Delhi High Court
M/S Ratna Commercial Enterprises ... vs Vasu Tech Ltd & Ors on 17 December, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 17th December, 2021
+ EX.P. 160/2011 & EX. APPL.(OS) 380/2011 (of DH u/O XXI
R-41 CPC for direction)
M/S RATNA COMMERCIAL
ENTERPRISES LTD. ......Decree Holder
Through: Mr. Sudhir K. Makkar, Sr. Adv. with
Ms. Veera Mathai and Ms. Saumya
Gupta, Advs.
Versus
VASU TECH LTD. & ORS .....Judgment Debtors
Through: JD No.2/Dhruv Varma in person.
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
EX. APPL.(OS) 142/2020 (of JD-2 under Section 151 CPC for release of
his passport)
1. This order shall dispose of the application filed by the
applicant/judgment debtor (JD) No.2 namely Mr. Dhruv Varma for release
of his Passport bearing No.Z-1400866.
2. I have heard Mr. Sudhir K. Makkar, learned senior counsel for the
decree holder (DH) and the applicant/JD No.2 appearing in person.
3. The applicant/JD No.2 has submitted that he had voluntarily deposited
his Passport on 8th February, 2013 and that he now required the same to
enable him to travel abroad so that he could rebuild his business and meet
the financial obligations placed on him. He has stressed the fact that the
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:17.12.2021
17:41:04
court had not directed him to deposit the Passport and it was his own offer to
the court, as recorded on 14th January, 2013, to assure the court that he had
no intention to go away from India to defeat the decree that the Passport had
been deposited. It is also stated that he had filed all affidavits including
additional affidavits in compliance of various orders passed by this court.
When his previous application for release of Passport had been dismissed by
the court on 5th February, 2016, it did not debar the filing of the present
application. It was submitted that no criminal court or other courts where
litigation was pending against the applicant/JD No.2 had directed him to
deposit the Passport. Hence, he has prayed that the Passport be released to
him.
4. In the reply filed on behalf of the DH, strong objection to the release
of the Passport of the applicant/JD No.2 has been taken. It has been
submitted that despite a lapse of over ten years, the DH has not been able to
recover any amount out of the decretal amount of Rs.41,64,47,667/-. In
another identical Execution Petition bearing No.161/2011, not a fraction of
the decretal amount of Rs.26,26,41,644/- had been paid.
5. Mr. Sudhir K. Makkar, learned senior counsel for the DH submitted
that this court had been calling for one affidavit after another only on
account of the subterfuge adopted by the applicant/JD No.2 to defeat the
decree. It was submitted that in various complaints filed under Section 138
of the Negotiable Instruments Act, 1881 against the applicant/JD No.2 in
which he had been convicted, he had been able to raise enough money to
make re-payments and reduce the applicable sentences of imprisonment. In
matters, again pending between the parties, under Section 138 of the
Negotiable Instruments Act, out of a total sum of Rs.61,63,66,140/-, a sum
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Digitally Signed
By:MANJEET KAUR
Signing Date:17.12.2021
17:41:04
of only Rs.44,09,650/- had been paid to the DH. Thus, the questions arose
as to from where the applicant/JD No.2 was able to raise money which were
why the affidavits were called for. Learned senior counsel submitted that
the conduct of the applicant/JD No.2 was without bona fides, as whenever
he faced imprisonment, he was able to mobilize funds.
6. In the circumstances, it was submitted by the learned senior counsel
for the DH that the Passport of the applicant/JD No.2 ought not to be
released back to the applicant/JD No.2, as there was a significant probability
of the applicant/JD No.2 fleeing from the country. It was further submitted
that in the light of the dismissal of the previous application, vide order dated
5th February, 2016 and the observations made in that order, which order had
also attained finality, there was no justification for the present application.
Hence, it was prayed that the application be dismissed.
7. In response, the applicant/JD No.2 submitted that all those payments
and loans were taken prior to the filing of the present execution and all
questions of the court had been answered in the various affidavits filed.
Placing reliance on the decisions of the Supreme Court in Jolly George
Verghese & Anr. V. The Bank of Cochin, (1980) 2 SCC 360 and Satish
Chandra Verma v. Union of India and Other, 2019 SCC OnLine SC 2048,
the applicant/JD No.2 contended that poverty could not be the reason to
imprison a Judgment Debtor, and it was basic human right of great
significance that a person has freedom to go abroad. This Court is not
impressed with these contentions.
8. It is to be noticed that the order dated 14th January, 2013 in respect of
the Passport was not passed without context. In para No.4 of the said order,
the apprehension of the DH was recorded that since there were no other
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Digitally Signed
By:MANJEET KAUR
Signing Date:17.12.2021
17:41:04
assets belonging to the JDs and the applicant/JD No.2 had business interests
in United States of America (USA), despite the order dated 13th August,
2012 restraining him from traveling abroad without prior permission of the
court, the applicant/JD No.2 would violate the said order and leave the
country without obtaining such prior permission. It is then that the
applicant/JD No.2 "demonstrated" his bona fides by stating that he was
ready and willing to deposit his Passport in the court along with the affidavit
that was directed to be filed.
9. It is also evident from the order sheets that the JDs, particularly the
applicant/JD No.2, have/has been very recalcitrant and reluctant to file
affidavits on record in complete compliance of the directions issued by this
court compelling the court to call for better particulars. It may be mentioned
that these affidavits were called for in order to ascertain the financial status
of the applicant/JD No.2, whose refrain has been, even before this court, that
he has no assets and cannot pay anything to honour the decree.
10. As rightly pointed out by the learned senior counsel for the DH, the
applicant/JD No.2 has clearly made payments where he has faced
imprisonment of various terms. The learned senior counsel for the DH
submitted that it did seem strange that vast sums of money were transferred
to the account of the applicant/JD No.2 with no collaterals or even interest.
There were several such entries/transactions to which the attention of the
court has been drawn by the learned senior counsel which would raise doubt
as to whether fair disclosures have been made by the applicant/JD No.2 in
his affidavits regarding his finances.
11. When the conduct of the applicant/JD No.2 does not raise the
confidence of this court in him, the apprehensions of the DH do not appear
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Digitally Signed
By:MANJEET KAUR
Signing Date:17.12.2021
17:41:04
to be unfounded. The release of the Passport would only encourage the
applicant/JD No.2 to flee the country and to then, in order to avoid action,
take pleas of difficulties in travel to India, given the prevailing
circumstances.
12. Accordingly, the application is dismissed.
13. The order be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
DECEMBER 17, 2021
'bs'
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:17.12.2021
17:41:04
