Bobby Issac Mathew vs The South Indian Bank
2026 Latest Caselaw 267 Ker

Kerala High Court

Bobby Issac Mathew vs The South Indian Bank on 13 January, 2026

Author: Anil K. Narendran

Bench: Anil K. Narendran

W.A.No.2835 of 2025               1
                                                       2026:KER:1741

                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 13TH DAY OF JANUARY 2026 / 23RD POUSHA, 1947

                          WA NO. 2835 OF 2025

         AGAINST THE JUDGMENT DATED 17.11.2025 IN W.P.(C) NO.42944

OF 2025 OF HIGH COURT OF KERALA

APPELLANTS/PETITIONERS:

     1       BOBBY ISSAC MATHEW,
             AGED 53 YEARS
             S/O P.D. MATHEW, RESIDING AT THAZHATHU PULINGAPPALLIL,
             ATHIRAMPUZHA ROAD, ETTUMANOOR P.O.,
             KOTTAYAM, PIN - 686631

     2       CYRIAC MATHEW
             AGED 63 YEARS
             PULINGAPALLIYIL, ETTUMANOOR P.O.,
             KOTTAYAM DISTRICT, PIN - 686631

     3       SEBASTIAN MATHEW
             AGED 65 YEARS
             PULINGAPALLIL SERENE VILLA,
             CHERUVANDOOR, ETTUMANOOR P.O.,
             KOTTAYAM DISTRICT, PIN - 686631

     4       SUNITHA SEBASTIAN
             AGED 51 YEARS
             THAZHATHU PULINGAPALLIL,
             ETTUMANOOR P.O., KOTTAYAM, PIN - 686631


             BY ADVS.
             SMT.NISHA GEORGE
             SRI.GEORGE POONTHOTTAM (SR.)
 W.A.No.2835 of 2025              2
                                                      2026:KER:1741

RESPONDENT/RESPONDENT:

             THE SOUTH INDIAN BANK,
             REGIONAL OFFICE, KOTTAYAM, 1ST FLOOR, REGENCY SQUARE,
             K.K ROAD, COLLECTORATE P.O., KOTTAYAM, KERALA
             REPRESENTED BY ITS AUTHORIZED OFFICER, PIN - 686002

             BY ADV
             SRI. MOHAN JACOB GEORGE FOR SOUTH INDIAN BANK


       THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.12.2025,

THE COURT ON 13.01.2026 DELIVERED THE FOLLOWING:
 W.A.No.2835 of 2025                  3
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                               JUDGMENT

Muralee Krishna S., J.

The petitioners in W.P.(C)No.42944 of 2025 have filed this

writ appeal under Section 5(i) of the Kerala High Court Act, 1958,

challenging the judgment dated 17.11.2025, passed by the

learned Single Judge in that writ petition.

2. The appellants filed W.P.(C)No.42944 of 2025,

invoking the writ jurisdiction of this Court under Article 226 of the

Constitution of India, seeking the following reliefs;

"i) Issue a writ of certiorari calling for the records leading to Exhibit P6 Order of the Hon'ble CJM Court, Kottayam passed without verifying whether a valid security interest has been created over the properties scheduled therein;

ii) Issue a writ of certiorari calling for the records leading Exhibit P3 demand notice and all consequential actions resulting therefrom are bad for contravention of the mandate of Section 26D of the SARFAESI Act and quash the same;

iii) Issue a writ declaring that recovery measures adopted under SARFAESI Act cannot be proceeded with when the secured creditor has failed to create a valid security interest in terms of Section 20 of the Act;

iv) Issue a writ declaring further that the classification of the loan account of the petitioners as NPA by resorting to circuitous methods is bad in law;

v) Issue a writ declaring that the action taken to take

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possession of the property given as security towards KCC loan is a device resorted to defeat the MSME benefits granted vide Exhibit P11 Judgment is nothing but a fraud on power;

vi) Issue a writ declaring that the declaration of the KCC loan as NPA and all recovery measures pursuant thereto being consequent to the declaration of the other loans of the borrower cannot be proceeded with in the light of Ext-P11 judgment"

3. From the pleadings in the writ petition, it could be

gathered that Appellants 1 and 2 availed a KCC overdraft facility

from the respondent bank ('the bank' for short). Appellants 3 and

4 stood as guarantors to the said loan transaction. The property

having an extent of 24.19 ares in Re.Sy. No.24/5-2 and 24/6 at

Ettumanoor village, belonging to appellants 1 and 3, were offered

as security for the loan. Apart from that, the 1st appellant

individually availed an additional overdraft facility from the bank

in his capacity as the Managing Partner of M/s. PDMC Industries,

and as the Proprietor of M/s. PDMC CO Rubber.

