Kerala High Court
South Indian Bank Limited vs Joy Paul on 4 July, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
WA NO. 1521 OF 2025 1 2025:KER:49381
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
WA NO. 1521 OF 2025
AGAINST THE ORDER DATED 13.06.2025 IN WP(C) NO.21670 OF 2025 OF
HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS:
1 SOUTH INDIAN BANK LIMITED,
PANACKAL BUILDINGS, CENTRAL JUNCTION, ATHIRAMPUZHA,
KOTTAYAM, REPRESENTED BY ITS BRANCH MANAGER, PIN -
686562.
2 THE AUTHORIZED OFFICER & CHIEF MANAGER,
SOUTH INDIAN BANK LIMITED, PANACKAL BUILDINGS, CENTRAL
JUNCTION, ATHIRAMPUZHA, KOTTAYAM, PIN - 686562.
BY ADV SRI.P.A.AUGUSTINE(AREEKATTEL)
RESPONDENT/PETITIONER:
JOY PAUL,
AGED 55 YEARS
S/O N.T.PAUL, NADACKAL HOUSE, ATHIRAMPUZHA KOTTAYAM,
PIN - 686562.
BY ADV SRI.C.S.MANU
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.07.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
The appellants are the respondents in W.P.(C)No.21670 of
2025, a writ petition filed by the respondent herein-writ petitioner
invoking the writ jurisdiction of this Court under Article 226 of the
Constitution of India, seeking a writ of mandamus commanding
the 1st appellant Bank to afford him a reasonable time of six
months to clear the entire outstanding due in respect of the term
loans and other facilities availed by a partnership firm, by name,
M/s.N.T. Paul & Co., in which the petitioner is the Managing Partner
and his wife is the other Partner.
2. The proceedings initiated by the 1st appellant, South
Indian Bank Limited, through the 2nd appellant, who is the
Authorised Officer of the Bank, invoking the provisions under the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002, ('SARFAESI Act'),
were under challenge before this Court in earlier round of
litigations, as evident from Ext.P2 judgment date 19.01.2023 in
W.P.(C)No.181 of 2023, Ext.P3 judgment dated 27.02.2023 in
W.P.(C)No.6143 of 2023, Ext.P4 judgment dated 26.07.2023 in
OP(DRT)No.282 of 2023, Ext.P5 judgment dated 25.08.2023 in
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OP(DRT)No.324 of 2023, Ext.P6 judgment dated 03.09.2024 in
OP(DRT)No.175 of 2024, Ext.P7 judgment dated 27.09.2024 in
R.P.No.1012 of 2024 and Ext.P8 judgment dated 12.02.2025 in
W.P.(C)No.43857 of 2024. It is thereafter, the respondent-writ
petitioner has chosen to file W.P.(C)No.21670 of 2025 seeking the
aforesaid relief. The document marked as Ext.P1 is a copy of
representation dated 05.06.2025 made by the writ petitioner
before the 1st appellant Bank to consider his request for payment
of the dues in instalments, after reducing interest, penal interest
and other charges from the total amount.
3. On 13.06.2025, when W.P.(C)No.21670 of 2025 came
up for admission, the learned Single Judge passed the following
interim order;
"To consider the prayers sought for in the writ petition seeking
instalment facility and to defer the coercive steps against the
petitioner, as an interim measure, there will be a direction to the
petitioner to remit an amount of Rs.25,00,000/- (Rupees Twenty
Five 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. Post on 14.07.2025."
4. Feeling aggrieved by the interim order dated
13.06.2025 of the learned Single Judge, the appellants are before
this Court in this writ appeal, invoking the provisions under
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Section 5(i) of the Kerala High Court Act, 1958.
5. In the writ appeal, it is pointed out that the total loan
amount outstanding as on 12.06.2025 comes to Rs.1,64,75,607/.
The 1st appellant Bank being a Private Schedule Commercial Bank,
is not amenable to writ jurisdiction, since it will not come within
the definition of 'State' under Article 12 of the Constitution of
India. The decision of the Apex Court in S. Shobha v. Muthoot
Finance Ltd. [2025 KHC OnLine 6078] was relied on in support
of the said contention. It is also contended that a writ petition is
not maintainable under Article 226 of the Constitution of India, in
view of the law laid down by the Apex Court in United Bank of
India v. Satyawati Tondon [(2010) 8 SCC 110], Authorized
Officer, State Bank of Travancore v. K.C.Mathew [(2018) 3
SCC 85] and South Indian Bank Ltd. v. Naveen Mathew
Philip [2023 SCC online (SC) 435].
6. Heard the learned counsel for the appellants-
respondents and also the learned counsel for the respondent-writ
petitioner.
7. During the course of arguments, on a query made by
this Court, the learned counsel for the appellants-respondents
would submit that the respondents are yet to file a counter
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affidavit in the writ petition. The interim order dated 13.06.2025
of the learned Single Judge is one passed on the very same day,
on which the writ petition came up for admission for the first time.
8. The learned counsel for the respondent-writ petitioner
would submit that the appellants can file counter affidavit before
the learned Single Judge and seek an order to vacate the interim
order dated 13.06.2025, invoking the provisions under Article
226(3) of the Constitution of India.
9. 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
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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
compensation and costs. Section 17(1) of the SARFAESI Act gives
an expansive meaning to the expression 'any person', who could
approach the Tribunal.
10. In Naveen Mathew Philip [2023 SCC OnLine (SC)
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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 and Others [(2010) 8 SCC 110], State Bank of
Travancore and Another 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.
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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.
11. As already noticed hereinbefore, the W.P.(C)No.21670
of 2025 is now listed before the learned Single Judge for further
consideration on 14.07.2025. The submission made by the learned
counsel for the appellants-respondents is that the respondents
shall immediately file counter affidavit in the writ petition, raising
the question of maintainability of the writ petition under Article
226 of the Constitution of India, relying on the decisions referred
to supra and that referred to in the memorandum of writ appeal.
12. 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,
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before proceeding with the writ petition further on merits.
13. 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 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.
It would be open to the appellants-respondents to file
counter affidavit in the writ petition and bring it before the learned
Single Judge immediately thereafter, by filing an application for
early disposal. Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
DSV/-
