Kerala High Court
M/S. M.D. Esthappan Infrastructure ... vs Reserve Bank Of India on 28 July, 2025
2025:KER:55397
W.P(C).17617/25 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947
WP(C) NO. 17617 OF 2025
PETITIONER/S:
1 M/S. M.D. ESTHAPPAN INFRASTRUCTURE PVT. LTD.,
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE, MR. BIJI
STEPHEN HAVING ITS REGISTERED ADDRESS AT: 144, RAILWAY
STATION NAGAR, NEAR ST. JOSEPH HIGH SCHOOL, ANGAMALY,
ERNAKULAM, PIN - 683572
2 MR. M.D. ESTHAPPAN,
MANAGING DIRECTOR OF M.S. M.D. ESTHAPPAN
INFRASTRUCTURE PVT. LTD. THROUGH POWER ATTORNEY HOLDER
MR. BIJI STEPEHEN ,S/O. DEVASSY, 14/306, MOOLAN HOUSE,
NH 47, NEAR ST. JOSEPH HIGH SCHOOL, ANGAMALY,
ERNAKULAM, PIN - 683572
BY ADVS.
SMT. MARIA NEDUMPARA
SHRI.SHAMEEM FAYIZ V.P.
RESPONDENT/S:
1 RESERVE BANK OF INDIA,
REPRESENTED BY ITS GOVERNOR
SHAHID BHAGAT SINGH ROAD, FORT, MUMBAI, PIN - 400001
2 BOARD OF DIRECTORS OF DHANLAXMI BANK LTD. ,
REPRESENTED BY ITS CEO & MANAGING DIRECTOR,REGISTERED
OFFICE, DHANALAKSHMI BUILDINGS, P.B NO. 9, NAICKANAL,
THRISSUR, KERALA, PIN - 680001
3 DHANALAXMI BANK LIMITED,
REPRESENTED BY ITS CEO & MANAGING DHANALAKSHMI
BUILDINGS, P.B. NO. 9, NAICKANAL, THRISSUR, KERALA,
PIN - 680001
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W.P(C).17617/25 2
4 AUTHORISED OFFICER & CHIEF MANAGER,
DHANLAXMI BANK LTD., REGIONAL OFFICE, DHANALAKSHMI
BUILDINGS, 1ST FLOOR, MARINE DRIVE, KOCHI, KERALA, PIN
- 682031
5 MINISTRY OF MICRO SMALL AND MEDIUM ENTERPRISES,
REPRESENTED BY ITS SECRETARY,UDYOG BHAWAN, RAFI MARG,
NEW DELHI, PIN - 110001
6 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FINANCIAL
SERVICES, MINISTRY OF FINANCE, 3RD FLOOR, JEEVAN DEEP
BUILDING, SANSAD MARG, NEW DELHI, PIN - 110001
7 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
BY ADVS.
SRI.MILLU DANDAPANI
SRI.C.K.KARUNAKARAN FOR R2 TO R4
SMT.LEKSHMI P. NAIR
SMT.SHIFNA MUHAMMED SHUKKUR
SMT.KRISHNA SURESH
SHRI.ANIRUDH INDUKALADHARAN
SMT.MEKHA MANOJ
DSGI-R5 AND R6
GOVT. PLEADER - R7
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.6.2025, THE COURT ON 28.07.2025 DELIVERED THE FOLLOWING:
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W.P(C).17617/25 3
MOHAMMED NIAS C.P., J.
......................................................
W.P(C) No.17617 of 2025
.............................................................
Dated this the 28th day of July, 2025
JUDGMENT
The petitioner company is a registered Micro, Small and Medium
Enterprise (MSME) under the Micro, Small and Medium Enterprises
Development Act, 2006 (hereinafter referred to as the 'MSMED Act' for
short). The petitioners assert that the respondent bank failed to comply
with the rehabilitation framework established by the Ministry of MSME's
Notification dated 29.05.2015 and the Reserve Bank of India Notification
No. FIDD.MSME & NFS.BC.No. 21/06.02.31/2015-16, issued on 17.03.2016.
