Kerala High Court
The Authorized Officer vs Paulson Chacko on 1 July, 2025
Author: Anil K. Narendran
Bench: Anil K.Narendran
WA NO. 1553 OF 2025 1 2025:KER:47882
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 1ST DAY OF JULY 2025 / 10TH ASHADHA, 1947
WA NO. 1553 OF 2025
AGAINST THE ORDER DATED 09.06.2025 IN WP(C) NO.15090 OF
2025 OF HIGH COURT OF KERALA
APPELLANT/RESPONDENT NO.3 IN W.P.(C):
THE AUTHORIZED OFFICER,
SOUTH INDIAN BANK, SIB BUILDING, INFOPARK ROAD,
RAJAGIRI VALLEY, KAKKANAD, ERNAKULAM DISTRICT,
PIN - 682039.
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/WRIT PETITIONER AND R1, R2 AND R4:
1 PAULSON CHACKO,
AGED 63 YEARS,
MULAVARICKAL HOUSE, PIRAROORKARA, MATTOOR VILLAGE,
ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683574.
2 THE UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE,
DEPARTMENT OF FINANCIAL SERVICES, JEEVAN DEEP
BUILDING, SANSADMARG, NEW DELHI, PIN - 110001.
WA NO. 1553 OF 2025 2 2025:KER:47882
3 THE DEBT RECOVERY TRIBUNAL,
PANAMPILLY NAGAR, ERNAKULAM, REPRESENTED BY THE
REGISTRAR, PIN - 682036.
OTHER PRESENT:
SMT. O. M. SHALINA, DSGI
SMT.NISHA GEORGE SR. GOVERNMENT PLEADER
SRI.GEORGE POONTHOTTAM, SR. COUNSEL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA NO. 1553 OF 2025 3 2025:KER:47882
JUDGMENT
Anil K. Narendran, J.
The 3rd respondent in W.P.(C)No.15090 of 2025 is before this Court in this writ appeal, invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958, challenging the order dated 09.06.2025 of the learned Single Judge in that writ petition, whereby the interim order granted on 10.04.2025 directing that sale certificate in respect of the sale confirmed in favour of Sridevi P., shall not be issued till 23.05.2025 was extended by one month and the writ petition was posted for further consideration on 08.07.2025.
2. The writ petition was one filed by the 1st respondent herein-petitioner, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order dated 03.04.2025 of the Debts Recovery Tribunal-1, Ernakulam in S.A.No.816 of 2024; a declaration that the procedure followed by the appellant-Bank, without adhering to the mandate of Rule 12 of the Security Interest (Enforcement) Rules, 2002 is a nullity in the eye of law and to declare that all actions taken by the Bank in violation thereof are bad in law; a WA NO. 1553 OF 2025 4 2025:KER:47882 declaration that no useful purpose is served by the creation of Debts Recovery Tribunal-1, Ernakulam when there is failure to follow the procedure mandated by the Security Interest (Enforcement) Rules, 2002; and a writ of mandamus commanding the Debts Recovery Tribunal to adjudicate S.A.No.816 of 2024 on merits within a period, as this Court deems fit, and direct the respondents to maintain status quo till the disposal of S.A.No.816 of 2024.
3. In the writ petition, the 3rd respondent Bank (the appellant herein) filed a counter affidavit dated 21.05.2025, opposing the reliefs sought for, in which the question of maintainability of the writ petition is also raised by contending that the writ petition is an abuse of process of Court, in view of the law laid down by the Apex Court and this Court in a catena of decisions. Along with the counter affidavit, the 3rd respondent Bank has placed on record Exts.R3(a) to R3(c) documents. The petitioner has filed a reply affidavit dated 15.06.2025.
4. Heard the arguments of the learned counsel for the appellant-3rd respondent Bank and the learned Senior Counsel for the 1st respondent-writ petitioner.
WA NO. 1553 OF 2025 5 2025:KER:47882
5. The challenge made in this writ appeal is against the order dated 09.06.2025 of the learned Single Judge in W.P.(C)No.15090 of 2025. The learned Senior Counsel for the 1 st respondent-petitioner would point out that the appellant has not chosen to challenge the interim order dated 10.04.2025 granted by the learned Single Judge. The order under challenge is another interim order, whereby the interim order granted on 10.04.2025 was extended by one month.
6. The learned counsel for the appellant-3rd respondent Bank would submit that the writ petition now stands listed to 08.07.2025. The 3rd respondent Bank has already filed counter affidavit, in which the question of maintainability of the writ petition is also raised. A writ petition under Article 226 of the Constitution of India is not maintainable for the reliefs sought for in W.P.(C)No.15090 of 2025, in view of the law laid down in the decisions referred to in Ground (b) of the writ appeal.
7. 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 WA NO. 1553 OF 2025 6 2025:KER:47882 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 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 WA NO. 1553 OF 2025 7 2025:KER:47882 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 compensation and costs. Section 17(1) of the SARFAESI Act gives an expansive meaning to the expression 'any person', who could approach the Tribunal.
8. 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 WA NO. 1553 OF 2025 8 2025:KER:47882 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. 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 WA NO. 1553 OF 2025 9 2025:KER:47882 has provided for a specific mechanism for appropriate redressal.
9. As already noticed hereinbefore, the writ petition is now listed before the learned Single Judge on 08.07.2025. The appellant-3rd respondent Bank has already raised the question of maintainability of the writ petition, in the counter affidavit dated 21.05.2025.
10. 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 appellant-3rd respondent Bank 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 DSV/-