Shree Shyam Education Society v. Clix Capital Services Pvt. Ltd. And Others



 
        
   



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/  "Since the petitioners have already availed their remedy before the Debt Recovery TribunalII, Chandigarh, we are not inclined to entertain the Writ Petition and permit the petitioners to pursue the said remedy.

Accordingly, this Writ Petition is disposed of."   - ( -8'4 &( 44..&

 
 


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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."

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