These notifications required banks to recognise early signs of financial
distress and take timely action for rehabilitation. Instead, the bank
classified the petitioner's account as a Non-Performing Asset (NPA) on
31.07.2023, violating these circulars. The petitioners rely on the Apex
Court's ruling in Pro Knits v. The Board of Directors of Canara Bank &
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Ors. [(2024) 10 SCC 292], which reaffirmed that the MSME Notification is
obligatory for all banks.
2. After the incorrect NPA designation, the bank initiated actions
under Section 13(2) of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (hereinafter
referred to as the 'SARFAESI Act') on 16.08.2023 and subsequently filed
Ext.P16 Original Application No. 104/2025 before the Debts Recovery
Tribunal (DRT) on 28.11.2024. The petitioners contend that such
simultaneous proceedings contradict Section 19(1) of the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993 (RDB Act) and
Section 13(10) of the SARFAESI Act, which prohibit this dual-track
approach.
3. The petitioners' critique the RDB Act for creating a one-sided
adjudication system that only allows banks to initiate proceedings in the
DRT. The Act does not provide for borrowers to file independent claims or
counterclaims, leading to multiple proceedings for the same transaction.
Judicial interpretations have undermined attempts to resolve these issues.
Although Parliament introduced amendments to address this, the
Supreme Court allowed borrowers the choice between civil court and DRT
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proceedings, leading to parallel litigation and compromising the principle
of ne bis in idem.
4. The petitioners highlight past cases where simultaneous
actions by banks were disallowed by several High Courts, leading to the
enactment of the Securitisation Amendment Act of 2004, which required
banks to withdraw pending RDB Act applications before invoking the
SARFAESI Act. Nonetheless, existing actions before 11.11.2004 were
protected. The petitioners also address cases like Transcore v. Union of
India (AIR 2007 SC 712), where the Hon'ble Supreme Court improperly
extended the assessment to allow simultaneous recourse under both
statutes.
5. The petitioners criticise the judgments in Mardia Chemicals
Ltd. v. Union of India [(2004) 4 SCC 311], which mischaracterise
borrower applications as original proceedings, and highlight how this
creates confusion and leads to multiple forums for the same dispute. Such
a scenario contravenes the principle of res judicata and creates
burdensome parallel litigation.
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6. Adding complexity to the recovery landscape, the
introduction of parallel forums under the Insolvency and Bankruptcy
Code (IBC) has further fractured the legal framework. The petitioners rely
on the judgment Delhi High Court Bar Association v. Union of India
(AIR 1995 Del 323) to contend that the DRT's structure favoured banks,
urging this Court to address the inconsistencies that undermine borrower
protections and restore statutory integrity for MSMEs, while asserting
that dual proceedings under both statutes should not be allowed.
7. Based on the aforesaid contentions, the petitioners sought the
following prayers:
1. Declare that the proceedings initiated against the Petitioner under
Sections 13(2), 13(4) and 14 of the SARFAESI Act is illegal and void,
being contrary to the proviso to Section 19(1) of the Recovery of
Debts and Bankruptcy Act and Section 13(10) of the SARFAESI Act
inasmuch as the said proviso prohibits initiation of proceedings
under the SARFAESI Act without withdrawing the suit instituted
under Section 19;
2. Issue a writ in the nature of certiorari or any other appropriate writ
or order, quashing and setting aside the entire proceedings initiated
by the Respondent Bank as against the Petitioner under Section
13(2), 13(4) and 14 of the SARFAESI Act,
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3. To declare that the banks and financial institutions, so too, the
Borrower, is entitled to all remedies, common law, equitable and
declaratory, nay, constitutive and executory/adjectival, both, but
such remedies cannot be enforced in two different forums at once,
and that in terms of Section 13(10) of the SARFAESI Act, a
proceedings under Section 19 of the RDB Act can be invoked only
"where dues of the secured creditor are not fully satisfied with the
sale proceeds of the secured assets and not otherwise";
4. pass such further and other orders as the nature and circumstances
of the case may require.
