Kerala High Court
South Indian Bank Limited vs Joy Paul on 4 July, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
WA NO. 1521 OF 2025 1 2025:KER:49381
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
WA NO. 1521 OF 2025
AGAINST THE ORDER DATED 13.06.2025 IN WP(C) NO.21670 OF 2025 OF
HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS:
1 SOUTH INDIAN BANK LIMITED,
PANACKAL BUILDINGS, CENTRAL JUNCTION, ATHIRAMPUZHA,
KOTTAYAM, REPRESENTED BY ITS BRANCH MANAGER, PIN -
686562.
2 THE AUTHORIZED OFFICER & CHIEF MANAGER,
SOUTH INDIAN BANK LIMITED, PANACKAL BUILDINGS, CENTRAL
JUNCTION, ATHIRAMPUZHA, KOTTAYAM, PIN - 686562.
BY ADV SRI.P.A.AUGUSTINE(AREEKATTEL)
RESPONDENT/PETITIONER:
JOY PAUL,
AGED 55 YEARS
S/O N.T.PAUL, NADACKAL HOUSE, ATHIRAMPUZHA KOTTAYAM,
PIN - 686562.
BY ADV SRI.C.S.MANU
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.07.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA NO. 1521 OF 2025 2 2025:KER:49381
JUDGMENT
Anil K. Narendran, J.
The appellants are the respondents in W.P.(C)No.21670 of 2025, a writ petition filed by the respondent herein-writ petitioner invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1st appellant Bank to afford him a reasonable time of six months to clear the entire outstanding due in respect of the term loans and other facilities availed by a partnership firm, by name, M/s.N.T. Paul & Co., in which the petitioner is the Managing Partner and his wife is the other Partner.
2. The proceedings initiated by the 1st appellant, South Indian Bank Limited, through the 2nd appellant, who is the Authorised Officer of the Bank, invoking the provisions under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, ('SARFAESI Act'), were under challenge before this Court in earlier round of litigations, as evident from Ext.P2 judgment date 19.01.2023 in W.P.(C)No.181 of 2023, Ext.P3 judgment dated 27.02.2023 in W.P.(C)No.6143 of 2023, Ext.P4 judgment dated 26.07.2023 in OP(DRT)No.282 of 2023, Ext.P5 judgment dated 25.08.2023 in WA NO. 1521 OF 2025 3 2025:KER:49381 OP(DRT)No.324 of 2023, Ext.P6 judgment dated 03.09.2024 in OP(DRT)No.175 of 2024, Ext.P7 judgment dated 27.09.2024 in R.P.No.1012 of 2024 and Ext.P8 judgment dated 12.02.2025 in W.P.(C)No.43857 of 2024. It is thereafter, the respondent-writ petitioner has chosen to file W.P.(C)No.21670 of 2025 seeking the aforesaid relief. The document marked as Ext.P1 is a copy of representation dated 05.06.2025 made by the writ petitioner before the 1st appellant Bank to consider his request for payment of the dues in instalments, after reducing interest, penal interest and other charges from the total amount.
3. On 13.06.2025, when W.P.(C)No.21670 of 2025 came up for admission, the learned Single Judge passed the following interim order;
"To consider the prayers sought for in the writ petition seeking instalment facility and to defer the coercive steps against the petitioner, as an interim measure, there will be a direction to the petitioner to remit an amount of Rs.25,00,000/- (Rupees Twenty Five 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. Post on 14.07.2025."
4. Feeling aggrieved by the interim order dated 13.06.2025 of the learned Single Judge, the appellants are before this Court in this writ appeal, invoking the provisions under WA NO. 1521 OF 2025 4 2025:KER:49381 Section 5(i) of the Kerala High Court Act, 1958.
5. In the writ appeal, it is pointed out that the total loan amount outstanding as on 12.06.2025 comes to Rs.1,64,75,607/. The 1st appellant Bank being a Private Schedule Commercial Bank, is not amenable to writ jurisdiction, since it will not come within the definition of 'State' under Article 12 of the Constitution of India. The decision of the Apex Court in S. Shobha v. Muthoot Finance Ltd. [2025 KHC OnLine 6078] was relied on in support of the said contention. It is also contended that a writ petition is not maintainable under Article 226 of the Constitution of India, in view of the law laid down by the Apex Court in United Bank of India v. Satyawati Tondon [(2010) 8 SCC 110], Authorized Officer, State Bank of Travancore v. K.C.Mathew [(2018) 3 SCC 85] and South Indian Bank Ltd. v. Naveen Mathew Philip [2023 SCC online (SC) 435].
6. Heard the learned counsel for the appellants- respondents and also the learned counsel for the respondent-writ petitioner.
7. During the course of arguments, on a query made by this Court, the learned counsel for the appellants-respondents would submit that the respondents are yet to file a counter WA NO. 1521 OF 2025 5 2025:KER:49381 affidavit in the writ petition. The interim order dated 13.06.2025 of the learned Single Judge is one passed on the very same day, on which the writ petition came up for admission for the first time.
8. The learned counsel for the respondent-writ petitioner would submit that the appellants can file counter affidavit before the learned Single Judge and seek an order to vacate the interim order dated 13.06.2025, invoking the provisions under Article 226(3) of the Constitution of India.
9. In 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 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 WA NO. 1521 OF 2025 6 2025:KER:49381 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 compensation and costs. Section 17(1) of the SARFAESI Act gives an expansive meaning to the expression 'any person', who could approach the Tribunal.
10. In Naveen Mathew Philip [2023 SCC OnLine (SC) WA NO. 1521 OF 2025 7 2025:KER:49381 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 and Others [(2010) 8 SCC 110], State Bank of Travancore and Another 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. WA NO. 1521 OF 2025 8 2025:KER:49381 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.
11. As already noticed hereinbefore, the W.P.(C)No.21670 of 2025 is now listed before the learned Single Judge for further consideration on 14.07.2025. The submission made by the learned counsel for the appellants-respondents is that the respondents shall immediately file counter affidavit in the writ petition, raising the question of maintainability of the writ petition under Article 226 of the Constitution of India, relying on the decisions referred to supra and that referred to in the memorandum of writ appeal.
12. 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, WA NO. 1521 OF 2025 9 2025:KER:49381 before proceeding with the writ petition further on merits.
13. 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 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.
It would be open to the appellants-respondents to file counter affidavit in the writ petition and bring it before the learned Single Judge immediately thereafter, by filing an application for early disposal. Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
MURALEE KRISHNA S., JUDGE DSV/-