Kerala High Court
Jimal Roy vs The Kerala State Co-Operative Bank Ltd on 23 June, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
2025:KER:44974
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
WA NO. 1269 OF 2025
AGAINST THE JUDGMENT DATED 11.04.2025 IN W.P.(C)
NO.15720 OF 2025 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
JIMAL ROY,
AGED 47 YEARS
S/O.BABY, PUTHEZHATH HOUSE,
KADALVATHURUTH, GOTHURUTH P O,
NORTH PARAVUR,ERNAKULAM, PIN - 683516
BY ADVS.
SRI.C.RAJENDRAN
SMT.R.S.SREEVIDYA
RESPONDENTS:
1 THE KERALA STATE CO-OPERATIVE BANK LTD,
REGIONAL OFFICE, SAHAKARANA SATHABDHI MANDIRAM,
KOVILAKATHUMPADAM P.O, THIRUVAMBADY P O, THRISSUR,
REPRESENTED BY ITS AUTHORIZED OFFICER, PIN -
680022
2 THE KERALA STATE CO-OPERATIVE BANK LTD,
W.A.No.1269 of 2025 2
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MOOTHAKUNNAM BRANCH, 143/V,BABU S COMPLEX,
MOOTHAKUNNAM,ERNAKULAM, REPRESENTED BY ITS
MANAGER, PIN - 683516
3 KERALA STATE CO-OPERATIVE BANK LTD,
NORTH PARAVUR MAIN BRANCH,MAIN ROAD,
NORTH PARAVUR,ERNAKULAM,
REPRESENTED BY ITS AUTHORIZED OFFICER, PIN -
683513
BY ADV SMT.K.AMMINIKUTTY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.1269 of 2025 3
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JUDGMENT
Anil K. Narendran, J.
The appellant filed W.P.(C)No.15720 of 2025, invoking the writ
jurisdiction of this Court under Article 226 of the Constitution of
India, seeking a stay of all further proceedings pursuant to Ext.P1
notice dated 19.11.2024 issued by the 1st respondent Kerala State
Co-operative Bank, invoking the provisions under the Securitisation
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (SARFAESI Act), in respect of an home loan
availed by the petitioner. The petitioner has also sought for a writ
of mandamus commanding the respondents to allow him to remit
the arrears of the home loan/ordinary loan account in small
instalments.
2. By the judgment dated 11.04.2025, the learned Single
Judge disposed of the writ petition with the directions contained in
paragraph 5. Paragraphs 4 and 5 of that judgment read thus;
"4. 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
outstanding amount of Rs.9,67,014/- (Rupees Nine lakhs Sixty
Seven thousand Fourteen only) along with accrued interest,
charges and costs on a condition that the petitioner will pay a
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sum of Rs.1,00,000/- (Rupees One Lakh) and the balance
amount in fifteen instalments.
5. Accordingly, there will be a direction to the respondent bank
to accept repayment of the entire outstanding amount of
Rs.9,67,014/-(Rupees Nine lakhs Sixty Seven thousand
Fourteen only) along with accrued interest, charges and costs
from the petitioner in the following manner:
(i)The petitioner shall remit an amount of Rs.1,00,000/-
(Rupees One Lakh) on or before 30.04.2025;
(ii) The balance outstanding amount of Rs. 8,67,014/-
(Rupees Eight lakhs Sixty Seven thousand Fourteen
only) shall be repaid in fifteen equated monthly
instalments along with any accrued interest/costs;
(iii) The first instalment shall be paid on or before
31.05.2025 and the subsequent instalments shall be
paid on or before the last working day of the succeeding
months;
(iv) In the event of default of any one instalment, the
respondent bank shall be entitled to proceed in
accordance with the law;
(v) In order to enable the petitioner to repay the entire
amounts, all coercive proceedings shall be kept in
abeyance."
3. In paragraph 3 of that judgment the learned Single
Judge noticed the submission made by the learned counsel for the
respondent Bank that since the tenure of the loan is expiring next
month, the loan account cannot be regularised by repaying the
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defaulted instalments and that, the Bank has no objection in
granting some instalments to clear the outstanding liability of
Rs.9,67,014/- as on 10.04.2025. After recording the said
submission, the writ petition was disposed of by the judgment dated
11.04.2025, with the directions contained therein.
4. Though the appellant-petitioner remitted Rs.1,00,000/-
in terms of the said judgment, he has defaulted the payment of the
balance amount outstanding in 15 instalments.
5. Heard the learned counsel for the appellant and the
learned counsel for the respondents.
6. 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 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.
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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 powers
to set aside an illegal order, and thereafter, grant consequential
reliefs, including repossession and payment of compensation and
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costs. Section 17(1) of the SARFAESI Act gives an expansive
meaning to the expression 'any person', who could approach the
Tribunal.
7. 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 SARFAESI Act by quoting its earlier decisions in Federal
Bank Ltd. v. Sagar Thomas [(2003) 10 SCC 733], United Bank
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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.
8. After arguing for some time, the learned counsel for the
appellant-petitioner would submit that the appellant may be
permitted to move the Debts Recovery Tribunal with a securitization
application, invoking the provisions under Section 17 of the
SARFAESI Act. Without prejudice to the said right of the appellant,
this writ appeal may be dismissed as withdrawn.
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Based on the aforesaid submission made by the learned
counsel for the appellant-petitioner, this writ appeal is dismissed as
withdrawn, without prejudice to the right of the appellant to
approach the Debts Recovery Tribunal, invoking the statutory
remedy provided under Section 17 of the SARFAESI Act, raising
appropriate legal and factual contentions.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
2025:KER:44974
PETITIONER ANNEXURES
Annexure A1 A TRUE PHOTOCOPY OF THE DISCHARGE SUMMARY
ISSUED FROM JUBILEE MISSION MEDICAL
COLLEGE AND RESEARCH INSTITUTE ANGAMALY
DATED 28/01/2020
Annexure A2 A TRUE COPY OF THE CHROMOSOMAL ANALYSIS
REPORT FROM THE ASTER LABS DATED
30/06/2023
Annexure A3 A TRUE COPY OF THE DISCHARGE SUMMARY FROM
SREE NARAYANA INSTITUTE OF MEDICAL
SCIENCE, ERNAKULAM DATED 12/06/2023
Annexure A4 A TRUE COPY OF THE DISCHARGE SUMMARY FROM
SREE NARAYANA INSTITUTE OF MEDICAL
SCIENCE, ERNAKULAM DATED 25/10/2023
