Mohammad Aqil S/O. Late Shri Mohd. ... vs Icici Bank Ltd
2022 Latest Caselaw 1494 Raj/2

Citation : 2022 Latest Caselaw 1494 Raj/2
Judgement Date : 14 February, 2022

Rajasthan High Court

Mohammad Aqil S/O. Late Shri Mohd. ... vs Icici Bank Ltd on 14 February, 2022

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 14284/2021

1.     Mohammad Aqil S/o. Late Shri Mohd. Islam, R/o. 2124,
       Purani Sabji Mandi, Johari Bazar, Jaipur, Addl. Address
       Plot No. 45-A, Keshav Nagar, Civil Lines, Jaipur
2.     Smt. Farhat Jahan W/o. Shri Mohammad Aqil, R/o. 2124,
       Purani Sabji Mandi, Johari Bazar, Jaipur, Addl. Address
       Plot No. 45-A, Keshav Nagar, Civil Lines, Jaipur
3.     Mohammad Salman S/o. Shri Aqil, R/o. 2124, Purani
       Sabji Mandi, Johari Bazar, Jaipur, Addl. Address Plot No.
       45-A, Keshav Nagar, Civil Lines, Jaipur
4.     Mohammad Saqib S/o. Shri Mohd. Aqil, R/o. 2124, Purani
       Sabji Mandi, Johari Bazar, Jaipur, Addl. Address Plot No.
       45-A, Keshav Nagar, Civil Lines, Jaipur
                                                                    ----Petitioners
                                     Versus
1.     Icici Bank Ltd., Having Its Corporate Office Icici Bank
       Tower, Bandra Kurla Complex, Mumbai 400051 Through
       Its Mg. Director.
2.     Icici Bank Ltd., Iiird, Itd Block, Jsel Builing, Malviya Nagar,
       Jaipur-17 Through Its Authorized Officer
3.     District Collector, Collectorate, Bani Park, Jaipur.
                                                                  ----Respondents

For Petitioner(s) : Mr. K.N. Sharma For Respondent(s) : Mr. Jitendra Mishra on behalf of Ms. Mridula Bhandari

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, prayed that Your Lordships may graciously be pleased

(2 of 3) [CW-14284/2021]

to accept and allow this writ petition and by an appropriate writ order or direction in the nature thereof may further be pleased to:-

i. the action of the Bank taken under the SARFAESI Act, 2002 by issuing Alleged Demand Notice and or subsequent actions initiated or to be initiated in pursuance to the aforesaid alleged demand notice ii. Quash and set-aside the orde dated 09.11.2021 passed by District Collector, Jaipur in case No.76/2021 ICICI Bank Ltd. Vs. Mohd. Aqil and others.

iii. any other relief as may be deemed just and proper for meeting the ends of justice."

Counsel for the petitioners submitted that prior to passing of

the order dated 09.11.2021 under Section 14(2) of the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 by the District

Collector, Jaipur, no notice was given to the petitioners.

Counsel for the respondent submitted that the petitioners'

are having the statutory alternative remedy before the Debts

Recovery Tribunal, as such the writ petition is not maintainable.

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

(3 of 3) [CW-14284/2021]

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.

Heard counsel for the parties and perused the record.

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, therefore, in view of

the judgment passed by the Hon'ble Supreme Court in the matter

of Phoenix ARC Private Limited (supra), no case is made out

for inference by this Court under Article 226 of the Constitution of

India.