H.S. Bedi And Ors. vs IDFC Ltd. And Ors.

Ranjit Singh, J

Respondent IDFC Ltd. (formerly known as Infrastructure Development Finance Company Ltd.) had filed O.A. No. 2/2013 against the appellant company M/s. Tulip Telecom Ltd., praying for granting the following interim reliefs:

"(a) Pass an ad interim ex parte order restraining the defendant No. 1, its successors, assignees, representatives, Attorneys and agents etc. from selling, transferring, disposing, encumbering in any manner, alienating, or parting with the possession of the whole or any part of their movable and immovable properties whether directly or indirectly;

(b) Pass an ad interim ex parte order for attachment of the following properties owned by defendant No. 1--

(i) Commercial Plot 32, Central Road, MIDC, Andheri (E) Mumbai-400093;

(ii) C-160, Okhla Industrial Area, Phase 1, New Delhi - 110020.

(c) Pass an ad interim ex parte order for attachment of the 10,000 shares of Tulip Data Centre Service Pvt. Ltd. owned by defendant No. 1, directly or through its nominees;

(d) Pass ad interim ex parte order restraining the defendant No. 1 their servants, representatives, Attorneys and agents, etc. from selling, transferring, disposing, alienating, or parting with the possession of the whole or any part of the hypothecated stocks;

(e) Pass ad interim order issuing Interim certificate of recovery for a sum of Rs. 94,98,65,49,8/- (Rupees ninety-four crore ninety-eight lacs sixty-five thousand four hundred and ninety-eight only) as on 15.1.2013 in favour of the applicant (JDFC) and against the defendant No. 1 alongwith, interest, cost pendente lite, liquidated damages @ 2% per annum and future interest @ 2% per annum with monthly rests from 16.1.2013 pending disposal of the present original application;

(f) Pass ad interim order for attachment of the credit balance in the current account of defendant No. 1 maintained with DBS Bank Ltd., A/CF No. 820210050652 branch 25, Barakhamba Road, Birla Tower, New Delhi, and Axis Bank Ltd. A/C. No. 971020022796986 branch K-12, Green Park, New Delhi."

The Tribunal, while considering the prayer made for grant of interim relief, has directed the appellants to furnish security of the amount of Rs. 94,98,65,498/- as both the O.As. (Nos. 1/2013 and 2/2013) had been filed based on same material on record. Aggrieved against the said order, the appellants have filed these appeals.

Lt. Col. H.S. Bedi, appellant in Miscellaneous Appeal No. 261/2013 (defendant in O.A. No. 1/2013), is further aggrieved against that part of directions whereby he was directed to file true photocopy of the passport duly attested by a Notary Public before the learned Officiating Registrar of DRT-I, Delhi within two weeks with a further direction to inform the Officiating Registrar of DRT-I, Delhi whenever he was to go out of India and also to inform about his return to India. The Tribunal has given permission to the appellant to travel outside India only for temporary purposes and has not permitted him to stay away from the Indian soil. The appellant has, therefore, filed this appeal to impugn the order passed by the Tribunal below.

The respondent Bank in this case had sanctioned a loan of Rs. 100 crore and an agreement in this regard was entered into between the Bank and the borrower, a copy of which has been placed on record. As per this agreement, the borrower was required at all times to maintain Debts Service Reserve (DSR) in the form of fixed deposit receipts with lien marked in favour of the lender or provide a letter of credit or guarantee tradable credit rated securities acceptable to the lender for an amount equal to the ensuing one quarter interest payment due to the lender. Utilization of amount of DSR was to be made solely for the purpose of meeting any shortfall in debt payments. In the agreement, a further provisions was made to regulate premature repayment and it is so given in Para 2.10 of the agreement.

As per Clause 2.9 of the agreement, the borrower was to pay the principal amount of loan which has been disbursed as per amortization schedule. The Clauses 2.9 and 2.10 regulating the repayment and premature repayment are reproduced as under:

2.9. Repayment--

(i) The Borrower shall repay the principal amount of the Loan which has been disbursed as per the Amortisation Schedule.

(ii) The Lender may, in suitable circumstances, revise or vary the repayment of the principal amounts of the Loan which has been disbursed or the balance outstanding for the time being or any installment(s) of the said principal amounts under the Loan or any part thereof upon which terms and conditions as may be decided by the Lender in consultation with an consent of the Borrower.

