Kerala High Court
Rosamma Tony vs The South Indian Bank Ltd on 27 August, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
W.A.No.1812 of 2025 2025:KER:64922
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 27TH DAY OF AUGUST 2025 / 5TH BHADRA, 1947
WA NO.1812 OF 2025
AGAINST THE JUDGMENT DATED 19.06.2025 IN WP(C) NO.20781 OF
2025 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
ROSAMMA TONY, AGED 57 YEARS
W/O. TONY, THADIKKARAN HOUSE, EDATHIRUTHY VILLAGE
& DESOM, EDATHIRUTHY P.O., KODUNGALLOOR,
THRISSUR, PIN - 680703
BY ADVS.
SRI.M.R.VENUGOPAL
SMT.DHANYA P. ASHOKAN (SR.)
SRI.S. MUHAMMAD ALIKHAN
SMT.ANJANA S. RAJ
RESPONDENT/RESPONDENT:
THE SOUTH INDIAN BANK LTD.,
REGIONAL OFFICE, IRINJALAKUDA, VI/950-B, CHRIST
NAGAR, AKP, IRINJALAKUDA, THRISSUR, REPRESENTED BY
ITS AUTHORIZED OFFICER AND CHIEF MANAGER,
PIN - 680125
BY ADV. SHRI.MOHAN JACOB GEORGE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
12.08.2025, THE COURT ON 27.08.2025 DELIVERED THE FOLLOWING:
W.A.No.1812 of 2025 2025:KER:64922
2
JUDGMENT
Anil K. Narendran, J.
The appellant-petitioner has filed this writ appeal, invoking
the provisions under Section 5(i) of the Kerala High Court Act,
1958, challenging the judgment dated 19.06.2025 of the learned
Single Judge in W.P.(C)No.20781 of 2025, which was one filed
invoking the writ jurisdiction of this Court under Article 226 of
the Constitution of India, seeking a writ of mandamus or any
other appropriate writ, order or direction, directing the
respondent South Indian Bank Ltd., represented by its
Authorised Officer and Chief Manager, not to take any steps for
possession or boundary demarcation with respect to plaint A
schedule property in O.S.No.180 of 2023 on the file of the Sub
Court, Irinjalakuda till the said suit is disposed of by that court.
In the writ petition, on behalf of the respondent Bank, a counter
affidavit dated 16.06.2025 was placed on record, opposing the
reliefs sought for, producing therewith Exts.R1(a) to R1(h)
documents. By the judgment dated 19.06.2025, the learned
Single Judge disposed of W.P.(C)No.20781 of 2025 with the
directions contained in paragraph 4 of that judgment. Paragraphs
2 to 4 of the judgment dated 19.06.2025 read thus;
W.A.No.1812 of 2025 2025:KER:64922
'2. The petitioner, for claiming the above reliefs, relies on
Ext.P5, the injunction order passed by the Sub Court,
Irinjalakuda, which reads as follows:-
"The respondent/defendant is restrained from
unilaterally or arbitrarily fixing the boundary of the
plaint A and B schedule property, until further
orders. But it is made clear that this order will not
in any way stand in the way of the respondent in
proceeding against the plaint B schedule property
under the SARFAESI Act."
3. The learned Standing Counsel for the respondent bank
submits that even going by the sketch produced by the
petitioner, the secured asset, the building is situated in
plaint B scheduled property, which is not interdicted in any
manner by Ext.P5 order. That apart, if it is a case of the
petitioner that the bank is proceeding in violation of the
order of injunction granted through Ext.P5, the remedy is
to file an appropriate application before the same court
which passed the order.
4. The actions of the secured creditor against the property
in Plaint B schedule cannot be affected by Ext.P5 order at
all. Over and above, if the petitioner is aggrieved by any of
the measures taken by the secured creditor, the remedy
lies under Section 17 of the SARFAESI Act, 2002. No
further orders are required to be passed in this writ
petition.'
