DR. VIJAY MISHRA vs. ASSET RECONSTRUCTION COMPANY INDIA LIMITED

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 28 DAY OF APRIL, 2026


BEFORE

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

WRIT PETITION NO. 14988 OF 2024 (GM-DRT)

BETWEEN:

DR. VIJAY MISHRA
AGED 51 YEARS,
S/O UMASHANKAR MISHRA,
RESIDING AT J601,
PRICE TOWN, SHETTIHALLI,
JALAHALLI WEST,
BENGALURU-560015.

ALSO AT,
B60, TAJ MAHAL H.E. CHS LIMITED,
PAIS STREET, NEAR GODREJ PLANET,
BYCULLA (W), MUMBAI, PIN-400011.
…PETITIONER
(BY SRI. DR.VIJAY MISHRA, PARTY-IN-PERSON)

AND:

1. ASSET RECONSTRUCTION
COMPANY (INDIA) LIMITED
VISHISHTA ARCADE NO.2243,
4TH FLOOR, 23RD CROSS,
K.R.ROAD, BANASHANKARI 2ND STAGE,
BENGALURU- 560070,
KARNATAKA.

2. BAJAJ HOUSING FINANCE LIMITED
2ND FLOOR, JK TOWERS, 719/A-53-2,
46TH CROSS, SANGAM CIRCLE,










Digitally
signed by
SUVARNA T
Location:
HIGH COURT
OF
KARNATAKA

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8TH BLOCK, JAYANAGAR,
BENGALURU-560082.
…RESPONDENTS
(BY SRI. FRANCIS XAVIER, ADVOCATE FOR R2;
R1 SERVED AND UNREPRESENTED)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
DEMAND NOTICE BEARING NO. ARCIL/BANK/13(2)/22-23/1061
DATED 17.12.2022 ISSUED BY THE R-1 (ANNEXURE-C) AND
SET ASIDE THE POSSESSION NOTICE, DATED 15.05.2024,
ISSUED BY THE R-1 (ANNEXURE-D) AND ETC.

THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 09.04.2026, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

CAV JUDGMENT
The present writ petition is filed seeking the following
prayer:
“PRAYER

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2. The writ petition is filed against the Asset
Reconstruction Company. When this matter came up for
hearing, this Court has specifically asked the learned counsel
for the petitioner/party-in-person how the writ petition is
maintainable against Asset Reconstruction Company in view of
the judgment of the Apex Court in case of S.Shobha Vs.
1
Muthoot Finance Ltd. and also Phoenix Arc Private
2
Limited Vs. Vishwa Bharati Vidya Mandir and Others .
3. The party-in-person had sought for time and filed his
written submissions. In the written submissions, it is stated
that the petitioner had filed an interlocutory application dated
24.03.2026 seeking directions for production of originals of
disputed loan documents and forensic handwriting/signature
examination. The petitioner's specific stand is that originals are
being withheld and only photocopies were provided. It is stated
that the immediate, minimum relief required at this stage is
procedural and evidentiary, namely: (a) production and
preservation of original documents; (b) a limited forensic

1
2025 INSC 117
2
(2022) 5 SCC 345

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comparison; (c) a short status quo/stay against further
coercive steps only until such evidence preservation occurs (or
until the petitioner is effectively relegated to and protected
before the competent statutory forum). It is stated that the
petitioner does not invite the Court to decide disputed
contractual accounts on merits in writ jurisdiction. The request
is confined to preventing adjudication/enforcement based on
allegedly unauthenticated and withheld primary evidence and
to ensure that the statutory process is not founded on
documents whose authenticity is seriously disputed.
4. It is also stated that in S.Shobha ’s case referred
supra, it is held that a private finance company is not ‘state’
and is not ordinarily amenable to a writ; and that RBI
regulation by itself does not transform a private NBFC into a
writ amenable authority. The petitioner also acknowledges that
in Phoenix Arc Private Limited ’s case referred supra, it is
held that a writ petition under Article 226 against a private ARC
challenging SARFAESI action under Section 13(4) is ordinarily
not maintainable and the borrower should pursue the remedy
under the SARFAESI Act. It is the case of petitioner that the