(iii) If, for any reason, the amount finally disbursed by the Lender out of the Loan is less than the amount of the Loan, the Installment(s) of repayment the disbursed Loan shall stand reduced proportionately but shall continue to be payable on the due date(s) as specified in the Amortization Schedule, unless otherwise agreed by the Lender.

2.10. Premature Repayment--

(i) Except as provided in (ii) below, the Borrower shall not prepay the outstanding principal amount of the Loan in full or part. Any premature prepayment of the Loan shall be at the sole discretion and on terms and conditions stipulated by the Lender including payment by the Borrower of Prepayment Premium.

(ii) The Borrower shall have right to prepay the outstanding principal amount of the Loan, in full but not in part, without payment of any Prepayment Premium--

(a) within 22 days after the Reset Date(s) after giving prior written notice of at least 14 days to the Lender in the event the Borrower receives the Reset Notice, and till such prepayment, the outstanding amount or the Loan shaft carry the Applicable Rate; or

(b) on the Reset Date(s) after giving prior written notice of atleast 15 days to the Lender."

As per Clause 3.1, the payment, repayment, reimbursement, as the case may be, of the obligations were to be secured by the following security interest--

"(i) a first mortgage and charge on the Borrower's immovable property, located at Mumbai (plot No. 32, MIDC, Central Road, Andheri East, Mumbai - 400093):

(ii) a first charge by way of hypothecation of all the Borrower's movable, including movable plant and machinery, machinery spares, tools and accessories, furniture, fixtures, and all other movable assets, present and future (other than the current assets);

(iv) (sic) a first charge on at intangibles including but not limited to goodwill and uncalled capital, present and future;

(vi) (sic) a first charge on the DSR, of the Borrower wherever maintained.

B. The Security interest as stipulated in Section 3.1(A) above shall rank pari passu amongst the senior lenders for the project for an aggregate amount as approved by the Lender.

C. The Borrower shall make out a good and marketable title to the Project Assets and other properties to be charged/mortgaged in favour of the Lender to the satisfaction of the Lender and comply with all such formalities as may be necessary or required for the said purpose."

Clause 3.2 of the agreement gave a right to the lender to require the borrower to provide and furnish to the satisfaction of the lender such additional security if during the subsistence of the agreement the lender was of the opinion that the security interest had become inadequate to cover the outstanding amounts under the loan. Cause 3.2 reads thus:

"If, at any time during the subsistence of this Agreement, the Lender is of the opinion that the Security Interest has become inadequate to cover the outstanding amounts under the Loan, then, on the Lender advising the Borrower to that effect, the Borrower shall provide and furnish to the Lender, to the satisfaction of the Lender, such additional security as may be acceptable to the Lender to cover such deficiency and the provisions of Section 3.1C hereinabove shall apply to such additional security."

The date of repayment was given in Schedule-1 and thus the appellants were to make payment of installments of Rs. 5 crore commencing from 15.11.2012. In this manner, installment of Rs. 5 crore was to be paid after every quarter till 15.2.2016 and thereafter, installments of Rs. 7.5 crore were to be paid on each quarter from 15.5.2016 to 15.2.2017. Thus, the total amount of Rs. 100 crore was required to be repaid in this manner. Interest due was required to be paid on 15th of every month.

The Counsel for the appellants would plead that the appellants had deposited a sum of Rs. 10 crore on 18.6.2012 though even the first installment was not due. The appellants had also deposited Rs. 3.02 crore in FDRs which was to meet the interest as and when it fell due. It is accordingly pleaded that a sum of Rs. 13.02 crore was available with the respondent. Instead of adjusting it towards payment of installments which was to fall due on 15.11.2012, the sum of Rs. 10 crore was adjusted towards principal, which action is termed as illegal on the ground that no premature payment was permissible in terms of clause 2.10 of the agreement reproduced above. By adjusting this amount of Rs. 10 crore, the respondent issued a demand notice on 17.12.2012 on the ground that the installment which was due on 15.11.2012 had not been paid. A notice was issued to the appellant demanding a sum of Rs. 8,89,47,947/- and another notice was issued on 15.1.2013 to the company claiming whole amount and it is in this background two separate O.As. came to be filed for the recovery of the amounts claimed from the company and learned Counsel H.S. Bedi.

