Kerala High Court
Seeji Padmanabhan vs State Of Kerala on 2 June, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
1
WA NO.1085 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE P. V. BALAKRISHNAN
ND
MONDAY, THE 2 DAY OF JUNE 2025 / 12TH JYAISHTA, 1947
WA NO. 1085 OF 2025
AGAINST THE JUDGMENT DATED 18.02.2025 IN WP(C)
NO.46613 OF 2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
SEEJI PADMANABHAN,
AGED 41 YEARS
PADMAVILASOM, PANAYAM KONAM, NILAMEL P.O.,
KOTTARAKARA TALUK, KOLLAM DISTRICT, PIN - 691535
BY ADVS.
SHRI.AJEESH S.BRITE
SHRI.FRANCIS ASSISI
SMT.DARSANA
SMT.SREELAKSHMI RAMACHANDRAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
LABOUR AND SKILL DEPARTMENT GOVERNMENT
SECRETARIAT, NORTH BLOCK, PALAYAM,
THIRUVANANTHAPURAM, PIN - 624620
2 STATE CO ORDINATOR,
KERALA ACADEMY FOR SKILL EXCELLENCE (KASE), 3RD
FLOOR, CARMEL TOWER, VAZHUTHACAUD,
THIRUVANANTHAPURAM, PIN - 695014
3 THE DISTRICT COLLECTOR,
DISTRICT INDUSTRIES OFFICE (DIC), COLLECTORATE,
KOLLAM, PIN - 691013
2
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4 THE MANAGER,
KERALA STATE CO OPERATIVE BANK, NILAMEL P.O.,
KOLLAM DISTRICT, PIN - 691535
SMT.PRINCY XAVIER, SR.GP
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
02.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
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JUDGMENT
Anil K. Narendran, J.
The appellant filed W.P.(C)No.46613 of 2024, invoking the
writ jurisdiction of this Court under Article 226 of the
Constitution of India, seeking a writ of mandamus commanding
the 3rd respondent District Collector, Kollam, to consider Ext.P5
representation dated 13.12.2024 made by OGTM Skills Academy,
in which he is the Managing Partner. The appellant-petitioner has
also sought for a writ of mandamus commanding the 4 th
respondent Manager, Kerala State Co-operative Bank, Nilamel, to
keep in abeyance the proceedings in Ext.P4 notice dated
04.12.2024 issued by the Advocate Commissioner, which was
one issued pursuant to Ext.P3 order dated 18.11.2024 of the
Chief Judicial Magistrate Court, Kollam in M.C.No.1067 of 2024, a
petition filed by the Bank under the provisions of the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act),
pending consideration of Ext.P5 representation dated
13.12.2024.
2. On 18.02.2025, when the writ petition came up for
admission, the learned Single Judge disposed of the same by the
impugned judgment. Paragraphs 2 to 8 of that judgment read
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thus;
"2. The learned counsel for the respondent Bank submits
that the overdue amount as on 13.02.2025 is
Rs.19,58,464/- and the Bank has no objection in some
installments being granted to the petitioner to clear the
overdue amount.
3. The learned counsel for the petitioner submits that the
petitioner may be given at least three months time to pay
the overdue amount and the proceedings may be kept in
abeyance for a period of three months to enable the
petitioner to pay the overdue amount. It is submitted that
the petitioner has entered to an arrangement to sell one of
the properties and will be in a position to clear the liability,
if three months time is granted to the petitioner. It is also
submitted that the petitioner has submitted Ext.P5
representation, seeking benefits introduced by the
Government of Kerala for sick industries and the same has
not been considered by the competent authorities.
4. The learned counsel appearing for the respondent Bank
submits that while the petitioner can be given some
instalments to clear the overdue amount, the Bank cannot
wait for a period of three months to enable the petitioner
to pay the overdue amount.
5. The learned Government Pleader submits on instructions
that Ext.P5 representation has not been received by the
District Collector, Kollam.
