[Cites 21, Cited by 0]
Kerala High Court
Boban Joseph Mailakal vs Indusind Bank Ltd on 17 February, 2026
Author: Anil K. Narendran
Bench: Anil K. Narendran
1
W.A.No.334 of 2026
2026:KER:14543
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 17TH DAY OF FEBRUARY 2026 / 28TH MAGHA, 1947
WA NO. 334 OF 2026
AGAINST THE JUDGMENT DATED 17.12.2025 IN WP(C) NO.29696 OF
2025 OF THE HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 BOBAN JOSEPH MAILAKAL
AGED 64 YEARS
S/O JOSEPH M.C, MALIAKEL HOUSE, ROSE GARDENS,
CHUNANGAMVELY, VAZHAKULAM, ERNAKULAM, PIN - 682112
2 MOLY BOBAN MAILAKAL
AGED 60 YEARS, W/O BOBAN JOSEPH, MALIAKEL HOUSE, ROSE
GARDENS, CHUNANGAMVELY, VAZHAKULAM, ERNAKULAM., PIN -
682112
BY ADVS.SHRI.JOY GEORGE
SMT.PRAICY JOSEPH
SMT.TANYA JOY
RESPONDENT/RESPONDENT:
INDUSIND BANK LTD
1ST FLOOR, GOWRINARAYANA, M G ROAD, OPP JAYALAKSHMI
SILKS, COCHIN-682035. REPRESENTED BY ITS AUTHORIZED
OFFICER
ADV.SRI.B.J. JOHN PRAKASH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
17.02.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
W.A.No.334 of 2026
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JUDGMENT
Anil K. Narendran, J.
The appellants filed W.P.(C)No.29696 of 2025 under Article
226 of the Constitution of India, seeking a writ of mandamus
restraining the respondent Bank from proceeding further against
the property of the 1st appellant having an extent of 20.75 Ares
in Re.Sy.No.69/14 in Aluva East Village of Aluva Taluk in
Ernakulam District and described in the schedule to sale deed
No.2509/1990 of Aluva Sub Registrar Office on the basis of
Ext.P3 notice dated 01.08.2025 and a writ of mandamus
commanding the respondent Bank and the Advocate
Commissioner not to initiate coercive steps such as taking
possession of the petrol bunk, namely, Moly and Boban Agencies
on the basis of Ext.P3 notice. By the judgment dated
17.12.2025, the learned Single Judge dismissed the writ petition,
without prejudice to the right of the petitioners to raise the
contentions in the writ petition as well as other available
contentions before the Debts Recovery Tribunal under Section 17
of the SARFAESI Act or in the original application pending before
the Debts Recovery Tribunal-I, Ernakulam.
2. Heard arguments of the learned counsel for the
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appellants-petitioners and also the learned counsel for the
respondent Bank.
3. The issue that requires consideration in this writ
appeal is as to whether any interference is warranted on the
judgment dated 17.12.2025 of the learned Single Judge in
W.P.(C)No.29696 of 2025, whereby that writ petition stands
dismissed for the reasons stated therein.
4. In United Bank of India v. Satyawati Tondon
[(2010) 8 SCC 110], a Two-Judge Bench of the Apex Court
held that if the 1st respondent guarantor had any tangible
grievance against the notice issued under Section 13(4) of the
SARFAESI Act or the action taken under Section 14, then he
could have availed remedy by filing an application under Section
17(1) before the Debts Recovery Tribunal. The expression 'any
person' used in Section 17(1) is of wide import. It takes within
its fold, not only the borrower but also the guarantor or any
other person who may be affected by the action taken under
Section 13(4) or Section 14. Both, the Tribunal and the Appellate
Tribunal are empowered to pass interim orders under Sections
17 and 18 and are required to decide the matters within a fixed
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time schedule. It is thus evident that the remedies available to
an aggrieved person under the SARFAESI Act are both
expeditious and effective.
5. In Satyawati Tondon [(2010) 8 SCC 110], on the
facts of the case at hand, the Apex Court noted that the High
Court overlooked the settled law that the High Court will
ordinarily not entertain a petition under Article 226 of the
Constitution if an effective remedy is available to the aggrieved
person and that this rule applies with greater rigour in matters
involving recovery of taxes, cess, fees, other types of public
money and the dues of banks and other financial institutions.
While dealing with the petitions involving challenge to the action
taken for recovery of the public dues, etc. the High Court must
keep in mind that the legislations enacted by Parliament and
State Legislatures for recovery of such dues are a code unto
themselves, inasmuch as, they not only contain comprehensive
procedure for recovery of the dues but also envisage constitution
of quasi-judicial bodies for redressal of the grievance of any
aggrieved person. Therefore, in all such cases, the High Court
must insist that before availing the remedy under Article 226 of
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the Constitution, a person must exhaust the remedies available
under the relevant statute.
6. 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
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,
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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 Act gives an expansive
meaning to the expression 'any person', who could approach the
Tribunal.
7. 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
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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
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
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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. Section 14 of the SARFAESI Act deals with the powers
of the Chief Metropolitan Magistrate or the District Magistrate to
assist a secured creditor in taking possession of a secured asset.