The Counsel for the appellants would refer to the order passed on the interim relief claimed in the O.A. whereby the appellants were directed to maintain status quo of the property in question till further orders while issuing notice to the appellants requiring them to file reply. While passing this order, the Tribunal below had observed that interim reliefs sought by the respondent was identical to the main prayer and prima facie cannot be allowed as interim relief. The copy of the order dated 9.1.2013 passed by the Tribunal is filed separately as additional documents on record.

Counsel would also refer to an order dated 21.1.2013 where again the Tribunal had passed an order directing the appellants to maintain status quo regarding movable and immovable properties, keeping in view huge outstanding amount of more than Rs. 94 crore which was due. The I.A. No. 40/2103 was adjourned for hearing on interim relief to 7.2.2013. The plea of the Counsel for the appellants is that this interim order requiring the appellants to maintain status quo was enough to secure the interest of recovery of the dues by respondent and that further direction by the Tribunal vide impugned order to furnish security for sum of over Rs. 10 crore can neither be sustained in law nor in equity. As per the Counsel, it is not that such an order cannot be granted, but that it was unwarranted in the facts and circumstances of the case. The Counsel would also rely upon number of judgments to plead that no case was made out requiring the appellants to furnish security.

Reliance is placed on the case of Premraj Mundra v. Md. Maneck Gazi and Ors., AIR 1951 Calcutta 156. The Court in this case was dealing with an application made for an order in favour of the plaintiff under Order 38 Rules 5 and 6. It is observed that the Court at that stage cannot come to a final decision as to the merits of the defence, but is entitled to consider the evidence as presented before it, to discover, whether the defence is a bona fide one, or whether the defendant has any reasonable chance of success at the trial. The Court is to further decide as to the intention of the defendant and as to whether it should believe the case made by him or that of the petitioner and his witnesses. After making reference to a number of judgments, the Court in this case has laid down guiding principles which could be culled out from those judgments while considering the prayer for attachment. These principles as noticed in Para 10 of the judgment are as under:

"(1) That an order under Order 38, Rules 5 and 6, can only be issued, if circumstances exist as are stated therein.

(2) Whether such circumstances exist is a question of fact that must be proved to the satisfaction of the Court.

(3) That the Court would not be justified in issuing an order for attachment before judgment, or for security, merely because it thinks that no harm would be done thereby or that the defts. would not be prejudiced.

(4) That the affidavits in support of the contentious of the applicant, must not be vague, and must be properly verified. Where it is affirmed true to knowledge or information or belief, it must be stated as to which portion is true to knowledge, the source of information should be disclosed, and the grounds for belief should be stated.

(5) That a mere allegation that the deft, was selling off and his properties is not sufficient. Particulars must be stated.

(6) There is no rule that transactions before suit cannot be taken into consideration, but the object of attachment before judgment must be to prevent future transfer or alienation.

(7) Where only a small portion of the property belonging to the deft. is being disposed of, no inference can be drawn in the absence of other circumstances that the alienation is necessarily to defraud or delay the plaintiff's claim.

(8) That the mere fact of transfer is not enough, since nobody can be prevented from dealing with his properties simply because a suit has been filed: There must be additional circumstances to show that the transfer is with an intention to delay or defeat the plaintiff's claim. It is open to the Court to look to the conduct of the parties immediately before suit, and to examine the surrounding circumstances, and to draw an inference as to whether the deft. is about to dispose of the property, and if so, with what intention. The Court is entitled to consider the nature of the claim and the defence put forward.

(9) The fact that the deft. is in insolvent circumstances or in acute financial embarrassment, is a relevant circumstances, but not by itself sufficient.

(10) That in the case of running businesses, the strictest caution is necessary and the mere fact that a business has been closed, or that its turnover has diminished, is not enough.

(11) Where however the deft. starts disposing of his properties one by one, immediately upon getting a notice of the plaintiff's claim, and/or where he had transferred the major portion of his properties shortly prior to the institution of the suit and was in an embarrassed financial condition, these were grounds from which an inference could be legitimately drawn that the object of the deft. was to delay and defeat the plaintiff's claim.

(12) Mere removal of properties outside jurisdiction, is not enough, but where the defendant, with notice of the plaintiff claim, suddenly begins removal of his properties outside the jurisdiction of the appropriate Court, and without any other satisfactory reason, an adverse inference may be drawn against the defendant. Where the removal is to a foreign country, the inference is greatly strengthened.

