Passport seized of the guarantor
I live abroad and I am a guarantor for my father's business and mortgaged one of the houses under my name and other assets under my family members name to get bank loan. Unfortunately, my dad was unable to pay interest due to loss in business and bank has declared NPA and have used Sarfaesi Act to recover debts. In this process, we got an impounding notice from bank addressing to passport office to seize all our passports since there is a chance that we may go out of the country. My question is if I go to India now, will my passport be seized at the airport? I am not a director in my father's business. If they seize my passport what are my options to get that back? Please let me know.
As per Section 10 of the Passports Act, 1967 there has to specific reasons for the impounding or revocation of the passport by the passport authority.
I am reproducing section 10 for your benefit, so that you can see the clauses under which your passport can be seized.
Passports Act, 1967 – Section 10.
10. Variation, impounding and revocation of passports and travel documents
(1) The passport authority may, having regard to the provisions of sub-section (1) of section 6 or any notification under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice.
(2) The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary or cancel the conditions (other than the prescribed conditions) of the passport or travel document.
(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,-
(a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;
(b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf;
Provided that if the holder of such passport obtains another passport the passport authority shall also impound or cause to be impounded or revoke such other passport
(c) if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;
(d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India.
(f) if any of the conditions of the passport or travel document has been contravened;
(g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same;
(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.
(4) The passport authority may also revoke a passport or travel document on the application of the holder thereof.
(5) Where the passport authority makes an order varying or canceling the endorsements on, or varying the conditions of, a passport or travel document under sub-section (1) or an order impounding or revoking a passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India. friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy.
(6) The authority to whom the passport authority is subordinate may, by order in writing, impound or cause to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority.
(7) A court convicting the holder of a passport or travel document of any offence under this Act or the rules made thereunder may also revoke the passport or travel document:
Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void.
(8) An order of revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.
(9) On the revocation of a passport or travel document under this section the holder thereof shall, without delay, surrender the passport or travel document, if the same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order of revocation.
Revocation of a passport is a serious act of the passport office. Just by being a guarantor of your father’s loan, it is not a good enough ground to revoke your passport. You are a NRI as well as not a director in your father’s business.
Vijay Mallaya’s passport has been revoked. His son Siddharth’s passport has NOT been revoked.
First: you have no criminal record on you.
Secondly: you can appear through an attorney/lawyer.
It would be better to come to India and face the proceedings under the SARFESI ACT.
HOWEVER, in the unlikely event of your passport being impounded or revoked, you can challenge the order in the High Court of your state with Writ Petition under Article 226 of the Constitution seeking a writ of certiorarified mandamus.
As an interim measure, you should ask the High Court to stay the order of the Passport officer showing your bonafide to the Court.
Remember the courts are only keen to secure your presence in India, if the situation demands the same. Hence, if you can establish your bonafide, the High Court will direct the passport authority to return your passport after adding some conditions for its release.
The courts will balance your individual liberty (paramount importance for the courts) with the cause of justice to recover loans paid.
Hence hence there should be no apprehension in your mind to come to India and face the proceedings in the SARFESI Act as one of your houses is already been mortgaged for the purposes of loan given to your father.
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