Kerala High Court
Ashok Harry Pothen vs The City Police Commissioner on 8 September, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
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WA No.2145 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.
MONDAY, THE 8TH DAY OF SEPTEMBER 2025 / 17TH BHADRA, 1947
WA NO. 2145 OF 2025
AGAINST THE ORDER DATED 21.08.2025 IN WP(C) NO.21083 OF 2025
OF HIGH COURT OF KERALA
APPELLANT/RESPONDENT NO.6:
ASHOK HARRY POTHEN,
RESIDING AT FLAT NO.2A AND 2B,KOWDIAR MANOR,JAWAHAR
NAGAR,THIRUVANANTHAPURAM, PIN - 695003
BY ADVS.
SMT.DAISY A.PHILIPOSE
SRI.JAI GEORGE
SMT.SANITHA P.S.
SHRI.DARSHAN A.D.
RESPONDENTS/RESPONDENTS/PETITIONER:
1 THE CITY POLICE COMMISSIONER,
THIRUVANANTHAPURAM CITY, POLICE GROUND, CV RAMAN
PILLAI RD, PANAVILA, THYCAUD, THIRUVANANTHAPURAM, PIN
- 695014
2 THE STATION HOUSE OFFICER,
PEROORKADA POLICE STATION,PEROORKADA
(PO),THIRUVANANTHAPURAM, PIN - 695005
3 VISHNU V.S.,
ADVOCATE COMMISSIONER,APPOINTED BY THE CHIEF JUDICIAL
MAGISTRATE COURT,THIRUVANANTHAPURAM RESIDING AT VISHNU
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WA No.2145 of 2025
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BHAVAN,PUNNAKADE,PERUMBAZHATOOR
(PO),THIRUVANANTHAPURAM DISTRICT HAVING OFFICE AT
C/O.ADV.KRISHNA PILLAI,AMERICAN INSTITUTE
BUILDING,VANCHIYOOR,THIRUVANANTHAPURAM, PIN - 695035
4 M/S POTHEN AUTOS PVT.LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR,ASHOK HARRY
POTHEN,RESIDING AT FLAT NO.2A AND 2B,KOWDIAR MANOR,
JAWAHAR NAGAR,THIRUVANANTHAPURAM, PIN - 695003
5 M/S POTHEN VEHICLES & SERVICES PVT.LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR,ASHOK HARRY
POTHEN,9/144-16, 9/144-17, KOWDIAR MANOR,JAWAHAR
NAGAR,THIRUVANANTHAPURAM, PIN - 695003
6 MARY POTHEN,
RESIDING AT FLAT NO.2A AND 2B,KOWDIAR MANOR,JAWAHAR
NAGAR,THIRUVANANTHAPURAM, PIN - 695003
7 SOLLY AJAY,
5A, ARTECH LAKE VIEW APARTMENTS, BYE PASS
ROAD,THIRUVANANTHAPURAM, PIN - 695012
8 AZAD HARRY POTHEN,
RESIDING AT FLAT NO.2A AND 2B,KOWDIAR MANOR,JAWAHAR
NAGAR,THIRUVANANTHAPURAM, PIN - 695003
9 AJAY HARRY POTHEN,
RESIDING AT FLAT NO.2A AND 2B,KOWDIAR MANOR,JAWAHAR
NAGAR,THIRUVANANTHAPURAM, PIN - 695003
10 INDIAN BANK,
REPRESENTED BY ITS AUTHORIZED OFFICER,
THIRUVANANTHAPURAM MAIN BRANCH, INDIAN BANK
TOWERS,M.G. ROAD, THIRUVANANTHAPURAM, PIN - 695029
SRI.BINOY VASUDEVAN - R10
OTHER PRESENT:
SMT. SAROJINI K. G., SENIOR GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2025,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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WA No.2145 of 2025
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JUDGMENT
Muralee Krishna, J.
The 6th respondent in W.P.(C)No.21083 of 2025 filed this
writ appeal under Section 5(i) of the Kerala High Court Act, 1958,
challenging the interim order dated 21.08.2025 passed by the
learned Single Judge in that writ petition, whereby respondents 1
to 3 in the writ petition were directed to comply with Ext.P18
order dated 22.07.2024 passed by the Chief Judicial Magistrate,
Thiruvananthapuram, in M.C. No 592 of 2024 and file a
compliance report on or before 10.09.2025, unless restrained by
any lawful authority.