(13) The defendant, in a suit is under no liability to take any special care in administering his affairs, simply because there is a claim pending against him. Mere neglect, or suffering execution by other creditors, is not a sufficient reason for an order under Order 38 of the Code.

(14) The sale of properties at a gross undervalue, or benami transfers, are always good indications of an intention to defeat the plaintiff's claim. The Court must however be very cautious about the evidence on these points and not rely on vague allegations."

The Counsel for the appellants has highlighted those observations where the Court has noticed that affidavit in support of contentions must not be vague and must be properly verified. Where the affidavit is affirmed as true to the knowledge or information or belief, it must be stated as to which portion is true to the knowledge and which portion is true to belief and that the source of information should also be disclosed so also the grounds for belief. As held in this case, a mere fact of transfer of property is not enough since nobody can be prevented from dealing with the property simply because a suit has been filed. In this regard, there must be additional circumstances to show that the transfer is with an intention to delay or defeat the plaintiffs' claim.

Reference is then made to the case of Raman Tech. and Process Engg. Co. and Anr. v. Solanki Traders, I (2009) BC 253 (SC). The Court in this case has observed that the power under Order 38 Rule 5, CPC is drastic and extraordinary power and such power should not be exercised mechanically and merely for asking, It is also observed that it should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. The Court has also held that any attempt by the plaintiff to use the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. It is further finally held that the plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the Court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him before power is exercised under Order 38 Rule 5, CPC and that Court should also keep in view the principles relating to grant of attachment before judgment as detailed in the case of Premraj Mundra (supra). The Counsel would thus point out that the guiding principle in the case of Premraj Mundra (supra) was approved by the Supreme Court in this case.

Reference is then made to V.G. Quenim and Anr. v. Bandekar Brothers (P) Ltd., (2002) 10 SCC 513. Reference is made to that part of the judgment where the Court has observed that the trial Court was not correct in passing two sets of orders for the same relief; one restraining the defendant-appellants from alienating the property and second, attaching the property before the delivery of the judgment. The Court accordingly viewed that the order passed by the trial Court, directing the defendant-appellants to furnish security, failing which the property shall come under attachment, was liable to be set aside. At the same time, the Court also took notice of the fact that despite order of injunction the defendant-appellants had sold 1500 tons of iron ore worth Rs. 10 lacs to their sister concern which was owned by their close relative. The defendant-appellants were therefore directed to file an undertaking before the trial Court within four weeks that they will not part with the shares of M/s. Vilman Packaging Pvt. Ltd., House No. 436 at Miramar, Panaji and the mining machinery.

In State Bank of India v. Bastar Oil Mills and Industries Ltd. and Ors., III (2006) BC 37 (DRAT/DRT), DRAT, Allahabad has held that even in a case where the plaintiff seeks an order of attachment before judgment of the amount due to the defendant, the appellant Bank will have to make out grounds and establish the ingredients of Sub-section (13)(A) of Section 19 of the Act. The Bank had averred in the memo of appeal that the impugned order has been passed by the DRT as if the application was filed under Section 19(12) of the Act, whereas, this provision did not directly apply to the facts of the case. Thus, it is observed that the Tribunal has failed to appreciate that it has been empowered to pass an order for attachment under Section 19(13)(A) of the Act, which provisions are akin to Order 38 Rule 5 of the CPC. The plea accordingly by the Counsel is that unless a case is made out on the basis of necessary averment to show that the conditions for the grant of the order for attachment before judgment exist and also prove to the satisfaction of the Tribunal about the existence of those conditions by affidavit or otherwise, the Tribunal would not be in a position to grant an order for attachment before judgment.

Counsel would refer to the averments made in the O.A. which would not in any manner satisfy the conditions laid down by various judgments on the basis of which the order for furnishing security could be so passed.

Kohinoor Steel Pvt. Ltd. and Anr. v. Pravesh Chandra Kapoor and Anr., I (2011) BC 582 (DB), is the next judgment referred to by the Counsel for the appellants. In this case, Division Bench of the Calcutta High Court has, by relying on the ratio of judgment in Premraj (supra), held that the plaintiff had failed to make a case for attachment before judgment as provided in Order 38 Rule 5, CPC. The Counsel would accordingly contend that the Tribunal below was not justified in passing this interim order requiring the appellants to furnish security for a sum of Rs. 94,98,65,498/-. Counsel would submit that case for interference in the impugned order is made out.

