Kerala High Court
M/S. M.D. Esthappan Infrastructure ... vs Reserve Bank Of India on 28 July, 2025
2025:KER:55397
W.P(C).17617/25 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947
WP(C) NO. 17617 OF 2025
PETITIONER/S:
1 M/S. M.D. ESTHAPPAN INFRASTRUCTURE PVT. LTD.,
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE, MR. BIJI
STEPHEN HAVING ITS REGISTERED ADDRESS AT: 144, RAILWAY
STATION NAGAR, NEAR ST. JOSEPH HIGH SCHOOL, ANGAMALY,
ERNAKULAM, PIN - 683572
2 MR. M.D. ESTHAPPAN,
MANAGING DIRECTOR OF M.S. M.D. ESTHAPPAN
INFRASTRUCTURE PVT. LTD. THROUGH POWER ATTORNEY HOLDER
MR. BIJI STEPEHEN ,S/O. DEVASSY, 14/306, MOOLAN HOUSE,
NH 47, NEAR ST. JOSEPH HIGH SCHOOL, ANGAMALY,
ERNAKULAM, PIN - 683572
BY ADVS.
SMT. MARIA NEDUMPARA
SHRI.SHAMEEM FAYIZ V.P.
RESPONDENT/S:
1 RESERVE BANK OF INDIA,
REPRESENTED BY ITS GOVERNOR
SHAHID BHAGAT SINGH ROAD, FORT, MUMBAI, PIN - 400001
2 BOARD OF DIRECTORS OF DHANLAXMI BANK LTD. ,
REPRESENTED BY ITS CEO & MANAGING DIRECTOR,REGISTERED
OFFICE, DHANALAKSHMI BUILDINGS, P.B NO. 9, NAICKANAL,
THRISSUR, KERALA, PIN - 680001
3 DHANALAXMI BANK LIMITED,
REPRESENTED BY ITS CEO & MANAGING DHANALAKSHMI
BUILDINGS, P.B. NO. 9, NAICKANAL, THRISSUR, KERALA,
PIN - 680001
2025:KER:55397
W.P(C).17617/25 2
4 AUTHORISED OFFICER & CHIEF MANAGER,
DHANLAXMI BANK LTD., REGIONAL OFFICE, DHANALAKSHMI
BUILDINGS, 1ST FLOOR, MARINE DRIVE, KOCHI, KERALA, PIN
- 682031
5 MINISTRY OF MICRO SMALL AND MEDIUM ENTERPRISES,
REPRESENTED BY ITS SECRETARY,UDYOG BHAWAN, RAFI MARG,
NEW DELHI, PIN - 110001
6 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FINANCIAL
SERVICES, MINISTRY OF FINANCE, 3RD FLOOR, JEEVAN DEEP
BUILDING, SANSAD MARG, NEW DELHI, PIN - 110001
7 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
BY ADVS.
SRI.MILLU DANDAPANI
SRI.C.K.KARUNAKARAN FOR R2 TO R4
SMT.LEKSHMI P. NAIR
SMT.SHIFNA MUHAMMED SHUKKUR
SMT.KRISHNA SURESH
SHRI.ANIRUDH INDUKALADHARAN
SMT.MEKHA MANOJ
DSGI-R5 AND R6
GOVT. PLEADER - R7
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.6.2025, THE COURT ON 28.07.2025 DELIVERED THE FOLLOWING:
2025:KER:55397
W.P(C).17617/25 3
MOHAMMED NIAS C.P., J.
......................................................
W.P(C) No.17617 of 2025
.............................................................