2. This writ appeal is one filed along with C.M.Appl.No.1
of 2025 seeking an order to condone the delay of 3 days in filing
the appeal, which was condoned by the order dated 08.08.2025.
W.A.No.1812 of 2025 2025:KER:64922
3. Heard the learned Senior Counsel for the appellant-
petitioner and also the learned counsel for the respondent Bank.
4. The issue that requires consideration in this writ
appeal is as to whether any interference is warranted in the
judgment dated 19.06.2025 of the learned Single Judge in
W.P.(C)No.20781 of 2025.
5. The learned Senior Counsel for the appellant-
petitioner would contend that when the boundary dispute
between plaint A and B schedule properties in O.S.No.180 of
2023 is sub judice before the Sub Court, Irinjalakuda, any action
by the respondent Bank to take possession of the secured asset
or to fix the boundary between the said properties will impinge
the civil rights of the appellant, which is the subject matter in
O.S.No.180 of 2023. The learned Single Judge failed to
appreciate the fact that by Ext.P5 order dated 08.08.2024 of the
Sub Court, Irinjalakuda in I.A.No.6 of 2024 in O.S.No.180 of
2023, the respondent Bank (the defendant therein) is restrained
from unilaterally or arbitrarily fixing the boundary of plaint A and
B schedule properties, until further orders. In the said order, it
was made clear that the order of interim injunction will not stand
in the way of the respondent Bank proceeding against the plaint
W.A.No.1812 of 2025 2025:KER:64922
B schedule property under the provisions of the Securitisation
and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (SARFAESI Act). Therefore, any
action under Section 14 of the SARFAESI Act by the respondent
Bank, which may lead to taking possession of the secured asset,
which requires identification of boundary, in the proceedings
before the Chief Judicial Magistrate under Section 14 of the said
Act would have a direct impact on the rights of the appellant,
which is the subject matter in O.S.No.180 of 2023 and would
amount to violation of the interim injunction granted by the civil
court by Ext.P5 order. The dispute raised in the writ petition,
which is connected with the civil rights of the appellant over the
plaint schedule property in O.S.No.180 of 2023 is not amenable
to adjudication in a proceedings under Section 17 of the
SARFAESI Act before the Debts Recovery Tribunal.
6. On the other hand, the learned counsel for the
respondent Bank after referring to the pleadings in the counter
affidavit dated 16.06.2025 filed in W.P.(C)No.20781 of 2025
would contend that the appellant-petitioner had approached this
Court, invoking the writ jurisdiction under Article 226 of the
Constitution of India, suppressing material facts from the notice
W.A.No.1812 of 2025 2025:KER:64922
of this Court. The appellant had earlier approached this Court in
O.P.(DRT)No.350 of 2023, R.P.No.1108 of 2023, O.P.(DRT)No.473
of 2023 and W.P.(C)No.10106 of 2024 seeking various reliefs in
respect of the proceedings initiated by the Bank under the
SARFAESI Act. Apart from that, invoking the provisions under
Section 17 of the SARFAESI Act, the appellant approached the
Debts Recovery Tribunal in S.A.No.23 of 2023, which ended in
dismissal. The residential building of the appellant is situated in
the secured asset, i.e., plaint B schedule property in O.S.No.180
of 2023, which is evident from the sketch which forms part of
Ext.P3 report dated 19.12.2023 submitted by the Advocate
Commissioner appointed by the Sub Court, Irinjalakuda. On the
maintainability of the writ petition under Article 226 of the
Constitution of India against the respondent Bank, the learned
counsel would place reliance on the decision of the Apex Court in
Shoba S. v. Muthoot Finance Ltd. [2025 (2) KHC 229].
