Boban Joseph Mailakal vs Indusind Bank Ltd
2025 Latest Caselaw 12424 Ker

Kerala High Court

Boban Joseph Mailakal vs Indusind Bank Ltd on 17 December, 2025

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WPC 29696/25




                                                                       2025:KER:97621

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                      THE HONOURABLE MR.JUSTICE BASANT BALAJI

    WEDNESDAY, THE 17TH DAY OF DECEMBER 2025 / 26TH AGRAHAYANA, 1947

                              WP(C) NO. 29696 OF 2025


PETITIONER/S:

     1         BOBAN JOSEPH MAILAKAL, AGED 66 YEARS
               S/O JOSEPH M.C,MALIAKEL HOUSE, ROSE GARDENS,CHUNANGAMVELY,
               VAZHAKULAM, ERNAKULAM, PIN - 682112

     2         MOLY BOBAN MAILAKAL,AGED 60 YEARS
               W/O BOBAN JOSEPH,MALIAKEL HOUSE, ROSE
               GARDENS,CHUNANGAMVELY,VAZHAKULAM, ERNAKULAM, PIN - 682112


               BY SHRI.JOY GEORGE
               SMT.PRAICY JOSEPH
               SMT.TANYA JOY
               SRI.S.SHIV SHANKAR



RESPONDENT/S:

               INDUSIND BANK LTD.,
               1ST FLOOR, GOWRINARAYANA, M G ROAD, OPP JAYALAKSHMI
               SILKS,REPRESENTED BY ITS AUTHORIZED OFFICER, PIN - 682035


               BY SHRI.B.J.JOHN PRAKASH
               SHRI.P.PRAMEL
               SHRI.SOORAJ M.S.
               SMT.VARSHA VIJAYAKUMAR NAIR
               SHRI.MANU BABY
               SMT.RAJASREE K.



      THIS     WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
17.12.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                       2
WPC 29696/25




                                                               2025:KER:97621

                              JUDGMENT

(Dated this the 17th day of December 2025)

The 2nd petitioner, along with 2 others, had availed credit

facilities from the respondent bank by offering 5 items of

properties. Due to financial constraints, the repayment was

defaulted and the bank initiated proceedings under the

SARFAESI Act. The bank filed O.A.No.431 of 2025 before the

DRT - 1, Ernakulam against the petitioners. Simultaneously, the

bank moved the CJM Court by filing M.C. No.349 of 2025 under

Section 14 of the Act, for appointment of an Advocate

Commissioner to take physical possession of the secured assets.

By Ext.P4 order, the Additional CJM appointed an Advocate

Commissioner, who issued Ext.P3 stating that the physical

possession of the secured assets would be taken on 11.8.2025 at

2 pm. On 5.9.2024, the petitioners were served with Ext.P5

stating that the notice issued under Sections 13(2) and Section

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13(8) of the Act, with Ref.No.IBL/FRR/ABG/13(2)/ KER/

02/JUL/ 2024-25 dated 4.7.2024 stands withdrawn.

2. The petitioners submits that when Section 13(2)

notice is withdrawn as per letter dated 5.9.2024, the order passed

by the ACJM as per Ext.P4 is suppressing the said withdrawal

and therefore, the same cannot be implemented against the

petitioners. Hence, he seeks a direction restraining the respondent

bank from proceeding further against the property of the 1st

petitioner having an extent of 20.75 ares in Re.sy. No.69/14 in

Aluva East village, Aluva taluk, Ernakulam district, which is

obtained as per Sale Deed No.2509/1990 of Aluva SRO; and also

for a direction to the Advocate Commissioner not to initiate

coercive steps such as taking possession of secured assets, i.e, the

petrol bunk.

3. A counter affidavit is filed by the respondent, in

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which it is contended that the 2nd petitioner had availed 2 credit

facilities from the respondent bank. In addition to these credit

facilities, Mr.Babu Josph, Mr.Jenson Paul and M/s.Euro Tech

Maritime Academy also availed credit facilities. All the

properties mortgaged are common in credit facilities. After

granting several opportunities and sufficient time to clear the

dues, the petitioners defaulted in repayment and has approached

this court by suppressing material facts. It is also contended that

this Writ Petition is not maintainable against any measures

initiated under the SARFAESI Act. When there was a default in

repayment, Section 13(2) notice dated 28.11.2023 and 4.7.2024

were issued, which is produced as Ext.R1. Therefore, the bank

approached the CJM, Ernakulam by filing M.C. No.349 and an

Advocate Commissioner was appointed. Ext.P5 recall notice was

the notice issued to M/s.Euro Tech Marine Academy (P) Ltd. as

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well as to Mr.Babu Joseph, Mr.Jenson Paul and the petitioners

herein. Similar notice was issued to Mr.Jenson Paul, Mr.Babu

Joseph, Mrs.Molly Boban and Mr.Boban Joseph. The notice

issued to M/s.Euro Tech Marine Academy (P) Ltd. and 4 others

alone, was withdrawn.