Dated this the 28th day of July, 2025
JUDGMENT
The petitioner company is a registered Micro, Small and Medium Enterprise (MSME) under the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as the 'MSMED Act' for short). The petitioners assert that the respondent bank failed to comply with the rehabilitation framework established by the Ministry of MSME's Notification dated 29.05.2015 and the Reserve Bank of India Notification No. FIDD.MSME & NFS.BC.No. 21/06.02.31/2015-16, issued on 17.03.2016. These notifications required banks to recognise early signs of financial distress and take timely action for rehabilitation. Instead, the bank classified the petitioner's account as a Non-Performing Asset (NPA) on 31.07.2023, violating these circulars. The petitioners rely on the Apex Court's ruling in Pro Knits v. The Board of Directors of Canara Bank & 2025:KER:55397 W.P(C).17617/25 4 Ors. [(2024) 10 SCC 292], which reaffirmed that the MSME Notification is obligatory for all banks.
2. After the incorrect NPA designation, the bank initiated actions under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act') on 16.08.2023 and subsequently filed Ext.P16 Original Application No. 104/2025 before the Debts Recovery Tribunal (DRT) on 28.11.2024. The petitioners contend that such simultaneous proceedings contradict Section 19(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDB Act) and Section 13(10) of the SARFAESI Act, which prohibit this dual-track approach.
3. The petitioners' critique the RDB Act for creating a one-sided adjudication system that only allows banks to initiate proceedings in the DRT. The Act does not provide for borrowers to file independent claims or counterclaims, leading to multiple proceedings for the same transaction. Judicial interpretations have undermined attempts to resolve these issues. Although Parliament introduced amendments to address this, the Supreme Court allowed borrowers the choice between civil court and DRT 2025:KER:55397 W.P(C).17617/25 5 proceedings, leading to parallel litigation and compromising the principle of ne bis in idem.
4. The petitioners highlight past cases where simultaneous actions by banks were disallowed by several High Courts, leading to the enactment of the Securitisation Amendment Act of 2004, which required banks to withdraw pending RDB Act applications before invoking the SARFAESI Act. Nonetheless, existing actions before 11.11.2004 were protected. The petitioners also address cases like Transcore v. Union of India (AIR 2007 SC 712), where the Hon'ble Supreme Court improperly extended the assessment to allow simultaneous recourse under both statutes.
5. The petitioners criticise the judgments in Mardia Chemicals Ltd. v. Union of India [(2004) 4 SCC 311], which mischaracterise borrower applications as original proceedings, and highlight how this creates confusion and leads to multiple forums for the same dispute. Such a scenario contravenes the principle of res judicata and creates burdensome parallel litigation.
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6. Adding complexity to the recovery landscape, the introduction of parallel forums under the Insolvency and Bankruptcy Code (IBC) has further fractured the legal framework. The petitioners rely on the judgment Delhi High Court Bar Association v. Union of India (AIR 1995 Del 323) to contend that the DRT's structure favoured banks, urging this Court to address the inconsistencies that undermine borrower protections and restore statutory integrity for MSMEs, while asserting that dual proceedings under both statutes should not be allowed.
7. Based on the aforesaid contentions, the petitioners sought the following prayers:
1. Declare that the proceedings initiated against the Petitioner under Sections 13(2), 13(4) and 14 of the SARFAESI Act is illegal and void, being contrary to the proviso to Section 19(1) of the Recovery of Debts and Bankruptcy Act and Section 13(10) of the SARFAESI Act inasmuch as the said proviso prohibits initiation of proceedings under the SARFAESI Act without withdrawing the suit instituted under Section 19;
2. Issue a writ in the nature of certiorari or any other appropriate writ or order, quashing and setting aside the entire proceedings initiated by the Respondent Bank as against the Petitioner under Section 13(2), 13(4) and 14 of the SARFAESI Act, 2025:KER:55397 W.P(C).17617/25 7
3. To declare that the banks and financial institutions, so too, the Borrower, is entitled to all remedies, common law, equitable and declaratory, nay, constitutive and executory/adjectival, both, but such remedies cannot be enforced in two different forums at once, and that in terms of Section 13(10) of the SARFAESI Act, a proceedings under Section 19 of the RDB Act can be invoked only "where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets and not otherwise";
4. pass such further and other orders as the nature and circumstances of the case may require.
