Full Text
HIGH COURT OF DELHI
Date of Decision: 17th February, 2023
SUNNY MITTAL ..... Petitioner
Through: Ms. Apurva Upmanya, Advocate (M- 9810611825).
Through: Mr. Anurag Ahluwalia CGSC with Mr. Abhighyan Siddhant, Advocate for R-1 (M- 9999999045)
Mr. Santosh Kumar Rout and Mr. Abhishek Chakraborty, Advocates for
R-3 (M: 9990432878).
Mr. Ashok Kumar and Ms. Chhavi Arora, Advocates for NIXI (M-
9810011826).
Mr. Mridul Jain, Ms. Vedika Rattan and Mr. Ruby Sharma, Advocates for
CBI (M- 9810302811).
Mr. Harish Vaidyanathan Shankar, CGSC, with Mr. Srish Kumar Mishra, Mr. Sagar Mehlawat and Mr. Alexander Mathai Paikaday, Advocates.
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The Petitioner- Sunny Mittal filed the present petition challenging the Lock Out Circular (hereinafter ‘LOC’) which was issued against him at the instance of Punjab National Bank.
3. The case of the Petitioner is that a company which was being run by the Petitioner’s father, and his uncles etc., had availed of a loan facility from the Punjab National Bank and UCO Bank. He had stood as a guarantor for one of the said loans. The Petitioner was earlier conducting business in India under the name “Yash Rice Traders”. However, there was a severe financial crunch in the said company, and hence, he had to wind up his business here, and he moved to Canada thereafter, in 2018. The father of the Petitioner suffered from an illness, and unfortunately passed away on 1st December, 2020 in Kaithal in Haryana. The Petitioner who is working in Canada and living with his wife and child in Canada, had to travel to India for the last rites of his father. While travelling back to Canada, on 26th January, 2021, he was detained in the immigration in Indira Gandhi International Airport, Delhi, and thereafter was informed that an LOC has been issued against him.
4. It was submitted on behalf of the Petitioner, that the Petitioner does not own any moveable or immovable assets in India. The factory land where the father’s company i.e., M/s Vishnu Oversees Limited, was located has already been taken over by the Bank. The residential property in Kaithal has already been taken over. It is submitted that the Petitioner himself does not own any properties in India. Moreover, the Bank has already filed civil proceedings in the Debt Recovery Tribunal ( hereinafter ‘DRT’) in Chandigarh.
5. This petition was considered on 7th May, 2021 - on which date the submissions of the Petitioner were heard and the following order was passed:-
9. Along with the said affidavit, she has also placed on record the DDA’s allotment letter for the property, which she is offering as a surety, being Flat No. 996, First Floor, Category LIG, Pocket-C at Lok Nayak Puram (Bakkarwala) Housing Scheme.
10. Ld. counsel for the Petitioner has also relied upon an auction notice, according to which the last date for submitting the bid was 11th November, 2019, to submit that all seven properties of the Petitioner and their family were put to auction by the bank.
11. The Bank has also placed on record the statement of accounts. As per the ld. counsel for the Bank, the property dues against the various family members, and the firm “M/s Vishnu Oversees Limited” is to the tune of Rs. 157.84 crore. The chart placed on record, in the said affidavit of the bank also shows that seven properties have already been taken over by the bank.
12. The status as on today, qua the said properties taken over by the bank, is that none of the said properties have been sold.
13. Further, ld. counsel appearing for the CBI Mr. Mridul Jain, positively submits that the Petitioner had cooperated in the investigation, had joined on 10th February 2021, and there is no allegation of non-cooperation against the Petitioner, by the CBI. In fact, he submits that post the said date, no notice/ summons has been given to the Petitioner by the CBI.
14. Considering the fact that the Petitioner is a guarantor, and civil proceedings have already been filed against him before the DRT, as also the fact that the Bank has also taken over all the seven properties belonging to M/s Vishnu Oversees Limited as also the Petitioner’s residential properties, this Court is inclined to permit the Petitioner to travel to Canada.
15. The further facts which persuade this Court to permit the Petitioner travelling to Canada, are as under: (a) The wife and the child of the Petitioner are living in Canada and the child of the Petitioner is unwell. (b) The Petitioner also has a job in Canada, where he is working, and his employment may be in jeopardy if he is not permitted to travel. He had travelled to India only due to the demise of his father. No notice was issued to him for appearance prior to the one issued in January 2021, pursuant to which he has appeared.
(c) The assets of the borrower have already been taken over by the Bank.