6. Having heard the learned counsel appearing for the
petitioner, the learned counsel appearing for the
respondent Bank and the learned Government Pleader, I
am of the view that no relief other than the relief of
permitting the petitioner to clear the liabilities in
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instalments can be granted to the petitioner. The prayer of
the petitioner to keep the proceedings in abeyance for a
period of three months to enable the petitioner to clear the
overdue amount cannot be entertained. The case of the
petitioner that Ext.P5 representation remains unattended
also appears to be incorrect, as the learned Government
Pleader submits on instructions from the District Collector,
Kollam that Ext.P5 has not been received by the District
Collector, Kollam.
7. Having regard to the circumstances of the case and the
submissions made as recorded above, I am of the view that
the petitioner can be granted an opportunity to repay the
total overdue amount on condition that Rs.3,00,000/-
(Rupees Three Lakhs only) shall be paid on or before
15.03.2025 and the balance amount shall be paid in 10
equal monthly instalments, the first of which shall be paid
on or before 15.04.2025 and the subsequent instalments
shall be paid on or before the last working day of every
succeeding months and thereafter, if the amount so
directed is repaid within the time as directed above, to
have the loan account regularised.
8. Accordingly, there will be a direction to the respondent
Bank to accept repayment of the entire overdue amount of
Rs.19,58,464/- (Rupees Nineteen Lakhs Fifty Eight
Thousand Four Hundred and Sixty Four only) along with
any accrued interest, costs and charges from the petitioner
and regularise the loan account of the petitioner in the
following manner:
i) The petitioner shall pay a sum of
Rs.3,00,000/- (Rupees Three Lakhs only) on or
before 15.03.2025. The balance overdue amount
along with any accrued interest, costs and
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charges shall be repaid in 10 equal monthly
instalments;
ii) The first instalment shall be paid on or before
15.04.2025 and the subsequent instalments
shall be paid on or before the last working day of
every succeeding months;
iii) Petitioner shall continue to pay the regular
EMI's along with the instalments directed above;
iv) In the event of default of any one instalment,
the respondent Bank shall be entitled to proceed
in accordance with law;
v) In order to enable the petitioner to repay the
entire amounts, all coercive proceedings shall be
kept in abeyance."
3. Challenging the aforesaid judgment of the learned
Single Judge, 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. Along with this writ appeal, the
appellant has placed on record Annexure A1 representation
dated 07.01.2025 made before the 3 rd respondent District
Collector, Kollam, without the documents enclosed therewith.
4. This writ appeal is one filed along with C.M.Appl.No.1
of 2025 to condone the filing delay of 18 days, which was
condoned by the order dated 19.05.2025.
5. Heard the learned counsel for the appellant-writ
petitioner, the learned Senior Government Pleader for
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respondents 1 to 3 and the learned Standing Counsel for the
Kerala State Co-operative Bank for the 4th respondent.
6. The grievance of the appellant, as pointed out by the
learned counsel for the appellant, is that the learned Single
Judge went wrong in not granting the relief sought for in the writ
petition, in respect of Ext.P5 representation dated 13.12.2024.
7. On a query made by this Court as to whether the
appellant-petitioner has complied with the conditions stipulated
in clauses (i) to (iii) of paragraph 8 of the impugned judgment
dated 18.02.2025 of the learned Single Judge, whereby the
appellant is required to pay an amount of Rs.3,00,000/- on or
before 15.03.2025 and the balance overdue amount along with
accrued interest, costs and charges in ten equal monthly
instalments commencing from 15.04.2025 and the subsequent
instalments payable on or before the last working day of every
succeeding months, and to continue to pay the regular
instalments along with such payment, the learned counsel for
the appellant would submit that the appellant could not make
any payment after the impugned judgment of the learned Single
Judge.
8. In South Indian Bank Ltd. v. Naveen Mathew
Philip [(2023) SCC online (SC) 435], in the context of the
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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
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.
