Kapil Puri And Ors. vs ICICI Bank Ltd. And Ors.

Ranjit Singh, J

Whether the Tribunals constituted under the RDDBFI Act would have power to impose restriction for borrower to travel abroad is an issue of some importance raised in the present appeal. While considering the prayer for certain order prayed for by the Bank, the Tribunal below in its order dated 9th May, 2014 found that the respondent Bank had succeeded in establishing a prima facie case in their favour. Finding balance of convenience too in favour of the Bank, the Tribunal below granted various interim orders in favour of the Bank as were prayed for in the OA, Besides other directions, one of the direction passed by the Tribunal below was that if the appellants were to go out of India, they will inform the Tribunal and seek permission as well. Primarily, it is against this restraint put on the right of the appellants to travel abroad that they have filed this appeal.

Prior to filing this appeal, the appellants had moved an application for vacation of this part of the order passed on 9th May, 2014 for removing the travel restriction. This prayer made in the application has been disposed of as infructuous as the date on which the appellants intended to travel had gone pass and therefore the prayer was found to have become infructuous with the passage of time. Grievance of the appellants is that the Tribunal below has failed to consider the prayer for removing the restraint put on the appellants to travel abroad which prayer was required to be considered and decided even if the prayer sought by the appellants to travel abroad had become infructuous/redundant with passage of time.

The appellants would make a grievance that the restriction so imposed has seriously violated their fundamental rights. It is urged that permission whenever required is not considered and granted in time rendering such prayer to become infructuous. Accordingly, the appellants have filed the present appeal to impugn the order dated 9th May, 2014 as well as order dated 23rd February, 2015 whereby their application has been held to be redundant.

The appeal against the order dated 9th May, 2014 is barred by 331 days delay, whereas the appeal against the order dated 23rd February, 2015 is delayed by 41 days. An application (IA No. 373 of 2015) seeking condonation of delay in filing this appeal has been filed. To explain this delay, it is stated that the appellants had first made an effort to seek vacation of that part of the order placing restriction on their movement to go abroad on 9th May, 2014 which came to be decided on 18th February, 2015. Thereafter, some time was taken to prepare this appeal. Accordingly, it is prayed that the delay is not in any manner intentional.

Notice in the appeal as well as in the application seeking condonation of delay was issued. Notice was accepted in the Court on behalf of the respondent Bank on 22nd May, 2015. The Counsels for the parties were heard at some length on 25th May, 2015, The Counsel for the Bank had prayed for some time to file response to the appeal. The prayer was allowed. Reply has been filed. Accordingly, the Counsel have been heard.

The respondent Bank has filed reply on merit but has chosen not to file reply to the application seeking condonation of delay. Even otherwise, the appellants were not sitting idle but had invoked the legal remedy to seek withdrawal of the order placing restriction on their right to travel abroad. In any case, need to travel would give a continuing cause. It is revealed that now the appellants are intending to again travel abroad in connection with their business. Delay in filing the appeal would not be very material in such like cases where cause is a continuing one and is likely to arise as and when need to travel abroad would arise. Otherwise also it is a pure legal issue which would call for decision. The delay in filing the appeal is, therefore, condoned.

Let the appeal be numbered. Having so numbered, the appeal is taken up for hearing on merits.

To get a hang of the legal issues agitated in this appeal, a brief mention of the facts may be necessary. The appellants had availed certain credit facilities of Rs. 1100 millions in the year 2011 and 2012 from the respondent Bank. The Bank has filed this OA for recovery of this amount. In this OA filed by the Bank, it had prayed for passing an ex parte interim order restraining the appellants from travelling abroad. The Tribunal below allowed this prayer to the extent that as and when the defendants (appellants herein), wish to go out of India, they will inform the Tribunal and seek its permission.

