By Dr. K. Shivaram
Ajay R. Singh
Advocates
New Page 1
[Prafulchandra V. Patel & Ors. v. State Bank of India &
Ors., AIR 2010 Gujarat 46]
The respondent-bank had filed a petition against the
petitioners for recovery of amount of Rs.37 crores with accrued interest.
Simultaneously an application for interim injunction by the bank to restrain the
petitioners, to transfer of the property and the petitioners from leaving India
without prior permission. The Tribunal granted interim injunction in respect to
properties, however, it did not grant any injunction for restraining the
petitioners from leaving India. Later in another application the Tribunal
restrained the petitioner from leaving India without prior permission of the
Tribunal. The said order was challenged before the High Court on the limited
issue of restraining the petitioner from leaving India.
The Court held that the Debt Recovery Tribunal has no power
to control the physical movement of the defendant-borrowers in absolute, merely
because suit for recovery or the proceedings for recovery of amount, if filed,
in capacity as the mortgagee by the plaintiff bank.
The Tribunal under the RDB Act has power to command and
control the properties of the defendants, may be in its possession or in
possession of third party, 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 the Tribunal or its officers from having command and
control over properties of the defendant, in possession of the defendant or 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. But
the Tribunal has no power in absolute to prohibit the physical movement of the
defendants beyond its territorial jurisdiction or to prohibit the defendants
from leaving the country. Thus, the Tribunal has no power to direct impounding
of the passport.
