Bombay High Court

Kunal Jiwarajka And Anr vs Laxmi Devi Jiwarajka And 12 Ors on 12 January, 2024

Author: B. P. Colabawalla

Bench: B. P. Colabawalla

2024:BHC-OS:720-DB

                                                                     12.IAL.527.2024.doc


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               ORDINARY ORIGINAL CIVIL JURISDICTION


                                INTERIM APPLICATION (L) NO.527 OF 2024
                                                 IN
                                    WRIT PETITION NO.1740 OF 2022

              Mr. Kunal Jiwarajka & Anr.                           ....    Applicants

              IN THE MATTER BETWEEN
              Mr. Kunal Jiwarajka & Ors.                           ....    Petitioners

                         Versus

              Union of India & Ors.                                ....    Respondents


                  Mr. Prateek Seksaria, Senior Counsel a/w. Mr. Dharam
                  Jumani, Ms. Aarti Jumani & Mr. Mihir Nerurkar and Ms.
                  Sneha Vani i/b. Ms. Sneha Vani Marjadi, Advocates for the
                  Applicants/Petitioners.

                  Mr. D.P. Singh a/w. Mr. D.A. Dube, Advocates for Respondent
                  No.1-UOI.

                  Mr. Sameer Pandit a/w. Sarah Khambati & Mihir Govande
                  i/b. Wadia Gandhy and Co., Advocates for Respondent No.6.

                  Mr. Nishit Dhruva a/w. Ms. Niyati Merchant & Harsh Sheth i/
                  b. MDP and Partners Advocates, Advocates for Respondent
                  No.12.

                  Mrs. Uma Palsule-Desai, AGP for Respondent-State.



                                        CORAM      : B. P. COLABAWALLA &
                                                    SOMASEKHAR SUNDARESAN, JJ.

                                        DATE       : JANUARY 12, 2024



                                                JANUARY 12, 2024
              Aarti Palkar





                                                        12.IAL.527.2024.doc


P. C.

1. The above Interim Application is filed by original Petitioner

No.1 [Mr. Kunal Jiwarajka] and Petitioner No.3 [Mrs. Sakshi

Jiwarajka] seeking permission to travel to Nepal from 18 th January,

2024 to 22nd January, 2024 for business purposes. Petitioner No.1

and Petitioner No.3 are husband and wife. The above Interim

Application is necessitated because a Look Out Circular ["LOC"] has

been issued against all the Petitioners at the instance of Union Bank

of India, and which LOC is also challenged in the above Writ

Petition.

2. Mr. Seksaria, the learned Senior Counsel appearing on behalf

of the Petitioners, brought to our attention that on atleast four

previous occasions, Petitioner Nos.1 and/or 3 have been granted

permission to travel abroad and they have returned back to India

without breaching any of the terms and conditions imposed upon

them. He submitted that the last permission sought by Petitioner

Nos.1 and 3 was on 16th October, 2023 to travel to Nepal. He

submitted that this permission was granted after recording a

statement on behalf of Petitioner Nos.1 and 3 that no criminal

proceedings have either been initiated or pending against the said

Petitioners. He submitted that this statement was factually

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incorrect, and therefore, this Court by its Order dated 19 th October,

2023, recalled its earlier order. He submitted that the reason why the

said statement was made to this Court on 16th October, 2023 [in

relation to initiation and/or pendency of criminal proceedings], was

because Petitioner Nos.1 and 3 were under the impression that they

were to disclose only the criminal proceedings initiated by Union

Bank of India, who has issued the LOC. He submitted that in any

event on 1st November, 2023, Petitioner Nos.1 and 3 have filed an

additional-affidavit dated 1st November, 2023, in which they have

unconditionally apologised to the Court for the mistake made and

have also disclosed all the proceedings pending against Petitioner

No.1 and/or Petitioner No.3 including civil proceedings. He

submitted that this exact same disclosure is also made in the present

Interim Application. Mr. Seksaria submitted that though there are

criminal proceedings pending, Petitioner Nos.1 and/or 3 have not

been restrained by any Court from traveling abroad. Considering

that the right to travel abroad is recognised as a fundamental right

under Article 21 of the Constitution of India, Mr. Seksaria submitted

that Petitioner Nos.1 and 3 be permitted to travel to Nepal from 18 th

January, 2024 to 22nd January, 2024 on such terms and conditions

as this Court may deem fit.