9. 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 encouraged by a writ court. A litigant cannot
avoid the non-compliance of approaching the Tribunal, which
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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 has provided for a specific
mechanism for appropriate redressal.
10. The law is well settled that a writ of certiorari can be
issued if an error of law is apparent on the face of the record. In
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Central Council for Research in Ayurvedic Sciences v.
Bikartan Das [2023 SCC OnLine SC 996 : 2023 (5) KHC SN
8] the Apex Court reiterated that a writ of certiorari, being a
high prerogative writ, should not be issued on mere asking. For
the issue of a writ of certiorari, the party concerned has to make
out a definite case for the same and is not a matter of course. 9.
11. In the instant case, the appellant-petitioner is seeking
a writ of mandamus commanding the 4th respondent Manager,
Kerala State Co-operative Bank, Nilamel to keep in abeyance the
proceedings in Ext.P4 notice dated 04.12.2024 issued by the
Advocate Commissioner, which was one issued pursuant to
Ext.P3 order dated 18.11.2024 of the Chief Judicial Magistrate
Court, Kollam in M.C.No.1067 of 2024, under the provisions of
the SARFAESI Act, pending consideration of Ext.P5
representation dated 13.12.2024 made by OGTM Skills Academy,
in which the appellant is the Managing Partner. The said
representation is one made before the 3rd respondent District
Collector, Kollam for the revival of OGTM Skills Academy under
the Revival and Rehabilitation Scheme for Micro, Small and
Medium Enterprises in Kerala.
12. Admittedly, Ext.P3 order dated 18.11.2024 of the
Chief Judicial Magistrate Court, Kollam in M.C.No.1067 of 2024
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or Ext.P4 notice dated 04.12.2024 issued by the Advocate
Commissioner, invoking the provisions under the SARFAESI Act
pursuant to Ext.P3 order of the Magistrate Court is not under
challenge in W.P.(C)No.46613 of 2024.
13. In the judgment dated 18.02.2025, the learned Single
Judge noticed the submission made by the learned Government
Pleader, on instructions from the 3 rd respondent District Collector,
Kollam, that the said respondent is yet to receive a copy of
Ext.P5 representation dated 13.12.2024.
14. In Bihar Eastern Gangetic Fishermen
Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC
145] a Three-Judge Bench of the Apex Court held that a writ
of mandamus can be granted only in a case where there is a
statutory duty imposed upon the officer concerned and there
is a failure on the part of that officer to discharge the statutory
obligation. The chief function of a writ is to compel
performance of public duties prescribed by statute and to keep
subordinate tribunals and officers exercising public functions
within the limit of their jurisdiction. Paragraph 15 of the said
decision reads thus;
"15. .......... There is abundant authority in favour of the
proposition that a writ of mandamus can be granted only
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in a case where there is a statutory duty imposed upon
the officer concerned and there is a failure on the part of
that officer to discharge the statutory obligation. The chief
function of a writ is to compel performance of public duties
prescribed by statute and to keep subordinate tribunals
and officers exercising public functions within the limit of
their jurisdiction. It follows, therefore, that in order that
mandamus may issue to compel the authorities to do
something, it must be shown that there is a statute to
enforce its performance. (See Lekhraj Satramdas Lalvani
v. Deputy Custodian-cum-Managing Officer [1966 (1) SCR
120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The
Governing Body of the Nalanda College [1962 Supp (2)
SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v.
State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In
the instant case, it has not been shown by respondent No.
1 that there is any statute or rule having the force of law
which casts a duty on respondents 2 to 4 which they failed
to perform. All that is sought to be enforced is an
obligation flowing from a contract which, as already
indicated, is also not binding and enforceable. Accordingly,
we are clearly of the opinion that respondent No. 1 was
not entitled to apply for grant of a writ of mandamus
under Art.226 of the Constitution and the High Court was
not competent to issue the same."
(underline supplied)
15. In Oriental Bank of Commerce v. Sunder Lal
Jain [(2008) 2 SCC 280] the Apex Court held that, in order
that a writ of mandamus may be issued, there must be a legal
right with the party asking for the writ to compel the
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performance of some statutory duty cast upon the authorities.
