Kerala High Court
South Indian Bank Ltd vs Rahim H K on 21 July, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
W.A.No.1778 of 2025 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
WA NO. 1778 OF 2025
AGAINST THE ORDER DATED 20.06.2025 IN W.P.(C) NO.22757
OF 2025 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENT NO.1&2 IN W.P.(C):
1 SOUTH INDIAN BANK LTD.,
REPRESENTED BY ITS BRANCH MANAGER, VALLIKAVU
BRANCH, VALLIKAVU, KARUNAGAPPALLY, KOLLAM,
KERALA, PIN - 690546
2 THE AUTHORISED OFFICER,
REGIONAL OFFICE, THIRUVANANTHAPURAM,3RD FLOOR,
YWCA BUILDING, M.G ROAD, SPENCER JUNCTION, STATUE,
THIRUVANANTHAPURAM, PIN - 695001
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/PETITIONER NO.1&2 IN W.P.(C):
1 RAHIM H K.,
AGED 48 YEARS
S/O HASSANKUNJU, RESIDING AT BLALIL
KIZHAKKETHARAYIL, CLAPPANA P.O., KARUNAGAPPALLY,
KOLLAM, KERALA, PIN - 690525
W.A.No.1778 of 2025 2
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2 SHEEBA M B.,
AGED 42 YEARS
W/O RAHIM, RESIDING AT BLALIL KIZHAKKETHARAYIL,
CLAPPANA P.O., KARUNAGAPPALLY,
KOLLAM, KERALA, PIN - 690525
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
21.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
Respondents 1 and 2 in W.P.(C)No.22757 of 2025 filed by
respondents 1 and 2 herein-writ petitioners have filed this writ
appeal, invoking the provision under Section 5(i) of Kerala High
Court Act, 1958, challenging the interim order dated 20.06.2025
of the learned Single Judge in that writ petition read thus;
"To consider the prayers sought for in the writ petition
seeking instalment facility and to defer the coercive steps
against the petitioners, as an interim measure, there will be
a direction to the petitioners to remit an amount of
Rs.3,00,000/-(Rupees Three 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."
2. W.P.(C)No.22757 of 2025 is filed by the respondents
herein seeking a writ of mandamus commanding the 1 st appellant
Bank to consider and dispose of Ext.P4 request dated 12.06.2025
made by the 1st respondent herein for permitting the borrowers to
pay the entire dues in the loan account by availing One Time
Settlement facility by waiving future and overdue interest and to
restrain the 2nd appellant Authorised Officer from proceeding
under the provisions of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002,
(for short 'SARFAESI Act') till such time. They have also sought
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for a writ of certiorari to quash Ext.P3 notice dated 02.06.2025
issued by the Advocate Commissioner appointed by the Chief
Judicial Magistrate Court in MC No.831 of 2025, invoking the
provision under Section 14 of the SARFAESI Act.
3. Heard the learned counsel for the appellants-
respondents 1 and 2 and the learned counsel for respondents-writ
petitioners.
4. The learned counsel for the appellants would raise the
question of maintainability of the writ petition placing reliance on
the Apex Court in South Indian Bank Ltd. v. Naveen Mathew
Philip [(2023) 17 SCC 311]. The learned counsel would also point
out the decision of the Apex Court in Bijnor Urban Cooperative Bank
Limited, Bijnor v. Meenal Agarwal [(2023) 2 SCC 805].
5. 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
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
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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
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
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compensation and costs. Section 17(1) of the SARFAESI Act gives
an expansive meaning to the expression 'any person', who could
approach the Tribunal.
6. 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
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.
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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
has provided for a specific mechanism for appropriate redressal.
7. The writ petition is one filed seeking a writ of
mandamus commanding the 1st appellant Bank to consider Ext.P4
request made by the 1st respondent herein for availing One Time
Settlement facility, as sought for in that request. The said request
has already been turned down by the 1 st appellant Bank on
21.06.2025.
8. Now the writ petition stands listed before the learned
Single Judge tomorrow (22.07.2025). It is for the appellants to
raise the question of maintainability of the writ petition before the
learned Single Judge relying on the decision of the Apex Court in
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Naveen Mathew Philip [(2023) 17 SCC 311], Bijnor Urban
Cooperative Bank Limited, Bijnor [(2023) 2 SCC 805], etc.
9. 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
appellants 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
MSA
