Calcutta High Court (Appellete Side)
Sri Sandeep Kabra And Others vs Bureau Of Immigrations And Others on 5 September, 2023
D/L. 18.
September 5, 2023.
MNS.
WPA No. 5778 of 2023
Sri Sandeep Kabra and others
Vs.
Bureau of Immigrations and others
Mr. Sabyasachi Chowdhury,
Mr. Rajarshi Dutta,
Mr. Avishek Guha,
Ms. Akansha Chopra
... for the petitioners.
Mr. Billwadal Bhattacharya,
Mr. Narendra prasad Gupta
...for the Union of India.
Mr. Shiv Mangal Singh,
Ms. Jahan Ara Kulsum,
Ms. Moriam Sanfui
...for the respondent-bank.
1. Learned counsel for the petitioners contends
that the Look Out Circular (LOC) issued
against the petitioners is de hors the law,
having been issued on the ground of the
petitioners' being declared to be willful
defaulters, which is beyond the grounds
envisaged in the concerned Office
Memoranda.
2. Learned counsel appearing for the respondent
no. 2-bank places reliance on a
communication dated November 22, 2018,
issued by the Deputy Director (BOII),
Government of India, Ministry of Finance,
where it was mentioned that the heads of the
Public Sector Banks were empowered to
issue requests for opening of LOC, which may
be strictly complied with henceforth, so that all
persons who are covered under the said
amended OM of MHA, including fraudsters
and persons who wish to take loans and
willfully default or launder money and then
escape to foreign jurisdictions to avoid paying
back, are restricted from escaping from the
country.
3. Learned counsel appearing for the bank
makes an impassioned plea on behalf of
common citizens of India who have their
money in Public Sector Banks but suffer due
to not repayment of loans taken by defaulters
who seek to flee the country to avoid such
recovery.
4. Learned counsel for the bank also places
reliance on a judgment of a co-ordinate Bench
passed in WPO 193 of 2023 and argues that a
similar challenge was turned down by the
learned Single Judge.
5. Learned counsel appearing for the
Immigration Authorities contends that the role
of the Immigration Authorities is limited and
the liability primarily is on the originator
regarding the request for issuance of LOC.
6. Learned counsel for the Immigration
Authorities further submits that the
Government of India, through Ministry of
Finance, is not a party to the present writ
petition. That apart, acts detrimental to the
economic interest of India also furnish valid
grounds for issuance of LOC.
7. Heard learned counsel for the parties.
8. The reliance placed by learned counsel for the
bank on the co-ordinate Bench judgment in
WPO 193 of 2023 is misplaced in the present
context, since the same was in the context of
a challenge against the show-cause notice
issued for declaration of willful defaulter and
the subsequent order declaring the petitioners
to be willful defaulters. The learned Single
Judge proceeded on the premise that the
petitioners woke up from their slumber after
five years only by reason of the issuance of
the LOC against them and challenged the
show-cause notice and the willful default
declaration.
9. On such ground of delay, the writ petition of
the petitioners was rejected. Against such
dismissal, an appeal has been preferred,
which is now pending. However, the
petitioners failed to obtain any interim order
therein, also primarily on the ground that the
petitioners had occasioned a huge delay in
preferring the challenge.
10. The present challenge, in contrast to the other
writ, is against the issuance of LOC, on the
request of the originator-bank, apparently on
the basis of such declaration of willful
defaulter against the petitioners.
11. Since the petitioners' previous writ petition
stands rejected as on date and is sub judice
before the appellate Bench, this Court cannot
and does not intend to go into the merits of
such willful defaulter declaration, since as of
today, the willful defaulter declaration stands
against the petitioners.
12. Thus, proceeding on the premise that the
petitioners are, as of today, willful defaulters
under the relevant Circular of the Reserve
Bank of India, the present adjudication is
taken up.
13. Even a first glance at the communication
handed up by learned counsel for the
petitioners indicates that the same is not an
Office Memorandum but a communication
dated November 22, 2018, by the concerned
Official of the Ministry of Finance, Government
of India. The said communication was, in fact,
referred to in a subsequent communication
dated April 8, 2022, which is handed up by
learned counsel for the petitioners and
reiterates the contents of the 2018
communication.
14. However, from both the communications, it is
evident that the expression "willfully default"
was an expression loosely used by the
Ministry of Finance, in its communication, but
has not been specifically stipulated as a
ground for issuance of LOC. Apart from
existence of a cognizable offence against the
person concerned, there are certain other
grounds in exceptional cases, which are
stipulated in the concerned Office
Memorandum and can govern the present
case at best.
15. The only grounds therein, which might have
arguably applied to the petitioners, are that
the departure of the petitioners would be
detrimental to the strategic and/or economic
interest of India and if such departure is
permitted, the same would be contrary to
larger public interest at any given point of
time.
16. The declaration of willful defaulter is not
envisaged as one of the grounds for issuance
of LOC in the Office Memoranda governing
the field. The said declaration is a means
adopted by the Reserve Bank of India, in
exercise of its statutory functions, to give
sufficient notice regarding the antecedents of
particular borrowers to all concerned in the
commercial sphere.
17. The said Circular operates in its own field and
cannot be imported as a ground in the Office
Memoranda issued from time to time by the
Government of India for the purpose of
issuance of LOC. Willful default declaration
has a limited connotation, pertaining to the
economic activities of the person concerned
and is not relevant for issuing LOC.
18. Insofar as the strategic and/or economic
interests of India and/or larger public interest
is concerned, there is nothing in the materials
on record to indicate that those grounds were
mentioned by the bank in its request for
issuance of LOC or otherwise made out. The
only admitted ground for the request was that
the petitioners have been declared to be willful
defaulters under the relevant Circular of
Reserve Bank of India, which is not a valid
ground for issuance of LOC.
19. Hence, within the limited conspectus of the
present writ petition, I find that none of the
grounds depicted in the Office Memoranda for
issuance of LOC is satisfied with regard to the
petitioners. Hence, the issuance of LOC
against the petitioners is vitiated in law and de
hors the Office Memorandum of the
Government of India itself.
20. Accordingly, WPA No. 5778 of 2023 is
allowed, thereby setting aside the LOC issued
against the petitioners. The respondent-
authorities shall ensure that the petitioners are
not restrained from leaving the country on the
premise of the impugned LOC in future and to
ensure that the concerned authorities who
were intimated about the issuance of LOC
against the petitioners are informed as to the
quashing of the same at the earliest,
preferably within three weeks from date.
21. There will be no order as to costs.
22. Urgent photostat certified copies of this order,
if applied for, be made available to the parties
upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)