8. In the counter-affidavit submitted by the respondent bank, it
is asserted that the current writ petition lacks maintainability on both
factual and legal grounds, constituting an abuse of process. The
petitioners have previously approached this Court with multiple writ
petitions, including W.P. (C) Nos. 45166 of 2024 and 46514 of 2024, both of
which were dismissed. They have also filed Writ Appeal Nos. 481 and 484
of 2025 against the judgment dated 11.03.2025. The filing of the present
writ during these proceedings is viewed as forum shopping and vexatious
litigation.
9. On prior litigations pursued by the petitioners, judgments
directed the petitioners to seek statutory remedies, which they did not
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pursue in good faith. Although S.A. No. 776 of 2023 was filed under the
SARFAESI Act before the DRT, it was withdrawn without a valid
justification, indicating a strategy to impede legitimate recovery efforts.
10. The bank also denies the petitioners' eligibility for benefits
under the MSMED Act or the RBI notifications pertaining to MSMEs, as
their outstanding dues exceed Rs. 34 Crores, surpassing the Rs. 25 Crore
limit for MSME relief. The bank contends that it had communicated
regularly with the petitioners regarding account irregularities, including
a critical email on 26.07.2023, warning them of NPA classification unless
immediate action was taken, which the petitioners have omitted in their
current writ petition.
11. Despite these alerts, the petitioners made no effort to
regularise their account or submit a restructuring proposal under the
applicable RBI notifications for MSMEs, instead submitted only a One-
Time Settlement offer for an unacceptable amount. The bank thus
classified the account as NPA and issued the possession notice under
SARFAESI.
12. In Transcore (supra), the Hon'ble Supreme Court upheld the
legality of concurrent proceedings under both the SARFAESI and RDB
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Acts, clarifying that the principle of election of remedies does not apply in
this context. The respondents refer to the 2004 amendment to the
SARFAESI Act, which rendered the remedies under both statutes
complementary rather than exclusive, aiming for efficient debt recovery.
13. Furthermore, the assertion that SARFAESI proceedings
cannot be initiated while an Original Application under the RDB Act is
pending is described as legally unsustainable; the petitioners are accused
of attempting to delay recovery through previously rejected arguments.
The respondents rely on M.D. Frozen Foods Exports Pvt. Ltd. v. Hero
Fincorp Ltd. [(2017) 16 SCC 741], which held that SARFAESI actions can
proceed alongside arbitration or civil remedies, and clarified that the
SARFAESI Act serves as an additional remedy for lenders.
14. The Delhi High Court ruling in Magnum Steels Ltd. v. Asset
Reconstruction Company (India) Ltd. (MANU/DE/2874/2024) also
reaffirmed that SARFAESI proceedings are for enforcement, while the RDB
Act involves adjudication, with both processes available concurrently to
secured creditors. It further established that creditors could proceed
against other assets through execution if secured assets are insufficient.
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15. The respondents thus argue that the SARFAESI and RDB Acts
serve distinct yet complementary purposes--enforcement without court
intervention and tribunal-based adjudication, respectively. The bank
characterises the current writ petition as meritless and merely an attempt
to revisit established issues, arguing that the petitioners are misusing
litigation to obstruct lawful recovery, which should not be tolerated.
16. Heard Sri. Mathew J Nedumpara and Smt. Maria Nedumpara,
learned counsel for the petitioners, and Sri. Karunakaran C.K., learned
counsel for the respondents.
17. The principles laid down in the Transcore judgment dealt
with the interplay between the Recovery of Debts and Bankruptcy Act
(RDB Act) and the SARFAESI Act. The Hon'ble Supreme Court held that the
first and third provisos to Section 19(1) of the DRT Act are enabling
provisions introduced to align the DRT Act, NPA Act, and Order XXIII CPC.
Withdrawal of the O.A. is not a precondition for invoking the NPA Act, and
the bank/FI may act under the NPA Act with or without DRT's permission,
depending on the circumstances. The doctrine of election does not apply
to the DRT Act and the NPA Act, as they are not inconsistent or repugnant
but together constitute a single, complementary remedy. The NPA Act
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provides a non-adjudicatory mechanism for enforcing the security
interest created by the borrower in favour of the bank/FI, based not only
on default in repayment but also on the borrower's failure to maintain
margin and asset value, thereby enabling secured creditors to act without
court intervention. Issuance of notice under Section 13(2) of the SARFAESI
Act constitutes initiation of "action" within the meaning of the first
proviso to Section 19(1) of the DRT Act.
