Kerala High Court
Geroge Paul vs Irinjalakuda Town Co-Operative Bank ... on 17 October, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
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W.A.No.2483 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 MURALEE KRISHNA S.
FRIDAY, THE 17TH DAY OF OCTOBER 2025 / 25TH ASWINA, 1947
WA NO. 2483 OF 2025
AGAINST THE JUDGMENT DATED 09.10.2025 IN WP(C)NO.31713 OF
2025 OF THE HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 GEROGE PAUL, AGED 63 YEARS
S/O KUNJIPAILY, MALIYEKKAL KOONAN HOUSE, SANTHINAGAR,
PUTHENCHIRA, THRISSSUR, PIN - 680682
2 LINET GEROGE, AGED 30 YEARS
D/O GEROGE PAUL, MALIYEKKAL KOONAN HOUSE, SANTHINAGAR,
PUTHENCHIRA, THRISSSUR, PIN - 680682
BY ADVS.SRI.T.N.MANOJ
SHRI.AADITHYE MANOJ MENON
SMT.NIVEDITHA S.
RESPONDENTS/RESPONDENTS:
1 IRINJALAKUDA TOWN CO-OPERATIVE BANK LTD.,
NO.55, TANA SOUTH OPPOSITE TO BISHOP HOUSE,
IRINJALAKUDA, IRINJALAKUDA POST, REPRESENTED BY ITS
SECRETARY, PIN - 680121
2 AUTHORIZED OFFICER, IRINJALAKUDA TOWN CO-OPERATIVE
BANK LTD. NO.55 TANA SOUTH, OPPOSITE TO BISHOP HOUSE,
IRINJALAKUDA POST, PIN - 680121
BY ADVS.SRI.DEVAPRASANTH.P.J.
SMT.SMINI JOSE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
17.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.A.No.2483 of 2025
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JUDGMENT
Anil K. Narendran, J.
The appellants are the petitioners in W.P.(C)No.31713 of
2025, which was one filed invoking the extraordinary jurisdiction
of this Court under Article 226 of the Constitution of India,
seeking a writ of mandamus commanding the respondents,
namely, Irinjalakuda Town Co-operative Bank Ltd. and its
Authorised Officer, to permit the petitioners to clear the
defaulted loan arrears in 18 monthly installments; and a
direction staying all further coercive proceedings pursuant to
Ext.P1 notice dated 16.08.2025 issued by the Advocate
Commissioner appointed by the Chief Judicial Magistrate Court,
Thrissur, by the order dated 23.07.2025 in C.M.P.No.5605 of
2025, thereby restraining the Advocate Commissioner from
taking physical possession of the mortgaged property owned by
the 1st petitioner, till the defaulted installments are finally paid
off.
2. In the year 2022, the 2nd appellant availed a term
loan for Rs.1.45 Crores from the 1st respondent Bank, on
furnishing as security the property owned by the 1 st appellant,
who is his father. Due to the default committed in repaying the
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monthly installments, the Bank classified the account as 'Non-
Performing Asset' (NPA) and proceedings under the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act) was
initiated. Now the liability in the said loan transaction, as
submitted by the learned Standing Counsel for the 1st
respondent Bank, is Rs.1,81,93,378/- as on 09.10.2025. The
proceedings initiated by the Bank under the provisions of Section
14 of the SARFAESI Act resulted in the order dated 23.07.2025
of the Chief Judicial Magistrate Court, Thrissur in C.M.P.No.5605
of 2025, appointing an Advocate Commissioner to assist the 2nd
respondent Authorised Officer to take physical possession of the
secured asset.
3. On 25.08.2025, when W.P.(C)No.31713 of 2025 came
up for admission, the learned Single Judge admitted the matter
on file and issued notice to the respondents. The learned Single
Judge granted an interim order, whereby the appellants-
petitioners were directed to remit an amount of Rs.15,00,000/-
within the time limit stipulated in that order. The petitioners
failed to comply with the condition stipulated in that order. On
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29.09.2025, when the writ petition was taken up for
consideration, the learned counsel for the petitioners submitted
that they had remitted an amount of Rs.3,00,000/-. On
09.10.2025, when the writ petition came up for consideration,
the learned counsel for the Bank, for the respondents, submitted
that the total outstanding is more than Rs.1.81 Crores and that
the overdue itself comes to Rs.78,01,734/-. Under such
circumstances, the learned Single Judge, by the judgment dated
09.10.2025, closed the writ petition without prejudice to the
right of the petitioners to avail the statutory remedy provided
under Section 17 of the SARFAESI Act.
4. Challenging the judgment dated 09.10.2025 of the
learned Single Judge in W.P.(C)No.31713 of 2025, the
appellants-petitioners are 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 appellants-petitioners
would submit that the learned Single Judge, having entertained
the writ petition by granting an interim order dated 25.08.2025,
went wrong in closing the writ petition by directing the
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petitioners to approach the Debts Recovery Tribunal under
Section 17 of the SARFAESI Act. Since the petitioners have
remitted a sum of Rs.3,00,000/-, after the interim order dated
25.08.2025, the learned Single Judge ought to have permitted
the petitioners to clear the defaulted loan arrears in 18 monthly
installments, as sought for in the writ petition and stayed all
further coercive proceedings pursuant to Ext.P1 notice dated
16.08.2025 issued by the Advocate Commissioner, thereby
restraining the Advocate Commissioner from taking physical
possession of the mortgaged property.