3.1. According to the appellants, both PDMC Industries and

PDMC CO Rubber were registered as MSME and Udyam entities,

making them eligible for the 'Framework for Revival and

Rehabilitation of Micro, Small and Medium Enterprises'

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(Framework for MSMEs) as per notifications issued by the Ministry

dated 29.05.2015 and the RBI dated 21.07.2016. However, this

framework was not extended to them before their accounts were

classified as Non-Performing Assets ('NPA' for short). Following

the classification of PDMC Industries and PDMC CO Rubber's

accounts as NPA, the bank recalled the KCC overdraft facility

availed by appellants 1 and 2. Specifically, the 1st appellant's KCC

loan account was classified as NPA on 06.04.2023, leading to the

filing of Ext.P4 objection dated 12.09.2023, to which the bank

replied via Ext.P5 reply dated 29.09.2023. Subsequently, the 1st

appellant challenged the bank's action against the KCC overdraft

facility by filing W.P.(C) No.32498 of 2023, which was disposed of

by a common judgment that relegated the appellants to approach

the Tribunal.

3.2. Following the disposal of W.P.(C) No. 32498 of 2023,

the appellants filed R.P. No. 536 of 2024 against the common

judgment, which was subsequently disposed of with a clarification

that the appellants are entitled to avail the statutory remedy

under the Debts Recovery Tribunal ('the Tribunal' for short).

Consequently, the appellants preferred S.A. No. 598 of 2024

before the tribunal, challenging the recovery measures initiated

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by the bank, including the possession notice for the KCC overdraft

loan account. Meanwhile, the bank approached the Chief Judicial

Magistrate Court, Kottayam ('CJM' for short), by filing M.C. No.

830 of 2024 under Section 14 of the SARFAESI Act, which resulted

in the passing of Ext.P6 order appointing an Advocate

Commissioner to take physical possession of the secured assets.

3.3. In the meanwhile, PDMC Industries, PDMC Co-Rubber

and the 1st appellant herein, filed W.P.(C) No.5466 of 2025 before

this Court seeking the following reliefs:

"i) To issue a writ of certiorari calling for the records leading to Ext. P8, Ext. P8(a) and Ext. P8(b) whereby the loan facilities were recalled.

ii) To issue a writ declaring further that the classification of the loan accounts of the petitioners as NPA by resorting to circuitous methods contrary to the provisions of law is bad in law.

iii) To issue a writ declaring that the petitioners are entitled to the benefits as per Ext. P3 and Ext. P4 notifications, and that the denial of the same is violative of their fundamental rights.

iv) To issue a writ of certiorari calling for the records leading to Ext. P23 and Ext. P25 orders as well as Ext. P24 and Ext.

P26 notices, and all further actions taken thereunder, and to quash the same.

v) To issue a writ declaring that the action taken to take

2026:KER:1741

possession of the property given as security towards the KCC loan is a device resorted to defeat the MSME benefits which the petitioners are entitled to, and that such action amounts to a fraud on power."

3.4 The said Writ Petition was allowed as per Ext.P11

judgment dated 06.08.2025, the operative portion of which reads

as under:

"For the foregoing reasons, it is declared that the first and second petitioners are entitled to the benefits as per Ext. P3 and P4 notifications. Ext. P9 and P16 are quashed. Consequently, there will be a direction to the respondents to comply with Ext. P3 and P4 Notifications, as far as the first and second petitioners are concerned, and only after the said compliance and based on the decision thereon, the bank shall decide on the classification of the accounts of the first and second petitioners as Non-Performing Assets to proceed under the SARFAESI Act."

3.5. Following these developments, the bank filed W.A. No.

2281 of 2025. Meanwhile, the Advocate Commissioner appointed

in M.C.No.830 of 2024 by the CJM Court, Kottayam issued Ext.P12

notice on 07.11.2025, proposing to take physical possession of

the secured assets related to the KCC OD account on 17.11.2025.

3.6. According to the appellants there are inherent defects

in the description of the property in Ext.P12 notice. The appellants

plead that the asset-based search report from the CERSAI website

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reveals a mis-description of the property that is sought to be taken

into physical possession by the Advocate Commissioner. The

appellants contend that there is no CERSAI registration for the

property, which is a mandatory requirement under Section 26-D

of the SARFAESI Act. Therefore, the Ext.P6 order by the CJM

Court, Kottayam, under Section 14 of the SARFAESI Act was one

passed without application of mind and without adequately

reviewing the documents regarding the correctness of the survey

number and the extent of the land. In such circumstances, the

appellants preferred the present writ petition, i.e.,

W.P.(C)No.42944 of 2025, as mentioned above.