The Counsel for the appellants contends that the issue whether such restriction can be imposed by the Debts Recovery Tribunal arises in this case directly. The Counsel further submits that even if it is assumed for the sake of arguments that the Tribunal has such power, question may arise for consideration if the Tribunal below has rightly exercised such power while passing this ex parte order imposing such restriction.

Before making submissions on the legal issue formulated above, the Counsel for the appellant has made reference to the subsequent order dated February 23, 2015 when the application filed by the appellants to vacate the interim order dated May 9, 2014 has been disposed of as having become redundant. The Counsel would submit that the appellants are required to go abroad in connection with their business for which summons for Outstanding Form 'C (Annexure A-4) issued by the Revenue Authority of Singapore were received which are on record. The Counsel contends that the appellants were required to travel to Singapore but could not do so because of the restriction imposed and due to their application in this regard being not disposed of in time enabling them to travel to attend to the said date. Another instance in this regard is referred whereby presence of the appellants was essentially needed for their business.

The Counsel for the appellants has placed reliance on number of precedents to urge that the Tribunals constituted under the RDDBFI Act would not have power to impose such restriction. Reference is made to the case of A.S. Mittal v. P. O., Debt Recovery Tribunal and Ors., (2004) 121 Comp. Cas 309 (Delhi) : 2004 (72) DRJ 440 where a Single Judge of Delhi High Court was dealing with a case where the Debts Recovery Tribunal had issued direction impounding the passport of the petitioner therein besides directing him not to leave the country without prior permission of the Tribunal. The apprehension expressed in this case was that the petitioner may siphon off the funds at their disposal and leave the country without clearing the outstanding dues. The Tribunal in this case had passed an ex parte order restraining the petitioner therein from leaving the country without permission of the Tribunal. The Court has made reference to the provisions of Section 22 of the RDDBFI Act and Rule 18 of the Debts Recovery Tribunal (Procedure) Rules, 1993 and Section 19(6) of the RDDBFI Act to hold that the powers of the Tribunals are to make interim order whether by way of injunction or stay against the defendant before it to debar him from transferring, alienating or otherwise dealing with or disposing of any property or assets belonging to him without prior permission of the Tribunal. As per the Court, this certainly did not empower the Tribunal to restrain the petitioner to travel. As per the Tribunal, Rule 18 could not be construed to give powers to the Tribunal beyond the substantive section. The Court accordingly held that the Tribunal had no authority whatsoever either to impound the passport of the petitioner or to put any restriction on his travel. The order passed by the Tribunal placing restriction on his travel abroad was accordingly set aside.

A Division Bench of the Hon'ble Delhi High Court in the case of Sanjeev R. Apte v. I.F.C.I. Ltd. & Ors., 154 (2008) DLT 77 (DB) : (2009) 3 PLR 44 was again called upon to consider this question. In this case also, the petitioner was directed by the Debts Recovery Appellate Tribunal to deposit his passport besides direction not to leave the country till further orders. While passing this order, the Appellate Tribunal had distinguished the law laid down in the case of A.S. Mittal (supra) on the ground that in the said case the recovery of liability had not taken place as was in the case before this Appellate Tribunal. The view taken was that once determination of the liability takes place, the judgment rendered in the case of A.S. Mittal (supra) would not apply. The Division Bench of the Delhi High Court after referring to the observations recorded in the case of A.S. Mittal (supra) has held that the law laid down by the learned Single Judge was clear that the Tribunal did not have any power to restrain a citizen from travelling abroad. It is observed that determination of law by the Single Judge that the Tribunal had no authority whatsoever to either impound the passport or to put any restriction on travel abroad in exercise of its power to pass interim order under Section 19(6) shall not depend upon determination of the liability by the Tribunal. The High Court therefore has held that the Appellate Tribunal had misconstrued the judgment passed in the case of A.S. Mittal (supra). The Court, thus, affirmed the judgment of the learned Single Judge and has held that the Tribunal has no right to impose any restriction on the passport.