18. The Hon'ble Apex Court also held that Section 13(10) of the
SARFAESI Act shows that SARFAESI and DRT remedies are complementary
and can be pursued simultaneously. Section 13(13) of SARFAESI
demonstrates that a Section 13(2) notice has substantive legal
consequences and is not merely a show cause notice. Withdrawal under
the first proviso to Section 19(1) may be necessary in cases where assets
are in possession of a court receiver or under injunction, but not
otherwise. The objective behind the proviso is to provide procedural
flexibility and not to restrict enforcement under SARFAESI. The High
Court's view that the proviso is mandatory was overruled, and it was held
that the bank may proceed under SARFAESI without DRT's prior leave.
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19. In M.D. Frozen Foods Exports (supra), the Supreme Court
reaffirmed Transcore (supra) on the permissibility of simultaneous
SARFAESI and DRT proceedings, and extended its reasoning to arbitration.
Citing Section 37 of the SARFAESI Act, the Court held that SARFAESI
remedies are in addition to other legal remedies, including those under
the Arbitration Act, even though not expressly mentioned. It clarified that
SARFAESI applies prospectively to all subsisting and enforceable debts,
irrespective of when the NPA was declared, once the Act becomes
applicable to the lender. Arbitral proceedings do not suspend SARFAESI
enforcement, and the presence of an arbitration clause does not preclude
statutory recovery under SARFAESI. The judgment upheld concurrent
statutory and contractual remedies, so long as they are not mutually
inconsistent.
20. The principles in Transcore (supra) were followed by the
Hon'ble Supreme Court in M/S Hindon Forge Pvt. Ltd. v. State of Uttar
Pradesh [(2019) 2 SCC 198], Bank of India v. Sri Nangli Rice Mills Pvt.
Ltd. [2025 SCC OnLine SC 1229], Tottempudi Salalith v. State Bank of
India & Ors. [(2024) 1 SCC 24], Mathew Varghese v. M. Amritha Kumar
[(2014) 5 SCC 610], Indiabulls Housing Finance Ltd. v. Deccan
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Chronicle Holdings Ltd. (Civil Appeal No. 18 of 2018), Suresh Kumar
Goyal v. Aditya Birla Housing Finance Ltd. (MANU/CG/0085/2021),
and Anil Kumar Akela v. State Bank of India & Ors.
[MANU/JH/0475/2023]. Transcore (supra) was also followed by the High
Court of Kerala in K.J. Binu v. Secretary, Nedumangad Municipality
(W.P (C).No.19984 of 2020 (S), the Madras High Court in T.
Muthukumarasamy v. J. Selvasundarraj [2017 (6) CTC 602] and G.
Mangayarkarasi v. The Authorized Officer, Indian Bank [2018 (186)
AIC 585].
21. Given the above, the contention of the learned Counsel, Sri.
Mathew J. Nedumpara, that the judgment in Transcore and those
judgments that followed Transcore are wrongly decided, cannot be
accepted, given the authoritative pronouncement of law by the Hon'ble
Apex Court and followed by the various High Courts. The petitioners'
contention that Transcore v. Union of India was rendered per incuriam
cannot be acceptable, particularly when tested against the principles
articulated in Bajaj Alliance General Insurance Co. Ltd. v. Rambha
Devu [(2025) 3 SCC 95], which held that a decision is per incuriam only
where it demonstrably fails to consider a central statutory provision or
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binding authority that would have led to a different result. It is not
enough to merely assert that an alternative view was possible; the
oversight must concern an inconsistent and decisive provision, and must
form the basis of a demonstrably erroneous reasoning. The principle is
strictly limited to the ratio decidendi and does not extend to obiter dicta.
Moreover, where a court doubts a precedent's correctness, the proper
course is to refer the matter to a Larger Bench rather than disregard it.