4. On 17.11.2025, when the writ petition came up for

consideration, after hearing the learned Senior Counsel appearing

for the appellants and the learned counsel for the respondent, by

the impugned judgment, the learned Single Judge dismissed that

writ petition. Being aggrieved, the appellants filed the present writ

appeal.

5. Heard the learned counsel for the appellants and the

learned counsel for the respondent bank.

6. During the course of arguments, the learned counsel

for the appellants would submit that the appellants are more

2026:KER:1741

aggrieved by the finding of the learned Single Judge in paragraph

12 of the judgment, on the point of the mis-description of the

property raised by the appellants, since it will tie the hands of the

appellants from agitating that issue before the Tribunal.

7. On the other hand, the learned counsel for the

respondent bank pointed out that by the judgment dated

12.12.2025, this Court allowed W.A.No.2281 of 2025 filed by the

respondent Bank, and even though M/s. PDMC industries and

others filed SLP(C)No.36925 of 2025 before the Apex Court, the

same was dismissed by the order dated 18.12.2025. According to

the learned counsel for the respondent, there is no illegality in the

impugned judgment of the learned Single Judge and hence there

is no ground to interfere with that judgment.

8. From the materials placed on record and from the

judgment of this Court dated 12.12.2025 in W.A.No.2281 of 2025,

which is reported as South Indian Bank v. PDMC Industries

[2025 KHC OnLine 1307], we notice that the relief sought in

W.P.(C)No.5466 of 2025 and in the present writ petition, that is

W.P.(C)No.42944 of 2025 are identical. The 1st appellant did not

appeal against the judgment in W.P.(C)No.5466 of 2025, and

therefore, as found by the learned Single Judge, the said judgment

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is conclusive against the 1st appellant as well as the co-borrower

and guarantors, who are appellants 2 to 4 in the present writ

appeal.

9. Moreover, from the submissions made at the Bar, we

notice that by the judgment dated 12.12.2025 in W.A.No.2281 of

2025, this Court reversed the judgment dated 06.08.2025 in

W.P.(C)No.5466 of 2025, whereby the learned Single Judge

quashed the demand notice with respect to appellants 1 and 2 and

directed compliance with the MSME notification, and this Court

dismissed that writ petition as not maintainable under Article 226

of the Constitution. The said finding of this Court attained finality

by the dismissal of the SLP(C)No.36925 of 2025 by the Apex Court

as per the order dated 18.12.2025.

10. At this juncture, it is relevant to note some of the

judgments of the Apex Court as well as this Court regarding the

maintainability of a writ petition under Article 226 of the

Constitution of India, challenging the proceedings initiated by the

financial institutions under the provisions of the SARFAESI Act.

11. 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

2026:KER:1741

to deal with the request of the secured creditor to take possession

of the secured asset under S.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 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 S.14 of the

SARFAESI Act.

12. In United Bank of India v. Satyawati Tondon

[(2010) 8 SCC 110], a Two - Judge Bench of the Apex Court

2026:KER:1741

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 Section14, 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 Section 17 and

Section 18 and are required to decide the matters within a fixed

time schedule. It is thus evident that the remedies available to an

aggrieved person under the SARFAESI Act are both expeditious

and effective.

13. 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 Art.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

2026:KER:1741

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

Art.226 of the Constitution, a person must exhaust the remedies

available under the relevant statute.

14. In Kuruvithadam Agencies (Pvt.) Ltd. and

another v. Authorised Officer, Standard Chartered Bank

(2021 KER 20923) - judgment dated 28/05/2021 in

W.A.No.1584 of 2020, the grievance of the appellants was that

the Bank had not followed the guidelines and directives issued by

the Reserve Bank of India in the matter of treating the account as

Non - Performing Asset. The Division Bench noticed that a reading

of S.13 of the SARFAESI Act makes it categorically clear that

Parliament has provided a scheme thereunder, enabling an

aggrieved person to ventilate his grievances by resorting to the

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procedure prescribed thereunder. The grievance of the appellants

