Kerala High Court
South Indian Bank Ltd vs Rahim H K on 21 July, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
W.A.No.1778 of 2025 1
2025:KER:54228
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
WA NO. 1778 OF 2025
AGAINST THE ORDER DATED 20.06.2025 IN W.P.(C) NO.22757
OF 2025 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENT NO.1&2 IN W.P.(C):
1 SOUTH INDIAN BANK LTD.,
REPRESENTED BY ITS BRANCH MANAGER, VALLIKAVU
BRANCH, VALLIKAVU, KARUNAGAPPALLY, KOLLAM,
KERALA, PIN - 690546
2 THE AUTHORISED OFFICER,
REGIONAL OFFICE, THIRUVANANTHAPURAM,3RD FLOOR,
YWCA BUILDING, M.G ROAD, SPENCER JUNCTION, STATUE,
THIRUVANANTHAPURAM, PIN - 695001
BY ADVS.
SHRI.B.J.JOHN PRAKASH
SHRI.P.PRAMEL
SHRI.SOORAJ M.S.
SMT.VARSHA VIJAYAKUMAR NAIR
SHRI.MANU BABY
SMT.RAJASREE K.
RESPONDENTS/PETITIONER NO.1&2 IN W.P.(C):
1 RAHIM H K.,
AGED 48 YEARS
S/O HASSANKUNJU, RESIDING AT BLALIL
KIZHAKKETHARAYIL, CLAPPANA P.O., KARUNAGAPPALLY,
KOLLAM, KERALA, PIN - 690525
W.A.No.1778 of 2025 2
2025:KER:54228
2 SHEEBA M B.,
AGED 42 YEARS
W/O RAHIM, RESIDING AT BLALIL KIZHAKKETHARAYIL,
CLAPPANA P.O., KARUNAGAPPALLY,
KOLLAM, KERALA, PIN - 690525
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
21.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No.1778 of 2025 3
2025:KER:54228
JUDGMENT
Anil K. Narendran, J.
Respondents 1 and 2 in W.P.(C)No.22757 of 2025 filed by respondents 1 and 2 herein-writ petitioners have filed this writ appeal, invoking the provision under Section 5(i) of Kerala High Court Act, 1958, challenging the interim order dated 20.06.2025 of the learned Single Judge in that writ petition read thus;
"To consider the prayers sought for in the writ petition seeking instalment facility and to defer the coercive steps against the petitioners, as an interim measure, there will be a direction to the petitioners to remit an amount of Rs.3,00,000/-(Rupees Three lakhs only) within one month. It is made clear that, if the above payment is not made, the respondents will be at liberty to proceed further, in accordance with law."
2. W.P.(C)No.22757 of 2025 is filed by the respondents herein seeking a writ of mandamus commanding the 1 st appellant Bank to consider and dispose of Ext.P4 request dated 12.06.2025 made by the 1st respondent herein for permitting the borrowers to pay the entire dues in the loan account by availing One Time Settlement facility by waiving future and overdue interest and to restrain the 2nd appellant Authorised Officer from proceeding under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (for short 'SARFAESI Act') till such time. They have also sought W.A.No.1778 of 2025 4 2025:KER:54228 for a writ of certiorari to quash Ext.P3 notice dated 02.06.2025 issued by the Advocate Commissioner appointed by the Chief Judicial Magistrate Court in MC No.831 of 2025, invoking the provision under Section 14 of the SARFAESI Act.
3. Heard the learned counsel for the appellants- respondents 1 and 2 and the learned counsel for respondents-writ petitioners.
4. The learned counsel for the appellants would raise the question of maintainability of the writ petition placing reliance on the Apex Court in South Indian Bank Ltd. v. Naveen Mathew Philip [(2023) 17 SCC 311]. The learned counsel would also point out the decision of the Apex Court in Bijnor Urban Cooperative Bank Limited, Bijnor v. Meenal Agarwal [(2023) 2 SCC 805].