In the said decision, the Apex Court noticed that the principles
on which a writ of mandamus can be issued have been stated
in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris
and F. G. Ferris, Jr. that, mandamus is, subject to the exercise
of a sound judicial discretion, the appropriate remedy to
enforce a plain, positive, specific and ministerial duty presently
existing and imposed by law upon officers and others who
refuse or neglect to perform such duty, when there is no other
adequate and specific legal remedy and without which there
would be a failure of justice. Paragraphs 11 and 12 of the said
decision read thus;
"11. The principles on which a writ of mandamus can be
issued have been stated as under in 'The Law of
Extraordinary Legal Remedies' by F. G. Ferris and F. G.
Ferris, Jr. :
Note 187.- Mandamus, at common law, is a
highly prerogative writ, usually issuing out of the
highest court of general jurisdiction, in the name
of the sovereignty, directed to any natural
person, corporation or inferior court within the
jurisdiction, requiring them to do some particular
thing therein specified, and which appertains to
their office or duty. Generally speaking, it may be
said that mandamus is a summary writ, issuing
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from the proper court, commanding the official or
board to which it is addressed to perform some
specific legal duly to which the party applying for
the writ is entitled of legal right to have
performed.
Note 192.- Mandamus is, subject to the exercise
of a sound judicial discretion, the appropriate
remedy to enforce a plain, positive, specific and
ministerial duty presently existing and imposed
by law upon officers and others who refuse or
neglect to perform such duty, when there is no
other adequate and specific legal remedy and
without which there would be a failure of justice.
The chief function of the writ is to compel the
performance of public duties prescribed by
statute, and to keep subordinate and inferior
bodies and Tribunals exercising public functions
within their jurisdictions. It is not necessary,
however, that the duty be imposed by statute;
mandamus lies as well for the enforcement of a
common law duty.
Note 196.- Mandamus is not a writ of right. Its
issuance unquestionably lies in the sound judicial
discretion of the Court, subject always to the well
settled principles which have been established by
the Courts. An action in mandamus is not
governed by the principles of ordinary litigation
where the matters alleged on one side and not
denied on the other are taken as true, and
Judgment pronounced thereon as of course.
While mandamus is classed as a legal remedy, its
issuance is largely controlled by equitable
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principles. Before granting the writ the Court
may, and should, look to the larger public interest
which may be concerned - an interest which
private litigants are apt to over look when
striving for private ends. The Court should act in
view of all the existing facts, and with due regard
to the consequences which will result. It is in
every case a discretion dependent upon all the
surrounding facts and circumstances.
Note 206.- .......... The correct rule is that
mandamus will not lie where the duty is clearly
discretionary and the party upon whom the duty
rests has exercised his discretion reasonably and
within his jurisdiction, that is, upon facts
sufficient to support his action.
12. These very principles have been adopted in our
country. In Bihar Eastern Gangetic Fishermen
Cooperative Society Ltd. v. Sipahi Singh [(1977) 4
SCC 145 : AIR 1977 SC 2149], after referring to the
earlier decisions in Lekhraj Satramdas Lalvani v. N.M.
Shah [AIR 1966 SC 334], Dr. Rai Shivendra Bahadur
v. Nalanda College [AIR 1962 SC 1210] and Dr.
Umakant Saran v. State of Bihar [(1973) 1 SCC 485 :
AIR 1973 SC 964], this Court observed as follows in
paragraph 15 of the reports:
"15. .......... There is abundant authority in favour
of the proposition that a writ of mandamus can be
granted only in a case where there is a statutory
duty imposed upon the officer concerned and there
is a failure on the part of the officer to discharge
the statutory obligation. The chief function of a writ
is to compel performance of public duties
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prescribed by statute and to keep subordinate
Tribunals and officers exercising public functions
within the limit of their jurisdiction. It follows,
therefore, that in order that mandamus may issue
to compel the authorities to do something, it must
be shown that there is a statute which imposes a
legal duty and the aggrieved party has a legal right
under the statute to enforce its
performance. ......... In the instant case, it has not
been shown by respondent No. 1 that there is any
statute or rule having the force of law which casts a
duty on respondents 2 to 4 which they failed to
perform. All that is sought to be enforced is an
obligation flowing from a contract which, as already
indicated, is also not binding and enforceable.
