Bombay High Court
Hte Official Assignee, High ... vs Avinash Bansi Jaising And 2 Ors on 8 August, 2017
Bench: Naresh H. Patil
1
1-app-205-17
pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
INSOLVENCY JURISDICTION
APPEAL NO. 205 OF 2017
IN
NOTICE OF MOTION NO. 4 OF 2014
IN
INSOLVENCY PETITION NO. 82 OF 2002
WITH
NOTICE OF MOTION NO. 1119 OF 2017
The Official Assignee ...... Appellant
Versus
Avinash Bansi Jaising & Ors. ..... Respondents
Mr. J. P. Sen, Sr. Advocate a/w Ms. Kavita Shah for appellant.
Mr. Gaurang Mehta a/w Ms. Rhea Mehta i/by Ms. Dipal Mehta for respondent
no.1.
Mr. Milind D. Narvekar, Official Assignee and Ms. Chandan Bhatt, Dy. Official
Assignee present.
CORAM: NARESH H. PATIL &
Z. A. HAQ, JJ.
AUGUST 08, 2017.
ORAL JUDGMENT [Per Naresh H. Patil,J.] :
1. Admit. Heard finally by consent of the parties.
2. We have heard the learned counsel appearing for the parties.
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We have perused the record placed before us and the impugned order. We
find that the parties have agreed to certain terms. Therefore, in the peculiar
facts, we are inclined to set aside the order dated 27/4/2017 impugned in
the present appeal for the reasons and conditions recorded herein below.
3. The Undertaking given by Respondent No.1 [Original
Insolvent No. 1] to this Hon'ble Court, as recorded in its Order dated 3 rd
September 2002, that he will not leave the country without the permission
of the Insolvency Court is hereby discharged and replaced by the
statements and undertakings in the present Order.
4. It is clarified that there is no impediment from the Appellant
to Respondent No.1 accepting employment or Professional assignment/s in
India or abroad and the Respondent No. 1 is free to take up and to accept
such employment or Professional assignment/s in India or abroad subject,
however to Respondent No. 1's Undertaking to deposit with the
Appellant, 30% of his net earnings (after tax) including all emoluments
(after tax), on a monthly basis, or within 15 days of receipt of any amount,
by way of salary or other emoluments and Respondent No. 1 so
accordingly undertakes to do so. In the event of any over payment or short
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payment to the Appellant, on the tax liability of Respondent No. 1
becoming crystallized for any particular financial year, the adjustment for
such over or short payment will be made in the installments to be paid by
the Respondent No. 1 immediately following such crystallization.
5. As and when Respondent No. 1 intends to travel abroad,
Respondent No. 1 shall intimate to the Appellant's office, by way of a letter
in writing, of his such intention to travel abroad, specifying therein (i) the
purpose of travel, (ii) Name of the country or countries, (iii) Intended date
of departure and return.
6. Respondent No. 1 shall be permitted to travel out of India for
taking up employment and / or professional assignment/s and / or for any
personal reason, and Respondent No. 1's Passport shall be released to him
subject to and upon Respondent No. 1 furnishing Indemnity / Security
Bond of the value of Rs. 5,00,000/- (Rupees Five Lakhs only) through a
well wisher to the Appellant on each occasion that he travels out of India
and the furnishing of such Security Bond of Rs. 5 lacs shall be condition
precedent for release of Respondent No. 1's Passport. Such Indemnity/
Security Bond, on the return of Respondent No. 1 to India and returning
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his Passport to the Appellant, shall stand discharged.
7. Respondent No. 1 shall disclose the amounts to be earned and
received by him on taking up employment and/or each such professional
assignment/s and undertakes to maintain an income diary and to deposit
with the Appellant 30% of the net income including all emoluments earned
by him in respect of employment and each such assignment/s, in Indian
currency, as set out in clause 3 above. Any permission that may be
required to be obtained for conversion of foreign currency into Indian
Rupees and for remittance of amounts to the Appellant from any
Regulatory Authority shall be secured by the Respondent No. 1.
