Kerala High Court
Biju P.V vs Induslnd Bank Ltd on 11 July, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
1
W.A.No.1531 of 2025 2025:KER:50700
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 11TH DAY OF JULY 2025 / 20TH ASHADHA, 1947
WA NO. 1531 OF 2025
AGAINST THE JUDGMENT DATED 04.06.2025 IN W.P.(C) NO.7213 OF
2025 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
BIJU P.V.,
AGED 42 YEARS
S/O VIJAYAN P.V., PARAKKAL, KONNI,
ARUVAPPULAM P.O, PATHANAMTHITTA, PIN - 689691
BY ADVS.
SHRI.ATHUL M.V.
SHRI.KEVIN JAMES
RESPONDENTS:
1 INDUSLND BANK LTD.,
2ND FLOOR, EMMANUAL ARCADE,
NEAR ST. PETER'S JUNCTION,
PATHANAMTHITTA, PIN - 689645
2 THE AUTHORIZED OFFICER,
INDUSIND BANK LTD., 2ND FLOOR, EMMANUAL ARCADE,
NEAR ST. PETER'S JUNCTION, PATHANAMTHITTA, PIN - 689645
SRI.RENJITH.R
THIS WRIT APPEAL WAS FINALLY HEARD ON 01.07.2025, THE COURT
ON 11.07.2025 PASSED THE FOLLOWING:
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W.A.No.1531 of 2025 2025:KER:50700
JUDGMENT
Muralee Krishna, J.
This intra-court appeal is filed under Section 5(i) of the
Kerala High Court Act, 1958, by the petitioner in W.P.(C)No.7213
of 2025, challenging the judgment dated 04.06.2025 passed by
the learned Single Judge, whereby, the writ petition filed by the
appellant-petitioner against the measures taken by the
respondents under the provisions of Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002, (for short 'SARFAESI Act') was closed holding
that the appellant-petitioner has to take recourse against the
order under challenge under Section 17 of the SARFAESI Act.
2. The appellant availed a vehicle loan of Rs.26,50,000/-
from the 1st respondent Bank, by offering the same vehicle as
collateral security. The total amount that had to be repaid by the
appellant was Rs.32,02,260/- by way of 48 monthly instalments.
However, the repayment of the loan was defaulted after July 2024.
As per Ext.P3 Bank Statement dated 25.10.2024, the appellant
had paid a total sum of Rs.29,28,281/- to the said loan till July
2024. According to the appellant, he was not informed by the bank
about any further steps taken by it to convert the loan account as
W.A.No.1531 of 2025 2025:KER:50700
Non-Performing Asset (NPA). The appellant was not served with
any notice under Section 13(2) of the SARFAESI Act. However,
later the appellant came to know that the respondents approached
the Court of Chief Judicial Magistrate, Pathanamthitta, with a
petition under Section 14 of the SARFAESI Act and thereafter
forcefully took possession of the vehicle in the absence of the
appellant with the help of the Advocate Commissioner appointed
from the Court and also the Police. The appellant challenged the
act of the respondents before the Debts Recovery Tribunal by filing
Securitization Application No.812 of 2024. By Ext.P6 order, the
tribunal passed an order of interim stay of all further coercive
action against the secured asset. Thereafter, the appellant
approached this Court with the writ petition.
3. The 2nd respondent Authorised Officer of the Bank filed
a counter affidavit dated 19.03.2025 in the writ petition producing
therewith Exts.R2(a) and R2(b) documents. The 2nd respondent
has further filed an additional affidavit dated 08.04.2025 in the
writ petition. Along with I.A.No.1 of 2025, the respondents
produced Exts.R2C to R2E documents in the writ petition.
4. After hearing both sides and appreciating the materials
on record, the learned Single Judge disposed of the writ petition
W.A.No.1531 of 2025 2025:KER:50700
as said above. The operative portion of that judgment reads thus;
"4. In view of the above, the challenge of the petitioner
against the measures taken under the provisions of
SARFAESI Act has to be made in terms of Section 17 of
the Act. Without prejudice to the said right of the
petitioner to approach the Debts Recovery Tribunal, this
writ petition is closed, making it clear that all the
contentions taken by the petitioner in this case are left
open. To enable the petitioner to avail of the same, all
further coercive steps against the petitioner will stand
deferred for three weeks."