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present case raises a distinct threshold question: whether, in
view of alleged withholding of originals and pleading prima facie
case of disputed/forged signatures, the petitioner may be
granted limited evidence preservation directions that do not
amount to a full adjudication of private contractual or
SARFAESI merits. It is stated that the Apex Court has
repeatedly held that the rule of alternative remedy is a rule of
discretion, not an absolute bar and exceptions apply where
proceedings are wholly without jurisdiction or where there is
failure of natural justice/fundamental procedural fairness.
Submissions are also made on the merits of the matter.
5. It is also stated that without prejudice, the petitioner
undertakes that if and when Section 13(4) ‘measure’ is taken,
the petitioner shall approach the competent forum under
Section 17 of the SARFAESI Act within a short time to be fixed
by this Court and the interim protection sought may be
restricted to that short window and/or till the DRT considers
interim relief. In view of the pleadings, the remedy to go before
the DRT is not an effective and alternative remedy. He tries to
distinguish the judgment in S.Shobha ’s case referred supra

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stating that the present case is not a pure borrower-lender
dispute in the realm of private contract. The grievance arises
from the invocation of coercive statutory powers under
SARFAESI on the basis of disputed sanction-acceptance
documents. With regard to the Phoenix Arc Private Limited ’s
case referred supra, it is stated that the petitioner does not
challenge a SARFAESI measure on merits, but raises a
threshold issue as to whether such statutory action can be
invoked at all when the execution of foundational document is
specifically disputed and original is withheld. Based on these, it
is submitted that the petitioner is entitled for the relief as
sought for in the writ petition.
6. Having heard the party-in-person, perused the
material on record. While deciding the maintainability of this
writ petition, it is appropriate to look at the judgment of the
Apex Court in Phoenix Arc Private Limited ’s case referred
supra. It was observed as follows:
“18. 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,

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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.
21. Applying the law laid down by this Court in the case
of Mathew K.C. (supra) to the facts on hand, we are of
the opinion that filing of the writ petitions by the
borrowers before the High Court under Article 226 of
the Constitution of India is an abuse of process of the
Court. The writ petitions have been filed against the
proposed action to be taken under Section 13(4). As
observed hereinabove, even assuming that the
communication dated 13.08.2015 was a notice under
Section 13(4), in that case also, in view of the statutory,
efficacious remedy available by way of appeal under
Section 17 of the SARFAESI Act, the High Court ought
not to have entertained the writ petitions. Even the
impugned orders passed by the High Court directing to
maintain the status quo with respect to the possession
of the secured properties on payment of Rs.1 crore only
(in all Rs.3 crores) is absolutely unjustifiable. The dues
are to the extent of approximately Rs.117 crores. The
ad-interim relief has been continued since 2015 and the
secured creditor is deprived of proceeding further with
the action under the SARFAESI Act. Filing of the writ
petition by the borrowers before the High Court is
nothing but an abuse of process of Court. It appears
that the High Court has initially granted an ex-parte ad-
interim order mechanically and without assigning any
reasons. The High Court ought to have appreciated that
by passing such an interim order, the rights of the

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secured creditor to recover the amount due and payable
have been seriously prejudiced. The secured creditor
and/or its assignor have a right to recover the amount
due and payable to it from the borrowers. The stay
granted by the High Court would have serious adverse
impact on the financial health of the secured 24
creditor/assignor. Therefore, the High Court should
have been extremely careful and circumspect in
exercising its discretion while granting stay in such
matters. In these circumstances, the proceedings before
the High Court deserve to be dismissed.”
7. The Apex Court in S.Shobha ’s case referred supra
had observed as follows:
“9. We may sum up thus:
(1) For issuing writ against a legal entity, it would have
to be an instrumentality or agency of a State or should
have been entrusted with such functions as are
Governmental or closely associated therewith by being
of public importance or being fundamental to the life of
the people and hence Governmental.
(2) A writ petition under Article 226 of the Constitution
of India may be maintainable against (i) the State
Government; (ii) Authority; (iii) a statutory body; (iv)
an instrumentality or agency of the State; (v) a
company which is financed and owned by the State; (vi)
a private body run substantially on State funding; (vii) a
private body discharging public duty or positive
obligation of public nature; and (viii) a person or a body
under liability to discharge any function under any
Statute, to compel it to perform such a statutory
function.
(3) Although a non-banking finance company like the
Muthoot Finance Ltd. with which we are concerned is
duty bound to follow and abide by the guidelines
provided by the Reserve Bank of India for smooth
conduct of its affairs in carrying on its business, yet
those are of regulatory measures to keep a check and
provide guideline and not a participatory dominance or
control over the affairs of the company.
(4) A private company carrying on banking business as
a Scheduled bank cannot be termed as a company
carrying on any public function or public duty.

