Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 226

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
M.S. Ramachandra Rao,Harminder Singh Madaan, JJ.
Poonam Paul – Appellant
Versus
Union Of India & Ors. – Respondents
CWP No.10488 of 2022 (O&M)
Decided On : 02-06-2022

Advocates Appeared:
Mr. Manish Jain, Advocate and Mr. Siddhant Jain, Advocate,, for the Appellant; Mr. Satya Pal Jain, Additional Solicitor General of India with Ms. Shweta Nahata, Advocate for respondents No.1, 3 & 4. Mr. K.K.Goel, Advocate and Mr. Ankush Bharti, Advocates for respondent No.2, for the Respondent

The judgment establishes the principle that the right to travel abroad is protected under the Constitution of India and cannot be deprived without following fair, just, and reasonable procedures.

Headnote:
LOC - Challenging Look Out Circular - SARFAESI Act, 2002 - IBC, 2016 - Passport Act, 1967 - Art.21 of the Constitution of India
Fact of the Case:

The petitioner, a director in a company, challenged a Look Out Circular (LOC) issued against her, preventing her from traveling abroad to be with her daughter in Australia. The petitioner contended that the LOC was issued without informing her and without following due process of law. She sought to quash the LOC and obtain permission to travel abroad.
Finding of the Court:

The court found that the petitioner's right to travel abroad is protected under Art.21 of the Constitution of India and cannot be deprived except by a fair, just, and reasonable procedure. The court held that the issuance of the LOC was arbitrary, illegal, and violative of the petitioner's fundamental rights.
Issues: The issues involved the legality of the LOC, the petitioner's right to travel abroad, and the procedural fairness in issuing the LOC.
Ratio Decidendi: The court emphasized that the right to travel abroad is a fundamental right and cannot be deprived without following fair and just procedures. It held that the issuance of the LOC without informing the petitioner and without sufficient grounds was arbitrary and illegal.
Final Decision: The court set aside the LOC issued against the petitioner and directed the authorities to permit her to travel abroad to Australia to be with her daughter. The Writ Petition was allowed with no costs.

JUDGMENT

M.S. Ramachandra Rao, J. - In this Writ Petition, the petitioner is challenging a Look Out Circular (LOC) issued against her by the Bureau of Immigration, Ministry of Home Affairs, Govt. of India (respondent No.3) at the instance of the Bank of India (respondent no.2).

2. The respondent No.1 is the Ministry of Home Affairs, Union of India , the respondent No.2 is the Bank of India, respondent No.3 is the Bureau of Immigration, New Delhi, respondent No.4 is the Foreign Regional Registration office and respondent No.5 is a Company M/s Drish Shoes Ltd.

The Background facts

3. The petitioner herein is a Director in respondent No.5 Company run by her husband and others.

4. Respondent No.5 availed a loan from the respondent No.2- Bank for which the petitioner stood as a guarantor along with others.

5. There was a default committed by respondent No.5 in servicing the loan availed by it from respondent No.2 and so the said respondent recalled the loan by issuing the demand notice dt. 22.11.2021 to respondent No.5 and its guarantors including the petitioner under Section 13(2) of the SARFAESI Act, 2002 demanding a sum of Rs.121,17,11,148.70.

6. It is stated by petitioner that one of the operational creditors of the respondent No.5 filed on 02.09.2021 an application under Section 9 of the IBC, 2016 CP(IB) #239/Chd/Hry/2021 before the NCLT, Chandigarh and when the matter had come up on 13.4.2022 and orders were reserved in the said case.

7. Respondent No.5 also filed a petition before the NCLT, Chandigarh under Section 10 of the IBC for initiation of CIRP of respondent No.5 and the said application is said to be under scrutiny before the NCLT.

8. According to the petitioner, respondent No.5 through one of its Directors sent a letter on 18.12.2021 offering 'voluntary and peaceful handover and possession of all mortgaged assets' of respondent No.5 to the respondent No.2 and requested the latter to sell them and appropriate the proceeds of the sale to the amount due to the respondent No.2.

9. The petitioner contends that her eldest child Mrs. Bahaar Grover @ Bahaar Paul is settled in Australia, that she is to deliver a child in the last week of July,2022, and since the said daughter already has a 3 year old child, she wants to go to Australia to be with her at antenatal and postnatal time and comfort her. .

10. She contends that she received a caveat petition on 23.2.2022 filed at the instance of respondent No.2 mentioning that a Look-Out Circular (LOC) was issued against her, her family members and associate directors of the respondent No.5 by the Airport Immigration authorities.

11. She contends that Respondent No.5 sent a letter dt.2.3.2022 to Respondent Nos.2, 3 and 4 specifically requesting for copies of the Look Out Circular issued against the petitioner but copy of the same has not been given to her.

12. Admittedly, the said LOC dt. 28.12.2021 is said to have been issued at the instance of the respondent No.2.

13. The petitioner has to apply for Visa formalities at the earliest and make travel arrangements to be in Australia atleast sometime before the delivery of her daughter. She states that she intends to return from Australia at the end of August,2022.

The instant Writ Petition

14. On an apprehension that she would not be allowed to travel to Australia to be with her eldest child Mrs. Bahaar Grover @ Bahaar Paul before and after the delivery of her child because of the LOC, she has filed this Writ Petition to quash the said LOC, and for a direction to the respondents to allow her to travel abroad (Australia) to visit her daughter.

Contentions of Petitioner

15. The petitioner contended that respondent No.5 sent a letter dt. 02.03.2022 to respondent No.2 specifically requesting for copies of the LOC issued at the instance of respondent No.2, copies of which were also sent to respondents No.3&4, but still they did not provide the petitioner LOC dt. 28.12.2021 or its copy.

16. Petitioner contends that before respondent No.2 requested for issua