Though precedent is not immutable and may evolve with time, any
departure therefrom must be rare, anchored in sound legal principles,
and must never amount to a captivity of reason; the burden of
justification rests squarely upon the party who seeks such deviation.
22. The Hon'ble Supreme Court in Transcore (supra) did not
overlook the first proviso to Section 19(1) of the RDB Act but explicitly
interpreted it in the context of the SARFAESI regime, and its reasoning
has since been consistently affirmed by the Supreme Court in M.D.
Frozen Foods and Sri Nangli Rice Mills (supra). This binding
interpretation, in line with Article 141, cannot be disregarded by this
Court merely on a plea of per incuriam. It is worthwhile to quote a
relevant paragraph from Dwarikesh Sugar Industries Ltd. v. Prem
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Heavy Engineering Works (P) Ltd. and Another, [1997 (6) SCC 450],
which reads thus:
"When a position, in law, is well settled as a result of
judicial pronouncement of this Court, it would
amount to judicial impropriety to say the least, for
the subordinate courts including the High Courts to
ignore the settled decisions and then to pass a judicial
order which is clearly contrary to the settled legal
position. Such judicial adventurism cannot be
permitted and we strongly deprecate the tendency of
the subordinate courts in not applying the settled
principles and in passing whimsical orders which
necessarily has the effect of granting wrongful and
unwarranted relief to one of the parties. It is time
that this tendency stops."
23. It is also to be noted that the petitioners had earlier filed
W.P. (C) Nos. 45166 and 46514 of 2024, in which it was contended that
mere MSME registration barred classification of the account as NPA and
initiation of recovery action without first invoking the revival and
rehabilitation framework under the MSMED notification. The learned
Single Judge, by judgment dated 11.03.2025, held that mere registration as
an MSME does not shield a borrower from classification as NPA or bar
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recovery under SARFAESI or RDB Acts, particularly where the borrower
took no steps to initiate revival before default. The Court found that the
MSMED notification did not override SARFAESI, and further relied on Pro
Knits v. Canara Bank, [(2024) 10 SCC 292], P.K. Krishnakumar v.
IndusInd Bank, (2024 SCC OnLine Ker 6888), and Celir LLP v. Sumati
Prasad Bafna [2024 SCC OnLine SC 3727], to hold that fragmented
litigation to delay recovery was impermissible. The writ appeals, W.A.
Nos. 481 and 484 of 2025, challenging the single Bench decision, were also
dismissed by the Division Bench on 24.06.2025, affirming that the doctrine
of constructive res judicata barred re-litigation of these identical issues,
and holding that belated assertion of MSME rights after default cannot
invalidate recovery proceedings lawfully commenced under SARFAESI.
The Court further deprecated the borrower's conduct of pursuing parallel
and repetitive proceedings and upheld the validity of the recovery steps.
24. As held by the Hon'ble Supreme Court in Celir LLP v. Sumati
Prasad Bafna and Ors. (2024 SCC OnLine SC 3727), which relied on the
decisions in State of U.P. v. Nawab Hussain [(1977) 2 SCC 806], Devilal
Modi v. Sales Tax Officer, Ratlam and Ors [AIR 1965 SC 1150], and the
English decision in Greenhalgh v. Mallard [(1947) All ER 255 at p.257], to
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hold that where the same set of facts give rise to multiple causes of action,
a litigant cannot be permitted to agitate one cause in one proceeding and
reserve the other for future litigation. Such fragmentation aggravates the
burden of litigation and is impermissible in law. The Court reiterated that
all claims and grounds of defence or attack which could and ought to have
been raised in earlier proceedings are barred from being re-agitated
subsequently. This rule stems from the Henderson Principle, which, as a
corollary of constructive res judicata embodied in Explanation VII to
Section 11 CPC, mandates that a party must bring forward the entirety of
its case in one proceeding and not in a piecemeal or selective manner.
Courts must examine whether a matter could and should have been raised
earlier, taking into account the scope of the earlier proceedings and their
nexus to the controversy at hand.
