Jayasree vs The Authorized Officer
2025 Latest Caselaw 9336 Ker

Kerala High Court

Jayasree vs The Authorized Officer on 6 October, 2025

Author: Anil K. Narendran

Bench: Anil K. Narendran

WA NO. 2364 OF 2025                1              2025:KER:73220


            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 6TH DAY OF OCTOBER 2025 / 14TH ASWINA, 1947

                          WA NO. 2364 OF 2025

 AGAINST THE JUDGMENT DATED 16.09.2025 IN WP(C) NO.34181 OF 2025

                        OF HIGH COURT OF KERALA


APPELLANT/PETITIONER:

          JAYASREE,
          AGED 54 YEARS,
          W/O. VINODHAN, RESIDING AT, KURUKODATHU HOUSE,
          PODIYADI P.O., KIZHAKKEKARA,
          NEDUMBRAM VILLAGE, THIRUVALA TALUK,
          PATHANAMTHITTA DISTRICT, PIN - 686101.

          BY ADVS.
          SHRI.BIJU BALAKRISHNAN
          SMT.V.S.RAKHEE
          SMT.GISHA G. RAJ
          SMT.AKSHAYA S.NAIR
          SHRI.JAYAKUMAR C.


RESPONDENTS/RESPONDENTS:

    1     THE AUTHORIZED OFFICER
          BANK OF MAHARASHTRA, THIRUVALLA BRANCH, THIRUVALLA,
          PATHANAMTHITTA DISTRICT, PIN - 689101.

    2     BANK OF MAHARASHTRA,
          2ND FLOOR, G.K ARCADE, PALARIVATTOM, BYPASS JUNCTION,
          VENNALA P.O., ERNAKULAM DISTRICT. REPRESENTED BY ITS
          ZONAL MANAGER, PIN - 682028.

    3     K. GAYATHRI
          AGED 51 YEARS
          W/O. PRAKASAN, RESIDING AT, BKP 1/795(2),
 WA NO. 2364 OF 2025             2             2025:KER:73220


          MMRA-16, MADANKOVIL LANE, MUNDAIKONAM,
          MUTTADA P.O., KUDAPPANAKUNNU,
          THIRUVANANTHAPURAM DISTRICT, PIN - 695025.



OTHER PRESENT:

          SRI. T.A. PRAKASH, SC, BANK OF MAHARASHTRA


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.10.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA NO. 2364 OF 2025                   3               2025:KER:73220


                             JUDGMENT

Anil K. Narendran, J.

The appellant, who is a third party to the loan transaction

between the 3rd respondent borrower and the 2nd respondent Bank

of Maharashtra, filed W.P.(C)No.34181 of 2025 invoking the writ

jurisdiction of this Court under Article 226 of the Constitution of

India, seeking the following reliefs;

"(i) quash all the proceedings initiated by the respondents, including Ext.P3 sale notice dated 05.09.2025 [sic:

05.08.2025], against the 3rd Respondent and her property, under the provisions of the SARFAESI Act, by issuing a writ of certiorari or any other appropriate writ, order or direction.

(ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 and 2 to release the property mentioned in Exts.P1 and P3 to the petitioner by executing a sale deed in her favour, by accepting the dues towards the Bank by way of instalments.

(iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 and 2 to consider Ext.P4 and take a decision on it, within a time limit, to be fixed by this Court."

2. Going by the averments in the writ petition, the

appellant-petitioner has entered into Ext.P1 sale agreement dated

31.05.2022 with the 3rd respondent borrower for the sale of

property having an extent of 6.70 Ares, comprising of 4.40 Ares WA NO. 2364 OF 2025 4 2025:KER:73220

in Re.Sy.No.171/10 and 2.30 Ares in Re.Sy.No.171/12 (Old Sy.