A view that would emerge from various judgments in regard to the scope of Order 38 Rule 5 is that this Rule applies only where the defendant is about to dispose of or remove from the Local Limits of the jurisdiction of the Court of his properties. Before this rule is applied, it is necessary to show that defendant has acted or is about to act with the intention to obstruct or to delay the execution of any decree that may be passed against him, Attachment before judgment or order for furnishing security cannot be passed merely because the Court shows that no harm, would be done by it or that the defendant would not be prejudiced.

It may need a notice here that the jurisdiction of Courts in attaching property before judgment is of an extraordinary nature and should be exercised sparingly and squarely in accordance with the procedure. It has also been viewed that there must be definite evidence on the points that defendant is about to dispose of whole or part of his property and disposal is with the intention of obstructing or delaying the execution of any decree that may be passed against him and not merely on vague allegation.

The Counsel for respondent, however, would refer to the terms of agreement with special emphasis to Clause 3.2 reproduced above. The submission accordingly is that if the lender during subsistence of agreement is of the opinion that the security interest has become inadequate to cover the outstanding amounts under the loan, then, the tender on advising the borrower to that effect make it incumbent on the borrower to provide such additional security to the satisfaction of the lender to cover the deficiency and the provisions of Section 3.1.C above shall apply to such security. The Counsel would also points out that the appellants were required to provide security in the form of mortgage and charge on immovable plot No. 32 MIDC, Central Road, Andheri East, Mumbai, but failed to adhere to the condition of creating this mortgage. This plot was found mortgaged with a number of other Banks which fact came to the notice of the respondent only when a communication dated 18.9.2012 was received from Maharashtra Industrial Development Corporation. Thus, mortgage of this property was found to have been created in favour of Canara Bank, Bank of India, Standard Chartered Bank, Axis Bank Ltd., Development Bank of Singapore Ltd., ICICI Bank Ltd. and various other Banks. Counsel would contend that in view of this, the case for requiring the appellants to provide and furnish additional security was made out and accordingly would submit that in equity and fairness the impugned order is required to be sustained.

Order 38 Rule 5, CPC makes a provision whereby a defendant may be called for furnishing security for production of property. As per this provision, if the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of whole or any part of the property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. Order 38 Rule 6, CPC then makes a provision where cause is not shown and security is not furnished. Section 19(13)(A) of the RDDBFI Act has made similar provision and empowers the Tribunal if it satisfied by affidavit or otherwise, at any stage of the proceedings, that the defendant with an intent to obstruct or delay or frustrate the execution of any order for the recovery of debt that may be passed against him is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property or is likely to cause any damage or mischief to the property or affect its value by misuse or creating third party interest, then the Tribunal may direct the defendant, within a time to be fixed by it, either to furnish security in such sum as may be specified in that order to produce and place at the disposal of the Tribunal when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the certificate for the recovery of debt.

The perusal of the provisions of Order 38 Rule 5 and that of Section 19(13A) would clearly show that they are apparently catering for identical situation and thus are identical in nature. The power of the Tribunal to pass an order requiring the borrower to furnish security cannot be disputed. The Counsel for the appellants has also not raised any dispute in this regard. The plea of the Counsel for the appellants is that in view of the earlier interim order passed by the Tribunal, there was no need or necessity to pass the order requiring the appellants to furnish security and this order as such was unwarranted. The plea also is that the respondent had not made out a case or had not fulfilled satisfactorily the requirement of law to seek an order of furnishing security as there was no averment made in the application or affidavit that the appellants were intending to dispose of whole or any part of the property or were about remove whole or any part of the property from the local limits of the Tribunal or is likely to cause any damage or mischief to the property. As per the Counsel, the only relevant averment in this regard is contained in Paragraph 5(xxxvi) of the O.A. where the respondent had expressed apprehension that the appellant was trying to alienate and encumber and part with the possession of the secured as well as unsecured properties movable and immovable which will cause irreparable loss, damage to the respondent as huge public money is involved and that the balance of convenience is in favour of the respondent. As per the Counsel, this averment in the O.A. would fall much short of the requirement laid down in the guiding principle enunciated in the case of Premraj (supra) which has the stamp of approval by the Hon'ble Supreme Court.