Accordingly, we are clearly of the opinion that
respondent No. 1 was not entitled to apply for grant
of a writ of mandamus under Art.226 of the
Constitution and the High Court was not competent
to issue the same."
Therefore, in order that a writ of mandamus may be
issued, there must be a legal right with the party asking
for the writ to compel the performance of some statutory
duty cast upon the authorities. The respondents have not
been able to show that there is any statute or rule having
the force of law which casts a duty on the appellant bank
to declare their account as NPA from 31st March, 2000 and
apply RBI guidelines to their case."
16. When Ext.P5 representation dated 13.12.2024 made
by OGTM Skills Academy was yet to be received by the 3 rd
respondent District Collector, as noticed by the learned Single
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Judge in paragraph 5 of the impugned judgment dated
18.02.2025, it cannot be contended that there is a failure on the
part of the said respondent in discharging any statutory
obligation, in order to seek a writ of mandamus. Moreover, a
reading of the impugned judgment of the learned Single Judge
would not show that the appellant-writ petitioner, other than
seeking time to clear the overdue amount within a period of
three months, by keeping in abeyance the coercive steps, on the
ground that he had already entered into an agreement to sell
one of the properties offered as security to clear the liability, has
not pressed for consideration of Ext.P5 representation by the 3rd
respondent District Collector. It is in such circumstances that the
learned Single Judge in paragraph 6 of the impugned judgment
arrived at a conclusion that no relief other than the relief of
permitting the appellant to clear the liabilities in instalments can
be granted in the writ petition.
17. In Airports Authority of India v. Pradip Kumar
Banerjee [(2025) 4 SCC 111] a Two-Judge Bench of the Apex
Court reiterated the law relating to the exercise of jurisdiction in
an intra-court appeal. After taking note of the law laid down in
Narendra and Co.(P) Ltd. v. Workmen [(2016) 3 SCC 340],
the Two-Judge Bench has stated that the position is, thus, settled
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that in an intra-court writ appeal the appellate court must
restrain itself and the interference into the judgment passed by
the learned Single Judge is permissible only if the judgment of
the learned Single Judge is perverse or suffers from an error
apparent in law.
18. Viewed in the light of the law laid down in the
decisions referred to hereinbefore, the aforesaid reasoning of the
learned Single Judge in the impugned judgment cannot be said
to be either perverse or patently illegal.
19. The appellant has not chosen to comply with the
conditions stipulated in clauses (i) to (iii) of paragraph 8 of the
impugned judgment dated 18.02.2025 in W.P.(C)No.46613 of
2024, whereby the appellant is required to pay an amount of
Rs.3,00,000/- on or before 15.03.2025 and the balance overdue
amount along with accrued interest, costs and charges in ten
equal monthly instalments commencing from 15.04.2025 and
the subsequent instalments payable on or before the last
working day of every succeeding months, and to continue to pay
the regular instalments along with such payment. In view of the
default clause provided in paragraph 8(iv) of the judgment, in
the event of default of any one of the instalments, the 4th
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respondent Bank is legally entitled to proceed with coercive
steps, in accordance with law.
In such circumstances, we find absolutely no grounds to
entertain this writ appeal. In the result, this writ appeal fails and
the same is accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.V. BALAKRISHNAN, JUDGE
bng
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PETITIONER ANNEXURES
ANNEXURE -A1 TRUE COPY OF THE CORRECT
REPRESENTATION DATED 07.01.2025 BY
THE APPELLANT BEFORE THE 3RD
RESPONDENT