Nos.128/5B and 128/11 respectively) of Nedumpram Village,

covered by Sale Deed bearing No.441 of 2022 of the Sub Registrar

Office, Kadapra, for a total consideration of Rs.16,20,000/-, on

payment of an advance sale consideration of Rs.25,000/- at the

time of execution of that agreement. Though the period fixed in

Ext.P1 sale agreement for payment of balance sale consideration

and execution of sale deed was three months from the date of

execution of that sale agreement, the said period was extended

further on payment of a sum of Rs.4,00,000/- on 30.08.2022,

another sum of Rs.6,00,000/- on 29.08.2023 and another sum of

Rs.2,50,000/- on 25.08.2024. The validity of Ext.P1 sale

agreement was accordingly extended up to 30.08.2025. Though

the period of Ext.P1 sale agreement was extended from time to

time up to 30.08.2025, the 3rd respondent did not clear her liability

in the loan account with the 2nd respondent Bank. Since the 3rd

respondent neglected to perform her part of the contract, the

petitioner filed O.S.No.216 of 2025 before the Sub Court-II,

Thiruvananthapuram, seeking specific performance of Ext.P1 sale

agreement, and the said suit is pending consideration. The WA NO. 2364 OF 2025 5 2025:KER:73220

document marked as Ext.P2 is a copy of the plaint in O.S.No.216

of 2025. On 12.09.2025, the petitioner came to know about Ext.P3

sale notice dated 05.08.2025 issued by the 1st respondent

authorised officer, under the provisions of Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 (SARFAESI Act) read with Rule 6(2) of the

Security Interest (Enforcement) Rules, 2002, regarding sale of the

property in question, which is scheduled to be held on 17.09.2025

for recovery of an amount of Rs.19,61,540.74 together with

prevailing rate of interest with effect from 30.10.2024 plus all

other charges. The petitioner submitted Ext.P4 representation

dated 12.09.2025 before respondents 1 and 2 with a request to

stop the proceedings pursuant to Ext.P3 sale notice. Since there

was no response from respondents 1 and 2, the petitioner filed

the writ petition before this Court seeking the aforesaid reliefs.

3. On 16.09.2025, when the writ petition came up for

admission, the learned Single Judge dismissed the same without

prejudice to the right of the petitioner to invoke the statutory

remedy provided under Section 17 of the SARFAESI Act. Paragraph

2 and also the last paragraph of that judgment read thus;

WA NO. 2364 OF 2025 6 2025:KER:73220

"2. The petitioner is admittedly not the borrower nor the guarantor and, as such, has no locus to file this writ petition. If the petitioner is aggrieved by any of the measures taken by the secured creditor under the provisions of the SARFAESI Act, 2002, the petitioner has to invoke Section 17 of the SARFAESI Act, 2002.

Without prejudice to the right to avail of the same, the writ petition is dismissed."

4. Feeling aggrieved by the 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.

5. The learned counsel for the appellant-petitioner would

contend that the learned Single Judge committed a grave error in

not entertaining the writ petition filed under Article 226 of the

Constitution of India and relegating the petitioner to avail the

statutory remedy provided under Section 17 of the SARFAESI Act,

before the Debts Recovery Tribunal. The learned Single Judge

ought to have directed respondents 1 and 2 to consider the

request made by the appellant in Ext.P4 presentation dated

12.09.2025. The learned counsel would point out the provisions

contained in Section 13(4)(d) of the SARFAESI Act.

6. The learned Standing Counsel for the Bank of WA NO. 2364 OF 2025 7 2025:KER:73220

Maharashtra for respondents 1 and 2 would contend that, the

appellant-petitioner, who is a third party to the loan transaction

between the 2nd respondent Bank and the 3rd respondent

borrower, has no locus to invoke the writ jurisdiction of this Court

under Article 226 of the Constitution of India, seeking writ of

certiorari to quash Ext.P3 sale notice dated 05.08.2025 issued by

the 1st respondent Authorised Officer; or a writ of mandamus

commanding respondents 1 and 2 to release the secured asset to

the petitioner by executing a sale deed in her favour, by accepting

the dues towards the bank by way of installments; or a writ of

mandamus commanding the respondents 1 and 2 to consider the

request made in Ext.P4 representation dated 12.09.2025. In view

of the law laid down by the Apex Court regarding interference of

the High Court in matters relating to proceedings under the

SARFAESI Act, the learned Single Judge cannot be found fault with

in not entertaining the writ petition, without prejudice to the right

of the appellant to invoke the statutory remedy provided under

Section 17 of the SARFAESI Act.

