Puroshottam Kumar Lunia S/O ... vs Mentor Home Loans India Ltd
2022 Latest Caselaw 1493 Raj/2

Citation : 2022 Latest Caselaw 1493 Raj/2
Judgement Date : 14 February, 2022

Rajasthan High Court

Puroshottam Kumar Lunia S/O ... vs Mentor Home Loans India Ltd on 14 February, 2022

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 14790/2021

1.     Puroshottam Kumar Lunia S/o Ramkaran Lunia, R/o Plot
       No. 54 (West Part) Vaishno Vihar-Ii, Village Kokawas,
       Tehsil Sanganer, District Jaipur.
2.     Smt. Anita Lunia W/o Shri Puroshottam Kumar Lunia, R/o
       Plot No. 54 (West Part) Vaishno Vihar-Ii, Village Kokawas,
       Tehsil Sanganer, District Jaipur.
                                                                    ----Petitioners
                                     Versus
1.     Mentor Home Loans India Ltd., (Earlier Name Mentor
       India Ltd.) Head Office, Mentor House, Govind Marg,
       Sethi Colony, Jaipur.
2.     Banwari Lal Lunia S/o Shri Hanuman Prasad, R/o Plot No.
       18, Balaji Nagar, Boyatawala, Benar Road, Jhotwara,
       Jaipur.
                                                                  ----Respondents

For Petitioner(s) : Mr. Arvind Kulhar For Respondent(s) : Mr. Amol Vyas

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

14/02/2022

Instant writ petition has been filed by the petitioners with the

following prayers:-

"It is, therefore, humbly prayed that your Lordship may graciously be pleased to allow this writ petition and

i) by an appropriate writ, order or direction the impugned order dated 03.10.2019 passed by the District Magistrate Jaipur as well as entire proceeding initiated by the respondent under the grab of the said order i.e. taking the physical possession of property of petitioner may kindly be quashed and set aside and remand the

(2 of 3) [CW-14790/2021]

matter to the District Magistrate Jaipur to pass fresh order by providing opportunity of hearing to the petitioner. ii. by an appropriate writ, order or direction the respondent may kindly be directed to hand over the possession of property plot No.54 (West Part) situated at Vaishno Vihar-II, Village Kokawas, Tehsil Sanganer, District Jaipur.

iii. Any other order which this Hon'ble Court deemed just and proper in the facts and circumstances of the may also be passed in favour of the petitioners."

Admittedly, the petitioners are having statutory alternative

remedy before the Debts Recovery Tribunal under the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002.

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

(3 of 3) [CW-14790/2021]

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.

Heard counsel for the parties and perused the record.

In view of the judgment passed by the Hon'ble Apex Court in

the matter of Phoenix ARC Private Limited (supra), this writ

petition is disposed of with liberty to the petitioners to avail

statutory alternative remedy before the Debts Recovery Tribunal

under the Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest Act, 2002.