The issue again came up for consideration in the case of Gurbachan Singh Saluja v. Debts Recovery Tribunal & Ors. before another Division Bench of Delhi High Court in 163 (2009) DLT 369 (DB) : IV (2009) BC 495 Writ Petition (Civil) No. 12030/2009, decided on 25.9.2009. In this case also, the Debts Recovery Tribunal had restrained the petitioner from leaving India without prior permission of the Tribunal. Even an application was filed by the petitioner in this case to seek modification/recall of the order placing such restriction. This application was yet to be considered and decided when the Writ Petition was filed and was taken up for hearing by the Court. The Counsel for the petitioner had relied upon the case of Sanjeev R. Apte (supra) to urge that it had clearly and categorically been held that no such restriction could be imposed by the Debts Recovery Tribunal. The Division Bench in this case again made elaborate reference to the judgment passed in the case of A.S. Mittal (supra) finally to hold that the position of law as laid down by the earlier Division Bench in the case of Sanjeev R. Apte is clear. The Tribunal below was directed to advance hearing of the application pending before it and to pronounce it on or before 9th October, 2009, Thus, the Counsel for the appellants would submit that the position of law has been reiterated and reaffirmed in this case by another Division Bench as well.

Reference is then made to the case State Bank of India v. Prafulchandra v. Patel and 8 Ors., III (2011) BC 477 : AIR 2011 Guj. 81 where the Division Bench of Gujarat High Court considered this issue regarding placing of prohibition on a person not to leave the country under the RDDBFI Act. The Single Judge of the High Court had held that the Debts Recovery Tribunal has no power in absolute to prohibit physical movement of the defendant/respondent beyond its territorial jurisdiction or to prohibit the defendant from leaving the country. The Bank had accordingly filed an appeal against the order passed by the Single Judge, The Division Bench accordingly considered the issue whether the Debts Recovery Tribunal was empowered to prohibit the borrower from leaving the country without prior permission of the Tribunal. The Court has held that there was nothing to show that the law had been made by State regulating or depriving person from such right of leaving country without prior permission of the Tribunal. The Court has referred to the provisions of Section 19(25) of the RDDBFI Act and Rule 18 of the said Rules which empower the Tribunal to make such orders and give such direction as necessary or expedient to give effect to its orders or to prevent abuse of its process and secure ends of justice. The Court has viewed that these enabling provisions empowering the Tribunal to pass interim order to prevent abuse of its process or to secure ends of justice. Thus, it is held that the provisions of Section 19(25) of the RDDBFI Act or Rule 18 of the said Rules are the procedural law provision.

Sub-sections 12, 13A, 17 and 18 of Section 19 of the RDDBFI Act are noticed to observe that the Tribunal was not empowered to issue any prohibitory order prohibiting the defendant from leaving the country without prior permission. The order passed by the Single Judge was accordingly upheld. The view, thus, is that the authority shall not deprive any person of their right to go abroad.

Single Judge of Gujarat High Court in the case of Prafulchandra V. Patel (supra) has observed that:

"(a) The Tribunal has no power to control the physical movement of the defendants in absolute, merely because suit for recovery or the proceedings for recovery of the amount is filed, may be in capacity as the mortgagee by the plaintiff.

(b) The Tribunal under RDB Act has power to command and control the properties of the defendants, may be in its possession or in possession of thirty part, and the powers are to be used for grant of injunction for such purpose. It is only when the Tribunal satisfactorily finds that the defendant is obstructing to the Tribunal or its officers to have command and control over the properties of the defendant may by in possession of the defendant or may be in possession of third party, the powers may be exercised by the Tribunal to control and restrict physical movement of the defendant, but not otherwise.

(c) The Tribunal has no power in absolute to prohibit the physical movement of the defendants beyond its territorial jurisdiction to prohibit the defendants from leaving the country.

(d) The Tribunal has no power to direct impounding of the passport."