7. On the contention raised by the learned counsel for
the respondent Bank regarding suppression of material facts, the
learned Senior Counsel for the appellant-petitioner would
contend that though the statement of facts or grounds of the
writ petition do not contain any averments regarding the nature
W.A.No.1812 of 2025 2025:KER:64922
of transactions with the respondent Bank or the details of the
earlier proceedings before this Court under Article 226 as well as
Article 227 of the Constitution of India in respect of the
proceedings initiated by the respondent Bank under the
provisions of the SARFAESI Act, a copy of the written statement
dated 11.01.2024 filed by the respondent Bank in O.S.No.180 of
2023 is marked as Ext.P4 in the writ petition. In paragraph 7 of
that written statement the respondent Bank has stated about the
proceedings initiated by the Bank before the Chief Judicial
Magistrate Court invoking the provisions under Section 14 of the
SARFAESI Act and also O.P.(DRT)No.3501 of 2023 filed by the
appellant invoking the provisions under Article 227 of the
Constitution of India in respect of the proceedings before the
Debts Recovery Tribunal in S.A.No.23 of 2023. The learned
Senior Counsel would also submit that though in the writ petition
appellant has referred to Article 226 of the Constitution of India,
in the synopsis the appellant has stated that she is invoking the
provisions under Article 226 as well as Article 227 of the
Constitution of India. The learned Senior Counsel would point out
that in the writ petition the appellant has placed reliance on the
decision of the Apex Court in Central Bank of India v. Smt.
W.A.No.1812 of 2025 2025:KER:64922
Prabha Jain [2025 SCC OnLine SC 121].
8. In the counter affidavit dated 16.06.2025 filed by the
respondent Bank in W.P.(C)No.20781 of 2025 a specific
contention was raised that the appellant had approached this
Court in that writ petition, by suppressing material facts. The
averments to that effect contained in paragraphs 4 to 7 of the
counter affidavit read thus;
"4. Without prejudice to the above, it may also be noted that
the petitioner herself has admitted the fact that the
residential building from which the petitioner is sought to be
evicted is situated in security property, i.e., even as per the
Schedule-B property in Ext.P1 suit and the same is also
evidenced by Ext.P3 commission report produced in the writ
petition. It is also submitted that the respondent bank had
filed Section 14 Application under the SARFAESI Act before
the CJM, Thrissur, i.e., M.C.No.782 of 2022 seeking
assistance to take the physical possession of the security
property owing to the default committed by the petitioner in
the repayment of the liabilities due to the 1st respondent
bank. The Hon'ble CJM, Thrissur had appointed an Advocate
Commissioner to take the physical possession of the security
property and had also as per order dated 19.01.2024 in
M.C.No.782 of 2022 appointed the Taluk Surveyor,
Kodungallur Taluk to identify and demarcate the security
property. Copy of the said order dated 19.01.2024 in
M.C.No.782 of 2022 is produced as Ext.R1(a). Pursuant to
the above said order of the Hon'ble CJM, Thrissur, the Taluk
Surveyor conducted the survey of the property and the
W.A.No.1812 of 2025 2025:KER:64922
security property was identified and demarcated. Copy of the
sketch prepared by the Taluk Surveyor is produced as
Ext.R1(b). Still further, it is submitted that the petitioner had
approached the Hon'ble DRT-II, Ernakulam by filing
S.A.No.23 of 2023 challenging SARFAESI measures initiated
by respondent bank and copy of the said S.A is produced as
Ext.R1(c). The petitioner then approached this Hon'ble Court
by filing O.P.(DRT)No.350 of 2023 and copy of the judgment
dated 30.01.2023 disposing the said O.P(DRT)No.350 of 2023
is produced as Ext.R1(d). The petitioner had again
approached this Hon'ble Court by filing R.P.No.1108 of 2023
against Ext.R1(d) judgment and copy of the judgment dated
31.10.2023 disposing the same is produced as Ext.R1(e).
Thereafter, the petitioner had again approached this Hon'ble
Court by filing O.P.(DRT)No.473 of 2023 against order of the
DRT and copy of the judgment dated 14.11.2023 disposing
the said O.P.(DRT)No.473 of 2023 is produced as Ext.R1(f).
