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Sanjana Desai & Anr vs Bank Of India & Anr on 7 February, 2022

Author: V. Kameswar Rao

Bench: V. Kameswar Rao

                              $~41
                              *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                              +      W.P.(C) 1872/2021, CM No. 6494/2022

                                     SANJANA DESAI & ANR.                                 ..... Petitioners
                                                  Through:           Mr. Saurabh Kirpal, Sr. Adv. with
                                                                     Ms. Neeha Nagpal, Mr. Malak K.
                                                                     Bhatt and Mr. Vishvendra Tomar,
                                                                     Advs.
                                                         versus

                                     BANK OF INDIA & ANR.                                 ..... Respondents
                                                   Through:          Mr. Vipin Jain, Adv. for R-1
                                                                     Mr. Ripudaman Bhardwaj, CGSC for
                                                                     UOI/R-2
                                                                     Mr. Kunal Tandon, Adv. for Proposed
                                                                     respondent / Indian Overseas Bank
                                     CORAM:
                                     HON'BLE MR. JUSTICE V. KAMESWAR RAO
                                             ORDER

% 07.02.2022 This matter is being heard through video-conferencing. CM No. 6494/2022 (by petitioners for early hearing)

1. This is an application filed by the petitioners for suspending the LOCs issued against the petitioners or alternatively pass an order directing early listing of the petition.

2. Mr. Saurabh Kirpal, learned Senior Counsel appearing for the petitioners states that appropriate shall that the application which has been filed by the petitioners being CM 5194/2022 be heard.

3. With the consent of the counsel for the parties, the application, CM No. 5194/2022 is taken up for hearing and this application is disposed of.

4. I find that there is another application being CM 5196/2022 filed by the petitioners seeking impleadment of Indian Overseas Bank as respondent No.3 on the ground that Look Out Circular ('LOC', for short) has also been issued at the behest of Indian Overseas Bank apart from Bank of India. Even the said application is taken up for hearing.

5. This is an application filed by the petitioners with the following prayers:

"In light of the facts and circumstances as aforementioned, it is humbly prayed that this Hon'ble Court may be pleased to:

A. Pass an order impleading Indian Overseas Bank as Respondent No 3 in the present Writ Petition; and/or B. Pass any such other writ or order(s) as it may deem fit and proper in the interest of justice."

6. The reply has been filed by the Indian Overseas Bank. Mr.Kunal Tandon, Advocate appears for the Indian Overseas Bank states that the LOC has also been issued at the behest of the Indian Overseas Bank apart from Bank of India which LOC is already under challenge in the writ petition.

7. The only objection taken by Mr.Kunal Tandon is that the LOC has been issued in the year 2018 and no challenge has been made till 2022. It is also not known, what is the source of information for the petitioners to become aware of LOC having been issued at the behest of the Indian Overseas Bank. As it is conceded by Mr.Kunal Tandon, LOC has been issued at the behest of the Indian Overseas Bank and there is already a petition which has been filed by the petitioners challenging the LOC issued by the respondent No.2 at the behest of the Bank of India and the reasons for issuance of LOC is in respect of consortium loan, with the Bank of India and Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:07.02.2022 20:33:11 Indian Overseas Bank forming part of the consortium, I deem it appropriate to allow this application of impleadment. Accordingly, the Indian Overseas Bank is impleaded as a party respondent. Amended memo of parties at Annexure-A2 to the application being CM 5195/2022 is taken on record. The application being CM 5196/2022 is disposed of.

8. This is an application filed by the petitioners with the following prayers:

"In view of the aforesaid facts and circumstances, it is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to:

A. Pass an order suspending the LOC[s] issued by the Respondent No 2 at the behest of the Respondent No 3 including any extensions to the LoC[s] issued in 2018-2019, from time to time, as the case maybe; AND B. Pass an order clarifying that the order dated 01.03.2021 passed by this Hon'ble Court in the captioned petition applies to any extension(s) made to the LOC issued by the Respondent No 2 at the behest of the Respondent No 1; AND C. Pass an order permitting the Petitioners to travel abroad for a period of four [4] weeks w.e.f 09.02.2022 on such terms and conditions as directed by this Hon'ble Court vide order dated 01.03.2021 in the captioned petition; AND/OR D. Pass any such or further order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice in favor of the Applicant."

9. The application was listed on January 31, 2022 when Mr. Vipin Jain and Mr. Kunal Tandon were present for respondent No.1 and Indian Overseas Bank respectively. Notice was issued to Mr. Ripudaman Bhardwaj, Advocate for respondent No.2 for February 14, 2022, who is Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:07.02.2022 20:33:11 present in these proceedings.

10. Mr. Saurabh Kirpal would submit that this Court had in fact allowed the similar prayer sought for by the petitioners vide order dated March 01, 2021 which is reproduced as under: -

"1. This hearing has been done through hybrid mode (physical and virtual hearing) W.P.(C) 1872/2021 & CM APPL. 5410/2021 (for interim relief)

2. The Petitioners are two guarantors in respect of credit facilities availed of by one M/s Frost International Ltd (`FIL') from a consortium of banks. The Petitioner was also a shareholder of FIL which is stated to have been transferred on 21st September 2017. The said company has been declared as a Non-Performing Asset in June 2018 and various criminal complaints have also been instituted against the said company and its Directors/Guarantors. Pursuant to the said criminal complaints, Look Out Circular dated 18th January, 2019 has been issued against the Directors and Guarantors of FIL. An FIR has also been registered by the CBI on 19th January 2020 where the Petitioners are stated to have been arrayed as accused persons.

