Gujarat High Court
Nimish Kalyanbhai Vasa vs Union Of India on 13 September, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/15328/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15328 of 2019
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NIMISH KALYANBHAI VASA
Versus
UNION OF INDIA
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Appearance:
MR SN SOPARKAR, SENIOR ADVOCATE assisted by MR KEYUR GANDHI
for NANAVATI ASSOCIATES(1375) for the Petitioner(s) No. 1
MR KSHITIJ AMIN for the Respondent(s) No. 1,2,3
MR RR MARSHALL, SENIOR ADVOCATE assisted by MS NALINI S
LODHA(2128) for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 13/09/2019
ORAL ORDER
1. In response to the notice, respondent No.4-Bank has filed affidavit in reply, which is taken on record.
2. The Court proposes to take up the matter at interim stage to consider prayer of the petitioner to permit him to travel to foreign country. As stated in the petition, the petitioner, who was scheduled to travel to Singapore, was restricted by Immigration Officer on 05.09.2019 ostensibly on the ground of lookout circular by the Immigration Department, Ministry of Home.
3. It is the case of the petitioner that in due course of business, the petitioner had received financial assistance from respondent No.4-Bank and in view of his Page 1 of 8 Downloaded on : Sat Sep 14 00:20:27 IST 2019 C/SCA/15328/2019 ORDER inability to repay for such financial assistance, the account was declared NPA and proceedings before the DRT were initiated and culminated into decree. It is the case of the petitioner that at various stages, the petitioner had attempted to make payment to the Bank and arrive at settlement and at one stage, the petitioner has also deposited an amount of Rs.2,31,00,000/- in non-lien account.
4. Learned Senior Advocate for the petitioner submitted that there is neither any criminal case pending against the petitioner nor is there any proceeding under which Union of India has initiated any action to restrict movement of the petitioner out of India nor is there any lookout circular against the petitioner. The Immigration Authority is not authorized to restrain travel of the petitioner only on the basis of information, but needs specific order from the authorities concerned to restrain the petitioner as it did when the petitioner was to travel to Singapore.
4.1 It is submitted that the petitioner, who is working now as a Consultant, is required to attend conference in USA, for which he has received necessary documents and the schedule of the conference. It is submitted that it is one such conference that is going to be conducted by the petitioner himself and hence, Page 2 of 8 Downloaded on : Sat Sep 14 00:20:27 IST 2019 C/SCA/15328/2019 ORDER presence of the petitioner is necessary. 4.2 It is further submitted that the proceedings for recovery of the dues are pending since 2007 and in- between, the petitioner has travelled on several occasions and has returned to India and therefore, apprehension that the petitioner is to go away permanently, is unfounded.
4.3 Learned Senior Advocate for the petitioner also submitted that the Immigration Department cannot restrain the petitioner from travelling merely on some information that may have been given by respondent No.4-Bank. The Office Memorandum in that regard specifies procedure by which lookout circular is to be issued and the authority which can issue such lookout circular. Only the highest officer of respondent No.4-Bank can request to issue lookout circular.
5. Learned Advocate Mr.Amin for Union of India submitted that respondent No.1 received communication dated 26.08.2019 with a request for issuing lookout circular against the petitioner. However, he has no instruction whether as a matter of fact, lookout circular is issued or not.
6. Learned Senior Advocate for respondent No.4- Bank, relying upon the affidavit in reply filed, Page 3 of 8 Downloaded on : Sat Sep 14 00:20:27 IST 2019 C/SCA/15328/2019 ORDER submitted that not only the petitioner is indebted to respondent No.4-Bank to the tune of Rs.98/- crores and odd but conduct of the petitioner is such that the Court may not exercise its discretion. In support, it is submitted that the petitioner is a person, who had, with an intention to defraud the Bank, tried to and to some extent succeeded in transferring a premium property located in Mumbai by abusing process of law and surreptitiously transferring the same in the name of sister concern. He drew attention of the Court to oral order dated 23.09.2011 in SCA No.1972 of 2011. It is submitted that in the proceedings for recovery, the petitioner had declared before the Tribunal that the petitioner has no means to pay and is now leading a retired life. This is an affidavit which is false to the knowledge of the petitioner as now in the present case, the petitioner has prayed for travelling out of India in his capacity as a Consultant Chemical Engineer. The Bank therefore proposes to initiated appropriate proceedings including criminal proceedings against the petitioner for filing false affidavit.