2. W.P.(C)No.21083 of 2025 is filed by the 10 th respondent
herein, namely, Indian Bank, seeking the following reliefs:
"(i) Issue a Writ of Mandamus or other appropriate writs,
Orders or Directions commanding the respondents 1 to 3 to
give effect to the order passed by the Chief Judicial
Magistrate Court, Thiruvananthapuram in M.C.No.592 of
2024 by taking physical possession of the secured asset
which is the subject matter of this Writ Petition (c), as
expeditiously as possible at any rate within a time frame to
be fixed by this Hon'ble Court, in the interest of justice,
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(ii) To issue a Writ to declare that, the 2 nd and 3rd
respondents are duty bound to assist the secured creditor
from taking possession of the secured asset in view of
Section 14 of the SARFAESI Act".
3. Going by the averments in the writ petition, the 10 th
respondent Bank, which is a secured creditor in terms of the
provisions of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI
Act', in short), had extended various financial assistance to the
appellant and respondents 4 to 9 herein. Security Interest was
created over two items of property located in Kowdiar village in
Thiruvananthapuram. The appellant and respondents 4 to 9 failed
to make payments, which compelled the Bank to initiate coercive
proceedings, as evident from Exts.P1 to P8. This resulted in the
appellant and respondents 4 to 9 unleashing a series of litigations
before the Debts Recovery Tribunal, the Debts Recovery Appellate
Tribunal, as well as before this Court. However, nothing
materialised, and finally the Bank preferred application under
Section 14 of the SARFAESI Act before the Chief Judicial
Magistrate Court, Thiruvananthapuram. Though the 3rd
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respondent was appointed as the Advocate Commissioner, for
reasons best known to him, he did not take possession of the
secured asset. Finally, he gave notice to take possession of the
secured asset on 17.05.2025. But he refused to take possession
on that day, pointing out that the asset is big. The same was
adjourned to 24.05.2025. On that day, he had stated that the
appellant and respondents 4 to 9 had approached this Court and
sought to postpone the same. Thereafter, the writ petition referred
was withdrawn on 29.05.2025. At the request of the Bank, the
Advocate Commissioner visited the secured asset on 03.06.2025
and stated that unless and until the borrowers voluntarily vacate
the secured asset, he will not take possession of the same. The
2nd respondent also supported the Advocate Commissioner.
Virtually, the respondents 2 and 3 had defeated the very purpose
for which Section 14 of the SARFAESI Act had been enacted.
Hence, the Bank filed the writ petition.
4. On 21.08.2025, when the writ petition came up for
consideration, the learned Single Judge passed the impugned
interim order mentioned above. Being aggrieved, the appellant is
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now before this Court with this writ appeal.
5. Heard the learned counsel for the appellant, the
learned counsel for the 10th respondent Bank and also the learned
Senior Government Pleader.
6. The learned counsel for the appellant would submit that
the direction issued by the learned Single Judge in the interim
order is, in effect granting of the final relief sought in the writ
petition. In fact, the recovery proceedings initiated by the Bank
were challenged by the appellant before the Debts Recovery
Tribunal from time to time. After the issuance of notices under
Section 13(2) of the SARFAESI Act, the appellant made a
substantial payment of Rs.3,98,15,023/- to the Bank, which is
described by way of a chart in the appeal memorandum. Even
now, S.A.No.438 of 2024, filed by the appellant before the Debts
Recovery Tribunal, challenging the recovery proceedings initiated
by the Bank, is pending consideration. The interim order granted
by the learned Single Judge without considering all these aspects
on merits is liable to be set aside.
7. On the other hand, the learned counsel for the 10 th
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respondent Bank would submit that the attempt of the appellant
is to thwart the recovery proceedings, which is clearly mentioned
in the writ petition filed by the 10th respondent. Hence, considering
those pleadings, the learned Single Judge passed the interim
order, which necessitates no interference by this Court by
exercising the appellate jurisdiction.
