* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 12^th JULY, 2024 IN THE MATTER OF:

+ W.P.(C) 11502/2023 USHA SINDHU ..... Petitioner Through: Mr. Sanjeev Sindhwani, Sr. Advocate with Mr. Sumit Goel, Ms. Sonal Gupta and Ms. Apurba Pattanayak, Advocates.

versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. Anil Soni, CGSC with Mr.

Devvrat Yadav, GP.

Mr. Rajiv Kapur, Mr. Akshit Kapur, Mr. Aditya Saxena, Advocates for SBI.

CORAM:

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

JUDGMENT

1. The Petitioner has approached this Court challenging the Lookout Circular dated 26.05.2022 issued against the Petitioner by the Bureau of Immigration at the request of the State Bank of India.

2. The facts of the case reveal that the Petitioner has been working a non-executive Director in ACB (India) Limited (hereinafter called as 'ACBIL'), which is engaged in the core business of coal beneficiation and power generation. It is stated that the ACBIL availed multiple term loan facilities from various consortium of Banks including the State Bank of Signature Not Verified Digitally Signed W.P.(C) 11502/2023 Page 1 of 17 India.

3. It is stated that due to the outbreak of COVID-19 pandemic, the business of the company had suffered and ACBIL planned for restructuring of its debt in accordance with the Resolution Framework for COVID-19 related stress dated 06.08.2020 read with the RBI Circular dated 07.09.2020. It is stated that ACBIL entered into the Master Restructuring Agreement with its lenders including the State Bank of India on 29.05.2021. Since ACBIL was not in a position to honour the agreement and the account of ACBIL was declared as Non-Performing Asset (NPA).

4. A Lookout Circular was opened against the Petitioner and the Petitioner has approached this Court by filing the instant writ petition.

5. It is stated in the writ petition that the Petitioner is only the non- executive Director of the company and is neither a signatory to the Master Restructuring Agreement nor a personal guarantor to the credit facilities availed by ACBIL.

6. It is stated that out of the consortium of lenders, only Canara Bank has initiated proceedings under Section 13(2) of the SARFAESI Act. It is also stated that no criminal case has been initiated against the Petitioner.

7. The Petitioner places reliance on various judgments passed by this Court to contend that since no criminal proceedings have been initiated against the Petitioner and merely because of the inability of the company to repay its debts in which the Petitioner was a non-executive Director, Lookout Circular cannot be opened against the Petitioner and the same is violative of the Fundamental Right of the Petitioner to travel abroad guaranteed under Article 21 of the Constitution of India.

8. This Court in Apurve Goel v. Bureau of Immigration & Anr., Signature Not Verified Digitally Signed W.P.(C) 11502/2023 Page 2 of 17 W.P.(C) 5674/2023; Shalini Khanna v. Union of India & Anr., W.P.(C) 10951/2022; Rajiv Aggarwal v. Union of India & Ors., W.P.(C) 7093/2022 and various other judgments has consistently held that mere inability to repay the amounts due to Banks cannot result in opening of Lookout Circulars.

9. Lookout Circulars are issued against a person at the instance of any of the agencies mentioned in the Office Memorandums issued by the Ministry of Home Affairs from time to time.

10. Ministry of Home Affairs issued an Office Memorandum dated 27.10.2010 laying down the guidelines for issuance of Lookout Circulars. According to the said Office Memorandum dated 27.10.2010, Lookout Circulars could not be opened at the instance of Banks and, therefore, an amendment was sought to the Office Memorandum dated 27.10.2010 and an amended Office Memorandum dated 05.12.2017 was issued and Paragraph No.8 (j) of the Office Memorandum dated 27.10.2010 was amended which reads as under:

“In exceptional cases, LOCs can be issued even in such cases, as would not be covered by the guidelines above, whereby departure of a person