(d) Civil proceedings are pending before the DRT against the Petitioner.
(e) In the FIR bearing no. RC2192020E0001, which has been registered pursuant to which the Petitioner was summoned by the CBI for investigation, the Petitioner is not named as an accused, and is stated to have cooperated in the investigation.
16. Accordingly, in view of the settled legal position Sumer Singh Salkan v. Asst. Director & Ors. [WP(Crl.) No. 1315/2005, decided on 11th August 2010], as also in Nitin Sandesara v. Directorate of Enforcement and Ors. [WP(C) 7559/2017, Order dated 29th August 2018], the Petitioner is permitted to travel abroad subject to the following conditions:i) The Petitioner shall furnish his residential address, and his employer’s contact details in Canada, along with the contact numbers and e-mail addresses of himself and his wife, as also other family members in Haryana, including his mother. ii) Insofar as the Petitioner is concerned, he agrees to cooperate in the investigation, and whenever he is summoned with at least six weeks’ notice, he undertakes to join the investigation, if required, by the CBI. iii) The surety given by the Petitioner’s wife’s bua - Smt. Kanta Devi is accepted by the Court and shall be binding. iv) Status quo shall be maintained, and no third party interest shall be created, in respect of the property bearing no Flat No. 996, First Floor, Category LIG, Pocket-C at Lok Nayak Puram (Bakkarwala) Housing Scheme, Delhi.
17. On compliance of the above conditions, the LOC issued against the Petitioner, shall remain suspended. The Authorities, as also the Petitioner, are permitted to move this Court, if any modification of this order is required.
18. The affidavit of Smt. Kanta Devi, that has been filed today, as also the statement of accounts and other documents that have been filed today by the Bank, shall be brought on record by the ld. Counsels.
19. CM Appl. 8439/2021 is disposed of in the above terms. The immigration authorities shall treat a copy of this order, as permission to the Petitioner to travel abroad.”
6. As per the observations and directions issued, as extracted above, the Petitioner was permitted to travel to Canada and had submitted the contact details such as addresses, e-mail addresses as also the mobile numbers etc. which have been furnished by way of an affidavit. The said details are contained in paragraph 3 of the affidavit dated 17th May, 2021.
7. In terms of the above order, vide the said affidavit, the address of the Petitioner’s office, the contact number as also the e-mail address of the company have been given. The Petitioner has also deposed that he has three sisters, who are all married and live in India in their matrimonial home along with their husbands. His mother also lives in India and her address is also available.
8. Today, it is further submitted that subsequent to the order dated 7th May, 2021, the Petitioner has never been summoned by the CBI in any proceedings. There is no charge sheet filed against him as of today. The assets of the Petitioner, as recorded in the above order, have already been taken over by the Bank including the Petitioner’s residential properties. His family member, Smt. Kanta Devi has also given a surety which has been accepted by the Court.
9. Ld. counsel for the Petitioner points out that vide order dated 24th August, 2021 in W.P. (Crl) No. 1265/2021 titled ‘Nihar Mittal v. Foreign Regional Registration Officer & Ors.’, Mr. Nihar Mittal, who had stood as a guarantor qua the same transactions, has also been permitted to travel abroad by the ld. Single Judge of this Court.
10. The Court has considered the matter. The detailed reasoning for suspension of the LOC has been set out in the order dated 7th May, 2021. The proceedings before the DRT which have been instituted by the Bank are still continuing and most of the properties of the Petitioner have already been taken over.
11. This Court is of the opinion that the Petitioner is willing to fully cooperate with the investigation which is currently being conducted. His entire family lives in India and surety has also been given. His wife and children are living in Canada and the existence of the LOC would create hindrance in his free movement between Canada and India.
12. Ld. counsel for the Petitioner further submitted that the Petitioner- Sunny Mittal and his mother Smt. Vanita Rani, who is residing in India, have already filed a reply in the DRT and would be defending their position in the DRT.
13. Accordingly, in these facts and circumstances, this Court is of the opinion that the LOC does not deserve to be continued. The same is accordingly set aside qua the Petitioner.
14. The said order is subject to the undertaking of the Petitioner that he will continue to comply with the conditions imposed in the order dated 7th May,
2021. If there is any non-cooperation by the Petitioner, the Bank is free to avail of its remedies in accordance with law, including seeking re-issuance of LOC.
15. With the above observations, the present petition with all pending applications, if any, is disposed of.
PRATHIBA M. SINGH JUDGE FEBRUARY 17, 2023 MR/rp