Ram Singh Meena S/O Shri Unkar Lal ... vs Mentor Home Loans India Limited
2022 Latest Caselaw 419 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 426/2022

Ram Singh Meena S/o Shri Unkar Lal Meena, Aged About 36
Years, R/o Plot No. 47, Meena Mohalla, Bijwad, Tehsil Deoli,
District Tonk Rajasthan
                                                                   ----Petitioner
                                   Versus
1.     Mentor Home Loans India Limited, Mentor House, Govind
       Marg,    Sethi    Colony,       Jaipur      Rajasthan      Through     Its
       Managing Director
2.     Authorized Officer/ Branch Manager, Mentor Home Loans
       India Limited Mentor House, Govind Marg, Sethi Colony,
       Jaipur Rajasthan.
                                                                ----Respondents

For Petitioner(s) : Mr. Nawab Ali Rathore, 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 humbly prayed that your Lordships may graciously be pleased to call for and examine entire record of the case; admit and allow this writ petition, and

(a) By an appropriate writ, order and direction in the nature thereof, the impugned notice 20.12.2021 may kindly be quashed and set aside and the respondents may be directed not to take possession of the mortgaged property and to prepare and submit statement of account showing actual due amount and allow the petitioner

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to pay the actual due amount in easy instalments.

(b) Any other order or direction, which this Hon'ble High Court may deem fit and proper be also passed in favour of the petitioner".

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

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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.

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 /158

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