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2018 (3) TMI 196 - HC - Indian LawsRecovery of Debt - Whether personal liberty enshrined under Article 21 of the Constitution of India is violated, in view of Article 11 of the International Covenant on Civil and Political Rights, by issuing a SCN for arrest and detention of a judgment debtor, while executing a decree under Section 25(b) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993, read with Regulation 35(1) of Debts Recovery Tribunal- II Chennai Regulations 2015 or not? - Held that: - Hon'ble Justice in V.R.Krishna Iyer in JOLLY GEORGE VARGHESE's case [1980 (2) TMI 263 - SUPREME COURT] observed that “No one shall be imprisoned, merely on the ground of inability to fulfil a contractual obligation” - there shall be minimal proof of wilful failure on the part of the judgment debtor and a fair procedure be adopted in finding as to whether he has the ability to pay, but have improperly evaded or postponed in doing so, or otherwise, dishonestly committed acts of bad faith. When there is an element of bad faith, dishonesty, wilful evasion or neglect or indifference to pay or some deliberate or reasonable disposition, arrest and detention cannot be said to violate personal liberty enshrined in Article 21 of the Constitution of India - arrest is not by way of punishment, but to recover the arrears of public money. Petitioner is not a honest person but has deliberately acted with supine indeference and evaded payment. Therefore, he is not entitled to any equitable relief. Whether the High Court, while exercising jurisdiction under Article 226 of the Constitution of India can interfere in recovery proceedings, de hors the availability of appeal remedy under the relevant statute or not? - Held that: - the writ petitioner has not acted in good faith. Even then, he is entitled to a fair procedure and reasonable opportunity. He was served with notice and filed his counter. He was given ample opportunity to effectively contest his case. As per Section 25 and Regulation 35(1) a certified debtor shall be given opportunity to show cause as to why he shall not be arrested and detained in civil prison. The writ petitioner has not proved that he has acted in good faith. The past conduct and serious allegations in fudging the accounts with an ulterior motive, precludes us from granting the equitable relief, in favour of the petitioner. If at all the petitioner is aggrieved over the return of the appeal for non-compliance of statutory requirement, he would have bonafidely approached this Court with appropriate, independent petition. Seeking a prayer under the pretext of challenging the order, does not reveal any bonafide on the other hand it lacks bonafide. The writ petitioner is not deprived of his personal liberty enshrined under Article 21 of the Constitution of India, as the action taken, is in accordance with due procedure of law. The petitioner lacks bonafides and therefore, not entitled to the benefit of Article 11 of the International Covenant on Civil and Political Rights. Petition dismissed - decided against petitioner.
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