8. In the counter-affidavit submitted by the respondent bank, it is asserted that the current writ petition lacks maintainability on both factual and legal grounds, constituting an abuse of process. The petitioners have previously approached this Court with multiple writ petitions, including W.P. (C) Nos. 45166 of 2024 and 46514 of 2024, both of which were dismissed. They have also filed Writ Appeal Nos. 481 and 484 of 2025 against the judgment dated 11.03.2025. The filing of the present writ during these proceedings is viewed as forum shopping and vexatious litigation.
9. On prior litigations pursued by the petitioners, judgments directed the petitioners to seek statutory remedies, which they did not 2025:KER:55397 W.P(C).17617/25 8 pursue in good faith. Although S.A. No. 776 of 2023 was filed under the SARFAESI Act before the DRT, it was withdrawn without a valid justification, indicating a strategy to impede legitimate recovery efforts.
10. The bank also denies the petitioners' eligibility for benefits under the MSMED Act or the RBI notifications pertaining to MSMEs, as their outstanding dues exceed Rs. 34 Crores, surpassing the Rs. 25 Crore limit for MSME relief. The bank contends that it had communicated regularly with the petitioners regarding account irregularities, including a critical email on 26.07.2023, warning them of NPA classification unless immediate action was taken, which the petitioners have omitted in their current writ petition.
11. Despite these alerts, the petitioners made no effort to regularise their account or submit a restructuring proposal under the applicable RBI notifications for MSMEs, instead submitted only a One- Time Settlement offer for an unacceptable amount. The bank thus classified the account as NPA and issued the possession notice under SARFAESI.
12. In Transcore (supra), the Hon'ble Supreme Court upheld the legality of concurrent proceedings under both the SARFAESI and RDB 2025:KER:55397 W.P(C).17617/25 9 Acts, clarifying that the principle of election of remedies does not apply in this context. The respondents refer to the 2004 amendment to the SARFAESI Act, which rendered the remedies under both statutes complementary rather than exclusive, aiming for efficient debt recovery.
13. Furthermore, the assertion that SARFAESI proceedings cannot be initiated while an Original Application under the RDB Act is pending is described as legally unsustainable; the petitioners are accused of attempting to delay recovery through previously rejected arguments. The respondents rely on M.D. Frozen Foods Exports Pvt. Ltd. v. Hero Fincorp Ltd. [(2017) 16 SCC 741], which held that SARFAESI actions can proceed alongside arbitration or civil remedies, and clarified that the SARFAESI Act serves as an additional remedy for lenders.
14. The Delhi High Court ruling in Magnum Steels Ltd. v. Asset Reconstruction Company (India) Ltd. (MANU/DE/2874/2024) also reaffirmed that SARFAESI proceedings are for enforcement, while the RDB Act involves adjudication, with both processes available concurrently to secured creditors. It further established that creditors could proceed against other assets through execution if secured assets are insufficient.
2025:KER:55397 W.P(C).17617/25 10
15. The respondents thus argue that the SARFAESI and RDB Acts serve distinct yet complementary purposes--enforcement without court intervention and tribunal-based adjudication, respectively. The bank characterises the current writ petition as meritless and merely an attempt to revisit established issues, arguing that the petitioners are misusing litigation to obstruct lawful recovery, which should not be tolerated.
16. Heard Sri. Mathew J Nedumpara and Smt. Maria Nedumpara, learned counsel for the petitioners, and Sri. Karunakaran C.K., learned counsel for the respondents.
