Mr. Suresh Kumar Mahawar S/O Shri ... vs Mentor Home Loan India Ltd
2022 Latest Caselaw 418 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 737/2022

Mr. Suresh Kumar Mahawar S/o Shri Ghanshyam Das Mahawar,
R/o Plot No. A-16-17, Padam Prabhu Enclave, Padampura Road,
Shivdaspura, Distt. Jaipur (Raj.)
                                                                  ----Petitioner
                                   Versus
Mentor Home Loan India Ltd, Through Its Director Mentor House,
Govind Marg, Sethi Colony, Jaipur, Rajasthan, Pin- 302004
                                                                ----Respondent

For Petitioner(s) : Mr. Prateek Khandelwal, through V.C.

For Respondent(s) :

HON'BLE MR. JUSTICE INDERJEET SINGH Order 18/01/2022

This writ petition has been filed by the petitioner with the

following prayers;

"It is therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased to accept and allow this writ petition, call for the relevant record in the present matter and by issuance of an appropriate writ, order or direction:

1. To provide proper records of the actual transactions done within the course of loan tenure period.

2. To changing appropriate interest rates on the aforesaid mentioned loan amount and to refund the amount charged inappropriately in context of penalty and default charges.

3. Not to take the illegal possession until the settlement of account is clear and also to provide the agreement copy."

Admittedly, the petitioner has filed the petition against the

private home loan agency.

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;-

(2 of 2) [CW-737/2022]

"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

home loan agency is not maintainable under Article-226 of the

Constitution of India.

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 /108

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