SC asks Mallya to appear before it on Oct 5 in contempt case, dismisses his review plea

The Supreme Court Monday directed fugitive businessman Vijay Mallya to appear before it on October 5 while dismissing his plea seeking review of the 2017 verdict which held him guilty of contempt for transferring USD 40 million to his children in violations of court orders.

The top court also directed the Ministry of Home Affairs to facilitate and ensure the presence of Mallya before it in October.

Mallya, an accused in bank loan default case of over Rs 9,000 crore involving his defunct Kingfisher Airlines, is in the United Kingdom.

A bench of Justices U U Lalit and Ashok Bhushan, while dismissing his review petitions against the May 9, 2017 verdict said: “In our considered view, the attempt on part of the respondent No.3 (Mallya) to have re- hearing in the matter cannot be permitted nor do the submissions make out any 'error apparent on record' to justify interference in review jurisdiction”.

The bench said, “Now that the Review Petitions are dismissed, we direct respondent No.3 to appear before this Court on October 5, 2020 at 2:00 pm and also direct the Ministry of Home Affairs, Government of India, New Delhi to facilitate and ensure the presence of respondent No.3 before this Court on that day”.

The top court had asked Mallya to appear on October 5 for hearing him with regard to the proposed punishment in the contempt case.

The top court directed that of this judgement be sent to the Home Ministry for facility and compliance.

The bench recorded in its order that USD 40 million, part of a USD 75 million payment, was received in the account of Mallya on February 25, 2016 and within few days, on February 26 and February 29, 2016, it was transferred out of that account by Mallya.

“Despite repeated orders passed by this Court, no clear disclosure of his assets was made by respondent No. 3, nor any details of in-flow and out-flow of said amount of USD 40 million were disclosed by him. As a matter of fact, the existence of the concerned Bank account itself was not disclosed,” the top court said.

Mallya had contended that in terms of the directions issued by the top court, he was required to disclose the assets as on March 31, 2016 and as such no direction issued by the Court was violated.

He had said that the violation, if any, was of the orders passed by the Karnataka High Court and, therefore, the top court ought not to proceed in contempt jurisdiction.

The bench said its order of January 11, 2017 had given liberty to Mallya to file a reply to the banks' response in the case and it appears from the record that a reply was filed by him on January 30, 2017; however, the May 9, 2017 verdict mentioned that no reply was filed.

“From these facts it is clear that it was an error on part of this Court to have observed and proceeded on the premise that no reply was filed by respondent No.3 to the response filed by the banks,” the bench said.

The bench said that during the hearing of the review plea it had asked Mallya's counsel whether in its January 30, 2017 reply, was there anything which contradicted or contested the banks' submission that funds were transferred despite the orders of the Debt Recovery Tribunal and Karnataka High Court.

It had asked whether any explanation was forthcoming in the reply of Mallya to support the stand that he was not guilty of violation of said orders.

The bench said that his counsel was unable to refer to any such portion from the reply filed on January 30, 2017 but touched upon the questions whether the directions issued by this Court were violated and whether this court ought to have proceeded to exercise contempt jurisdiction.

The bench said the scope of review was limited and all the submissions made by his counsel have already been dealt with and rejected by the court in its May 9, 2017 verdict.

The apex court had in June directed its registry to explain as to why Mallya's review petition had not been listed before the concerned court for the last three years.

It had directed the registry to furnish all the details including names of officials who had dealt with the file concerning the review petition in the last three years.

The apex court's 2017 order had come on a plea by consortium of banks led by the State Bank of India (SBI), which had said that Mallya had allegedly transferred USD 40 million received from British firm Diageo, to his children in "flagrant violation" of various judicial orders.

It was dealing with pleas of lending banks seeking contempt action and a direction to Mallya to deposit USD 40 million received from offshore firm Diageo respectively.

The banks had then alleged that Mallya concealed the facts and diverted the money to his son Siddharth Mallya and daughters Leanna Mallya and Tanya Mallya in "flagrant violation" of the orders passed by the Karnataka High Court.

Mallya had in May lost his application seeking leave to appeal his extradition to India in the UK Supreme Court, setting a 28-day clock on his removal from the UK.

The UK top court's decision marks a big legal setback to the 64-year-old flamboyant businessman, who had earlier lost his high court appeal against an extradition order to India on charges of alleged fraud and money laundering related to unrecovered loans to his now-defunct Kingfisher Airlines.

Mallya has been based in the UK since March 2016 and remains on bail on an extradition warrant executed three years ago by Scotland Yard on April 18, 2017.