17. The principles laid down in the Transcore judgment dealt with the interplay between the Recovery of Debts and Bankruptcy Act (RDB Act) and the SARFAESI Act. The Hon'ble Supreme Court held that the first and third provisos to Section 19(1) of the DRT Act are enabling provisions introduced to align the DRT Act, NPA Act, and Order XXIII CPC. Withdrawal of the O.A. is not a precondition for invoking the NPA Act, and the bank/FI may act under the NPA Act with or without DRT's permission, depending on the circumstances. The doctrine of election does not apply to the DRT Act and the NPA Act, as they are not inconsistent or repugnant but together constitute a single, complementary remedy. The NPA Act 2025:KER:55397 W.P(C).17617/25 11 provides a non-adjudicatory mechanism for enforcing the security interest created by the borrower in favour of the bank/FI, based not only on default in repayment but also on the borrower's failure to maintain margin and asset value, thereby enabling secured creditors to act without court intervention. Issuance of notice under Section 13(2) of the SARFAESI Act constitutes initiation of "action" within the meaning of the first proviso to Section 19(1) of the DRT Act.
18. The Hon'ble Apex Court also held that Section 13(10) of the SARFAESI Act shows that SARFAESI and DRT remedies are complementary and can be pursued simultaneously. Section 13(13) of SARFAESI demonstrates that a Section 13(2) notice has substantive legal consequences and is not merely a show cause notice. Withdrawal under the first proviso to Section 19(1) may be necessary in cases where assets are in possession of a court receiver or under injunction, but not otherwise. The objective behind the proviso is to provide procedural flexibility and not to restrict enforcement under SARFAESI. The High Court's view that the proviso is mandatory was overruled, and it was held that the bank may proceed under SARFAESI without DRT's prior leave.
2025:KER:55397 W.P(C).17617/25 12
19. In M.D. Frozen Foods Exports (supra), the Supreme Court reaffirmed Transcore (supra) on the permissibility of simultaneous SARFAESI and DRT proceedings, and extended its reasoning to arbitration. Citing Section 37 of the SARFAESI Act, the Court held that SARFAESI remedies are in addition to other legal remedies, including those under the Arbitration Act, even though not expressly mentioned. It clarified that SARFAESI applies prospectively to all subsisting and enforceable debts, irrespective of when the NPA was declared, once the Act becomes applicable to the lender. Arbitral proceedings do not suspend SARFAESI enforcement, and the presence of an arbitration clause does not preclude statutory recovery under SARFAESI. The judgment upheld concurrent statutory and contractual remedies, so long as they are not mutually inconsistent.
20. The principles in Transcore (supra) were followed by the Hon'ble Supreme Court in M/S Hindon Forge Pvt. Ltd. v. State of Uttar Pradesh [(2019) 2 SCC 198], Bank of India v. Sri Nangli Rice Mills Pvt. Ltd. [2025 SCC OnLine SC 1229], Tottempudi Salalith v. State Bank of India & Ors. [(2024) 1 SCC 24], Mathew Varghese v. M. Amritha Kumar [(2014) 5 SCC 610], Indiabulls Housing Finance Ltd. v. Deccan 2025:KER:55397 W.P(C).17617/25 13 Chronicle Holdings Ltd. (Civil Appeal No. 18 of 2018), Suresh Kumar Goyal v. Aditya Birla Housing Finance Ltd. (MANU/CG/0085/2021), and Anil Kumar Akela v. State Bank of India & Ors.
[MANU/JH/0475/2023]. Transcore (supra) was also followed by the High Court of Kerala in K.J. Binu v. Secretary, Nedumangad Municipality (W.P (C).No.19984 of 2020 (S), the Madras High Court in T. Muthukumarasamy v. J. Selvasundarraj [2017 (6) CTC 602] and G. Mangayarkarasi v. The Authorized Officer, Indian Bank [2018 (186) AIC 585].