These findings of the Single Judge were under challenge before the Division Bench. Plea raised was that the Debts Recovery Tribunals are not bound by the procedure laid down in the Civil Procedure Code and these Tribunals can travel beyond the provisions of the Code. It was therefore urged that the Recovery Tribunals have wide powers to pass orders prohibiting the defendant not to leave India for giving effect to its order while following the principles of 'Natural Justice'.

To the contrary, plea on behalf of the borrower was that the Debts Recovery Tribunal being creature of Statute would have jurisdiction and power only to the extent the same are expressly conferred on it by the Statute. Plea further was that in the absence of express power to restrain a person from travelling abroad, pending adjudication of the OA, the DRT has no jurisdiction to prohibit the defendant (borrower) to leave the country. After referring to originally enacted Section 19 of the RDDBFI Act containing Sub-sections (4) and (6) as well as Section 22 of the Act, the Counsel had invited attention to the amended Section 19 of the RDDBFI Act which enacts powers of DRT. As per the Counsel, Sections 19(12), 19(13) and 19(18) have now conferred powers on the Tribunal to pass an order against a person guilty of disobedience to be detained in civil prison. Reference is also made to Section 19(25) of the Act and Rule 18 of the Rules which were stated to be akin to the powers conferred on a civil Court under Section 151, CPC. The Counsel had urged that Section 19(25) of the RDDBFI Act and Rule 18 of the Rules cannot confer any power on the Debts Recovery Tribunal either to create or recognize right as well as to create liabilities or obligations. While advancing submission before Division Bench, the Counsel had equated the provisions with Section 151 of the Code of Civil Procedure to urge that these were not the provisions of law conferring power to grant any kind of substantive relief. As per the Counsel, these were procedural law provision only saving the inherent power of the Court/DRT, Plea was that the inherent power is always in addition and complimentary to the powers expressly conferred either under the Code of Civil Procedure or the RDDBFI Act. These inherent powers could not be exercised if its exercise is inconsistent with or came into conflict with any of the powers expressly or by necessary implication conferred on any other provisions of CPC or RDDBFI Act.

The Division Bench has then after making elaborate reference to various provisions of the RDDBFI Act and sub-sections of Section 19 of the said Act, has held that the Tribunal was not empowered to issue any prohibitory order prohibiting the defendant from leaving the country without prior permission.

The Court has also considered whether under Sub-section 25 of Section 19 of the RDDBFI Act, the Tribunal could issue order prohibiting the defendant from leaving the country to prevent abuse to its process or secure ends of justice. After making reference to the judgment in the cases of A.S. Mittal (supra) and the Division Bench judgment in the case of Sanjeev R. Apte (supra), it is observed that the Tribunal was held to have no authority whatsoever to either impound the passport of the petitioner or to put any restriction on his travel. After making reference to some cases, the Court has observed that Section 22 of the RDDBFI Act relieves the Tribunal from the bondage of rigour of procedure laid down by the Code of Procedure leaving it to be guided by the principles of natural justice subject to the other provisions of the Act. The Court has therefore held that the Tribunal can exercise the power contained in CPC and even go beyond it as long as it passes orders in conformity with the principles of natural justice. It is also noticed that Section 19(6) did not in any way limit generality of the powers under Section 22(1) of the RDDBFI Act. Section 19(6) of the Act was held to be enabling provision which merely stated that certain types of injunction or stay orders mentioned therein could be passed by the Tribunal. Such enumeration could not be taken to be exhaustive nor restricting the power of the Tribunal only to those types of injunction or stay orders.

