Delhi High Court: In a petition filed under Article 226 of the Constitution to challenge a Lookout Circular (‘LOC’) which was opened against the petitioner at the request of Union Bank of India (respondent 3), a Single Judge Bench of Subramonium Prasad, J. quashed the LOC while analyzing the hindrance it causes in a person’s right to travel abroad and stated that a Bank cannot open a LOC against a person who was unable to pay, especially when there were no allegations that he was engaged in any fraud or in siphoning off or defalcation of the amounts given as loan.
Background
The petitioner was employed as a Director and President of International Marketing at Sainov Spirits Pvt. Ltd. (‘Company’) from 2006 to 2016. He resigned on 28-09-2016, and thereafter, the Company was declared as a Non-Performing Asset (‘NPA’) on 30-09-2016, before the petitioner’s resignation was uploaded on the website of the Registrar of Companies.
The material in the present matter showed that the petitioner stood as a guarantee in respect of the credit facilities availed by the Company from the Union Bank of India which aggregated to a sum of Rs. 69,49,00,000. Since the Company failed to repay the debt, Union Bank of India initiated proceedings against the Company and the petitioner before the Debt Recovery Tribunal. Proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’) had also been initiated.
Hence, the petitioner filed this petition as a challenge to the LOC issued against him, and a counter affidavit was filed by the Union Bank of India which, apart from the above-mentioned details, stated that a demand notice dated 07-12-2016 was served under Section 13(2) of the SARFAESI Act for a sum of Rs. 71,92,25,076.60.
Analysis and Decision
The Court noted that the short question that arose for consideration in this case was whether the LOC which was opened because of the failure of payment on the part of the Company could be sustained or did it required to be quashed.
The Court relied on Maneka Gandhi v. Union of India (1978) 1 SCC 248 to state that it was well-settled that the right to travel abroad was guaranteed under Article 21 of the Constitution which could not be taken away arbitrarily and illegally.
Further, the Court referred to Office Memorandums by the Ministry of Finance dated 04-10-2018, 22-11-2018, and by the Ministry of Home Affairs dated 22-02-2021 (‘2021 Memorandum’), in terms of which it was noted that a LOC could be issued at the request of the Chairman/Managing Director/Chief Executive of all public sector banks.
After analyzing Clause L of the 2021 Memorandum, the Court stated that a LOC could be issued at the instance of the bank in exceptional cases if the authorities were of the view that letting the person go would be detrimental to the economic interest of the Country.
Further, the Court found it important to mention Viraj Chetan Shah v. Union of India, 2024 SCC OnLine Bom 1195 wherein Clause 8(b)(xv) of Office Memorandum dated 27-10-2010 which stated that Chairman/Managing Director/Chief Executives of all public sector banks could request for the opening of an LOC, was quashed. This clause was equivalent to Clause 6(B)(xv) of the 2021 memorandum.
The Court opined that after all available remedies had been resorted under the Recovery of Debts and Bankruptcy Act, 1993, SARFAESI Act, and the Insolvency and Bankruptcy Code, 2016, a bank cannot open a LOC as an arm-twisting tactic to recover debt from a person who was otherwise unable to pay especially when there were no allegations that stipulated that he was engaged in any fraud or any siphoning off or defalcation of the amounts given as loan.
While quashing the LOC and allowing the writ petition, the Court stated that a LOC is a major impediment for a person who wants to travel abroad, and this right cannot be curtailed other than for very compelling reasons.
[Rajesh Kumar Mehta v. Union of India, 2024 SCC OnLine Del 4153, Decided on 28-05-2024]
Advocates who appeared in this case:
For Petitioner — Advocate Achal Gupta, Advocate Alizaah Rais
For Respondents — CGSC Anurag Ahluwalia, Advocate Samarendra Kumar, Advocate Priyanka Singh, Advocate Adarsh Raj Singh
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