21. Given the above, the contention of the learned Counsel, Sri. Mathew J. Nedumpara, that the judgment in Transcore and those judgments that followed Transcore are wrongly decided, cannot be accepted, given the authoritative pronouncement of law by the Hon'ble Apex Court and followed by the various High Courts. The petitioners' contention that Transcore v. Union of India was rendered per incuriam cannot be acceptable, particularly when tested against the principles articulated in Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devu [(2025) 3 SCC 95], which held that a decision is per incuriam only where it demonstrably fails to consider a central statutory provision or 2025:KER:55397 W.P(C).17617/25 14 binding authority that would have led to a different result. It is not enough to merely assert that an alternative view was possible; the oversight must concern an inconsistent and decisive provision, and must form the basis of a demonstrably erroneous reasoning. The principle is strictly limited to the ratio decidendi and does not extend to obiter dicta. Moreover, where a court doubts a precedent's correctness, the proper course is to refer the matter to a Larger Bench rather than disregard it. Though precedent is not immutable and may evolve with time, any departure therefrom must be rare, anchored in sound legal principles, and must never amount to a captivity of reason; the burden of justification rests squarely upon the party who seeks such deviation.
22. The Hon'ble Supreme Court in Transcore (supra) did not overlook the first proviso to Section 19(1) of the RDB Act but explicitly interpreted it in the context of the SARFAESI regime, and its reasoning has since been consistently affirmed by the Supreme Court in M.D. Frozen Foods and Sri Nangli Rice Mills (supra). This binding interpretation, in line with Article 141, cannot be disregarded by this Court merely on a plea of per incuriam. It is worthwhile to quote a relevant paragraph from Dwarikesh Sugar Industries Ltd. v. Prem 2025:KER:55397 W.P(C).17617/25 15 Heavy Engineering Works (P) Ltd. and Another, [1997 (6) SCC 450], which reads thus:
"When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."
23. It is also to be noted that the petitioners had earlier filed W.P. (C) Nos. 45166 and 46514 of 2024, in which it was contended that mere MSME registration barred classification of the account as NPA and initiation of recovery action without first invoking the revival and rehabilitation framework under the MSMED notification. The learned Single Judge, by judgment dated 11.03.2025, held that mere registration as an MSME does not shield a borrower from classification as NPA or bar 2025:KER:55397 W.P(C).17617/25 16 recovery under SARFAESI or RDB Acts, particularly where the borrower took no steps to initiate revival before default. The Court found that the MSMED notification did not override SARFAESI, and further relied on Pro Knits v. Canara Bank, [(2024) 10 SCC 292], P.K. Krishnakumar v. IndusInd Bank, (2024 SCC OnLine Ker 6888), and Celir LLP v. Sumati Prasad Bafna [2024 SCC OnLine SC 3727], to hold that fragmented litigation to delay recovery was impermissible. The writ appeals, W.A. Nos. 481 and 484 of 2025, challenging the single Bench decision, were also dismissed by the Division Bench on 24.06.2025, affirming that the doctrine of constructive res judicata barred re-litigation of these identical issues, and holding that belated assertion of MSME rights after default cannot invalidate recovery proceedings lawfully commenced under SARFAESI. The Court further deprecated the borrower's conduct of pursuing parallel and repetitive proceedings and upheld the validity of the recovery steps.
24. As held by the Hon'ble Supreme Court in Celir LLP v. Sumati Prasad Bafna and Ors. (2024 SCC OnLine SC 3727), which relied on the decisions in State of U.P. v. Nawab Hussain [(1977) 2 SCC 806], Devilal Modi v. Sales Tax Officer, Ratlam and Ors [AIR 1965 SC 1150], and the English decision in Greenhalgh v. Mallard [(1947) All ER 255 at p.257], to 2025:KER:55397 W.P(C).17617/25 17 hold that where the same set of facts give rise to multiple causes of action, a litigant cannot be permitted to agitate one cause in one proceeding and reserve the other for future litigation. Such fragmentation aggravates the burden of litigation and is impermissible in law. The Court reiterated that all claims and grounds of defence or attack which could and ought to have been raised in earlier proceedings are barred from being re-agitated subsequently. This rule stems from the Henderson Principle, which, as a corollary of constructive res judicata embodied in Explanation VII to Section 11 CPC, mandates that a party must bring forward the entirety of its case in one proceeding and not in a piecemeal or selective manner. Courts must examine whether a matter could and should have been raised earlier, taking into account the scope of the earlier proceedings and their nexus to the controversy at hand.