The Counsel for the respondent Bank, on the other hand, has relied upon the judgment in the cases of Allahabad Bank, Calcutta v. Radhakrishna Maity, VII (1999) SLT 366 : 1999(6) SCC 755, Smt. Annai Jayabharathi v. Debts Recovery Tribunal, AIR 2005 Ker 137 and Industrial Credit and Investment Corporation Ltd. v. Grapco Industries Ltd., V (1999) SLT 310 : 80 (1999) DLT 418 (SC) : (1999) 4 SCC 710. Judgment in the case of ICICI Bank Ltd. v. The Debts Recovery Appellate Tribunal, AIR 2012 Mad 111 is also referred by the Counsel. The submission by the Counsel for the Bank is that faced with considerable difficulty in recovering the loan and enforcement of securities which is against the Indian economy as a whole, RDDBFI Act was enacted. The Tribunals were accordingly established in terms of Section 3 of the RDDBFI Act to exercise jurisdiction, powers and authority conferred by the Act. By making reference to the case of My. Grapco Industries (supra), it is urged that the powers of the Tribunal are wider than the powers of Civil Court and the only limitation was that it should observe the principles of natural justice. The Counsel would accordingly urge that there was no limitation on the powers of the Tribunal under the RDDBFI Act.

Madras High Court in ICICI Bank's case (supra) has considered the provisions of Sub-section (25) read with Section 19 of the RDDBFI Act to see whether the Tribunal had the power to direct a borrower or a guarantor to surrender his passport and in such event, if the direction to surrender the passport would amount to impounding of the passport and whether the Tribunal could direct the borrower or the guarantor not to leave the country without prior permission of the Tribunal. The Court in this case while considering the scope of such inherent power has referred to Full Bench decision of Madras High Court in the case of Ramalinga v. Radha, IV (2011) CLT 55 (FB) : 2011(4) CTC 481 which has resolved the conflicting views expressed by the two Division Benches in respect of the powers of Insolvency Court to grant interim order. The Full Bench in the case of Ramalinga (supra) has held that there was no specific provision in the act empowering the Insolvency Court to grant such relief but the Court had inherent power to pass such interim order. Drawing an analogy from this judgment, the Court in ICICI Bank's case (supra) has held that there can be no doubt to hold that the Tribunal/Appellate Tribunal enjoy wider inherent power than an ordinary Civil Court which could be exercised to pass interim order to meet the ends of justice including to impound a passport. As per the Court, the only limitation would be that such order should relate only to ensure the implementation of the provisions of the RDDBFI Act particularly to protect the interest of the Bank/Financial Institution to recover the dues. It is further held that the Tribunal would be well within its power conferred on it under Section 19(25) of the Act to issue direction for surrendering the passport and for ordering the guarantor or the borrower not to leave the country without prior permission.

The Counsel has also referred to the fact that the order passed by Madras High Court in the case of ICICI Bank Limited (supra) was challenged before the Hon'ble Supreme Court where operation of the initial judgment passed by the High Court was stayed. Ultimately, the SLP was disposed of when the petitioner undertook that he shall not leave India.

The Court in the case of Allahabad Bank, Calcutta (supra) has observed that if a power is given to arrest the judgment debtor and to retain him in imprisonment for enforcing realization of the debt ordered to be paid in decree or by certificate under Section 19(7) of the RDDBFI Act, it carries with it an incidental power to prevent a person from going abroad as an interim measure so as to give effect to the power of ordering arrest of the judgment debtor and his detention in prison conferred by Section 25(b) of the Act. As per the Court, otherwise the said provisions would become redundant and otiose. Relying on this observation, the Counsel for the Bank would contend that the Tribunal would have the power to place restriction on the right of the borrower to travel abroad.

On the other hand, the Counsel for the appellants would distinguish this judgment on the ground that such an issue would arise once the recovery is found payable after adjudication. The question of execution of decree under Section 25 of the Act would arise only once the liability is determined by the Recovery Tribunal. The Counsel accordingly would contend that it will be unfair and unreasonable to place any such restriction even before the borrower is held liable for any payment. The Counsel would also contend that the Hon'ble Supreme Court in this case was primarily considering the issue of the right of the Tribunal to pass interim order of injunction. In this context, the Court has considered the provisions of Section 22. In addition, the Counsel for the appellants would also refer to the observations where the Court has recorded that if there are no grounds to pass order certainly it is an arbitrary as it violates not only the fundamental rights under Article 21 and also under Articles 14 and 19 of the Constitution of India.