8. The circumstances in which the Court can grant the
interim relief, though it amounts to the granting of the final relief
itself, are laid down by the Apex Court in Deoraj v. State of
Maharashtra [2004(4)SCC 697] wherein it is held as under:
"11. The courts and tribunals seized of the proceedings
within their jurisdiction take a reasonable time in disposing
of the same. This is on account of fair - procedure
requirement which involves delay intervening between the
previous and the next procedural steps leading towards
preparation of case for hearing. Then, the courts are also
overburdened and their hands are full. As the conclusion of
hearing on merits is likely to take some time, the parties
press for interim relief being granted in the interregnum. An
order of interim relief may or may not be a reasoned one
but the factors of prima facie case, irreparable injury and
balance of convenience do work at the back of the mind of
the one who passes an order of interim nature. Ordinarily,
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the court is inclined to maintain status quo as obtaining on
the date of the commencement of the proceedings.
However, there are a few cases which call for the court's
leaning not in favour of maintaining the status quo and still
lesser in percentage are the cases when an order
tantamounting to a mandamus is required to be issued even
at an interim stage. There are matters of significance and
of moment posing themselves as moment of truth. Such
cases do cause dilemma and put the wits of any judge to
test.
12. Situations emerge where the granting of an interim
relief would tantamount to granting the final relief itself.
And then there may be converse cases where withholding
of an interim relief would tantamount to dismissal of the
main petition itself; for, by the time the main matter comes
up for hearing there would be nothing left to be allowed as
relief to the petitioner though all the findings may be in his
favour. In such cases the availability of a very strong prima
facie case - of a standard much higher than just prima facie
case, the considerations of balance of convenience and
irreparable injury forcefully tilting the balance of the case
totally in favour of the applicant may persuade the court to
grant an interim relief though it amounts to granting the
final relief itself. Of course, such would be rare and
exceptional cases. The court would grant such an interim
relief only if satisfied that withholding of it would prick the
conscience of the court and do violence to the sense of
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justice, resulting in injustice being perpetuated throughout
the hearing, and at the end the court would not be able to
vindicate the cause of justice. Obviously such would be rare
cases accompanied by compelling circumstances, where the
injury complained of is immediate and pressing and would
cause extreme hardship. The conduct of the parties shall
also have to be seen and the court may put the parties on
such terms as may be prudent".
(underline supplied)
9. From the pleadings and materials on record, we notice
that the 10th respondent has initiated the recovery proceedings
against the appellant under the provisions of the SARFAESI Act.
On a petition filed by the 10 th respondent Bank before the Court
of Chief Judicial Magistrate, Thiruvananthapuram, under Section
14 of the SARFAESI Act, the said Court issued Ext.P18 warrant
authorising the Advocate Commissioner to take possession of the
secured asset. Contending that respondents 1 to 3 are neglecting
to take possession of the secured asset, the Bank filed the writ
petition. But while going through the reliefs sought in the writ
petition and that granted by the learned Single Judge by way of
an interim order, it is evident that the interim relief granted by
the learned Single Judge is, in effect, granting one of the final
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reliefs sought in the writ petition. But to grant that relief no such
circumstance as mentioned in Deoraj [2004(4)SCC 697] is
stated in the impugned order.
10. It is gatherable from the pleadings and materials on
record that the recovery proceedings were initiated by the Bank
against the appellant, and several rounds of litigation were also
held between the parties in respect of the same. During the course
of arguments, the learned counsel for the appellant pointed out
that Ext.P15(a) notice dated 05.05.2025 issued by the Advocate
Commissioner in pursuance to Ext.P18 warrant issued by the Chief
Judicial Magistrate was not endorsed to respondents 1 and 2
herein. In such circumstances, there is force in the submission of
the learned counsel for the appellant that, without giving due
intimation to respondents 1 and 2 to assist the Advocate
Commissioner to take possession of the secured asset, it cannot
be said that respondents 1 and 2 are not cooperating to take
possession of the secured asset. The 10 th respondent has no case
in the writ petition that they moved the Court of the Chief Judicial
Magistrate to direct respondents 1 and 2 to assist the 3 rd
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respondent Advocate Commissioner to take possession of the
secured asset. Whatever it may be, we are not proposing to enter
into those aspects in this appeal for the simple reason that the
impugned interim order granted by the learned Single Judge is
even otherwise liable to be set aside for the reason of granting the
final relief itself by way of interim order, without considering the
merits of the contentions raised by the parties in the writ petition,
including that of the pendency of the proceedings before the
Tribunal.