The petitioner again approached this Hon'ble Court by filing
yet another W.P.(C)No.10106 of 2024 and copy of the
judgment dated 09.07.2024 dismissing the same as
withdrawn is produced as Ext.R1(g). It is submitted that this
is in fact the 6th round of litigation by the petitioner and the
petitioner with ulterior motives is filing frivolous petitions
before various forums one after the other to interdict and
stall the lawful recovery measures initiated by the respondent
bank by invoking the provisions of SARFAESI Act.
5. This respondent submits that the petitioner was enjoying a
KCC OD facility for Rs.145 Lakhs from the Kattoor Branch of
the respondent bank since the year 2015 and at her request
the aforesaid facility was enhanced to Rs.400 lakhs on
23.03.2017 to meet cultivation expenses of multiple crops in
W.A.No.1812 of 2025 2025:KER:64922
25 acres of leased land in Thrissur; Vegetable cultivation in
25 acres of leased land in Palakkad; and 4 acres of leased
land in Ernakulam mixed up crop cultivation in 37.67 acres of
leased land in Idukki and 10 acres of leased land in Kottayam.
At the request of the petitioner, the aforesaid KCC OD facility
was restructured on account of the floods that happened in
the State of Kerala during the second quarter of the Financial
Year 2018-19 so as to help the petitioner to meet the interest
demand portion of the KCC OD facility. The 1st respondent
had executed the restructuring term loan agreement
(working capital) dated 22.11.2019 for Rs.45,89,132/-
agreeing to repay the amounts with interest @ 11.35% per
annum with yearly rest by way of 2 half yearly instalments in
accordance with the various terms and conditions therein.
The KCC OD facility was also renewed on 24.12.2019 and the
letter of renewal of credit facilities dated 24.12.2019
executed by the petitioner along with the guarantors. The
account had become NPA on 01.06.2022.
6. It is humbly submitted that in spite of personal requests
and reminders, the petitioner did not regularize the aforesaid
account and the respondent was constrained to initiate
proceedings under the SARFAESI Act by issuing Section 13(2)
notice demanding repayment of an amount of
Rs.5,61,80,683.66 with further interest and penal interest.
Subsequently, the respondent bank took the symbolic
possession of the security property and the respondent bank
thereafter approached Hon'ble CJM, Thrissur by filing Section
14 Application, i.e., M.C.No.782 of 2022 and the Hon'ble CJM
allowed the said petition and appointed an Advocate
Commissioner to take the physical possession of the security
property. There is no illegality or irregularity in the SARFAESI
W.A.No.1812 of 2025 2025:KER:64922
measures initiated by the respondent bank. Thereafter the
Hon'ble CJM, Thrissur as per Ext.R1(a) order had appointed
the Taluk Surveyor to identify and demarcate the security
property and pursuant to the said order the Taluk Surveyor
identified and demarcated the security property as evidenced
by Ext.R1(b) sketch produced before the Hon'ble CJM,
Thrissur in M.C.No.782 of 2022.