5. Heard the learned counsel for the appellant and the
learned counsel for the respondents.
6. The learned counsel for the appellant would argue that
the appellant was in darkness about the steps taken by the
respondent Bank under Section 13(4) of the SARFAESI Act, and
hence, challenging that order, the appellant approached the Debts
Recovery Tribunal. The conversion of the loan into NPA by the
respondent Bank itself is wrong. However, the appellant was
unaware of the steps taken by the bank either under Section 13(4)
or under Section 14 of the SARFAESI Act, till his vehicle was taken
possession by the respondents.
7. On the other hand, the learned counsel for the
respondents would argue that, admittedly, the appellant was
W.A.No.1531 of 2025 2025:KER:50700
served with Ext.R2(a) notice issued under Section 13(2) of the
SARFAESI Act. The respondents have taken steps under Section
13(4) of the SARFAESI Act, and by recourse under Section 14 of
the Act, they took possession of the vehicle. By relying on the
judgment of the Apex Court in S. Shobha v. Muthoot Finance
Limited [2025 SCC OnLine SC 177], the learned counsel
argued that a writ petition under Article 226 of the Constitution of
India is not maintainable against the steps taken by the
respondents under the provisions of the SARFAESI Act. The
learned counsel for the respondents by relying on the judgment of
the Apex Court in Shobha's case [2025 SCC OnLine SC 177],
further submitted that a private company carrying on banking
business as a Scheduled bank cannot be termed as a company
carrying on any public function or public duty and hence a writ
petition under Article 226 of the Constitution of India will not lie
against respondent Bank which is a private company carrying on
banking business.
8. In Authorized Officer, State Bank of Travancore
and Another v. Mathew K.C. [2018 (1) KHC 786], the Apex
Court held that the High Court under Article 226 of the
Constitution of India can entertain a writ petition only under
W.A.No.1531 of 2025 2025:KER:50700
exceptional circumstances and that it is a self imposed restraint
by the High Court. The four exceptional circumstances such as,
where the statutory authority has not acted in accordance with the
provisions of the enactment in question, or in defiance of the
fundamental principles of judicial procedure, or has resorted to
invoke the provisions which are repealed, or when an order has
been passed in total violation of the principles of natural justice,
were re iterated in paragraph 6 of the said judgment by relying on
the judgment of the Apex Court in Commissioner of Income
Tax and Others v. Chhabil Dass Agarwal [(2014) 1 SCC
603].
9. This position was reiterated by the Apex Court in South
Indian Bank Ltd. (M/s.) v. Naveen Mathew Philip [2023 (4)
KLT 29] and after discussing the various judgments on the point
as well as the circumstances in which the High Court can interfere
with in matters pertaining to the SARFAESI Act, held as under:
"Unfortunately, the High Court overlooked the settled law
that the High Court will ordinarily not entertain a petition
under Art.226 of the Constitution if an effective remedy is
available to the aggrieved person and that this rule applies
with greater rigour in matters involving recovery of taxes,
cess, fees, other types of public money and the dues of
W.A.No.1531 of 2025 2025:KER:50700
banks and other financial institutions. In our view, while
dealing with the petitions involving challenge to the action
taken for recovery of the public dues, etc. the High Court
must keep in mind that the legislations enacted by
Parliament and State Legislatures for recovery of such dues
are a code unto themselves inasmuch as they not only
contain comprehensive procedure for recovery of the dues
but also envisage constitution of quasi - judicial bodies for
redressal of the grievance of any aggrieved person.
Therefore, in all such cases, the High Court must insist that
before availing remedy under Art.226 of the Constitution, a
person must exhaust the remedies available under the
relevant statute".
10. In PHR Invent Educational Society v. UCO Bank
[2024 (3) KHC SN 3] the Apex Court held that it is more than a
settled legal position of law that in matters arising out of RDB Act
and SARFAESI Act, the High Court should not entertain a petition
under Art.226 of the Constitution particularly when an alternative
statutory remedy is available.
11. A learned Single Judge of this Court in Jasmin K. v.
State Bank of India [2024 (3) KHC 266] reiterated the
position of law laid down by the Apex Court in the aforementioned
judgments.