5. In South Indian Bank Ltd. v. Naveen Mathew Philip [2023 SCC online (SC) 435], in the context of the challenge made against the notices issued under Section 13(4) of the SARFAESI Act, the Apex Court reiterated the settled position of law on the interference of the High Court invoking Article 226 of the Constitution of India in commercial matters, where an effective and efficacious alternative forum has been constituted through a statute. In the said decision, the Apex Court took judicial notice of the fact that certain High Courts continue to W.A.No.1778 of 2025 5 2025:KER:54228 interfere in such matters, leading to a regular supply of cases before the Apex Court. The Apex Court reiterated that a writ of certiorari is to be issued over a decision when the court finds that the process does not conform to the law or the statute. In other words, courts are not expected to substitute themselves with the decision-making authority while finding fault with the process along with the reasons assigned. Such a writ is not expected to be issued to remedy all violations. When a Tribunal is constituted, it is expected to go into the issues of fact and law, including a statutory violation. A question as to whether such a violation would be over a mandatory prescription as against a discretionary one is primarily within the domain of the Tribunal. The issues governing waiver, acquiescence and estoppel are also primarily within the domain of the Tribunal. The object and reasons behind the SARFAESI Act are very clear as observed in Mardia Chemicals Ltd. v. Union of India [(2004) 4 SCC 311]. While it facilitates a faster and smoother mode of recovery sans any interference from the court, it does provide a fair mechanism in the form of the Tribunal being manned by a legally trained mind. The Tribunal is clothed with a wide range of powers to set aside an illegal order, and thereafter, grant consequential reliefs, including repossession and payment of W.A.No.1778 of 2025 6 2025:KER:54228 compensation and costs. Section 17(1) of the SARFAESI Act gives an expansive meaning to the expression 'any person', who could approach the Tribunal.
6. In Naveen Mathew Philip [2023 SCC OnLine (SC) 435] the Apex Court noticed that, in matters under the SARFAESI Act, approaching the High Court for the consideration of an offer by the borrower is also frowned upon by the Apex Court. A writ of mandamus is a prerogative writ. The court cannot exercise the said power in the absence of any legal right. More circumspection is required in a financial transaction, particularly when one of the parties would not come within the purview of Article 12 of the Constitution of India. When a statute prescribes a particular mode, an attempt to circumvent that mode shall not be encouraged by a writ court. A litigant cannot avoid the non- compliance of approaching the Tribunal, which requires the prescription of fees, and use the constitutional remedy as an alternative. In paragraph 17 of the decision, the Apex Court reiterated the position of law regarding the interference of the High Courts in matters pertaining to the SARFAESI Act by quoting its earlier decisions in Federal Bank Ltd. v. Sagar Thomas [(2003) 10 SCC 733], United Bank of India v. Satyawati Tondon [(2010) 8 SCC 110], State Bank of Travancore v. W.A.No.1778 of 2025 7
2025:KER:54228 Mathew K.C. [(2018) 3 SCC 85], Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir [(2022) 5 SCC 345] and Varimadugu Obi Reddy v. B. Sreenivasulu [(2023) 2 SCC 168] wherein the said practice has been deprecated while requesting the High Courts not to entertain such cases. In paragraph 18 of the said decision, the Apex Court observed that the powers conferred under Article 226 of the Constitution of India are rather wide, but are required to be exercised only in extraordinary circumstances in matters pertaining to proceedings and adjudicatory scheme qua a statute, more so in commercial matters involving a lender and a borrower, when the legislature has provided for a specific mechanism for appropriate redressal.
7. The writ petition is one filed seeking a writ of mandamus commanding the 1st appellant Bank to consider Ext.P4 request made by the 1st respondent herein for availing One Time Settlement facility, as sought for in that request. The said request has already been turned down by the 1 st appellant Bank on 21.06.2025.
8. Now the writ petition stands listed before the learned Single Judge tomorrow (22.07.2025). It is for the appellants to raise the question of maintainability of the writ petition before the learned Single Judge relying on the decision of the Apex Court in W.A.No.1778 of 2025 8 2025:KER:54228 Naveen Mathew Philip [(2023) 17 SCC 311], Bijnor Urban Cooperative Bank Limited, Bijnor [(2023) 2 SCC 805], etc.
9. We have no doubt that the learned Single Judge will deal with the maintainability of the writ petition, taking note of the judgment of the Apex Court in the decisions referred to supra, before proceeding with the writ petition further on merits.
In such circumstances, we deem it appropriate to dispose of this writ appeal, after taking note of the law laid down by the Apex Court in the decisions referred to supra, by permitting the appellants to raise the question of maintainability of the writ petition before the learned Single Judge, as a preliminary issue, before proceeding with the writ petition further on merits.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
MURALEE KRISHNA S., JUDGE MSA