The Counsel for the appellants has also distinguished the other judgments relied upon by the Counsel for the respondent Bank. In this regard, the Counsel for the appellants has pointed out to the fact that even in the case of M/s. Grapco Industries (supra), the issue before the Court was regarding the power and jurisdiction of the Tribunal to grant ex parte orders under the Act. The Counsel for the appellant, thus, would contend that the law settled by the Court is what is the issue considered and adjudicated and as such these judgments would not come to the rescue of the Bank. In addition, the Counsel for the appellants has relied upon two decisions delivered by this Tribunal in the cases of Sam Verma v. Tourism Finance Corporation of India, III (2009) BC 34 (DRAT) & Ailmil Pharmaceuticals (P) Ltd. and Ors. v. Standard Chartered Bank, II (2010) BC 141.

I have considered the rival submissions before me. At the very outset, it may call for a notice that the law laid down by the Hon'ble Delhi High Court would be a binding precedent for this Tribunal being located under the territorial jurisdiction of the said Court. Since two Division Benches and a Single Bench of the Hon'ble High Court of Delhi have categorically held and have reiterated the view that the Tribunal has no power to impose such restriction on the borrower to travel abroad, no further submissions were even to be considered or called for. Still, I have considered it appropriate to deal with the submissions made before me in detail on the basis of judgments passed by the different High Courts.

Counsels for the parties did not raise any dispute that the right to travel abroad is a fundamental right. Obviously, there is no scope of any dispute in this regard. The expression 'personal liberty' is taken in the right of locomotion and to travel abroad as per Full Bench decision of Kerala High Court in the case of Francis Manjooram v. Government of India, Ministry of External Affairs. New Delhi, AIR 1966 Ker 20 (FB). Right to travel abroad is fundamental right as held in the case of Satwant Singh Sawhney v. D. Ramarathnam, 1967 (SLT Soft) 179 : AIR 1967 SC 1836. In this case, the Hon'ble Supreme Court has also held that in the absence of law regulating or depriving a person of such right, refusal to give passport or withdrawal of one given violates Articles 21 and 14 of the Constitution of India. The expression 'personal liberty' in Article 21 of the Constitution was held to take in the right of locomotion and to travel abroad, but the right to move throughout the territories of India is not covered by it inasmuch as it is specifically provided in Article 19. Thus, no person can be deprived of his right to travel except according to the procedure established by law.

'Personal liberty' in Article 21 was held to be the widest amplitude to cover a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19 (See Smt. Maneka Gandhi v. Union of India, 1978 (SLT Soft) 459 : AIR 1978 SC 597). As held in this case, no person can be deprived of his right to go abroad unless there was law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. This procedure obviously cannot be arbitrary, unfair and unreasonable. If any law depriving a person of his personal liberty prescribes a procedure then it has to stand the test of one or more of the fundamental rights within the meaning of Article 21 and also the fundamental rights conferred under Article 19 applicable in a given situation and is further liable to be tested with Article 14. Therefore, it can be observed, as is the view of Division Bench in Prafulchandra 's case (supra) that there is nothing on record to show that law is made by State regulating or depriving a person of such right in case proceedings under Section 19 of the RDDBFI Act are pending. The Court in the case of Prafulchandra (supra) has held as under:

"Section 22 deals with the procedure and powers of the Tribunal and the Appellate Tribunal. It relates to the summoning and enforcing the attendance, requiring the discovery and production of documents, receiving evidence on affidavits, issuing commissions for the examination of witnesses or documents, reviewing its decisions, dismissing an application for default or deciding it ex parte, setting aside any order of dismissal of any application for default or any order passed by it ex parte, or any other matter which may be prescribed, but no provision has been made therein or by a separate notification issued by the Central Government empowering the Tribunal to deprive a person of his personal liberty to move abroad as guaranteed under Article 21 of the Constitution of India. In absence of any such 'enacted law' or 'State law', we hold that the tribunal had no jurisdiction to deprive the defendants, the respondents herein, of their right to go abroad. The learned Single Judge for the very same reason having set aside the order passed by the Tribunal, no interference is call for. In the absence of any merit, the appeal is dismissed, but there shall be no order as to costs."