was that the respondent Bank is not entitled to proceed against

them, since the conduct on the part of the Bank in converting the

account of the appellants into a Non - Performing Asset is not in

accordance with the Reserve Bank of India guidelines. The Division

Bench held that it was a subject matter that ought to have been

pointed out by the appellants before the Bank itself, since the

statute prescribes a modality enabling a party to make a suitable

representation. Therefore, the proceedings initiated by the Bank

squarely come under the procedure contemplated under S.13 of

the SARFAESI Act, and the appellants have a clear remedy as is

statutorily prescribed under the said Act. The question as regards

the action initiated by the Bank illegally can be raised by the

appellants before the Debt Recovery Tribunal, at the appropriate

time, as is prescribed under law, and the Tribunal is vested with

ample powers to consider such aspects, regarding the loan

account maintained by an aggrieved person with a Bank, the

conduct on the part of the Bank in making the account a Non -

Performing Asset and the failure on the part of the Bank to follow

the Reserve Bank guidelines. That apart, there is a clear remedy

of appeal provided under the SARFAESI Act, if aggrieved, on any

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order passed by the Debt Recovery Tribunal, which thus means,

the statute has provided a clear mechanism to tackle all and any

situations of an aggrieved person under law, and therefore, a writ

court would be slow in interfering with the action initiated by the

Bank, especially because the SARFAESI Act was introduced with

the avowed object of speedy recovery of amounts, without

unnecessary interference of courts.

15. In Authorized Officer, State Bank of Travancore

and Another v. Mathew K.C. [2018 (1) KHC 786], the Apex

Court held that the High Court under Article 226 of the

Constitution of India can entertain a writ petition only under

exceptional circumstances and that it is a self imposed restraint

by the High Court. The four exceptional circumstances such as,

where the statutory authority has not acted in accordance with the

provisions of the enactment in question, or in defiance of the

fundamental principles of judicial procedure, or has resorted to

invoke the provisions which are repealed, or when an order has

been passed in total violation of the principles of natural justice,

were re iterated in paragraph 6 of the said judgment by relying on

the judgment of the Apex Court in Commissioner of Income

Tax and Others v. Chhabil Dass Agarwal [(2014) 1 SCC

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603].

16. This position was reiterated by the Apex Court in South

Indian Bank Ltd. (M/s.) v. Naveen Mathew Philip [2023 (4)

KLT 29] and after discussing the various judgments on the point

as well as the circumstances in which the High Court can interfere

with in matters pertaining to the SARFAESI Act, held as under:

"Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Art.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. In our view, 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 remedy under Art.226 of the Constitution, a person must exhaust the remedies available under the relevant statute".

17. In PHR Invent Educational Society v. UCO Bank

2026:KER:1741

[2024 (3) KHC SN 3] the Apex Court held that it is more than a

settled legal position of law that in matters arising out of RDB Act

and SARFAESI Act, the High Court should not entertain a petition

under Art.226 of the Constitution particularly when an alternative

statutory remedy is available.

18. A learned Single Judge of this Court in Jasmin K. v.

State Bank of India [2024 (3) KHC 266] reiterated the

position of law laid down by the Apex Court in the aforementioned

judgments.

19. In the light of the judgments referred to supra

regarding the entitlement of the appellants to challenge the

proceedings initiated by the bank, we find no exceptional

circumstances as held in Mathew K. C. [2018 (1) KHC 786], to

hold that the present writ petition filed under Article 226 of the

Constitution of India is maintainable. So also, in view of the finality

attained to Ext.P11 judgment dated 06.08.2025 filed by the 1 st

appellant and other, we find no reason to hold that the finding of

the learned Single Judge regarding res judicata and constructive

res judicata is not applicable to the facts of the instant case.

20. Having considered the pleadings and materials on

record and the submissions made at the Bar, we find no ground

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to interfere with the impugned judgment of dismissal of the writ

petition passed by the learned Single Judge.

In the result, the writ appeal stands dismissed; however,

making it clear that the observation made in paragraph 12 of the

impugned judgment of the learned Single Judge will not stand in

the way of the appellants taking appropriate legal and factual

contentions regarding the misdescription of property raised, if

they are otherwise entitled to challenge Ext.P6 order of the Chief

Judicial Magistrate's Court, Kottayam, and Ext.P12 notice issued

by the Advocate Commissioner, before the Tribunal.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

MURALEE KRISHNA S., JUDGE MSA

2026:KER:1741

APPENDIX OF WA NO. 2835 OF 2025

PETITIONER ANNEXURES

Annexure A1 TRUE COPY OF THE E-AUCTION SALE NOTICE DATED 24.03.2025 ISSUED BY THE RESPONDENT BANK.