Kerala High Court
The Authorized Officer vs Paulson Chacko on 1 July, 2025
Author: Anil K. Narendran
Bench: Anil K.Narendran
WA NO. 1553 OF 2025 1 2025:KER:47882
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 1ST DAY OF JULY 2025 / 10TH ASHADHA, 1947
WA NO. 1553 OF 2025
AGAINST THE ORDER DATED 09.06.2025 IN WP(C) NO.15090 OF
2025 OF HIGH COURT OF KERALA
APPELLANT/RESPONDENT NO.3 IN W.P.(C):
THE AUTHORIZED OFFICER,
SOUTH INDIAN BANK, SIB BUILDING, INFOPARK ROAD,
RAJAGIRI VALLEY, KAKKANAD, ERNAKULAM DISTRICT,
PIN - 682039.
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/WRIT PETITIONER AND R1, R2 AND R4:
1 PAULSON CHACKO,
AGED 63 YEARS,
MULAVARICKAL HOUSE, PIRAROORKARA, MATTOOR VILLAGE,
ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683574.
2 THE UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE,
DEPARTMENT OF FINANCIAL SERVICES, JEEVAN DEEP
BUILDING, SANSADMARG, NEW DELHI, PIN - 110001.
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3 THE DEBT RECOVERY TRIBUNAL,
PANAMPILLY NAGAR, ERNAKULAM, REPRESENTED BY THE
REGISTRAR, PIN - 682036.
OTHER PRESENT:
SMT. O. M. SHALINA, DSGI
SMT.NISHA GEORGE SR. GOVERNMENT PLEADER
SRI.GEORGE POONTHOTTAM, SR. COUNSEL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
The 3rd respondent in W.P.(C)No.15090 of 2025 is before this
Court in this writ appeal, invoking the provisions under Section
5(i) of the Kerala High Court Act, 1958, challenging the order
dated 09.06.2025 of the learned Single Judge in that writ petition,
whereby the interim order granted on 10.04.2025 directing that
sale certificate in respect of the sale confirmed in favour of Sridevi
P., shall not be issued till 23.05.2025 was extended by one month
and the writ petition was posted for further consideration on
08.07.2025.
2. The writ petition was one filed by the 1st respondent
herein-petitioner, invoking the writ jurisdiction of this Court under
Article 226 of the Constitution of India, seeking a writ of certiorari
to quash Ext.P5 order dated 03.04.2025 of the Debts Recovery
Tribunal-1, Ernakulam in S.A.No.816 of 2024; a declaration that
the procedure followed by the appellant-Bank, without adhering
to the mandate of Rule 12 of the Security Interest (Enforcement)
Rules, 2002 is a nullity in the eye of law and to declare that all
actions taken by the Bank in violation thereof are bad in law; a
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declaration that no useful purpose is served by the creation of
Debts Recovery Tribunal-1, Ernakulam when there is failure to
follow the procedure mandated by the Security Interest
(Enforcement) Rules, 2002; and a writ of mandamus commanding
the Debts Recovery Tribunal to adjudicate S.A.No.816 of 2024 on
merits within a period, as this Court deems fit, and direct the
respondents to maintain status quo till the disposal of S.A.No.816
of 2024.
3. In the writ petition, the 3rd respondent Bank (the
appellant herein) filed a counter affidavit dated 21.05.2025,
opposing the reliefs sought for, in which the question of
maintainability of the writ petition is also raised by contending that
the writ petition is an abuse of process of Court, in view of the law
laid down by the Apex Court and this Court in a catena of
decisions. Along with the counter affidavit, the 3rd respondent
Bank has placed on record Exts.R3(a) to R3(c) documents. The
petitioner has filed a reply affidavit dated 15.06.2025.
4. Heard the arguments of the learned counsel for the
appellant-3rd respondent Bank and the learned Senior Counsel for
the 1st respondent-writ petitioner.
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5. The challenge made in this writ appeal is against the
order dated 09.06.2025 of the learned Single Judge in
W.P.(C)No.15090 of 2025. The learned Senior Counsel for the 1 st
respondent-petitioner would point out that the appellant has not
chosen to challenge the interim order dated 10.04.2025 granted
by the learned Single Judge. The order under challenge is another
interim order, whereby the interim order granted on 10.04.2025
was extended by one month.
6. The learned counsel for the appellant-3rd respondent
Bank would submit that the writ petition now stands listed to
08.07.2025. The 3rd respondent Bank has already filed counter
affidavit, in which the question of maintainability of the writ
petition is also raised. A writ petition under Article 226 of the
Constitution of India is not maintainable for the reliefs sought for
in W.P.(C)No.15090 of 2025, in view of the law laid down in the
decisions referred to in Ground (b) of the writ appeal.
7. 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
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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 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
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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.
8. 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
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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, when the legislature
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has provided for a specific mechanism for appropriate redressal.
9. As already noticed hereinbefore, the writ petition is
now listed before the learned Single Judge on 08.07.2025. The
appellant-3rd respondent Bank has already raised the question of
maintainability of the writ petition, in the counter affidavit dated
21.05.2025.
10. 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
appellant-3rd respondent 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.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
DSV/-