7. In South Indian Bank Ltd. v. Naveen Mathew

Philip [(2023) 17 SCC 311], in the context of the challenge WA NO. 2364 OF 2025 8 2025:KER:73220

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 WA NO. 2364 OF 2025 9 2025:KER:73220

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.

8. In Naveen Mathew Philip [(2023) 17 SCC 311],

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, WA NO. 2364 OF 2025 10 2025:KER:73220

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 [(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, WA NO. 2364 OF 2025 11 2025:KER:73220

when the legislature has provided for a specific mechanism for

appropriate redressal.

9. The first relief sought for in the writ petition is a writ of

certiorari to quash Ext.P3 sale notice dated 05.08.2025 issued by

the 1st respondent Authorised Officer of the 2nd respondent Bank

for the sale of the secured asset having an extent of 6.70 Ares

comprised in Re.Sy.Nos.171/10 and 171/12 of Nedumpram Village

owned by the 3rd respondent borrower. As per Ext.P3 sale notice

issued under the provisions of SARFAESI Act read with Rule 6(2)

of the Security Interest (Enforcement) Rules, 2002, the sale was

scheduled to be held on 17.09.2025 for recovery of an amount of

Rs.19,61,540.74 together with prevailing rate of interest with

effect from 30.10.2024 plus all other charges. In W.P.(C)No.34181

of 2025 filed before this Court by the appellant-petitioner on

16.09.2025, it is contended that Ext.P3 sale notice is illegal,

unjust, arbitrary, irrational, irregular and the same is liable to be

set aside since the same has been issued without following the

mandatory requirements prescribed under the SARFAESI Act and

Security Interest (Enforcement) Rules, 2002. It is also contended

that the reserve price mentioned in Ext.P3 is very low, when WA NO. 2364 OF 2025 12 2025:KER:73220

compared to the market value of the property. In the writ petition

the petitioner has not pointed out any violation of the mandatory

requirements under the said Act and the Rules, warranting an

interference of this Court under Article 226 of the Constitution of

India on Ext.P3 sale notice issued by the 1st respondent Authorised

Officer. The current market value of the property has also not been

disclosed in the writ petition. The reserve price of the property

shown in Ext.P3 sale notice is Rs.26,80,000/-, as against the sale

consideration of Rs.16,20,000/- shown in Ext.P1 sale agreement

dated 31.05.2022. There is total lack of pleadings in the writ

petition regarding the alleged violation of the mandatory

requirements of the SARFAESI Act and the aforesaid Rules,

warranting an interference by this Court in exercise of the

extraordinary jurisdiction under Article 226 of the Constitution of

India. Moreover, the question as to whether there is any violation

of the mandatory requirements under the said Act and the Rules

is an issue which is primarily within the domain of the Debts

Recovery Tribunal, in an application filed under Section 17 of the

Act, by any person, including the borrower, who is aggrieved by

any of the measures referred to in sub-section (4) of Section 13 WA NO. 2364 OF 2025 13 2025:KER:73220

of the Act, taken by the secured creditor or its Authorised Officer.

Therefore, the appellant-petitioner cannot invoke the writ

jurisdiction of this Court under Article 226 of the Constitution of

India, in order to challenge Ext.P3 sale notice dated 05.08.2025

issued by the 1st respondent Authorised Officer of the 2nd

respondent Bank.

10. The second relief sought for in the writ petition is a

writ of mandamus commanding the 1st respondent Authorised

Officer and the 2nd respondent Bank to release to the petitioner

the property mentioned in Ext.P1 sale agreement dated

31.05.2022 executed between the appellant and the 3rd

respondent borrower and Ext.P3 sale notice dated 05.08.2025

issued by the 1st respondent Authorised Officer, executing sale

deed in favour of the petitioner, by accepting the dues towards the

bank by way of installments.

