1 nmis.29.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 29 OF 2010 IN INSOLVENCY PETITION NO. 46 OF 2002 Ghisalal C. Shahand others .... Petitioners Versus B. D. Agarwal and another .... Respondents. Mr. J. P. Sen i/by Nisha Parmar for Official Assignee. Mr. S. A. Tawate for Insolvent No. 1. Mr. Sachin Punde for Applicant. Official Assignee present in person. CORAM: S. C. DHARMADHIKARI, J. DATED: FEBRUARY 1, 2011. P.C.: Mr. Tawate appearing in support of this Application / Notice Motion states that the applicant insolvent has made a complaint on the administrative side against the Official Assignee. However, on seeking instructions from Shri. Bansidhar D. Agarwal, SSM 2 nmis.29.10 who is present in court, Mr. Tawate states that the applicant/insolvent No. 1 does not wish to pursue the complaint and withdraws it forthwith. He will pursue the matter only on the judicial side. 2. This notice of motion is moved by the insolvent no. 1 Bansidhar D. Agarwal for an order or direction to the official assignee to release the Passport. 3. In the affidavit-in-support, it is stated that the applicant came to India on 1 st February, 2006 and applied by way of Notice of Motion No. 26 of 2006 for setting aside the exparte order adjudging him an Insolvent. It is stated that after the order of adjudication passed by this court, more than 4 years have passed and the Passport of the applicant is lying with the official assignee. The Passport is not the property of the Insolvent No. 1, but is a property of the Central Government. My attention is invited to Section 10 and Section 17 of the Passport Act in support of the submission that the Insolvency Court has no power to impound a Passport or issue a direction to the SSM 3 nmis.29.10 insolvent to deposit it with the official assignee. Further, if the insolvent has attended the proceedings and has been summoned by the official assignee for several meetings over all this period, then, his Passport cannot be retained by the official assignee but must be returned to him. 4. Reliance is placed on the decision of the Hon'ble Supreme Court reported in AIR 1978 SC 597 Maneka Gandhi V/s. Union of India. Reliance is also placed on a judgment of the Hon'ble Supreme Court reported in AIR 2008 SC 1414 Suresh Nanda V/s. C.B.I. 5. On the other hand Mr. J. P. Sen appearing on behalf of the official assignee submitted that the applicant insolvent no. 1 gave the undertaking to this court on 7 th February, 2006 and 13 th February, 2006 but has not abided by the same fully and truly till date. The applicant no. 1 had undertaken to the court that he would produce his wife, Insolvent No. 2, for examination to the official assignee as and when called and summoned by him. It is submitted that the said SSM 4 nmis.29.10 undertaking has not been complied with in as much as Sangeeta B. Agarwal who is insolvent no. 2 and the applicant no. 1 husband have filed collusive proceedings in which it is stated that the marriage between the parties must be dissolved by a decree of divorce. These proceedings are collusive because at no stage the applicant has produced any document or any order to show matrimonial proceedings are pending or disposed off. The applicant has not complied with his undertaking. Further, he has applied for being relieved from the undertaking but the applications made in that behalf are withdrawn unconditionally. This is a third application seeking the same relief. The conduct of the applicant is such that he does not deserve any discretionary or equitable relief. Therefore, the motion be dismissed. 6. With the assistance of the learned Advocate appearing for the parties, I have perused the application with annexures thereto and the orders passed in pursuance of the undertaking so also orders on SSM 5 nmis.29.10 the earlier occasions seeking identical relief. In my view, in the peculiar facts of this case any wider controversy need not be gone into. Whether the insolvency court has power to direct deposit of Passport by the insolvent and whether any power can be read into Section 33 and Section 34 of the Act is an issue which can be gone into in an appropriate case. As far as the present matter is concerned, the applicant's Passport is lying with the official assignee. In the undertaking that he gave in the court dated 7 th February, 2006 and 13 th February, 2006, he stated that he will lodge the Passport and other documents. He has also given an undertaking that insolvent no. 2 who is his wife shall remain present before the official assignee for private examination. Thus, as a part of the undertaking given to this court, the Passport is lodged with the official assignee. It is not possible to read the undertaking in isolation. If the applicant has not complied with the undertaking given to the court with regard to the presence of his wife before the official assignee for private SSM 6 nmis.29.10 examination, then, he can not be heard to say that he has attended the office of the official assignee and that is enough to enable him to claim return of his Passport. He must comply with the undertaking given to the court in its entirety. His conduct demonstrates that he has not complied with the said undertaking. On the other hand, he has applied for relieving himself from the undertaking but the applications made in that behalf have been withdrawn by him. Therefore, the order of Hon'ble Justice Mr. V. C. Daga made on 21 st February, 2006 and the undertaking, both, have become final. The undertaking that is given to the court on 7 th February, 2006 and 13 th February, 2006 also stands. The applicant having not been relieved of the undertaking by this court till date, the present application seeking the return of Passport cannot be granted without proof of compliance of the undertaking given to the court in its entirety. That having been not produced and the applications for relieving him of the undertaking having been dismissed, I am of the view that no relief can be granted SSM 7 nmis.29.10 in this Notice of Motion. 7. As a result of this discussion, this Notice of Motion fails and it is, accordingly, dismissed but without any order as to costs. The question whether the insolvency court can direct deposit of Passport with the official assignee or not is kept open for being gone into and decided in an appropriate case. (S. C. DHARMADHIKARI, J). SSM