There is some substance seen in the submission made by the Counsel for the appellants. It may be noticed that the interim relief prayed are as noticed above and have been considered by the Tribunal below. The prayer though has been made for attachment of the two of the properties and for issuance of interim certificate for recovery, but to seek attachment, the Bank ought to have come up with some concrete details about its apprehension if the aim was to seek attachment of the properties or to require the appellants to furnish security of the amount which is claimed as recoverable. The plea that once the appellants had the order requiring the parties to maintain status quo of the properties, the apprehension expressed by the respondent in regard to the attempt to alienate, encumber or part with the possession of secured assets had been taken care of. Still, was there any need to pass an order requiring the appellants to furnish security thus would be the question?

The interim order dated 21.1.2013 was passed only as an interim measure and the LA. 40/2013 filed by the respondent in the O.A. had been adjourned for consideration to 7.2.2013. The apprehension of the Bank as conveyed is one aspect but the grievance also is that the appellants had not stood by their commitment and thus has not created mortgage in respect of the property for which they had agreed. The cause or reason may be any but the fact is that the appellants had failed to created mortgage of the property for which they had agreed and thus have not complied with the terms of the agreement to provide for full security to the loan. The security for this huge amount of the loan thus stands diluted by the act and conduct of the appellants. This aspect has definite relevance.

The Counsel for the Bank has justifiably relied upon Clause 3.2 of the agreement to highlight the right of the Bank to seek additional security which the borrower is bound to provide.

If the appellants had not been in a position to create mortgage, obviously the respondent Bank would be entitled to seek additional security which in terms of the agreement Clause 3.2 reproduced and referred to above. The Bank can at least seek security to the extent of the value of the property which the appellants had agreed to mortgage, but have not done so. If not under Section 19(13)(A) of the RDDBFI Act, the right of the Bank to seek some additional security is available and once it is so demanded, the borrower was bound to provide so. The submission by the Counsel for the appellants that this would be in violation of law laid down by the Supreme Court, as the unsecured loan is being converted to secured one, would appear to be misconceived as what appellant are required to do is to furnish security in terms of agreement and in case they are unable to do, so they can certainly be asked to furnish additional security for which they had agreed to do. As already noticed above the law permits imposing of condition while directing the party to furnish security.

Perusal of Sub-rule (3) of Order 38 Rule 5 shows that the Court may in the order direct the conditional attachment of whole or any portion of the property so specified. Conditional attachment is held to mean attachment of provisional kind conditioned to become plenary if security is not furnished or cause is not shown according to the terms of the order. The power given under this rule to make an alternative order directing the defendant either to give security within definite period or to appear and show cause why he should not furnish security, carries with it, as an incident, the power to confirm the order that security be furnished Sohanraj Ganeshmal Shah v. Gulabrao B. Kate and Anr., AIR 1972 Bombay 377. A conditional order under Sub-rule (3) of Order 38 Rule 5 must be accompanied by an order directing the defendants to furnish security within a stipulated period or to appear and show cause why he should not furnish security. Thus it is permissible to impose condition while issuing order to furnish security.

The appellants had failed to create mortgage of the property at Bombay as was agreed to. The security of the appellant has thus been diluted to the extent of the value of the property at Bombay. Though the direction to the appellant to furnish security for the amount due may not be sustainable but the condition to furnish security equivalent to the value of the property at Bombay can be imposed while interfering with the order passed by the Tribunal below. The impugned order therefore is set aside on the condition that the appellant shall furnish security of the amount of the value of the property at Bombay i.e. Plot No. 32, MIDC, Central Road, Andheri East, Mumbai - 400093. Let this security be furnished within a period of the one month from the date of receipt of the copy of this order. If the security is not furnished within this period, the order passed by the Tribunal will get revived. The grievance made by appellant learned Counsel H.S. Bedi in regard to so-called restriction imposed on his movement or requiring him to furnish photocopy of passport and to seek permission before travelling abroad apparently has some substance. No justification seems to be made out requiring the appellant to intimate his movement in elaborate details. The Tribunal would only be concerned with ensuring the continued presence of the appellant as and when needed and for that purpose the Tribunal would have power to issue appropriate directions. Accordingly, the order passed by the Tribunal in this regard is modified to hold that the appellant would keep the Tribunal informed as and when he wishes to travel abroad and the duration thereof. This would be enough to ensure presence of the appellant as and when needed.

The appeals are accordingly disposed of with the above directions.