As per Article 21 of the Constitution of India, no person shall be deprived of his right or 'personal liberty' except according to the procedure established by law. If the State enacts any law which tends to take away any of the fundamental rights then such law is open to challenge on the ground of it being arbitrary, unfair or unreasonable. Whether such a law can be read from enabling provisions of Section 19(25) of the RDDBFI Act or Rule 18 of the Rules thus is to be seen. No doubt, the Tribunal may be enjoying power even wider to those which are not available under the Code of Civil Procedure. These primarily would be relating to the procedure required to be adopted by the Tribunal.

The Hon'ble Madras High Court in ICICI Bank 's case (supra) has held that Section 19(25) of the RDDBFI Act confers inherent powers on the Tribunal under which it can pass order for impounding the passport though there is no specific provision in the Act in this regard. While taking this view, the Court has expressed that such power can be exercised as these have not either been expressly or impliedly excluded by the provisions of the Passport Act. Faced with the difficulties in view of the law laid down in Smt. Maneka Gandhi's case (supra) where it was held that the right hold passport cannot be deprived as it may amount to infringement of Article 21 of the Constitution, the High Court has observed that such power under Section 19(25) of the RDDBFI Act cannot be exercised as a matter of routine and has to be exercised in deserving case and that too sparingly. It is further observed that while passing such order, the Tribunal should satisfy itself as to whether such directions are absolutely necessary in the given set of facts and to meet the ends of justice since this satisfaction is subject to the judicial scrutiny. This would seem to be a bit stretched view. When the issue relates to violation of the fundamental right then the law has to specifically provide so and such law then is to be examined on the touch stone of being just, fair and reasonable law. Even if the legislated law is found to be arbitrary, unfair or unreasonable, still it would be held bad under Article 21 of the Constitution of India. Would it be fair in this background to invoke such power from the provisions like Section 19(25) of the RDDBFI Act by holding that this provision can be utilized as there is no express or implied exclusion of the provision of the Passport Act? In my view, it may not be possible to extend the scope of Section 19(25) of the RDDBFI Act to such limits.

The judgments on which the Counsel for the Bank has placed reliance have all been thoroughly considered by the Division Bench of Gujarat High Court. In the cases of Smt. Annai Jayabharati (supra), Allahabad Bank, Calcutta (supra) and M/s. Grapco Industries (supra), the question under consideration primarily was regarding the scope of Section 22 of the RDDBFI Act. This section was held to relieve the Tribunal of the bondage of rigour of procedure laid down in the Code of Procedure, The Court in these cases was either considering the scope of procedure required to be followed by the RDDBFI Act or power of the Tribunal to grant ex-parte stay or injunction. After considering the right to travel abroad being the limb of fundamental right which is a undisputed position, the Division Bench of Hon'ble Gujarat High Court has rightly observed that there was nothing on record to show that the law was made by the State regulating or depriving a person of such right in case proceeding under Section 19 of the SARFAESI Act is pending. The observations made in the cases relied upon by the Counsel for the Bank have been noted above. I would respectfully follow the approach adopted by the Division Bench of the Gujarat High Court which has rightly viewed these judgments being not very relevant to decide the issue involved.

