Kerala High Court
Thampi,S/O Gopalan vs The Authorized Officer, The Thiruvalla ... on 3 July, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
W.A. No.1581 of 2025 1 2025:KER:48634
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
WA NO. 1581 OF 2025
AGAINST THE JUDGMENT DATED 20.06.2025 IN WP(C) NO.21703 OF
2025 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER IN WRIT PETITION:
THAMPI,S/O GOPALAN,
AGED 63 YEARS
IKKARA PARAMBIL HOUSE, KATTODU,
MANJADI P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT,
PIN - 689105
BY ADVS.
SRI.K.V.ANIL KUMAR
SMT.RADHIKA S.ANIL
SHRI.NITHISH R. PILLAI
SHRI.NIJAZ JALEEL
RESPONDENTS/RESPONDENTS IN WRIT PETITION:
1 THE AUTHORIZED OFFICER, THE THIRUVALLA URBAN CO-
OPERATIVE BANK LTD. 471,
THIRUVALLA, THIRUVALLA P.O.,
PATHANAMTHITTA DISTRICT, PIN - 689101
2 THE THIRUVALLA URBAN CO-OPERATIVE BANK LTD. 471,
THIRUVALLA, THIRUVALLA P.O., PATHANAMTHITTA DISTRICT,
REPRESENTED BY ITS MANAGER, PIN - 689101
3 THE MANAGER,
THE THIRUVALLA URBAN CO-OPERATIVE BANK LTD. 471,
THIRUVALLA, THIRUVALLA P.O.,
PATHANAMTHITTA DISTRICT, PIN - 689101
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.07.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No.1581 of 2025 2 2025:KER:48634
JUDGMENT
Anil K. Narendran, J.
The appellant has filed W.P.(C)No.21703 of 2025, invoking
the writ jurisdiction of this Court under Article 226 of the
Constitution of India, seeking a writ of mandamus commanding
the respondents, namely, Thiruvalla Urban Co-operative Bank Ltd.
and its officials, not to initiate any further recovery proceedings
under the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 (SARFAESI),
including sale of the secured assets having an extent of 3.64
and 3.71 Ares in Re.Sy.Nos.705/10-2 & 705/8 of Kuttapuzha
Village, in connection with the loan availed by the appellant and
to permit him to repay the due amount in installments. The
petitioner has also sought for writ of mandamus commanding the
respondents to furnish the statement of account showing the exact
amount repayable by the petitioner towards the loan amount.
2. The document marked as Ext.P1 is a copy of the loan
repayment book in respect of the loan transaction in question.
Ext.P2 is a discharge card dated 29.04.2024 from the Medical
College Hospital, Kottayam, regarding the treatment undergone
by the petitioner. The pleadings in the writ petition would show
W.A. No.1581 of 2025 3 2025:KER:48634
that the Bank initiated proceedings before the Chief Judicial
Magistrate Court, Pathanamthitta, invoking the provisions under
Section 14 of the SARFAESI Act, as M.C.No.73 of 2024, in which
the said court passed an order appointing Advocate
Commissioner to take physical possession of the secured assets
and accordingly in the month of May 2024, the Advocate
Commissioner sent a notice to the petitioner under Section
14(1) of the said Act.
3. The document marked as Ext.P3 is a copy of the
judgment of this Court dated 19.08.2024 in W.P.(C)No.22761 of
2024 filed by the appellant-petitioner seeking interference with
the proceedings initiated by the Bank under the provisions of
the SARFAESI Act and permitting him to repay the overdue
amount in installments. In that writ petition, the learned Single
Judge passed an interim order dated 26.02.2024, whereby the
petitioner was required to deposit Rs.1,00,000/-. Though the
time limit for complying with that order was extended twice, the
petitioner did not pay the said amount. Therefore W.P.(C)
No.22761 of 2024 was dismissed by Ext.P3 judgment dated
19.08.2024. After the dismissal of the said writ petition, on
03.10.2024, the appellant remitted a sum of Rs.75,000/-
W.A. No.1581 of 2025 4 2025:KER:48634
towards the liability in the loan transaction in question, as
evident from Ext.P4 Challan. Thereafter, he has chosen to file
W.P.(C)No.21703 of 2025 before this Court seeking the
aforesaid reliefs.