Having considered the pleadings and materials on record
and the submissions made at the Bar, we are inclined to allow the
writ appeal by setting aside the impugned order dated 21.08.2025
in W.P.(C)No.21083 of 2025, without expressing anything on the
legal and factual contentions raised by the parties in the writ
petition. The 10th respondent-writ petitioner may move before the
learned Single Judge to take up the writ petition itself on merits,
and we are sure that in that event the learned Single Judge will
pass a considered order on merits, either interim or final, after
taking into consideration the rival contentions raised by the
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parties. Needless to mention that before passing any such
order/judgment, the appellant will also be given an opportunity to
put forward his contentions on merit, by filing a counter affidavit
with supporting documents, if any, in the writ petition.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
sks
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PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE RELEVANT EXTRACT OF THE
STATEMENT OF ACCOUNTS IN RESPECT OF A/C. NO.
6565062697 DATED 27/2/2025 ISSUED BY THE 10TH
RESPONDENT
Annexure A2 A TRUE COPY OF THE RELEVANT EXTRACT OF THE
STATEMENT OF ACCOUNTS IN RESPECT OF A/C. NO.
6887657644 DATED 27/2/2025 ISSUED BY THE 10TH
RESPONDENT
Annexure A3 A TRUE COPY OF THE RELEVANT EXTRACT OF THE
STATEMENT OF ACCOUNTS IN RESPECT OF A/C. NO.
7080728933 DATED 27/2/2025 ISSUED BY THE 10TH
RESPONDENT
Annexure A 4 A TRUE COPY OF THE RELEVANT EXTRACT OF THE
STATEMENT OF ACCOUNTS IN RESPECT OF A/C. NO.
7152422258 DATED 27/2/2025 ISSUED BY THE 10TH
RESPONDENT
Annexure A5 A TRUE COPY OF THE RELEVANT EXTRACT OF THE
STATEMENT OF ACCOUNTS IN RESPECT OF A/C. NO.
6517182582 DATED 21/06/2025 ISSUED BY THE
10TH RESPONDENT
Annexure A6 A TRUE COPY OF THE RELEVANTEXTRACT OF THE
STATEMENT OF ACCOUNTS IN RESPECT OF A/C. NO.
705833817 DATED 27/2/2025 ISSUED BY THE 10TH
RESPONDENT
Annexure A7 A TRUE COPY OF THE RELEVANT EXTRACT OF THE
STATEMENT OF ACCOUNTS IN RESPECT OF A/C. NO.
6518238853 DATED 27/2/2025 ISSUED BY THE 10TH
RESPONDENT
Annexure A8 A TRUE COPY OF THE AUCTION NOTICE DATED
11/7/2025 ISSUED BY THE 10TH RESPONDENT
Annexure A9 A TRUE COPY OF THE AMENDMENT APPLICATION
DATED 18/8/2025, IN S.A.NO.438/2024 BEFORE
THE DEBTS RECOVERY TRIBUNAL, ERNAKULAM
Annexure A10 A TRUE COPY OF APPLICATION FOR STAY, IN
S.A.NO.438/2024 BEFORE THE DEBTS RECOVERY
TRIBUNAL, ERNAKULAM
Annexure A11 A TRUE COPY OF SALE DEED NO.3309 OF 2023 OF
SUB REGISTRY OFFICE, PATTOM DATED 19-08-2025
Annexure A12 A TRUE COPY OF SALE DEED NO.1052 OF 2024 OF
SUB REGISTRY OFFICE, PATTOM DATED 19-08-2025
Annexure A13 A TRUE COPY OF THE SANCTION TICKET DATED
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13/9/2021 ISSUED BY THE 10TH RESPONDENT
Annexure A14 A TRUE COPY OF THE NOTICE DATED 11-02-2025
ISSUED BY THE KERALA FINANCIAL CORPORATION
Annexure A15 A TRUE COPY OF THE E-MAIL DATED 22/8/2025
SENT BY THE APPELLANT TO THE RESPONDENT NO.10
