Icici Bank Ltd. and Anr. Vs. Chairperson, Debts Recovery Appellate Tribunal, - Court Judgment

OD-6 WP No.61 of 2014 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE ICICI BANK LTD.& ANR.

Versus CHAIRPERSON, DEBTS RECOVERY APPELLATE TRIBUNAL, KOLKATA & ORS.BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date : August 12, 2016.

Appearance: Mr.Hirak Kr.

Mitra, Sr.Adv.Mr.Ratnanko Banerji, Sr.Adv.Mr.Debdatta Sen, Adv.Mr.S.Chatterjee, Adv.Mr.M.K.

Seal, Adv.Mr.Dipaloke Majumdar, Adv.The Court : The third respondent is represented today after advocates previously representing such private respondent having withdrawn.

The challenge herein is to an order dated January 7, 2014 passed by the Debts Recovery Appellate Tribunal in Kolkata in an appeal arising out of an interlocutory application in proceedings under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993.

The primary issue before the appellate tribunal was as to whether the private respondent herein should be restrained, in terms of a clause in the contract with the bank, from leaving the country without the consent of the bank till such time that the bank’s dues have been cleared.

The bank had earlier applied by way of WP No.1011 of 2013 against the unreasoned order of stay passed at the ad interim stage of the appeal by the appellate tribunal.

Such petition was disposed of by an order of October 3, 2013 by modifying the ad interim order passed in the appeal on September 23, 2013.

The third respondent herein was restrained from leaving the county without the previous permission of the appellate tribunal during the pendency of the appeal, which permission could be granted by the appellate tribunal upon previous notice to the bank.

The order was made effective from November 1, 2013 since the third respondent represented that he had to travel abroad for business commitments during the month of October, 2013.

The order of October 3, 2013 was carried in appeal by the third respondent and the same was disposed of on October 24, 2013 by directing the appellate tribunal to dispose of the application for surrender of the passport by the end of December, 2013.

The embargo imposed by the order of October 3, 2013 on the third respondent’s travel abroad was made effective by the appellate order of October 24, 2013 from January 1, 2014.

The question that arises is whether the appellate authority was, in the circumstances, justified in removing the embargo altogether while passing the order impugned on January 7, 2014 though such order left the bank free to apply for a specific order from the Debts Recovery Tribunal regarding the third respondent’s travel abroad.

The principal ground as evident from the order impugned is that the application filed by the bank from which the appeal before the appellate tribunal arose did not cover such aspect of the matter and the point may only have been canvassed in couRs.of the challenge to the ad interim appellate order of September 23, 2013.

The appellate authority was impressed with the contention of the third respondent herein that if the issue was directly taken up in couRs.of the appeal, the third respondent lost the right of a forum to appeal against any adveRs.order.

At the earlier stage of the present proceedings, several authorities were cited on behalf of the bank and the third respondent, but since the argument on behalf of the third respondent was not concluded and no further submission in such regard is made on his behalf, it is not necessary to go into the decisions cited as there is no sequitur thereto.

The exploits of the third respondent herein as the principal promoter of the now defunct Dunlop India Ltd have been chronicled in previous orders of this Court.

It is evident from the orders dated October 3, 2013 and October 24, 2013 passed by this Court that a prima facie view was taken as to the embargo that ought to be imposed on the third respondent.

However, some time was afforded by the Court to the third respondent by the order of October 3, 2013; and, the appellate order of October 24, 2013 required the matter to be decided by the appellate tribunal by December 31, 2014 or the embargo to apply thereafter.

In view of the tentative view taken by this Court in couRs.of the previous round of proceedings herein, the appellate tribunal may not have decided the issue conclusively in couRs.of the appeal as the matter had not been urged before the Debts Recovery Tribunal in the fiRs.place; but the appellate tribunal ought to have imposed the embargo, subject to the consideration thereon to be made by the Debts Recovery Tribunal and the order passed upon such consideration.

Once a tentative view as to the propriety of the embargo being imposed on the third respondent’s foreign travel was taken by this Court, in all fairness, the appellate authority ought not to have tinkered with the same merely on the ground that the issue had not been raised before the Debts Recovery Tribunal, though such aspect was referred to in couRs.of the appeal and sufficient submission in such regard is reflected in the order impugned.

Accordingly, WP No.61 of 2014 is disposed of by requiring the Debts Recovery Tribunal to decide on the validity and enforceability of the relevant clause in the agreement between the bank and the third respondent regarding prior permission being required to be obtained by the third respondent from the bank before leaving the country.

However, till such time that such issue is decided by the Debts Recovery Tribunal, the third respondent is restrained from leaving the country without the express previous permission in writing from the bank.

In the event the bank does not file an appropriate application for the enforcement of the relevant clause before the Debts Recovery Tribunal within a period of six weeks from date, the order of injunction passed herein will stand dissolved automatically.

Upon the appropriate application being carried to the Debts Recovery Tribunal within the time indicated, the injunction issued herein will continue till the issue is finally decided by the tribunal and be subject to such decision.

It will be open to the third respondent herein to urge all grounds available to him before the Debts Recovery Tribunal and such tribunal will be free to decide on all grounds uninfluenced by this order.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(SANJIB BANERJEE, J.) kc/sg.