4. On 20.06.2025, when W.P.(C)No.21703 of 2025
came up for consideration, the learned Single Judge dismissed
the same, without prejudice to the right of the petitioner to file
an application for extension of time for complying with the
directions contained in Ext.P3 judgment dated 19.08.2024 in
W.P.(C)No.22761 of 2024, if so advised, or to invoke the remedy
provided under Section 17 of the SARFAESI Act. Paragraphs 2
to 6 of the judgment dated 20.06.2025 read thus;
"2. Earlier, the petitioner had approached this court by filing
WP(C) No.22761 of 2024 in Ext.P3 judgment, wherein the
petitioner had approached this Court seeking instalment
facility to clear the overdue amount and to regularise the loan
account.
3. The writ petition No.22761 of 2024 was disposed of on 19th
August 2024 as follows;
"2.This court granted indulgence to the petitioner vide the
interim order dated 26.02.2024, directed the petitioner to
discharge Rs.1,00,000/-. The petitioner did not comply
with said interim order and the time for complying the
said interim order was extended till 08.08.2024 vide the
interim order dated 25.07.2024. Again the time was
W.A. No.1581 of 2025 5 2025:KER:48634
further extended till 19.08.2024 vide the interim order
dated 08.08.2024.
As the petitioner has not complied with the said interim
order, the present writ petition is dismissed, leaving it
open for the petitioner to take recourse to any other
remedy, as may be available to him, under the law."
4. As held by the Hon'ble Supreme Court in Celir LLP v. Sumati
Prasad Bafna and Ors. (MANU/SC/1343/2024), 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 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.
5. 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
W.A. No.1581 of 2025 6 2025:KER:48634
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 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.
6. Given the above, this writ petition cannot be entertained
and the same is dismissed, without prejudice to the right of
the petitioner to file an application for extention of time for
complying with the directions in the earlier judgment, if so
advised, or to invoke the remedy provided under Section 17
of the SARFAESI Act. Subject to the above, the writ petition
is dismissed."
5. Feeling aggrieved, the appellant-petitioner is before
this Court in this writ appeal invoking the provisions under Section
5(i) of the Kerala High Court Act, 1958.
6. Heard the learned counsel for the appellant-petitioner
and the learned Standing Counsel for Thiruvalla Urban Co-
operative Bank Ltd. for the respondents.
7. The learned counsel for the appellant-petitioner would
contend that the learned Single Judge committed a grave error in
W.A. No.1581 of 2025 7 2025:KER:48634
dismissing the writ petition by the impugned judgment dated
20.06.2025, for the reasons stated therein. After the dismissal of
W.P.(C)No.22761 of 2024 by Ext.P3 judgment, the appellant paid
a further sum of Rs.75,000/- towards the dues in the loan account
in question, as evident from Ext.P4 challan. Therefore, the
dismissal of the earlier writ petition by Ext.P3 judgment will not
stand in the way of the appellant again invoking the writ
jurisdiction of this Court under Article 226 of the Constitution of
India, seeking interference in the proceedings initiated by the
respondent Bank under the provisions of the SARFAESI Act.
8. On the other hand, the learned Standing Counsel for
the respondents would submit that the learned Single Judge
rightly declined interference in the securitisation proceedings
initiated by the Bank, after taking note of the law laid down by the
Apex 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 also the English decision in Greenhalgh v. Mallard
[(1947) All ER 255 at p.257]
9. Having considered the pleadings and materials on
record and also the submissions made at the Bar, we notice that
W.A. No.1581 of 2025 8 2025:KER:48634
the issue raised in this writ appeal is no more res integra in view
of the law laid down by the Apex Court in South Indian Bank
Ltd. v. Naveen Mathew Philip [2023 SCC online (SC) 435]
10. In 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 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
W.A. No.1581 of 2025 9 2025:KER:48634
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
compensation and costs. Section 17(1) of the SARFAESI Act gives
an expansive meaning to the expression 'any person', who could
approach the Tribunal.
11. 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
W.A. No.1581 of 2025 10 2025:KER:48634
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.
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
W.A. No.1581 of 2025 11 2025:KER:48634
matters involving a lender and a borrower, when the legislature
has provided for a specific mechanism for appropriate redressal.
12. Viewed in the light of the law laid down in the decisions
referred to above, conclusion is irresistible that the petitioner
cannot invoke the writ jurisdiction of this Court under Article 226
of the Constitution of India, seeking interference with the
proceedings initiated by the appellant Bank under the provisions
of the SARFAESI Act, on the grounds raised in W.P.(C)No.21703 of
2025. Therefore, we find no reason to interfere with the judgment
dated 20.06.2025 of the learned Single Judge, whereby the writ
petition stands dismissed for the reasons stated therein.
In the result, this writ appeal fails and the same is,
accordingly, dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
SMF