8. Respondent No. 1 shall also be entitled to release by the
Appellant of his Passport to him in a single working day on a written
request, in the event he is required to present the same to the Passport
Authorities for renewal of his Passport or that of his minor daughter,
Avisha Jaising. Respondent No. 1 undertakes, in the event of renewal of
his Passport, to deposit with the Appellant, the new Passport issued to him
within three working days of receipt of the said Passport by him. In the
event of Respondent No. 1 being required to present his Passport to the
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Authorities for the renewal of his daughter's Passport, he hereby
undertakes to redeposit his Passport with the Appellant immediately after
such presentation or in any event within one week thereafter. The Appellant
shall offer such co-operation as may be necessary for renewal of the
Passport of Respondent No. 1, from time to time.
9. The Appellant shall handover to the Respondent No. 1 his
Passport for traveling abroad forthwith and not later than a single working
day, on compliance by Respondent No. 1 of the conditions stipulated in
clause nos. 4 and 5 hereinabove and in other cases, on a written request
being made by the Respondent No. 1 to the Appellant, as set out in clause
No. 7 above.
10. Respondent No. 1 shall, after obtaining Visas for traveling to
the intended country or countries of destination and after arranging for to
and fro Airline Tickets for travel to the country or countries of destination,
at least 24 hours prior to his travel date, furnish to the Appellant, the details
of his travel plans, including the following:
(i) Name of the country or countries of destination,
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(ii) Duration of his stay / itinerary,
(iii) Photocopies of Air Tickets and Visa,
(iv) Nature of the trip; employment or professional
Assignment or personal visit,
(v) Contact number of Respondent No. 1,
(vi) Address/es of the Respondent No. 1, during such stay,
(vii) Name, Address, E-mail ID, Phone numbers of the
Employer incase of employment and / or professional
assignment and of the relative/s, if any, in case of personal
visits.
(viii) Furnish copies of the Contract / Agreement /
Appointment letter, if any, entered into with / issued by the
Employer.
(ix) Name, Address, E-mail ID, Phone numbers of the well
wisher or person or Company bearing the cost of travel of
the Respondent No. 1.
11. In the event, Respondent No.1 is required to extend his stay
abroad, he undertakes to inform the Appellant of his revised duration of stay /
itinerary and his revised date of arrival in India.
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12. In the event after taking up employment and / or professional
assignment/s with a particular employer/s abroad, if Respondent No. 1 for
any reason whatsoever, changes or takes up another employment and / or
professional assignment/s or is transferred by his employer/s to a different
country, he undertakes to inform the Appellant of such change or taking up
of a new employment and / or professional assignment/s or transfer, revised
duration of stay/ itinerary, name of the other country, his changed /new
address, phone numbers, addresses, email address of the new employer/s
and his revised date of arrival in India.
13. Respondent No. 1 undertakes to deposit his Passport with the
office of the Appellant, within three working days of his return to India.
14. In the event Respondent No. 1 commits breach of any
condition, obligation and/or undertaking contained herein, the Appellant
shall be at liberty to issue a Notice to Respondent No. 1 at his last known
address [by Registered Post/Courier] & E-mail ID, as declared by
Respondent No.1 to Appellant, to remedy such breach within two weeks of
the date of such Notice, failing which, the Appellant shall be at liberty to
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approach the Passport Office and/or any statutory authority for cancellation
of Respondent No. 1's Passport/Visa and also to forfeit the security amount
of Rs. 5,00,000/- (Rupees Five Lakhs only) and / or enforce the security
given by the well wisher of the Respondent No. 1 as per clause 5
hereinabove.
15. The Appellant and Respondent No. 1 shall be at liberty to
approach the Insolvency Court for seeking such further and other
directions, as may be necessary from time to time, for implementing and /
or for giving effect to this Order.
16. As and when the Appellant requires the Respondent No. 1's
presence for the purpose of further conduct of Insolvency proceedings, the
Respondent No. 1 shall present himself before the Appellant's office or
seek another suitable appointment and attend the same.
17. This Order is passed in the peculiar circumstances of the
present case, to facilitate and enable Respondent No. 1 to take up
employment and professional assignment/s and to travel abroad on a
regular basis. It is clarified that this Order shall not be treated as a
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precedent in any other matter and is being passed on account of the fact
that Respondent No. 1 [Insolvent] has by all accounts co-operated with the
Appellant [Official Assignee] in completing his private and public
examination and in effecting the sale of his assets.
18. The Appeal stands partly allowed in the above terms with no
Order as to costs. All interim Orders stand vacated. Notice of Motion No.
1119 of 2017 filed by the Appellant therefore does not survive and stands
disposed off.
(Z. A. HAQ,J.) (NARESH H. PATIL,J.)