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(5) Normally, mandamus is issued to a public body or
authority to compel it to perform some public duty cast
upon it by some statute or statutory rule. In exceptional
cases a writ of mandamus or a writ in the nature of
mandamus may issue to a private body, but only where
a public duty is cast upon such private body by a statute
or statutory rule and only to compel such body to
perform its public duty.
(6) Merely because a statue or a rule having the force
of a statute requires a company or some other body to
do a particular thing, it does not possess the attribute of
a statutory body.
(7) If a private body is discharging a public function
and the denial of any rights is in connection with the
public duty imposed on such body, the public law
remedy can be enforced. The duty cast on the public
body may be either statutory or otherwise and the
source of such power is immaterial but, nevertheless,
there must be the public law element in such action.
(8) According to Halsbury's Laws of England, 3rd Ed.
Vol.30, p.682, “a public authority is a body not
necessarily a county council, municipal corporation or
other local authority which has public statutory duties
to perform, and which perform the duties and carries
out its transactions for the benefit of the public and not
for private profit”. There cannot be any general
definition of public authority or public action. The facts
of each case decide the point.
10. Even while rejecting the writ petition on the ground
of its maintainability, the High Court has protected the
interest of the parties by observing in paras 6.1 as
under:-
“6.1 Following order shall govern,
(i) It would be open for the respondent – original
petitioner to have recourse to civil remedy before the
appropriate Court in relation to the claim and grievance
which she agitated by filing the writ petitions.
(ii) The appellant-Company is not precluded from taking
any recourse in law, if it is of the view that it has any
claim against the respondent – party-in-person.
(iii) It is also open to either side to invoke arbitration
clause and engage in the process of arbitration to
resolve the disputes.
(iv) The amount of Rs.24,39,085/-, which has been
realized from sale of the gold pursuant to the auction

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conducted by the appellant-Company, shall remain
deposited with the Registry of this Court.
(v) The Registry shall invest the said amount in a Fixed
Deposit in a Nationalized Bank initially for a period of
one year and renewable.
(vi) Such Fixed Deposit shall continue to renew for a
maximum period of three years.
(vii) The amount of interest which may accrue on such
deposit shall be receivable by the respondent–
petitioner.
(viii) However, the petitioner shall not be entitled to
raise any loan on the Fixed Deposit.
(ix) The Fixed Deposit kept shall remain in custody of
the Registry of this Court.
(x) It would be open for either party to take recourse of
civil remedy or before the arbitration within a period of
three months from today.”

8. In the light of the law laid down by the Apex Court in
the above judgments, it is clearly held that the writ petition
against a private finance company is not maintainable before
the High Court and it is not amenable to the jurisdiction of the
High Court under Article 226 of the Constitution of India. This
Court is not relegating the petitioner to the DRT on the ground
of availability of an alternative remedy, but on the ground that
this writ petition is not maintainable before this Court. Hence,
the contention with regard to efficacious alternative remedy has
no legs to stand. The petitioner is seeking an interim protection
till he approaches the DRT. When the writ petition itself is not
maintainable, this Court cannot grant the interim relief which is

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the settled law. In the light of the above discussion, this writ
petition is not maintainable before this Court and the petitioner
has to avail the appropriate remedy before the appropriate
forum. Hence, this Court is passing the following order:
ORDER

i. Accordingly, the writ petition is disposed of
giving liberty to the petitioner to avail the
appropriate remedy before the appropriate
forum.

ii. The petitioner shall have the benefit of Section
14 of the Limitation Act.

iii. All I.As. in this petition shall stand closed.


SD/-
(LALITHA KANNEGANTI)
JUDGE


MEG
List No.: 1 Sl No.: 1