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3. On the other hand, the learned counsel appearing on behalf

of Union Bank of India, submitted that though it is true that Union

Bank of India has not initiated any criminal proceedings against

Petitioner Nos.1 and/or 3, huge amounts [approximately Rs.15

crores) are due and payable by Petitioner Nos.1 and 3 to Union Bank

of India in their capacity as guarantors. He submitted that until

these dues of Union Bank of India are either paid and/or secured, no

permission to travel ought to be granted either to Petitioner No.1 or

Petitioner No.3.

4. We have heard Mr. Seksaria, the learned Senior Counsel

appearing on behalf of Petitioner Nos.1 and 3. We have also heard

Mr. Singh, the learned counsel appearing on behalf of Union Bank of

India, as well as Mr. Pandit, the learned counsel appearing on behalf

of HDFC Bank Limited-Respondent No.6.

5. It is not in dispute that the issues raised in the present

petition have already heard by a another Division Bench of this Court

[in a bunch of other Petitions], and the judgment is reserved. It is

also not in dispute that in the interregnum, parties like Petitioner

Nos.1 and 3 have been permitted to travel abroad either for business

purposes or for personal reasons, subject to certain terms and

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conditions being imposed by the Court.

6. Considering that the right to travel abroad is recognised as a

fundamental right under Article 21 of the Constitution of India,

coupled with the fact that Petitioner Nos.1 and 3 have been granted

permission to travel abroad on several previous occasions, and they

have returned back to India, we are of the view that Petitioner Nos.1

and 3 can be granted permission to travel to Nepal from 18 th January,

2024 to 22nd January, 2024 subject to the following terms and

conditions:-

(a) Petitioner Nos.1 and 3 shall file an undertaking in this Court stating therein that they shall strictly adhere to the itinerary more particularly set out at Exhibit 'I' to the Interim Application and return back to India on or before 23rd January, 2024.

(b) Petitioner Nos.1 and 3 shall also file an another undertaking not to apply for renewal and/or extension of this order until they return back to India.

(c) Copies of both the aforesaid undertakings shall be served not only upon the Advocate for Union Bank of India, but also HDFC Bank Limited, before the date of departure.

(d) Considering that Petitioner Nos.1 and 3 are traveling for business purposes, we direct that within one week of returning to India, namely, within one week from 23rd January, 2024,

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Petitioner Nos.1 and 3 shall file a separate affidavit setting out the business meetings they held during the above travel and with whom, together with the contact details of the persons they met and the details of the business they were able to generate, if any. This affidavit shall also set out the expenses incurred by them during the above travel and the source/s of income used for funding the said expenses with necessary proof. This affidavit shall also be served not only on the Advocate for Union Bank of India but also the Advocate for HDFC Bank Limited, within a period of one week from 23rd January, 2024.

7. Subject to the above conditions, the LOC issued against

Petitioner Nos.1 and 3 at the instance of Union Bank of India stands

suspended until 23rd January, 2024. It is clarified that this order

does not apply to any other LOC and/or restraint order, if issued by

any other Authority/Court/Agency/Bank.

8. The Immigration Authorities at all ports of departure,

including all airports, will permit Petitioner Nos.1 and 3 passage and

allow them to take their flights out of the country irrespective of

whether Union Bank of India has notified the Authorities about the

said suspension or not and irrespective of whether this suspension is

noted in the Immigration Authorities' systems or otherwise.

9. The Immigration Authorities shall not insist upon a certified