4. In the affidavit and the petition filed by bank in M.C.

No.349 of 2025, the notice which is annexed as Section 13(2)

notice is seen issued to Mr.Babu Joseph, Mrs.Molly Boban,

Mr.Jenson Paul and Mr.Boban Joseph. The said notice is not

withdrawn till date. So, it is acting on the said notice, the CJM

has passed an order under Section 14 appointing the Advocate

Commissioner and therefore, there is no ambiguity. Therefore,

the petitioners are not entitled to invoke jurisdiction under Article

226 of the Constitution of India.

5. At the outset, it is the contention of the petitioners that

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the notice under Section 13(2) to M/s.Euro Tech Maritime

Academy Pvt. Ltd., Mrs.Molly Boban, Mr.Babu Joseph,

Mr.Jenson Paul and Mr.Boban Joseph were recalled. At the same

time, the respondent contends that different notices were issued

on the same day with the reference number and the notices which

were issued to M/s.Euro Tech Maritime Academy Pvt. Ltd. and

others, alone were recalled. Thus, there is disputed question of

fact in this case.

6. The hon'ble apex court in South Indian Bank

Limited and others v. Naveen Mathew Philip and another

[(2023) 17 SCC 311] has held as follows:

"Powers conferred under Art. 226 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 legislature has provided for a specific mechanism for appropriate redressal."

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7. Under Article 226 of the Constitution, High Courts

possess a broad discretionary power to issue writs for the

enforcement of fundamental rights or any other legal purpose.

While this jurisdiction is expansive, it is tempered by a "rule of

exhaustion," meaning, courts typically decline to entertain

petitions when an efficacious alternate remedy is available,

particularly when a statute prescribes a specific procedure for

redress. This restriction is a matter of policy and convenience

rather than a lack of power; however, the Court will bypass this

rule and intervene directly if the petition involves a violation of

fundamental rights, a breach of natural justice, an action taken

without jurisdiction, or a challenge to the constitutionality of a

law. While complex disputed questions of fact usually lead the

Court to decline a case, it maintains the ultimate discretion to

exercise its jurisdiction if the nature of the controversy

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objectively warrants judicial intervention.

Therefore, the present Writ Petition cannot be decided as it

involves disputed question of facts. The petitioners, on one hand

contend that the notice is withdrawn, whereas the respondent

states that the notice that was withdrawn is a different one, on

which they did not proceed under Section 14 of the Act. In the

said circumstances, I am not inclined to interfere invoking

jurisdiction of this Court under Article 226 of the Constitution of

India and therefore, the Writ Petition stands dismissed, without

prejudice to the rights of the petitioners to challenge the

contentions raised in this Petition as well as other contention

available to the petitioners before the DRT under Section 17 of

the SARFAESI Act or in the O.A. pending before the DRT - I,

Ernakulam.

Sd/-BASANT BALAJI, JUDGE dl/

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APPENDIX OF WP(C) NO. 29696 OF 2025

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE NOTICE ISSUED BY THE DRT-1, ERNAKULAM IN O.A NO. 431 OF 2025 Exhibit P 2 TRUE COPY OF THE LICENSE ISSUED BY EDATHALA GRAMA PANCHAYATH DATED 14.03.2025 Exhibit P 3 TRUE COPY OF THE NOTICE DATED 01.08.2025 Exhibit P 4 TRUE COPY OF THE ORDER DATED 24.06.2025 IN M.C NO.

349 OF 2025 BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM( RESPONDENT EXHIBITS

EXHIBIT-R1 True copy of the Notices dated 28.11.2023 and 04.07.2024 along with the AD cards issued by the Respondent Bank PETITIONER EXHIBITS

Exhibit P 5 TRUE COPY OF THE LETTER DATED 05.09.2024 ISSUED BY THE RESPONDENT BANK RESPONDENT EXHIBITS

EXHIBIT-R2 True copy of the Petition and Affidavit filed by the Respondent Bank in M. C. No. 349 of 2025 before Hon'ble Chief Judicial Magistrate Court, Ernakulam EXHIBIT-R3 True copy of the Order dated 24.06.2025 in M. C.

EXHIBIT-R4 True copy of the Advocate Commissioner notice dated 08.07.2025 in M. C. No.349 of 2025.

PETITIONER EXHIBITS

Exhibit P6 CERTIFIED COPY OF THE SECTION 14 APPLICATION DATED 31-1-2025 RESPONDENT EXHIBITS

Exhibit-R5 TRUE COPY OF DEMAND NOTICE ISSUED TO M/S EUROTECH MARITIME ACADEMY DATED 04.07.2024 ALONG WITH POSTAL RECEIPT