25. If the subject matter or seminal issues in a later proceeding are substantially similar or connected to those already adjudicated, the subsequent proceeding amounts to relitigation. Once a cause of action has been judicially determined, all issues fundamental to that cause are deemed to have been conclusively decided, and attempts to revisit any part of it -- even through formal distinctions in forums or pleadings -- fall 2025:KER:55397 W.P(C).17617/25 18 foul of the principle. Moreover, any plea or issue that was raised earlier and then abandoned is deemed waived and cannot be resurrected. The overarching object is to protect the finality of adjudications, discourage strategic or delayed litigation, and uphold judicial propriety and fairness by ensuring that parties do not approbate and reprobate or exploit procedural plurality to unsettle concluded controversies.
Thus, given my finding rejecting the contentions of the petitioners that Transcore (supra) has not been correctly decided and also on the ground of constructive res judicata on account of the filing and findings in the earlier writ petitions, I do not find any merit in this writ petition.
The same is accordingly dismissed.
Sd/-
MOHAMMED NIAS C.P. JUDGE okb/ 2025:KER:55397 W.P(C).17617/25 19 APPENDIX OF WP(C) 17617/2025 PETITIONER EXHIBITS Exhibit P1 A COPY OF THE UDYAM REGISTRATION CERTIFICATE NO. UDYAM-KL-02-0015023 DATED 27.03.2021, ISSUED TO THE PETITIONER NO. 1 BY THE MSME MINISTRY, GOVERNMENT OF INDIA Exhibit P2 A TRUE COPY OF THE DEMAND NOTICE DATED 16.08.2023 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS Exhibit P3 A TRUE COPY OF THE OBJECTION DATED 11.10.2023 ISSUED BY THE PETITIONERS TO THE 4TH RESPONDENT Exhibit P4 A TRUE COPY OF THE REPLY DATED 18.10.2023, ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS Exhibit P5 A TRUE COPY OF THE LETTER DATED 25.10.2023 ISSUED BY THE PETITIONERS TO THE 4TH RESPONDENT, Exhibit P6 A TRUE COPY OF THE POSSESSION NOTICE DATED 31.10.2023 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS, Exhibit P7 A TRUE COPY OF THE LETTER DATED 02.11.2023 ISSUED BY THE PETITIONERS TO THE 4TH RESPONDENT Exhibit P8 A TRUE COPY OF THE LETTER DATED 03.11.2023 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS Exhibit P9 A TRUE COPY OF THE SALE-NOTICE DATED 25.06.2024 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS Exhibit P10 A COPY OF THE ORDER DATED 22.01.2025 PASSED BY THE LD. ADDL. CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM IN MC.
NO.1319/2024
Exhibit P11 A TRUE COPY OF THE JUDGEMENT DATED
27.11.2023 IN W.P. (C) NO. 38732/2023 BY
THE HON'BLE HIGH COURT OF KERALA
Exhibit P12 A TRUE COPY OF THE JUDGEMENT DATED
24.06.2024 IN W.P. (C) NO. 22424/2024 BY
THE HON'BLE HIGH COURT OF KERALA
Exhibit P13 A TRUE COPY OF THE ORDER DATED 11.12.2024
IN W.P. (L) NO. 35456/2024 BY THE HON'BLE
BOMBAY HIGH COURT
2025:KER:55397
W.P(C).17617/25 20
Exhibit P14 A COPY OF THE JUDGEMENT DATED 11.03.2025
PASSED IN W.P.(C) NO. 46514 OF 2024
Exhibit P15 A CHART DETAILING THE VARIOUS PROCEEDINGS
INITIATED BY THE PETITIONER
Exhibit P16 A TRUE COPY OF THE CASE DETAILS OF THE OA
NO.104/2025, EXTRACTED FROM THE DRT WEBSITE
Exhibit P17 A COPY OF THE ORDER DATED 07.04.2025 PASSED
BY HON'BLE SUPREME COURT IN WP NO.251/2025