Prem Kumar Bhaskar S/O Shri Mange ... vs Daimler Financial Services India ...
2022 Latest Caselaw 1205 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 12594/2020

Prem Kumar Bhaskar S/o Shri Mange Lal Bhaskar, Aged About 34
Years, R/o Ward No. 14, Th. - Surajgarh, Dheendwa Bichla,
Jhunjhnu, Dist. - Jhunjhunu (Raj.)
                                                                   ----Petitioner
                                   Versus
1.     Daimler Financial Services India Pvt. Ltd., Tek Meadows
       Campus Ist Floor, Unit#1, Block B, No. -51, Rajiv Gandhi
       Salal, Sholinganallur, Omr Chennai 600019.
2.     Branch Manager, Daimler Financial Services India Pvt.
       Ltd., Vith Floor L And T Tower, Amrapali Circle, Vaishali
       Nagar, Jaipur 302021.
                                                                ----Respondents

For Petitioner(s) : Mr. Surya Prakash, through V.C. For Respondent(s) : Mr. Ashutosh Bhatia, through V.C.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

02/02/2022

This writ petition has been filed by the petitioner with the

following prayers;

"It is, therefore, humbly prayed that Your Lordships may graciously be pleased to accept and allow this writ petition and:-

(i) By an appropriate writ or order to quash and set-aside the impugned notice issued by the respondent on 11.08.2020 & 10.06.2020.

(ii) By an appropriate writ or order direct the responded-company to restore the loan agreement No:- 20143540 of the petitioner.

(iii) By an appropriate writ or order direct the responded company not to sale out the Hypothecated vehicle of the petitioner.

(iv) Any other order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may be granted in favour of the petitioner."

(2 of 3) [CW-12594/2020]

Admittedly, the petitioner has filed the petition against the

private financial institution.

The Hon'ble Supreme Court in the matter of Phoenix ARC

Private Limited Vs. Vishwa Bharati Vidya Mandir & Ors.

(Civil Appeal Nos. 257-259 of 2022) in Para-12 has held as

under;-

"12. Even otherwise, it is required to be noted that a writ petition against the private financial institution - ARC - appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in the cases of Praga Tools Corporation (supra) and Ramesh Ahluwalia (supra) relied upon by the learned counsel appearing on behalf of the borrowers are not of any assistance to the borrowers.

In my considered view, the writ petition against the private

financial institution is not maintainable under Article-226 of the

Constitution of India.

(3 of 3) [CW-12594/2020]

In that view of the matter, the present writ petition is

dismissed as not maintainable in view of the judgment passed by

the Hon'ble Supreme Court in the matter of Phoenix ARC

Private Limited (supra).

(INDERJEET SINGH),J

CHETNA BEHRANI /37

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