The Debts Recovery Tribunal being a creature of statute would have power as conferred on these Tribunals by the statute. If the intention was to confer such power allowing the Tribunal to restrain a person from travelling abroad, it ought to have been so conferred on the Tribunal. Here notice can be taken of the provisions of Section 19(17) of the RDDDBFI Act which empowers the Recovery Tribunal to order detention of a person in civil prison for a period not exceeding three months if such person is found guilty of disobedience or breach of any order made by the Tribunal. Apparent reason for not bestowing power to the Tribunal to restrain the borrower from travelling abroad may be because borrower is not needed to remain present in person before the Tribunal when the recovery proceedings are in progress. It is his property only which is the security for recovery of the debt and his presence may be need at much later stage during the recovery proceedings as and when ordered if full amount is not recovered from the secured assets. To justify passing of such order by invoking the provisions of Section 19(25) of the RDDBFI Act or Rule 18 of the Rules to urge that these would be available to ensure recovery may lead to creating or recognizing a right or liability or obligation which is not provided for in the Statute.

The Counsel, before the Division Bench in Prafulchandra's case (supra), was justified in equating the provisions of Section 19(25) of the RDDBFI Act and that of Rule 18 of the Rules with Section 151, CPC. Plea was that these provisions of law are not meant for conferring to grant any kind of substantive relief. The scope of inherent power as per Section 151 by now is fairly settled. As has been observed that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently providing the procedure for them, the Code otherwise being not exhaustive. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties, The power under this section, therefore, relates to the matters of procedure. If the ordinary rules of procedure result in injustice and there is no other remedy, these can be broken in order to achieve the ends of justice. The section, otherwise, has been held not to confer any power, but is legislated to indicate that there is power to make such order as may be necessary for achieving the ends of justice and also to prevent abuse of process of the Court. As is observed by the Hon'ble Supreme Court in Raj Bahadur Ras Raja v. Seth Hiralal, 1961 (SLT Soft) 185 : AIR 1962 SC 527, the inherent power having been conferred on the Courts would itself a power in the Court by virtue of its duty to do justice between the parties before it. Viewed in this background, the provisions of Section 19(25) of the RDDBFI Act or Rule 18 of the Rules are required to be seen in the light of this settled position. The view expressed by the Court that the Tribunals have not been empowered to issue any prohibitory order prohibiting the defendant from leaving the country is legal and justified view. This is the view expressed by Delhi High Court in more than one cases which, in any case, is required to be followed by this Tribunal.

The view expressed by the Division Bench of Madras High Court in the case of ICICI Bank Ltd. (supra) is subject to certain exceptions which have been noted in the order itself. The Court in itself has observed that such power cannot be exercised as a matter of routine and the Tribunal has to satisfy itself whether such directions are absolutely necessary. The Counsel for the appellants is justified in submitting that the order passed by the Tribunal while restraining the appellants from travelling abroad does not disclose any such special reason to justify the directions that were issued. Be that as it may, once the law laid down by the Hon'ble Delhi High Court is a binding precedent for this Tribunal to follow, with which this Tribunal respectfully concurs, the impugned order passed by the Tribunal below cannot be sustained.

Before parting with the case, protest raised by the Counsel for the Bank may call for a notice when he says that if permitted to travel abroad, the appellants are not likely to return back. There is no material shown to me in support of this contention. More so, for prosecution of OA presence of the borrower or the guarantor before the Tribunal is not necessary. Facilities advanced by the Bank/Financial Institution are generally secured by the property(ies) which is/are known as secured assets. These may be by personal guarantees which are accompanied by mortgage of some property or otherwise. Thus, these are the securities through which recovery is to be effected. No doubt, a stage may come when need for taking the borrower in custody may arise but generally that is very rare and may have to be resorted in exceptional cases. Unlike, criminal trials where proceedings cannot continue in the absence of accused, the proceedings before the Debts Recovery Tribunals can continue even when the borrower or the guarantor is not present. Thus, the order pacing restriction on the movement of the appellants is not called for though prosecution of the OA is pending before the Tribunal below. Accordingly, the impugned order is set aside and the appeal is allowed.