7. It is submitted that as the things stood so, the petitioner
approached the Hon'ble DRT-II, Ernakulam by filing Ext.R1(c)
securitization application against the SARFAESI measures
initiated by the respondent bank along with stay petition, i.e,
I.A.No.2646 of 2023 and petition to appoint Advocate
Commissioner, i.e., I.A.No.2647 of 2023. In the meanwhile,
the petitioner approached this Hon'ble Court by filing
O.P.(DRT)No.350 of 2023 seeking reliefs to consider the
above said petitions and to stay the SARFAESI measures
initiated by the respondent bank and the same was disposed
by Ext.R1(d) judgment. It is submitted that against Ext.R1(d)
judgment, the petitioner approached this Hon'ble Court by
filing Review Petition, i.e., R.P.No.1108 of 2023. The said
Review Petition was dismissed by this Hon'ble Court by
Ext.R1(e) judgment directing the Debts Recovery Tribunal to
consider above said stay petition and petition to appoint the
Advocate Commissioner within one week from the date of
judgment. It is submitted that pursuant to Ext.R1(e)
judgment, the Hon'ble Debts Recovery Tribunal considered
the stay petition and the petition to appoint Advocate
Commissioner filed by the petitioner in S.A.No.23 of 2023
and the same was dismissed by the Hon'ble Debts Recovery
Tribunal by order dated 06.11.2023. Copy of the said order
dated 06.11.2023 in I.A.Nos.2646 of 2023 and 2647 of 2023
W.A.No.1812 of 2025 2025:KER:64922
in S.A.No.23 of 2023 is produced as Ext.R1(h). The petitioner
against Ext.R1(h) order approached this Hon'ble Court by
filing O.P.(DRT)No.473 of 2023 and the same was dismissed
by this Hon'ble Court by Ext.R1(f) judgment. Thereafter, the
petitioner again approached this Hon'ble Court by filing yet
another writ petition against the SARFAESI measures initiated
by the respondent bank, i.e., W.P.(C)No.10106 of 2024 and
the same was dismissed by Ext.R1(g) judgment as
withdrawn."
9. As stated by Scrutton, L.J, in R. v. Kensington
Income Tax Commissioners [(1917) 1 K.B. 486], an
applicant who does not come with candid facts and 'clean breast'
cannot hold a writ of the court with 'soiled hands'. Suppression
or concealment of material facts is not an advocacy. It is a
jugglery, manipulation, manoeuvring or misrepresentation, which
has no place in equitable and prerogative jurisdiction.
10. In Prestige Lights Limited v. State Bank of India
[(2007) 8 SCC 449] the Apex Court reiterated that a
prerogative remedy is not a matter of course. Therefore, in
exercising extraordinary power, a writ court will indeed bear in
mind the conduct of the party who is invoking such jurisdiction.
If the applicant does not disclose full facts or suppress relevant
materials or is otherwise guilty of misleading the court, the Court
may dismiss the action without adjudicating the matter. This rule
W.A.No.1812 of 2025 2025:KER:64922
has been evolved in larger public interest to deter unscrupulous
litigants from abusing the process of court by deceiving it. The
very basis of the writ jurisdiction rests in disclosure of true,
complete and correct facts. If the material facts are not candidly
stated or are suppressed or are distorted, the very functioning of
the writ courts would become impossible.
11. In Prestige Lights Limited [(2007) 8 SCC 449]
the Apex Court held further that, under Article 226 of the
Constitution of India, the High Court is exercising discretionary
and extraordinary jurisdiction. Over and above, a Court of Law is
also a Court of Equity. It is, therefore, of utmost necessity that
when a party approaches a High Court, he must place all the
facts before the court without any reservation. If there is
suppression of material facts on the part of the applicant or
twisted facts have been placed before the court, the writ court
may refuse to entertain the petition and dismiss it without
entering into merits of the matter.
12. In the instant case, though the appellant-petitioner
had approached this Court in O.P.(DRT)No.350 of 2023,
R.P.No.1108 of 2023, O.P.(DRT)No.473 of 2023 and
W.P.(C)No.10106 of 2024 seeking various reliefs in respect of the
W.A.No.1812 of 2025 2025:KER:64922
proceedings initiated by the respondent Bank under the
provisions of the SARFAESI Act and she had also approached the
Debts Recovery Tribunal in S.A.No.23 of 2023, which ended in
dismissal, the averments in the writ petition are silent on the
above material facts. On the above aspect, the submission made
by the learned Senior Counsel for the appellant-petitioner is that
though the statement of facts or grounds of the writ petition do
not contain any averments regarding the nature of transactions
with the respondent Bank or the details of the earlier
proceedings before this Court under Article 226 as well as 227 of
the Constitution of India in respect of the proceedings initiated
under the provisions of the SARFAESI Act, a copy of the written
statement filed by the respondent Bank in O.S.No.180 of 2023 is
marked as Ext.P4 in the writ petition. Paragraph 7 of that written
statement contains averments regarding the proceedings
initiated by the respondent Bank before the Chief Judicial
Magistrate Court under Section 14 of the SARFAESI Act and also
O.P.(DRT)No.3501 of 2023 filed by the appellant invoking the
provisions under Article 227 of the Constitution of India in
respect of the proceedings before the Debts Recovery Tribunal in
S.A.No.23 of 2023. Having considered the pleadings and
W.A.No.1812 of 2025 2025:KER:64922
materials on record and also the submissions made at the Bar, in
the light of the law laid down in the decisions referred to supra,
conclusion is irresistible that the appellant-petitioner approached
this Court in W.P.(C)No.20781 of 2025 suppressing material facts
from the notice of this Court. The appellant-petitioner, who is
guilty of misleading the Court by not disclosing full facts in the
writ petition, cannot hold a writ of the Court with 'soiled hands'.