9. In Indian Bank v. D. Visalakshi [(2019) 20 SCC
47], a Two-Judge Bench of the Apex Court considered the
question as to whether 'the Chief Judicial Magistrate' is
competent to deal with the request of the secured creditor to
take possession of the secured asset under Section 14 of the
SARFAESI Act as can be done by the Chief Metropolitan
Magistrate in metropolitan areas and the District Magistrate in
non-metropolitan areas. The Apex Court noted that the Chief
Judicial Magistrate is equated with the Chief Metropolitan
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Magistrate for the purposes referred to in the Criminal Procedure
Code, 1973, and those expressions are used interchangeably,
being synonymous with each other. Approving the view taken by
this Court in Muhammed Ashraf v. Union of India [2008 (3)
KHC 935] and Radhakrishnan V.N. v. State of Kerala [2008
(4) KHC 989], by the Karnataka High Court in Kaveri
Marketing v. Saraswathi Cooperative Bank Ltd. [2013 SCC
OnLine Kar 18], by the Allahabad High Court in Abhishek
Mishra v. State of U.P. [AIR 2016 All 210] and by the High
Court of Andhra Pradesh in T.R. Jewellery v. State Bank of
India [AIR 2016 Hyd 125], the Apex Court held that the Chief
Judicial Magistrate is equally competent to deal with the
application moved by the secured creditor under Section 14 of
the SARFAESI Act.
10. In view of the law laid down by the Apex Court in
Satyawati Tondon [(2010) 8 SCC 110] and reiterated in
Naveen Mathew Philip [(2023) 17 SCC 311], if the
appellants-petitioners have any grievance against the
proceedings initiated by the secured creditor under Section 14 of
the SARFAESI Act, they could have availed the statutory remedy
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by filing an application under Section 17 of the said Act before
the Debts Recovery Tribunal. The expression 'any person' used in
Section 17(1) of the Act is of wide import, which takes within its
fall, not only the borrower but also the guarantor or any other
person, who may be affected by the action taken under Section
13(4) or Section 14 of the said Act.
11. When the remedy available to an aggrieved person
under Section 17 of the SARFAESI Act is both expeditious and
effective, as held by the Apex Court in Satyawati Tondon
[(2010) 8 SCC 110], the borrower, the guarantor or any other
person who may be affected by the action taken by the secured
creditor under Section 14 of the SARFAESI Act have to approach
the Debts Recovery Tribunal availing the statutory remedy
provided under Section 17 of the said Act, instead of invoking
the writ jurisdiction of this Court under Article 226 of the
Constitution of India.
12. In Authorised Officer, State Bank of Travancore
v. Mathew K.C. [2018 (1) KLT 784], the Apex Court held that
no writ petition would lie against the proceedings under the
SARFAESI Act, in view of the statutory remedy available under
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the said Act.
13. In Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya
Mandir [(2022) 5 SCC 345] the Apex Court was dealing with a
case in which Phoenix ARC (P) Ltd. (for brevity 'ARC'), which is a
private financial institution, proposed to take action under the
SARFAESI Act to recover the borrowed amount as a secured
creditor. The Apex Court held that ARC as such cannot be said to
be performing public functions which are normally expected to
be performed by State authorities. During the course of a
commercial transaction and under the contract, the bank/ARC
lends money to the borrowers and the said activity of the
bank/ARC cannot be said to be as performing a public function,
which is normally expected to be performed by the State
authorities. If proceedings are initiated under the SARFAESI Act
and/or any proposed action is to be taken, and the borrower is
aggrieved by any of the actions of the private bank/bank/ARC,
he has to avail the remedy under the SARFESI Act, and no writ
petition would lie and/or is maintainable and/or entertainable.
14. In Sobha S. v. Muthoot Finance Limited [2025
(2) KHC 229], the Apex Court considered the question of
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maintainability of writ petitions under Article 226 of the
Constitution of India against a private non-banking financial
company and also a private company carrying on banking
business as a Scheduled Bank. In the said case, the Apex Court
held that a private company carrying on banking business as a
Scheduled Bank cannot be termed as a company carrying on any
public function or public duty. Merely because a Statute or a rule
having the force of a statute requires a company or some other
body to do a particular thing, it does not possess the attribute of
a statutory body.
15. Viewed in the light of the law laid down in the
decisions referred to supra, conclusion is irresistible that if the
appellants-petitioners are feeling aggrieved by the measures
taken by the respondent Bank, which is a private company
carrying on banking business as a Scheduled Bank, under the
provisions of the SARFAESI Act, their remedy lies before the
Debts Recovery Tribunal in an application filed under Section 17
of the Act, and not in a writ petition filed under Article 226 of the
Constitution of India. In such circumstances, we find no reason
to interfere with the judgment dated 17.12.2025 of the learned
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Single Judge in W.P.(C)No.29696 of 2025.
In the result, this writ appeal fails and the same is
accordingly dismissed; however, leaving open the legal and
factual contentions raised by the appellants-petitioners and the
right of the petitioners to approach the Debts Recovery Tribunal
with a proper application under Section 17 of the SARFAESI Act.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
AV
