Allahabad High Court
Ashish Gupta vs State Of U.P. And 5 Others on 2 January, 2020
Bench: Shashi Kant Gupta, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 32 Case :- WRIT - C No. - 25554 of 2019 Petitioner :- Ashish Gupta Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ashish Kumar Singh, Swetashwa Agarwal Counsel for Respondent :- C.S.C., Kaushalendra Nath Singh, Nikhil Kumar, Prashant Kanha, Rishu Mishra, Sumit Daga Hon'ble Shashi Kant Gupta,J.
Hon'ble Piyush Agrawal,J.
Order on Civil Misc. Application
1. Heard Shri Shashi Nandan, learned Senior Counsel assisted by Shri Ashish Kumar Singh, learned counsel for the petitioner, Shri Kaushalendra Nath Singh, learned counsel appearing on behalf of the respondent-Noida Authority and perused the record.
2. This is an application filed by the petitioner, Mr. Ashish Gupta seeking permission to leave the country to go to Germany and Holland. In this regard he has submitted that he needs to attend the Business Fair in Germany, scheduled to be held at Cologne, Germany between 09.01.2020 and 22.01.2020 and at Frankfurt, Germany between 05.02.2020 and 13.02.2020 and also to visit Holland to meet his prime customer Habufa in connection with his business.
3. The present writ petition has been filed for quashing of the recovery certificate dated 08.06.2019 and Recovery Citation dated 08.07.2019 issued against M/s Cloud Nine Project Pvt. Ltd., showing the petitioner and his brother to be Directors of the Company. A further prayer was made by the petitioner to direct the respondent no. 6 to release him from civil imprisonment as he was arrested on 25.07.2019 for committing default in making the payment as per the impugned recovery citation.
4. The crucial point in dispute is whether the dues of the respondent no. 6-Company can be recovered from the personal assets of its Directors or the Ex-Directors by adopting coercive measures against them including arrest.
5. This Court by order dated 07.08.2019 while releasing the petitioner from civil imprisonment had interalia passed the following order:-
"In the meantime, the petitioner who is under civil imprisonment shall be released forthwith with the following conditions-:
(i) that on release from civil imprisonment, he shall not move out of the country without the leave of the Court;
(ii) that he will not deal with his shares which he is having in the company M/s Cloud Nine Project Pvt. Ltd. And any company that is a member of the consortium;
(iii) his two residential houses situate in Meerut and the land which he possesses in Panipat (particulars of which shall be supplied by the counsel for the petitioner) shall be under attachment and;
(iv) he is restrained with dealing with those properties in any manner and would not transfer them.
The Sub-Registrar, Meerut and Panipat are directed not to register any deed of transfer of any property in respect of the above referred properties of the petitioner.
The Sub-Registrar, Gautam Buddh Nagar/Ghaziabad is directed not to register any deed of transfer of any flat constructed by the respondent No.6 company on the property leased out by the NOIDA in connection with which the present dues are being claimed.
A copy of this order may be sent to all the above Sub-Registrars with the request to ensure strict compliance of the same."
6. In terms of the aforesaid interim order dated 07.08.2019 one of the conditions imposed was that the petitioner shall not leave the country without prior permission from this court. However, the petitioner has filed the present application seeking permission to go to Germany and Holland in connection with his business.
7. Learned counsel for the petitioner submits that the petitioner mainly runs a business of Manufacturing and Exports of furniture under the name and style of "Intrading(P) Ltd.". The wife of the petitioner is also in the same business through her Firm 'Shrawan Handicrafts' wherein she is supported by the petitioner in Sales and Marketing. Further in the year 2018 it won the Silver Trophy for wooden Articles Exports by the U.P. Government. He further submitted that the petitioner garners business from all over the world by participating in the business fairs abroad and has almost 60 clients in around 20 countries over the world, to whom exports are being made through Intrading (P) Ltd. and Shrawan Handicrafts. In support of his contention, the petitioner has brought on record the details of the business export done from 2015-16 to 2019-20 in a tabular form.
8. It was further submitted that in fact the petitioner also urgently requires to visit one of its prime customers namely, Habufa in Holland, which is providing approximately 25% of the export orders to the petitioner, since he has been called upon to discuss the quality issues and visit the warehouse, to have a better understanding of the required quality level in Europe. The petitioner has also received a mail by the purchase department of Habufa on 5.9.2019 to plan his visit accordingly. In support of his contention he has brought on record the orders received from the Habufa Holland on 27.8.2019, 18.9.2019 and 8.10.2019 respectively and a copy of the mail dated 5.9.2019. He further submitted that on account of frequent business trips of petitioner, he already possesses business VISA of different countries including the aforementioned countries viz. Holland and Germany.
