The court emphasized the importance of assessing the judgment debtor's conduct and financial disclosures in determining the risk of flight and the justification for releasing the passport.

JUDGMENT

Asha Menon, J. - EX. APPL.(OS) 142/2020 (of JD-2 under Section 151 CPC for release of his passport)

1. This order shall dispose of the application filed by the applicant/judgment debtor (JD) No.2 namely Mr. Dhruv Varma for release of his Passport bearing No.Z-1400866.

2. I have heard Mr. Sudhir K. Makkar, learned senior counsel for the decree holder (DH) and the applicant/JD No.2 appearing in person.

3. The applicant/JD No.2 has submitted that he had voluntarily deposited his Passport on 8th February, 2013 and that he now required the same to enable him to travel abroad so that he could rebuild his business and meet the financial obligations placed on him. He has stressed the fact that the court had not directed him to deposit the Passport and it was his own offer to the court, as recorded on 14th January, 2013, to assure the court that he had no intention to go away from India to defeat the decree that the Passport had been deposited. It is also stated that he had filed all affidavits including additional affidavits in compliance of various orders passed by this court. When his previous application for release of Passport had been dismissed by the court on 5th February, 2016, it did not debar the filing of the present application. It was submitted that no criminal court or other courts where litigation was pending against the applicant/JD No.2 had directed him to deposit the Passport. Hence, he has prayed that the Passport be released to him.

4. In the reply filed on behalf of the DH, strong objection to the release of the Passport of the applicant/JD No.2 has been taken. It has been submitted that despite a lapse of over ten years, the DH has not been able to recover any amount out of the decretal amount of Rs.41,64,47,667/-. In another identical Execution Petition bearing No.161/2011, not a fraction of the decretal amount of Rs.26,26,41,644/- had been paid.

5. Mr. Sudhir K. Makkar, learned senior counsel for the DH submitted that this court had been calling for one affidavit after another only on account of the subterfuge adopted by the applicant/JD No.2 to defeat the decree. It was submitted that in various complaints filed under Section 138 of the Negotiable Instruments Act, 1881 against the applicant/JD No.2 in which he had been convicted, he had been able to raise enough money to make re-payments and reduce the applicable sentences of imprisonment. In matters, again pending between the parties, under Section 138 of the Negotiable Instruments Act, out of a total sum of Rs.61,63,66,140/-, a sum of only Rs.44,09,650/- had been paid to the DH. Thus, the questions arose as to from where the applicant/JD No.2 was able to raise money which were why the affidavits were called for. Learned senior counsel submitted that the conduct of the applicant/JD No.2 was without bona fides, as whenever he faced imprisonment, he was able to mobilize funds.

6. In the circumstances, it was submitted by the learned senior counsel for the DH that the Passport of the applicant/JD No.2 ought not to be released back to the applicant/JD No.2, as there was a significant probability of the applicant/JD No.2 fleeing from the country. It was further submitted that in the light of the dismissal of the previous application, vide order dated 5th February, 2016 and the observations made in that order, which order had also attained finality, there was no justification for the present application. Hence, it was prayed that the application be dismissed.

7. In response, the applicant/JD No.2 submitted that all those payments and loans were taken prior to the filing of the present execution and all questions of the court had been answered in the various affidavits filed. Placing reliance on the decisions of the Supreme Court in Jolly George Verghese & Anr. V. The Bank of Cochin, (1980) 2 SCC 360 and Satish Chandra Verma v. Union of India and Other, 2019 SCC OnLine SC 2048, the applicant/JD No.2 contended that poverty could not be the reason to imprison a Judgme