11. Section 13(4)(d) of the SARFAESI Act pointed out by

the learned counsel for the appellant-petitioner provides that in

case the borrower failed to discharge his liability in full within the

period specified in Section 13(2) the secured creditor may require,

at any time, by notice in writing, any person who has acquired any WA NO. 2364 OF 2025 14 2025:KER:73220

of the secured assets from the borrower and from whom any

money is due or may become due to the borrower, to pay the

secured creditor, so much of the money as is sufficient to pay the

secured debt. As per Section 13(5), any payment made by any

person referred to in clause (d) of sub-section (4) to the secured

creditor shall give such person a valid discharge as if he has made

payment to the borrower.

12. A reading of Ext.P1 sale agreement dated 31.05.2022

and Ext.P2 plaint in O.S.No.216 of 2025 on the file of the Sub

Court, Thiruvananthapuram would show that the balance sale

consideration payable by the appellant-petitioner to the 3rd

respondent borrower is only Rs.3,45,000/-, whereas Ext.P3 sale

notice issued by the 1st respondent Authosied Officer is one for

recovery of a sum of Rs.19,61,540.74 together with interest and

all other charges from 31.10.2024. If the appellant-petitioner has

the eligibility under Section 13(4)(d) of the SARFAESI Act, and is

desirous to wipe off the liability of the 3rd respondent borrower

towards the 2nd respondent secured creditor, as shown in Ext.P3

sale notice, instead of filing a writ petition before this Court, she

should have approached the 2nd respondent Bank with a concrete WA NO. 2364 OF 2025 15 2025:KER:73220

proposal to clear the entire dues. Instead of making such a

concrete proposal, she had approached this Court in W.P.(C)No.

34181 of 2021 on 16.09.2025 challenging Ext.P3 sale notice dated

05.08.2025 regarding the sale of the secured asset scheduled to

be held on 17.09.2025. By invoking the extraordinary jurisdiction

of this Court under Article 226 of the Constitution of India the

appellant-petitioner cannot seek a writ of mandamus commanding

the 1st respondent Authorised Officer and the 2nd respondent Bank

to release to the petitioner the property (secured asset), by

executing a sale deed in her favour, by accepting the dues towards

the Bank by way of installments. The petitioner, who is a third

party to the loan transaction between the 3rd respondent borrower

and the 2nd respondent Bank, has no legal right to direct the Bank

to accept the dues covered by Ext.P3 sale notice dated 05.08.2025

by way of installments.

13. The third relief sought for in the writ petition is a writ

of mandamus commanding the 1st respondent Authorised Officer

and the 2nd respondent Bank to consider Ext.P4 representation

dated 12.09.2025 and take a decision on that representation,

within a time limit to be fixed by this Court. The request made by WA NO. 2364 OF 2025 16 2025:KER:73220

the appellant-petitioner in Ext.P4 representation is that she is

prepared to remit a sum of Rs.3,00,000/- towards the liability of

the 3rd respondent in the loan account and some more amount by

30.09.2025. Therefore, the sale of the secured asset, which is

scheduled to be held on 17.09.2025, as per Ext.P3 sale notice may

be kept in abeyance and the possession of the secured asset may

be returned. The sale of the secured asset, scheduled to be held

on 17.09.2025, was based on Ext.P3 sale notice issued by the 1st

respondent Authorised Officer under the provisions of the

SARFAESI Act and Security Interest (Enforcement) Rules, 2002. If

the 3rd respondent borrower or any other person is aggrieved by

Ext.P3 sale notice, the remedy open to that person is to file an

appeal before the Debts Recovery Tribunal invoking the provisions

under Section 17 of the said Act. When the request made by the

petitioner in Ext.P4 representation dated 12.09.2025 is contrary

to the statutory requirements of the SARFAESI Act and the

aforesaid Rules, no mandamus can be issued directing the 1st

respondent Authorised Officer or the 2nd respondent Bank to

consider the said representation made by the petitioner.

In the above circumstances, we find no reason to interfere WA NO. 2364 OF 2025 17 2025:KER:73220

with the judgment dated 16.09.2025 of the learned Single Judge

in W.P.(C)No.34181 of 2025. The writ appeal fails and the same is

accordingly dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

MURALEE KRISHNA S., JUDGE

DSV/-