted to travel abroad.
3. For substantiating this grievance, learned counsel Ms. Nalini Page 1 of 5 Downloaded on : Sat Oct 26 03:27:37 IST 2019 C/LPA/1761/2019 ORDER S. Lodha appearing on behalf of the appellant Bank has submitted that there is a huge decretal amount outstanding payable by the respondent No.1 and execution proceedings are pending and if the respondent No.1 will be allowed to travel abroad, it would be difficult for the bank to secure his presence and not only that but the same would be in violation of the lookout circular issued by the Ministry of Home Affairs. Learned counsel has further submitted that apart from this, the conduct of the original petitioner is such that he provided a false information and declaration about his assets which are reflecting on page 213 of the petition compilation and by pointing out the incorrect information, which has been submitted by respondent No.1, a submission is made that learned Single Judge ought not to have granted permission. It has further been emphatically stated by learned counsel for the bank that though the respondent No.1 is one of the Directors of the company, has chosen to declare that practically, he is living a retirement life and is earning nearly an amount of Rs.2,25,120/- and by giving such kind of false information, an attempt is made to misdirect the Court. It has further been submitted that moment, the lookout circular is applicable to the respondent No.1, he cannot be permitted to travel beyond the country and as the said fact having not been properly appreciated by learned Single Judge, the order in question deserves to be corrected. Ms. Lodha has further submitted that on previous occasion, when this Court permitted the respondent No.1 to travel abroad, at that point of time, there was no such lookout circular brought to the notice but this time, the lookout circular has already been issued specifically naming the respondent No.1 and as such, it is not open for the respondent No.1 to move away from the country. That aspect having not been properly appreciated by learned Single Judge, Page 2 of 5 Downloaded on : Sat Oct 26 03:27:37 IST 2019 C/LPA/1761/2019 ORDER the order deserves correction.
4. As against this, learned senior advocate Mr. S.N. Soparkar appearing on behalf of the contesting respondent No.1 has vehemently contended that for the moment, the issue relates in the present proceedings is about permitting the original petitioner to leave the country for temporary period or not. The proceedings which have been initiated are being dealt with by the respondent No.1 and it has been submitted specifically that in the past also, for number of occasions, the Courts have permitted the respondent No.1 to travel abroad and has not violated any liberty and has come out within the time. It has further been submitted by imposing various terms and conditions, learned Single Judge on earlier occasion, i.e. on 13.9.2019, had also permitted the respondent No.1 and the respondent No.1 has abided by all the terms and has returned back and it has further been submitted that the respondent No.1 is not going to run away. On the contrary, for a temporary period, on suitable conditions, learned Single Judge has exercised the discretion. Learned Single Judge has also appreciated the lookout circular and after considering such submission of the bank, the order is passed. Mr. Soparkar has further submitted that it is not that the respondent No.1 is going abroad for the first time. During the span of couple of years, on more than 10 occasions, the respondent No.1 had traveled abroad and has come back. So, the apprehension which has been voiced out is ill-founded. On the contrary, according to learned senior advocate, the order which has been passed is after completely protecting the interest of both the sides and the same has been passed after hearing the Central Government as well. As a result of this, even this time also, the condition which has been imposed upon, the appellant is going to strictly observe the same and as such, no interference Page 3 of 5 Downloaded on : Sat Oct 26 03:27:37 IST 2019 C/LPA/1761/2019 ORDER be made in the impugned order.
5. Having heard learned advocates appearing for the parties and having gone through the material on record, no-doubt, it appears that the respondent No.1 is facing a decree of huge amount but then, the fact is not possible to be ignored that on previous occasion, learned Single Judge has permitted the respondent No.1 to travel abroad by virtue of the order dated 13.9.2019 and the respondent No.1 had returned back without violating any condition. It is further not in dispute that despite the aforesaid pending proceedings initiated by the appellant bank, on number of occasions, the respondent No.1 had traveled abroad and that fact is not in dispute and as such, the apprehension which has been voiced out has rightly been taken care by learned Single Judge by imposing appropriate conditions. It has also been pointed out from the order that while exercising the discretion, learned Single Judge has heard both the sides and thereafter, imposed reasonable conditions which are mentioned in para 9 and 10 and only after imposing such conditions, the order is passed. Reference can be made to the observations which have been made in para 9 and 10, hence the same are reproduced hereinafter:-
9. Considering the aforesaid submissions made by the learned advocates appearing on behalf of the respective parties and considering the order passed by the Co-ordinate Bench of this Court on 13th September, 2019, the applicant is permitted to travel abroad as per his travel plans between the period from 26th October, 2019 to 5th November, 2019 on following conditions:
(A) Furnishing a personal bond by a person other than a person against whom the complaints are made, to the Registrar General of this Court;
(B) Amount of Rs.50 Lakhs deposited by the applicant shall continue as per the order dated 13th/14th September, 2019;
(C) Furnishing an undertaking by way of an affidavit to the Page 4 of 5 Downloaded on : Sat Oct 26 03:27:37 IST 2019 C/LPA/1761/2019 ORDER Registrar General of this Court that the applicant would return back to India on or before 5th November, 2019.
(D) The applicant would submit his complete itinerary and contact details on affidavit before this Court as well as to respondents No.4-Bank.
(E) To deposit additional amount of Rs.5,00,000/- (Rs. Five Lakhs Only) in the non-lien account of the Bank within a period of one week from today, which will be treated as deposit, subject to outcome of the main petition.
10. The applicant is accordingly permitted to travel abroad between the period of 26th October, 2019 to 5 th November, 2019 and the Immigration Authorities of the Union of India will permit the applicant to travel in accordance with the order of this Court.
6. In view of the aforesaid circumstance, when proper conditions have been imposed by learned Single Judge and for a brief period, respondent No.1 is permitted, we see no reason to interfere with the discretion exercised by learned Single Judge. The said conclusion is arrived at after proper examination of the material and after considering the fact about the lookout circular as well. When that be so, we see no error in the order passed by learned Single Judge. Accordingly, the Letters Patent Appeal being devoid of merits, stands dismissed hereby.
7. Since the Letters Patent Appeal is dismissed, the Civil Application does not survive and stands disposed of.
(VIKRAM NATH, CJ) (A.J. SHASTRI, J) OMKAR Page 5 of 5 Downloaded on : Sat Oct 26 03:27:37 IST 2019