3. Issue notice to the Respondents, returnable on 26th July, 2021.

4. The urgency in the application for stay is that Petitioner No. 1, who is 33 years old, wishes to travel abroad for availing medical treatment as she is stated to be suffering from breast cancer. Reliance is placed upon the various medical documents issued by Dr. Raju Wadhwani, Consultant Radiologist, P.D. Hinduja National Hospital & Medical Research Centre, Mumbai, as also the medical records of Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute, Mumbai.

5. Reliance is also placed by Mr. Kirpal, ld. counsel, on similar orders passed by this Court in respect of other guarantors in W.P.(C) 6461/2019 titled Saral Verma vs. Union of India & Ors.

6. Heard ld. Counsels for the parties. Insofar as Petitioner Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:07.02.2022 20:33:11 No.1's medical condition is concerned, considering that Petitioner No.1 intends to avail of medical treatment in the U.S.A./U.K. and the fact that Petitioner No.2 is her mother and she wishes to travel abroad for this specific purpose, this Court is inclined to permit the Petitioners to travel abroad for the said purpose. The Petitioners shall inform the Respondent Authorities, after fixing an appointment with the Medical Expert in the U.S.A./U.K.. Upon the appointment being fixed, from the date of departure of the Petitioners till their return, the Look Out Circular dated 18th January, 2019 shall stand suspended and the Authorities shall permit the Petitioners to travel for a period of four weeks, subject to the following conditions:-

(i) The Petitioners shall jointly deposit a sum of Rs.50 lakhs, by way of an FDR, with the worthy Registrar General of this Court which shall be kept on auto-renewal mode.;

(ii) An Affidavit of Undertaking shall be furnished to the worthy Registrar General that the Petitioners would return to India within a period of four weeks from the date of their departure.

(iii) The complete itinerary, along with the documents reflecting the appointment fixed with the Medical Experts at USA/UK, shall be provided to the concerned Investigating Officer, whose name and number shall be supplied by Mr. Vipin Jain, ld. counsel to ld. Counsel for the Petitioner within two days;

7. Once the travel is undertaken, the Petitioners are permitted to file an application seeking release of the FDR, if so advised.

8. The Immigration Authorities shall ensure that the Look Out Circular does not come in the way of the Petitioners travelling abroad.

9. CM APPL. 5410/2021 is disposed of in the above terms.

10. Mr. Vipin Jai, ld. counsel submits that he will be filing a counter-affidavit in this matter. Let the counter-affidavit be filed within four weeks. Rejoinder, if any, be filed within four weeks thereafter.

11. List on 26th July, 2021."

Though order was passed, the petitioner No.1 who is suffering from cancer and was to be accompanied by the petitioner No.2 could not go to USA/UK because of the then prevailing situation in view of COVID-19. He states that now the petitioner No.1 has got an appointment, as is clear from the page 15 of the application (CM No.6494/2022) which states that the consultation with the concerned Doctors in USA is on February 11, 2022 and February 16, 2022.

11. The only objection of Mr.Kunal Tandon is that in terms of paragraph 7 of this application, wherein they have referred to a wedding in the family which also happens to be at the same time when the petitioners shall be in USA and they are desirous to attending the wedding as well.

12. Mr.Ripudaman Bhardwaj states that the respondent No.2 has issued the LOC at the behest of the Bank of India and the Indian Overseas Bank. Mr.Vipin Jain, Advocates appears for the Bank of India / respondent No.1 concedes to the fact that a similar permission was granted by this Court on March 01, 2021. Having heard the learned counsel for the parties, the fact is that the itinerary produced by the petitioners at page 15 of CM No.6494/2022 of which a reference is made above, the petitioner No.1 / Sanjana Desai has an appointment with the concerned Doctors on February 11, 2022 and February 16, 2022. That apart, the petitioners having already permitted to go to USA/UK in terms of order dated March 01, 2021 which they could not avail because of the then prevailing situation in view of COVID-19, this Court is of the view that the prayer as made by the petitioners need to be allowed.

13. Accordingly, the LOC issued pursuant to letter dated January 18, 2019 of the Bank of India and also issued pursuant to letter dated December Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:07.02.2022 20:33:11 27, 2018 of the Indian Overseas Bank including any renewals thereof shall stand suspended for a period of three weeks w.e.f. February 09, 2022, subject to the following conditions:

(i) The petitioners shall jointly deposit a sum of ₹50 Lacs, by way of an FDR, with the Registrar General of this Court which shall be kept on auto-renewal mode, for this purpose the petitioners shall produce the concerned officer of the Bank whose FDR is being deposited for recording of his statement.

(ii) An affidavit of undertaking shall be furnished to the Registrar General that the petitioners would return to India within a period of three weeks from February 09, 2022.

(iii) The complete itinerary, along with the documents reflecting the appointment fixed with the Medical Experts in USA, shall be provided to the concerned Investigating Officer, by Ms.Neeha Nagpal and Mr.Malak K. Bhatt, Advocates for petitioners within two days that is before the departure of the petitioners.

14. Once the travel is undertaken, the petitioners are permitted to file an application seeking release of the FDR, if so advised. The Immigration Authorities shall ensure that the Look Out Circulars does not come in the way of the petitioners travelling abroad. The application being CM 5194/2022 is disposed.

15. Re-notify on August 22, 2022.

16. The date already fixed, i.e., February 14, 2022 stands cancelled.

V. KAMESWAR RAO, J FEBRUARY 7, 2022/aky Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:07.02.2022 20:33:11