As stated by Scrutton, L.J, in R. v. Kensington Income Tax
Commissioners [(1917) 1 K.B. 486], suppression or
concealment of material facts is not an advocacy.
13. As already noticed hereinbefore, the only relief sought
for in W.P.(C)No.20781 of 2025 is a writ of mandamus or any
other appropriate writ, order or direction, directing the
respondent South Indian Bank Ltd., represented by its
Authorised Officer and Chief Manager, not to take any steps for
possession or boundary demarcation with respect to plaint A
schedule property in O.S.No.180 of 2023 on the file of the Sub
Court, Irinjalakuda till the said suit is disposed of by that court.
14. The submission made by the learned Senior Counsel
for the appellant-petitioner is that though in the writ petition
appellant has referred to only Article 226 of the Constitution of
W.A.No.1812 of 2025 2025:KER:64922
India, in the synopsis the appellant has stated that she is
invoking the provisions under Article 226 as well as Article 227 of
the Constitution of India.
15. Article 227 of the Constitution of India deals with
power of superintendence over all courts by the High Court.
Under clause (1) of Article 227 of the Constitution, every High
Court shall have superintendence over all courts and tribunals
throughout the territories in relation to which it exercises
jurisdiction.
16. In Shalini Shyam Shetty v. Rajendra Shankar
Patil [(2010) 8 SCC 329] the Apex Court, while analysing the
scope and ambit of the power of superintendence under Article
227 of the Constitution, held that the object of superintendence,
both administrative and judicial, is to maintain efficiency, smooth
and orderly functioning of the entire machinery of justice in such
a way as it does not bring it into any disrepute. The power of
interference under Article 227 is to be kept to the minimum to
ensure that the wheel of justice does not come to a halt and the
fountain of justice remains pure and unpolluted in order to
maintain public confidence in the functioning of the tribunals and
courts subordinate to the High Court.
W.A.No.1812 of 2025 2025:KER:64922
17. In Jai Singh v. Municipal Corporation of Delhi
[(2010) 9 SCC 385], while considering the nature and scope of
the powers under Article 227 of the Constitution of India, the
Apex Court held that, undoubtedly the High Court, under Article
227 of the Constitution, has the jurisdiction to ensure that all
subordinate courts, as well as statutory or quasi-judicial tribunals
exercise the powers vested in them, within the bounds of their
authority. The High Court has the power and the jurisdiction to
ensure that they act in accordance with the well established
principles of law. The exercise of jurisdiction must be within the
well recognised constraints. It cannot be exercised like a 'bull in
a china shop', to correct all errors of the judgment of a court or
tribunal, acting within the limits of its jurisdiction. This
correctional jurisdiction can be exercised in cases where orders
have been passed in grave dereliction of duty or in flagrant
abuse of fundamental principles of law or justice.
18. In K.V.S. Ram v. Bangalore Metropolitan
Transport Corporation [(2015) 12 SCC 39] the Apex Court
held that, in exercise of the power of superintendence under
Article 227 of the Constitution of India, the High Court can
interfere with the order of the court or tribunal only when there
W.A.No.1812 of 2025 2025:KER:64922
has been a patent perversity in the orders of the tribunal and
courts subordinate to it or where there has been gross and
manifest failure of justice or the basic principles of natural justice
have been flouted.
19. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1)
KHC 1] a Division Bench of this Court held that, the law is well
settled by a catena of decisions of the Apex Court that in
proceedings under Article 227 of the Constitution of India, this
Court cannot sit in appeal over the findings recorded by the
lower court or tribunal and the jurisdiction of this Court is only
supervisory in nature and not that of an appellate court.
Therefore, no interference under Article 227 of the Constitution
is called for, unless this Court finds that the lower court or
tribunal has committed manifest error, or the reasoning is
palpably perverse or patently unreasonable, or the decision of
the lower court or tribunal is in direct conflict with settled
principles of law.
20. In view of the law laid down in the decisions referred
to supra, the High Court in exercise of its supervisory jurisdiction
under Article 227 of the Constitution of India cannot sit in appeal
over the findings recorded by a court or tribunal over which it
W.A.No.1812 of 2025 2025:KER:64922
exercises such a jurisdiction. The supervisory jurisdiction cannot
be exercised to correct all errors in the order or judgment of
such a court or tribunal acting within the limits of its jurisdiction.
The correctional jurisdiction under Article 227 of the Constitution
of India can be exercised only in a case where the order or
judgment of such a court or tribunal has been passed in grave
dereliction of duty or in flagrant abuse of fundamental principles
of law or justice. Therefore, in exercise of the supervisory
jurisdiction under Article 227 of the Constitution of India this
Court cannot issue an order or direction, directing the
respondent Bank not to take any steps for possession or
boundary demarcation with respect to plaint A schedule property
in O.S.No.180 of 2023 on the file of the Sub Court, Irinjalakuda,
till the said suit is disposed of by that court.
21. In Central Bank of India v. Prabha Jain [(2025) 4
SCC 38], a decision relied on by the learned Senior Counsel for
the appellant-petitioner, the Apex Court held that the SARFAESI
Act is enacted essentially to provide a speedy mechanism for
recovery of debts by banks and financial institutions and it has
not been enacted for providing a mechanism upon the validity of
documents or to determine questions of title finally. Further, the
W.A.No.1812 of 2025 2025:KER:64922
Debts Recovery Tribunal does not the jurisdiction to grant a
declaration with respect to mortgage deed or the sale deed as
sought by the plaintiff. The jurisdiction to declare a sale deed or
mortgage deed being illegal is vested with the civil court under
Section 9 of the Code of Civil Procedure, 1908. On the facts of
the case on hand, the Apex Court found that the plaintiff could
not have sought from the Debts Recovery Tribunal the relief of
being given possession, as the plaintiff is neither a borrower nor
a person claiming under/through the borrower and the plaintiff
has a claim independent of and adverse to the borrower. The
plaintiff was not in possession and hence, the question of the
Debts Recovery Tribunal restoring possession to the plaintiff did
not arise.
22. As pointed out in the counter affidavit dated
16.06.2025 filed by the respondent Bank in W.P.(C)No.20781 of
2025, in the proceedings initiated under Section 14 of the
SARFAESI Act before the Chief Judicial Magistrate, Thrissur, as
M.C.No.782 of 2022, the Taluk Surveyor, Kodungallur was
appointed by Ext.R1(a) order dated 19.01.2024 to identify and
demarcate the secured asset for the purpose of taking
possession under the SARFAESI Act. The Taluk Surveyor
W.A.No.1812 of 2025 2025:KER:64922
conducted survey of the property and the secured asset was
identified and demarcated. A copy of the survey sketch prepared
by the Taluk Surveyor is marked as Ext.R1(b) along with the
counter affidavit. The learned counsel for the respondent Bank
would submit that, as noticed by the learned Single Judge in the
judgment dated 19.06.2025 in W.P.(C)No.20781 of 2025, if the
appellant-petitioner has a case that the respondent Bank has
violated Ext.P5 order of interim injunction granted by the Sub
Court, Irinjalakkuda in I.A.No.6 of 2024 in O.S.No.180 of 2023,
the remedy lies under Order XXXIX Rule 2A of the Code of Civil
Procedure, 1908 before the said court.