6.1 Learned Senior Advocate for respondent No.4- Bank further submitted that proposal for issuing lookout circular is already made by the Bank on 26.08.2011 and knowing this, the petitioner is now likely to never Page 4 of 8 Downloaded on : Sat Sep 14 00:20:27 IST 2019 C/SCA/15328/2019 ORDER return to India. It is submitted that considering provisions of the Office Memorandum for issuing of LOC, the requirements are clearly established and therefore, the petitioner may not be permitted to leave India as there are chances that he may never return to India.
7. As against this, in rejoinder, learned Senior Advocate for the petitioner submitted that there is no attempt on the part of the petitioner to permanently leave India and never to return. It is also submitted that the petitioner is ready and willing to abide by any conditions that may be imposed and assures that there is no reason for the petitioner for not to return as the petitioner has his society in India with several properties. And ensures return of the petitioner.
8. Having heard learned Advocates for the parties and having perused documents on record, it appears that the petitioner is aged 65 years and is senior citizen, who desires to travel to USA in his capacity as a Consultant to one Next-Decade, a USA based company with business transactions in the field of Liquefied Natural Gas, the petitioner being Chemical Engineer is Consultant for such product. The petitioner was to travel to Singapore for which the petitioner had booked tickets and was to travel on 05.09.2019 from International Terminal at Ahmedabad. However, the Immigration Officer had Page 5 of 8 Downloaded on : Sat Sep 14 00:20:27 IST 2019 C/SCA/15328/2019 ORDER restricted the petitioner from travelling and upon inquiry, the petitioner was informed that on account of instructions issued by respondent No.4-Bank, the petitioner is not permitted to travel abroad. The respondent No.4-Bank is a decree holder against the petitioner in connection with account of the company of the petitioner, viz. Abir Chemicals Ltd., where the petitioner had stood as guarantor. The company was later on declared sick company and winding up was recommended. The petitioner had stood guarantor to the principal borrower company. The attempts appear to have been made for full and final settlement of account and from the pleadings, it appears that the petitioner had also sent several proposals to the respondent Bank, which on one count or the other, could not be finally settled. 8.1 The documents produced on record indicate that the decree was drawn on 10.04.2015 and thereafter, the petitioner had, on several occasions, travelled out of India. The copies of passport with stamps of visas of various countries are produced at Annexure=E. 8.2 The petitioner, who is to attend 35th Annual Asia Pacific Petroleum Conference, 2019 in USA, made his travel plans. From the tickets issued and produced with the petition, it appears that the petitioner is to travel from 16.09.2019 till 03.10.2019.
Page 6 of 8 Downloaded on : Sat Sep 14 00:20:27 IST 2019 C/SCA/15328/2019 ORDER 8.3 From the affidavit filed by respondent No.4- Bank it appears that on 26.08.2019 General Manager & Head (Legal & RTI) has issued communication to the Deputy Director, Bureau of Immigration with a request to opening lookout circular against the petitioner in the prescribed form. Till date, it appears, no decision has been taken on such request for lookout circular. The Court, therefore, proceeds on the presumption that no lookout circular exists as on date and therefore, passes an order permitting the petitioner to travel abroad as per his travel plans between the period 15.09.2019 to 04.10.2019 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. Furnishing a fixed deposit in the sum of
Rs.50 lakhs by way of an FRD to the
Registrar General of this Court.
C. Furnishing an undertaking by way of an
affidavit to the Registrar General of this Court that the petitioner would return back to India on or before 05.10.2019. Page 7 of 8 Downloaded on : Sat Sep 14 00:20:27 IST 2019 C/SCA/15328/2019 ORDER D. The petitioner would submit its complete itinerary and contact details on affidavit before this Court as well as to respondent No.4-Bank.
E. To deposit an amount of Rs.5,00,000/-
lakhs 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 this petition.
9. The petitioner is accordingly permitted to travel abroad between 15.09.2019 to 05.10.2019 and the Immigration Authorities of the Union of India will permit the petitioner to travel in accordance with the order of this Court.
S.O. to 09.10.2019.
Direct service permitted today.
(A.Y. KOGJE, J) SHITOLE Page 8 of 8 Downloaded on : Sat Sep 14 00:20:27 IST 2019