6. On the other hand, the learned Standing Counsel for
the Bank, for the respondents, would submit that the total
liability in the term loan availed by the 1st appellant in the year
2022, after mortgaging the property owned by the 2nd appellant,
comes to Rs.1,81,93,378/- as on 09.10.2025. Ext.P1 notice
dated 16.08.2025 issued by the Advocate Commissioner for
taking physical possession of the secured asset, is one issued
pursuant to the order dated 23.07.2025 of the Chief Judicial
Magistrate, Thrissur in C.M.P.No.5606 of 2025. The proceedings
initiated by the Bank under the provisions of the SARFAESI Act
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cannot be interfered with by this Court under Article 226 of the
Constitution of India. The learned counsel would also point out
the directives issued by the Reserve Bank of India on
29.07.2025, under Section 35A read with Section 56 of the
Banking Regulation Act, 1949, as applicable to Co-operative
Societies, since loan accounts to the tune of Rs.400 Crores are
already classified as NPA.
7. In South Indian Bank Ltd. v. Naveen Mathew
Philip [(2023) 17 SCC 311] , 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. 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
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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 costs. Section 17(1) of the SARFAESI Actgives
an expansive meaning to the expression 'any person', who could
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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, 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
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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. As already noticed hereinbefore, the appellants have
invoked the extraordinary jurisdiction of this Court under Article
226 of the Constitution of India, seeking a writ of mandamus
commanding the respondents, namely, Irinjalakuda Town Co-
operative Bank Ltd. and its Authorised Officer, to permit the
petitioners to clear the defaulted loan arrears in 18 monthly
installments; and a direction staying all further coercive
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proceedings pursuant to Ext.P1 notice dated 16.08.2025 issued
by the Advocate Commissioner appointed by the Chief Judicial
Magistrate Court, Thrissur, by the order dated 23.07.2025 in
C.M.P.No.5605 of 2025, thereby restraining the Advocate
Commissioner from taking physical possession of the mortgaged
property owned by the 1st petitioner, till the defaulted
installments are finally paid off.
10. The term loan for Rs.1.45 Crores, availed by the 2nd
appellant from the 1st respondent Bank, on furnishing as security
the property owned by the 1st appellant, who is his father, is
classified as NPA. In the proceedings initiated under the
SARFAESI Act, the Chief Judicial Magistrate Court, Thrissur
appointed an Advocate Commissioner by the order dated
23.07.2025 in C.M.P.No.5605 of 2025 to assist the 2nd
respondent Authorised Officer to take physical possession of the
secured asset. The total liability in the term loan availed by the
1st appellant comes to Rs.1,81,93,378/- as on 09.10.2025. As
noticed by the learned Single Judge in the impugned judgment
dated 09.10.2025, the overdue itself comes to Rs.78,01,734/-.
11. As pointed out by the learned counsel for the Bank,
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loan accounts to the tune of Rs.400 Crores are already classified
as NPA and the Reserve Bank of India has issued directives on
29.07.2025, under Section 35A read with Section 56 of the
Banking Regulation Act, 1949, as applicable to Co-operative
Societies, whereby the Bank is prevented with effect from
30.07.2025, without prior approval in writing from Reserve Bank
of India, grant or renew any loans and advances, make any
investment, incur any liability including borrowal of funds and
acceptance of fresh deposits, disburse or agree to disburse any
payment whether in discharge of its liabilities and obligations or
otherwise, enter into any compromise or arrangement and shall,
transfer or otherwise dispose of any of its properties or assets
except the extent and the manner provided in that directives,
i.e., Directive No.CO.DOS.SED.No.D-01/12-22-350/2025-26
dated 29.07.2025.
12. In view of the law laid down by the Apex Court in
Naveen Mathew Philip [(2023) 17 SCC 311], if the
appellants are aggrieved by the proceedings initiated against the
secured asset under the provisions of the SARFAESI Act, they
have to approach the Debts Recovery Tribunal by invoking the
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statutory remedy provided under Section 17 of the said Act.
When the remedy open to the appellants to challenge Ext.P1
notice dated 15.06.2025 of the Advocate Commissioner
appointed by the Chief Judicial Magistrate Court, Thrissur, by the
order dated 23.07.2025 in C.M.P.No.5605 of 2025 to assist the
2nd respondent Authorised Officer to take physical possession of
the secured asset, is to approach the Debts Recovery Tribunal
invoking the provisions under Section 17 of the SARFAESI Act,
the appellants cannot invoke the writ jurisdiction of this Court
under Article 226 of the Constitution of India seeking a direction
staying all further coercive proceedings pursuant to the said
notice issued by the Advocate Commissioner, thereby restraining
the Advocate Commissioner from taking physical possession of
the mortgaged property owned by the 1st petitioner, till the
defaulted installments are finally paid off. The appellants cannot
also seek a writ of mandamus commanding the respondents to
permit them to clear the defaulted loan arrears in 18 monthly
installments.
13. In such circumstances, the learned Single Judge
cannot be found fault with in closing W.P.(C)No.31713 of 2025,
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without prejudice to the right of the appellants-petitioners to
challenge the action of the secured creditor by invoking the
statutory remedy provided under Section 17 of the SARFAESI
Act, by approaching the Debts Recovery Tribunal.
In the result, this writ appeal fails and the same is
accordingly, dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
AV