23. On the maintainability of the writ petition, i.e.,
W.P.(C)No.20781 of 2025 under Article 226 of the Constitution of
India, seeking interference with any proceedings initiated under
the provisions of the SARFAESI Act, including proceedings
initiated for taking possession of the secured asset, the learned
counsel for the appellant Bank would rely on the decisions of the
Apex Court in South Indian Bank Ltd. v. Naveen Mathew
Philip [(2023) 17 SCC 311] and Shobha v. Muthoot Finance
Ltd. [2025 (2) KHC 229].
W.A.No.1812 of 2025 2025:KER:64922
24. In Naveen Mathew Philip [(2023) 17 SCC 311],
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 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
W.A.No.1812 of 2025 2025:KER:64922
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.
25. In Naveen Mathew Philip [(2023) 17 SCC 311]
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
W.A.No.1812 of 2025 2025:KER:64922
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. 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,
W.A.No.1812 of 2025 2025:KER:64922
when the legislature has provided for a specific mechanism for
appropriate redressal.
26. In Shoba S. v. Muthoot Finance Ltd. [2025 (2)
KHC 229], on the question of maintainability of writ petitions
under Article 226 of the Constitution of India against a private
non-banking financial company/a private company carrying on
banking business as a Scheduled Bank, the Apex Court laid down
as follows;
(1) For issuing a 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
W.A.No.1812 of 2025 2025:KER:64922
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.
(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 Statute 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 a 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 performs
the duties and carries out its transactions for the benefit of
the public and not for private profit". There cannot be any
W.A.No.1812 of 2025 2025:KER:64922
general definition of public authority or public action. The
facts of each case decide the point. (underline supplied)
27. In view of the law laid down by the Apex Court in
Shoba S. [2025 (2) KHC 229], a writ petition seeking
interference in the proceedings initiated by the respondent Bank,
which is a private company carrying on banking business as a
Scheduled Bank, for taking possession of the secured asset, is
not maintainable under Article 226 of the Constitution of India.
In case the appellant-petitioner is aggrieved by any measures
taken by the respondent Bank under the provisions of the
SARFAESI Act against the secured asset, the remedy lies under
Section 17 of the said Act before the Debts Recovery Tribunal. If
the appellant-petitioner has a case that the respondent Bank has
violated Ext.P5 order of interim injunction dated 08.08.2024
granted by the Sub Court, Irinjalakuda in I.A.No.6 of 2024 in
O.S.No.180 of 2023, the remedy lies under Order XXXIX Rule 2A
of the Code of Civil Procedure, 1908 before the said court. We
notice that, in Ext.P5 order the Sub Court has made it clear that
the order of interim injunction will not stand in the way of the
respondent Bank in proceeding against plaint B schedule
property under the provisions of the SARFAESI Act.
In the above circumstances, we find no reason to interfere
W.A.No.1812 of 2025 2025:KER:64922
with the impugned judgment of the learned Single Judge dated
19.06.2025 in W.P.(C)No.20781 of 2025. This writ appeal fails
and the same is accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
AV
W.A.No.1812 of 2025 2025:KER:64922
PETITIONER ANNEXURES
Annexure I TRUE COPY OF IA 9/2025 DATED 04/01/2025
IN O.S. NO. 180/2023 BEFORE THE SUB
COURT, IRINJALAKUDA
Annexure II TRUE COPY OF THE PROCEEDINGS DATED
15/01/2025 IN O.S. NO. 180/2023 BEFORE
THE SUB COURT, IRINJALAKUDA, DOWNLOADED
FROM THE E-COURTS WEBSITE