12. From the pleadings and materials on record, it is
evident that the appellant has already moved the Debts Recovery
W.A.No.1531 of 2025 2025:KER:50700
Tribunal against taking possession of his vehicle by the
respondents after obtaining the order from the Chief Judicial
Magistrate Court concerned. If the Debts Recovery Tribunal
passed an order unsatisfactory to the appellant, the remedy
available to him is under Section 18 of the SARFAESI Act to file an
appeal before the Debts Recovery Appellate Tribunal.
13. Apart from that, we notice that in paragraph 9 of the
judgment in Shobha's case [2025 SCC OnLine SC 177], the
Apex Court held thus;
"We may sum up thus:
(1) For issuing writ against a legal entity, it would have to be
an Instrumentality or agency of a State or should have been
entrusted with such functions as are Governmental or closely
associated therewith by being of public importance or being
fundamental to the life of the people and hence Governmental.
(2) A writ petition under Article 226 of the Constitution of India
may be maintainable against (i) the State Government; (ii)
Authority; (iii) a statutory body; (iv) an instrumentality or
agency of the State; (v) a company which is financed and
owned by the State; (vi) a private body run substantially on
State funding; (vii) a private body discharging public duty or
positive obligation of public nature; and (viii) a person or a
body under liability to discharge any function under any
Statute, to compel it to perform such a statutory function.
(3) Although a non-banking finance company like the Muthoot
Finance Ltd. with which we are concerned is duty bound to
follow and abide by the guidelines provided by the Reserve
Bank of India for smooth conduct of its affairs in carrying on its
business, yet those are of regulatory measures to keep a check
and provide guideline and not a participatory dominance or
control over the affairs of the company.
(4)A private company carrying on banking business as a
W.A.No.1531 of 2025 2025:KER:50700
Scheduled bank cannot be termed as a company carrying on
any public function or public duty.
(5) Normally, mandamus is issued to a public body or authority
to compel it to perform some public duty cast upon it by some
statute or statutory rule. In exceptional cases a writ of
mandamus or a writ in the nature of mandamus may issue to
a private body, but only where a public duty is cast upon such
private body by a statute or statutory rule and only to compel
such body to perform its public duty.
(6) Merely because a statue or a rule having the force of a
statute requires a company or some other body to do a
particular thing, it does not possess the attribute of a statutory
body.
(7) If a private body is discharging a public function and the
denial of any rights is in connection with the public duty
imposed on such body, the public law remedy can be enforced.
The duty cast on the public body may be either statutory or
otherwise and the source of such power is immaterial but,
nevertheless, there must be the public law element in such
action.
(8) According to Halsbury's Laws of England, 3 rd Ed. Vol.30,
p.682, "a public authority is a body not necessarily a county
council, municipal corporation or other local authority which
has public statutory duties to perform, and which perform the
duties and carries out its transactions for the benefit of the
public and not for private profit". There cannot be any general
definition of public authority or public action. The facts of each
case decide the point."
(underline supplied)
14. According to the respondents, the 1st respondent bank
is a private company carrying on banking business as a scheduled
bank, and it cannot be subjected to the writ jurisdiction of this
Court under Article 226 of the Constitution of India. This
contention was not seen raised by the respondents before the
learned Single Judge, probably for the reason that the writ petition
W.A.No.1531 of 2025 2025:KER:50700
was closed at the admission stage itself. Since the writ petition
was closed by granting liberty to the appellant to approach the
Debts Recovery Tribunal under Section 17 of the SARFAESI Act,
we do not propose to enter into a finding on this aspect in this
appeal, as even otherwise, the writ petition is not maintainable.
15. Having considered the pleadings and materials on
record and the submissions made at the Bar, we find no ground
to interfere with the impugned judgment of the learned Single
Judge.
In the result, the writ appeal stands dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
W.A.No.1531 of 2025 2025:KER:50700
PETITIONER ANNEXURES
Annexure A-2 A TRUE COPY OF THE INTERIM ORDER DATED
21.03.2025 IN W.P. (C) NO. 7213 OF 2025
Annexure A-3 A TRUE COPY OF THE INTERIM ORDER DATED
28.05.2025 IN W.P. (C) NO. 7213 OF 2025