25. If the subject matter or seminal issues in a later proceeding
are substantially similar or connected to those already adjudicated, the
subsequent proceeding amounts to relitigation. Once a cause of action has
been judicially determined, all issues fundamental to that cause are
deemed to have been conclusively decided, and attempts to revisit any
part of it -- even through formal distinctions in forums or pleadings -- fall
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foul of the principle. Moreover, any plea or issue that was raised earlier
and then abandoned is deemed waived and cannot be resurrected. The
overarching object is to protect the finality of adjudications, discourage
strategic or delayed litigation, and uphold judicial propriety and fairness
by ensuring that parties do not approbate and reprobate or exploit
procedural plurality to unsettle concluded controversies.
Thus, given my finding rejecting the contentions of the
petitioners that Transcore (supra) has not been correctly decided and
also on the ground of constructive res judicata on account of the filing
and findings in the earlier writ petitions, I do not find any merit in this
writ petition.
The same is accordingly dismissed.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
okb/
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APPENDIX OF WP(C) 17617/2025
PETITIONER EXHIBITS
Exhibit P1 A COPY OF THE UDYAM REGISTRATION
CERTIFICATE NO. UDYAM-KL-02-0015023 DATED
BY THE MSME MINISTRY, GOVERNMENT OF INDIA
Exhibit P2 A TRUE COPY OF THE DEMAND NOTICE DATED
16.08.2023 ISSUED BY THE 4TH RESPONDENT TO
THE PETITIONERS
Exhibit P3 A TRUE COPY OF THE OBJECTION DATED
11.10.2023 ISSUED BY THE PETITIONERS TO THE
4TH RESPONDENT
Exhibit P4 A TRUE COPY OF THE REPLY DATED 18.10.2023,
ISSUED BY THE 4TH RESPONDENT TO THE
PETITIONERS
Exhibit P5 A TRUE COPY OF THE LETTER DATED 25.10.2023
ISSUED BY THE PETITIONERS TO THE 4TH
RESPONDENT,
Exhibit P6 A TRUE COPY OF THE POSSESSION NOTICE DATED
31.10.2023 ISSUED BY THE 4TH RESPONDENT TO
THE PETITIONERS,
Exhibit P7 A TRUE COPY OF THE LETTER DATED 02.11.2023
ISSUED BY THE PETITIONERS TO THE 4TH
RESPONDENT
Exhibit P8 A TRUE COPY OF THE LETTER DATED 03.11.2023
ISSUED BY THE 4TH RESPONDENT TO THE
PETITIONERS
Exhibit P9 A TRUE COPY OF THE SALE-NOTICE DATED
25.06.2024 ISSUED BY THE 4TH RESPONDENT TO
THE PETITIONERS
Exhibit P10 A COPY OF THE ORDER DATED 22.01.2025 PASSED
BY THE LD. ADDL. CHIEF JUDICIAL
MAGISTRATE'S COURT, ERNAKULAM IN MC.
Exhibit P11 A TRUE COPY OF THE JUDGEMENT DATED
27.11.2023 IN W.P. (C) NO. 38732/2023 BY
THE HON'BLE HIGH COURT OF KERALA
Exhibit P12 A TRUE COPY OF THE JUDGEMENT DATED
24.06.2024 IN W.P. (C) NO. 22424/2024 BY
THE HON'BLE HIGH COURT OF KERALA
Exhibit P13 A TRUE COPY OF THE ORDER DATED 11.12.2024
IN W.P. (L) NO. 35456/2024 BY THE HON'BLE
BOMBAY HIGH COURT
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Exhibit P14 A COPY OF THE JUDGEMENT DATED 11.03.2025
PASSED IN W.P.(C) NO. 46514 OF 2024
Exhibit P15 A CHART DETAILING THE VARIOUS PROCEEDINGS
INITIATED BY THE PETITIONER
Exhibit P16 A TRUE COPY OF THE CASE DETAILS OF THE OA
NO.104/2025, EXTRACTED FROM THE DRT WEBSITE
Exhibit P17 A COPY OF THE ORDER DATED 07.04.2025 PASSED
BY HON'BLE SUPREME COURT IN WP NO.251/2025
