Decided on November 27,2007



M.C.Jain, - (1.) BY judgment dated 7.3.2002, the DRT below decreed O.A. 415/2000 titled as IFCI Ltd. v. AEC Ssangyong Ltd. and Ors. for the recovery of Rs. 52 crorcs and odd with pendente lite and future interest. The appellant was the guarantor. The suit had been instituted by the contesting respondent No. 1-IFCI. Recovery Certificate was issued and recovery proceedings started. The appellant was CD No. 2 there. On 24.12.2002, the Recovery Officer passed the following order: CD No. 2 through his Counsel is directed to deposit his passport with the undersigned immediately. He is directed to file affidavit of assets movable/immovable and details of Bank accounts and details of family members by next date of hearing. CD No. 2 is directed not to leave the country till further orders from the undersigned. Thereagainst, he (appellant) preferred an appeal under Section 30 of the RDDBFI Act before the Tribunal below, which was dismissed on 25.8.2005. Thereagainst he has come up in appeal.
(2.) I have heard Mr. M. Dutta, learned Counsel for the appellant (CD No. 2) and Mr. Mukul Chandra, learned Counsel for the 1st respondent-IFCI. It has been argued by the learned Counsel for the appellant that the impugned order is violative of his rights under Article 21 of the Constitution of India. It has been stated that no person can be deprived of his life and liberty except according to procedure prescribed under law. It has been argued that locomotion is an integral part of fundamental right of life and liberty. The learned Counsel submitted that the appellant (CD No. 2) had filed affidavit tendering the details of his movables and immovables. He urged that Section 25 of the RDDBFI Act provides modes of recovery of debts, the first of which is by attachment and sale of the movable or immovable property, and that the other mode of recovery by arrest and detention in prison can be resorted to only when the first one is ineffective. It has also been submitted by him that as per Section 29 of the said Act, the provisions of Second and Third Schedules to the Income-tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962 apply for the recovery of the amount of debt due under the RDDBFI Act. According to him, as per Rule 73 of the Second Schedule to the Income-tax Act, no occasion, contingency or apprehension arose to restrict the travelling of the appellant abroad and the impugned order cannot at all be sustained. The learned Counsel for the appellant also submitted that during the pendency of the appeal before the Tribunal below, he had made an application (I.A. 749/2003) seeking leave to travel to South Korea. By order dated 23.12.2003, the Tribunal, while allowing the appellant to travel, imposed a condition requiring him to deposit a sum of Rs. 55 lacs, as a pre-condition for travelling to South Korea (Annexure A-9 to the Appeal). Aggrieved thereby, he preferred Civil Writ Petition 57/2004 before the Hon'ble Delhi High Court. The Delhi High Court, vide order dated 19.1.2004 (Annexure A-11 to the Appeal), permitted him to travel to South Korea on his depositing the title deeds of his mother's property at Gurgaon and the passport of his wife as security till his return. The appellant travelled to South Korea and returned to India, whereafter the aforesaid documents were returned to him and the writ petition was withdrawn with liberty to continue the appeal before the Tribunal below. He has also relied upon a decision of the Hon'ble Delhi High Court in A.S. Mittal v, P.O., Debts Recovery Tribunal and Ors. 109 (2004) DLT 16 : C.M. (M) 505/1999 and C.M. No. 2538/1999, decided on 21.11.2003, to urge the point that his passport could neither be ordered to be impounded nor could a direction be given to him not to leave the country without prior permission of the Tribunal.
(3.) ON the other hand, the learned Counsel for the respondent-Bank has opposed the appeal submitting that there is no violation of Article 21 of the Constitution of India, as contended by the appellant. According to him, he (appellant) was not at all cooperating in the recovery proceedings. The Recovery Officer was duty-bound to take all necessary steps to ensure recovery and that he could validly pass the order, which has rightly been upheld by the Tribunal below, asking him to deposit his passport and not to leave the country. The learned Counsel pointed that huge recovery of over Rs. 55 crores has to be made and the appellant being guarantor is obliged to make the said payment. Referring to the reply with affidavit filed by the appellant before the Recovery Officer, he submitted that it is simply an eyewash and complete misnomer. According to him, the appellant did not provide complete and correct information of his assets, though bound to do so faithfully, and he was simply trying to mislead. He is harping upon that the property of the company (borrower) be proceeded against first, but the reality is that the plant and machinery which he has mentioned are in the possession of the Custom authorities and are lying at the airport. As for his own assets, he has disclosed a Bank account bearing No. 11186394 with the Bank of Punjab Ltd., B-11, Gujranwala Town, Part-1, Delhi with a balance of Rs. 3,100/- only. The learned Counsel submitted that the impugned order passed by the Recovery Officer and sustained by the DRT below cannot at all be flawed and the appeal is bound to be dismissed.;

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