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2011 (1) GCD 830 (Guj) (DB)
Hon’ble Mr. Chief Justice S.J. Mukhopadhaya &
Hon’ble Mr. Justice K.M. Thaker
State Bank of India
Versus
Prafulchandra V. Patel Ors.
Letters Patent Appeal No. 1147 of 20101—Decided on 09/02/2011
Recovery of Debts Due to Banks and Financial Institution Act, 1993 (with amendment made in year 2000) — Sections 19(6), 12, 13(A), 13(B), 14, 18, (14), 15, (16), (18), (25), 22, 22(1), 22(2) — Debts Recovery Tribunal (Procedure) Rules, 1993 — Rule 18 — Restraining defendants from leaving India without prior permission — Order of — Jurisdiction of Tribunal — Validity of the order — Finding of — Under Article 21 of the Constitution no person can be deprived of his right to travel except according to the procedure established by law — The law means enacted law or State law — In the present case there is nothing to show that a law has been made in this respect — In absence there of Court held that Tribunal order is not sustainable — It is rightly set aside by Single Judge which calls for no interference.
Held :
It follows that under Article 21 of the Constitution, no person can be deprived of his right to travel except according to the procedure established by law. The law means ‘enacted law’ or ‘State law’. [Para 25]
In the present case, there is nothing on record to show that a law has been made by the State regulating or depriving a person of such right. [Para 26]
In absence of any such ‘enacted law’ or ‘State law’, we hold that the Tribunal had no jurisdiction to deprive the defendants, the respondents herein, of their right to go abroad. The learned Single Judge for the very same reason having set aside the order passed by the Tribunal, no interference is called for. [Para 27]
Law Laid Down :
Under Article 21 of Constitution no person can be deprived of his right to travel except according to the procedure established by Law.
S.J. Mukhopadhaya, CJ.—The only question involved in the present appeal is whether the Debts Recovery Tribunal is empowered to prohibit a borrower from leaving the country without prior permission of the Tribunal.
2. The brief facts of the case are that the appellant “State Bank of India (hereinafter referred to as “the bank”) preferred OA No. 156 of 2001 before the Debts Recovery Tribunal, Ahmedabad under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as “the DRT Act, 1993”). The application was filed on 29.3.2001. Though a prayer was made to restrain the defendant “ borrowers (the respondents in the present case) from leaving India without prior permission of the DRT, originally no such order was passed.
The case was not decided for more than 6 years. After 6 years, on 6.8.2007, the bank filed an interlocutory application for various interim reliefs including the direction to the Regional Passport Authorities to provide passport numbers and addresses of the defendant “borrowers, for bringing them from USA to India and for a direction to surrender the passports. Further prayer was made to direct defendant Nos. 1, 2 and 3 not to leave India without prior permission of the DRT.
The DRT, after hearing the parties, by order dated 4.9.2009, while passed certain other interim orders, also restrained defendant Nos. 1, 2 and 3 from leaving India without prior permission of the Tribunal.
The aforesaid defendants, who are the respondents in the present case, preferred Misc. Appeal No. 237 of 2009 before the Debts Recovery Appellate Tribunal, Mumbai. The Appellate Tribunal by order dated 8.10.2009 observed that the defendants, the respondents herein, have not approached the Tribunal for seeking permission to leave the country, and further observed that they may approach before the DRT justifying the travel abroad and seek permission accordingly. If they do not get permission, in such case they may approach the DRAT. The matter was adjourned for 18.11.2009.
3. That was the stage at which the defendants, the respondents herein, preferred the writ petition challenging the order of the DRAT prohibiting them from leaving the country without prior permission. The learned Single Judge by the impugned judgment dated 18/26.12.2009 held as follows :—
“21. In view of the aforesaid observations, following conclusions deserve to be recorded :—
(a) The Tribunal has no power to control the physical movement of the defendants in absolute, merely because suit for recovery or the proceedings for recovery of the amount is filed, may be in capacity as the mortgagee by the plaintiff.
(b) The Tribunal under RDB Act has power to command and control the properties of the defendants, may be in its possession or in possession of third party, and the powers are to be used for grant of injunction for such purpose. It is only when the Tribunal satisfactorily finds that the defendant is obstructing to the Tribunal or its officers to have command and control over the properties of the defendant may by in possession of the defendant or may be in possession of third party, the powers may be exercised by the Tribunal to control and restrict physical movement of the defendant, but not otherwise.
(c) The Tribunal has no power in absolute to prohibit the physical movement of the defendants beyond its territorial jurisdiction or to prohibit the defendants from leaving the country.
(d) The Tribunal has no power to direct impounding of the passport.”
4. The learned counsel appearing on behalf of the appellant - bank referred to sub-sections (18) and (25) of the Section 19, Sections 22, 25 and 29 of the DRT Act, 1993 as well as Rule 18 of the Debts Recovery Tribunal (Procedure) Rules, 1993. He would contend that under the aforesaid provisions, the DRT is not bound by the procedure laid down by the Code of Civil Procedure and can travel beyond the Code of Civil Procedure and after following the principles of natural j
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