Anil K. Narendran, J.
ten monthly instalments, along with regular EMI. The petitioner
2. On 12.06.2025, when this writ petition came for
judgment dated 12.06.2025. Paragraph No.4 of that judgment
"4. Given the above, the petitioner can be granted an
opportunity to repay the total overdue amount on the
following conditions, and if they are met, to have the loan
account regularised.
2025:KER:44152
(i) The petitioner shall pay a sum of Rs. 1,00,000/-
(Rupees one lakh only) on or before 11.07.2025.
(ii) The balance overdue, along with any accrued
interest, costs, and charges, if any, shall be paid in
10 equal monthly instalments starting from 11
August 2025, and subsequent instalments shall be
paid on or before the 11th day of every succeeding
month.
(iii) Petitioner shall continue to pay the regular
EMIs/instalments 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 the law;
(v) All coercive proceedings shall be kept in
abeyance to enable the petitioner to repay the
entire amount directed above."
3. Challenging the judgment of the learned Single Judge,
the appellant-respondent is before this Court in this writ appeal.
4. Heard the arguments of the learned counsel for the
appellant-respondent Bank and also the learned counsel for the
respondent-writ petitioner.
5. The learned counsel for the appellant-respondent
Bank would submit that raising the question of maintainability of
the writ petition, the respondent Bank filed a counter affidavit
dated 06.05.2025, placing reliance of the decisions of the Apex
2025:KER:44152
Court in Shobha S. v. Muthoot Finance Ltd. [2025 (2) KHC
229], United Bank of India v. Satyawathi Tandon [2010
(8) SCC 110], Authorised Officer, State Bank of
Travancore v. Mathew K.C. [2018 (1) KHC 786] and PHR
Invent Educational Society v. Uco Bank [AIR 2024 SC
1893]. Before the learned Single Judge, the respondent Bank
never made a submission that the Bank is ready accept the
overdue amount in instalments.
6. The learned counsel for the respondent-writ petitioner
would submit that the writ petition was disposed of at the
admission stage itself, after the learned Single Judge
ascertaining the overdue amount from the learned counsel for
the respondent Bank.
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 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
2025:KER:44152
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
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
2025:KER:44152
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 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
2025:KER:44152
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.
9. We do not propose to consider the question of
maintainability of the writ petition raised by the appellant Bank
or the argument advanced by the learned counsel for the
respondent-writ petitioner with reference to Ext.P1 treatment
certificate dated 12.08.2024 issued by the Medical Officer,
2025:KER:44152
Regional Cancer Centre, Thiruvananthapuram, regarding the
treatment of the petitioner's second son in these proceedings,
since a reading of the impugned judgment of the learned Single
Judge would show that the disposal of the writ petition was
without adverting to the legal contention raised in the counter
affidavit filed by the appellant Bank regarding maintainability of
the writ petition.
In such circumstances, this writ appeal is disposed of by
setting aside the impugned judgment dated 12.06.2025 of the
learned Single Judge on the aforesaid ground. Registry shall list
the writ petition before the learned Single Judge, as per roster,
for considering the same afresh. The legal and factual
contentions raised by both sides are left open to be raised before
the learned Single Judge at the appropriate stage.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
vv