9. It was further submitted that initially the petitioner and his wife started the furniture business at the ground level. However, thereafter the export of furniture grew from 1.4 crore to 27 crore in 2019 primarily because of export business generated through the International Fairs. He further submitted that two very prominent business fairs namely Koln (09th Jan.- 22nd Jan,2020 in Cologne, Germany) and Ambients (5th -13th Feb, 2020 in Frankfurt, Germany) are scheduled to be held in January and February, 2020 respectively. The said fairs are the world's largest business shows wherein companies from all over the world participate and major export business is generated therefrom. They are the most prestigious fairs of all, which provide opportunities of export all over the world. The petitioner has been consistently participating in both the aforementioned business fairs from the year 2017 onwards. The petitioner has already paid the booking amount for allotment of exhibition space at the Cologne. In support of his contention the petitioner has brought on record the Invoice for the year 2020 for the Cologne Fair as well as the documents evidencing the participation of the petitioner in the previous years. It was further contended that the petitioner being the sole person dealing in international sales and marketing on behalf of both the concerns, is required to be personally present in the business fairs to be held abroad so that he may persuade the prospective buyers and seek good export orders. The petitioner himself is an alumnus of the prestigious Howard University (U.S.A) and has a lot of International exposure to the global business market.
10. Learned counsel for the petitioner has submitted that in compliance of the aforesaid order, the property of the petitioner at Meerut and Panipat has already been attached and he has also been restrained from transferring and dealing with those properties in any manner. He further submitted that the petitioner has also been restrained from registering any deed of transfer of any flat constructed by the respondent no.6, on the property leased out by the NOIDA in connection with which the present dues are being claimed.
11. Learned counsel for the petitioner has further submitted that the petitioner is having only 10% shares in respondent no. 6-Company.
12. Mr. Kaushalendra Nath Singh, learned counsel for the respondent-Development Authority has fairly stated that in order to secure the outstanding dues, the petitioner be directed to deposit substantial amount as security money to enable him to go Germany and Holland in connection with his business.
13. Learned counsel for the petitioner, after seeking instructions from his client, stated that the petitioner undertakes to deposit a sum of Rs. 3 Crores by way of F.D.R/Banker's Cheque as security money to enable him to go abroad (Germany and Holland) in connection with his business. It has been further stated that the wife of the petitioner shall not accompany the petitioner during the aforesaid journey and shall remain in India.
14. Considering the facts and circumstances of the case and the submissions advanced by the learned counsel for the parties and also keeping in view of the fact that the Court has already imposed several conditions on the petitioner by its order dated 07.08.2019 while releasing him from the civil imprisonment, we are of the view that the petitioner should be allowed to travel Germany and Holland for the period mentioned in the application with the following conditions:-
(i) The petitioner shall file an undertaking before the Registrar General of this Court (in short the "R.G.") by the 10th January, 2020 indicating his Flight details and the date of arrival in India. The copy of the undertaking shall be served upon the learned counsel appearing on behalf of the respondent-Noida Authority;
(ii) If the aforesaid undertaking is not filed, the petitioner shall not be allowed to go abroad;
(iii) The petitioner shall deposit the amount of Rs. 3 Crores in the form of F.D.R/Banker's Cheque in favour of the R.G. issued by any Nationalized Bank by 10th January, 2020. The said amount shall be returned to the petitioner after he appears before the R.G. on 20.02.2020 after returning to the country provided he does not violate any of the conditions so imposed upon him;
(iv) The petitioner shall not open or close any bank account overseas;
(v) The petitioner shall not enter into any kind of property transactions abroad;
(vi) The petitioner shall also deposit the Passport of his wife namely Mrs. Pallavi Gupta by 10th January, 2020 with the R.G., which shall be returned to him after he comes back to India;
(vii) The petitioner shall not travel any other country except Germany and Holland;
(viii) The petitioner shall place his Passport before the R.G. after coming back to the country on 20.02.2020 to enable him to verify that he did not travel any other country except Germany and Holland;
(ix) If the undertaking is not complied with, the petitioner shall face such consequences as may be deemed fit and appropriate.
15. The aforementioned conditions have been imposed with the consent of the learned counsel for the respondent-Noida Authority.
16. It is made clear that the petitioner after coming back to India shall not leave the country without the prior permission of this Court.
17. Let a copy of this order be sent to the Indian Embassies at Germany and Holland for their necessary perusal.
18. With the above observation, the present application stands disposed of.
19. Let the present writ petition be listed in the last week of February, 2020.
Order Date :- 2.1.2020/Arun