[Cites 23, Cited by 0]
Kerala High Court
M/S. Everest Agro Spices vs The Board Of Directors Of Axis Bank Ltd on 16 January, 2026
2026:KER:4084
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
WP(C) NO. 48711 OF 2025
PETITIONERS:
1 M/S. EVEREST AGRO SPICES,
14/1287, RECCA VALLEY ROAD, MAVELIPURAM COLONY, KAKKANAD,
ERNAKULAM, KERALA, REPRESENTED BY ITS PROPRIETOR, PIN -
682030
2 PAULOSE P.V.,
AGED 59 YEARS
S/O. VARKEY, SOLE PROPRIETOR, M/S. EVEREST AGRO SPICES,
RESIDING AT PALLATHUKUDY HOUSE, KURUPPAMPADY P.O., PIN -
683545
BY SHRI MATHEWS J. NEDUMPARA
SMT. MARIA NEDUMPARA
SHRI.SHAMEEM FAYIZ V.P.
SHRI.ROY PALLIKOODAM
RESPONDENTS:
1 THE BOARD OF DIRECTORS OF AXIS BANK LTD.,
CORPORATE AND HEAD OFFICE, 'AXIS HOUSE', 7TH FLOOR, C-2,
WADIA INTERNATIONAL CENTRE, PANDURANG BUDHKAR MARG, WORLI,
MUMBAI, REPRESENTED BY ITS CHAIRMAN, PIN - 400025
2 THE AUTHORIZED OFFICER,
AXIS BANK LTD., 5TH FLOOR, CHICAGO PLAZA, RAJAJI ROAD,
KOCHI, PIN - 682035
3 MINISTRY OF MICRO SMALL AND MEDIUM ENTERPRISES,
REPRESENTED BY ITS SECRETARY, UDYOG BHAWAN, RAFI MARG, NEW
DELHI, PIN - 110001
4 RESERVE BANK OF INDIA,
REPRESENTED BY ITS GOVERNOR, NEW CENTRAL OFFICE BUILDING,
SHAHID BHAGAT SINGH ROAD, FORT, MUMBAI, PIN - 400001
2
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5 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FINANCIAL
SERVICES, MINISTRY OF FINANCE, 3RD FLOOR, JEEVAN DEEP
BUILDING, SANSAD MARG, NEW DELHI, PIN - 110001
6 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
7 GENERAL MANAGER,DISTRICT INDUSTRIES CENTRE, ERNAKULAM,
KAKKANAD, PIN - 682030
8 CHAIRMAN,
MICRO AND SMALL ENTERPRISE FACILITATION COUNCIL (MSEFC),
DIRECTORATE OF INDUSTRIES COMMERCE, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM, KERALA, PIN - 695033
9 CHAIRMAN,
STATE LEVEL INTER-INSTITUTIONAL COMMITTEE, REGIONAL OFFICE,
RESERVE BANK OF INDIA, BAKERY JUNCTION, P.B. NO. 6507,
THIRUVANANTHAPURAM, PIN - 695033
10 DEEPTHI CHANDRAN,
ADVOCATE COURT COMMISSIONER APPOINTED IN CRL. MP.10534/2025,
IN THE FILES OF CJM THRISSUR, THRISSUR BAR ASSOCIATION,
KALYAN NAGAR, AYYANTHOLE, THRISSUR, KERALA, PIN - 680003
11 THE SENIOR INSPECTOR OF POLICE,
PUTHENCRUZ POLICE STATION, PUTHENCRUZ, PIN - 682308
12 THE SENIOR INSPECTOR OF POLICE,
MUVATTUPUZHA POLICE STATION, XHJJ+6P4, PUZHAKKARAKAVU RD,
THOTTUMKALPEEDIKA, MUVATTUPUZHA, PIN - 686661
13 THE SENIOR INSPECTOR OF POLICE,
CHERPU POLICE STATION, C6R6+59V, CHERPU - THRIPRAYAR RD,
CHERPU, THRISSUR, KERALA, PIN - 680561
14 THE ATTORNEY GENERAL FOR INDIA,
OFFICE OF ATTORNEY GENERAL OF INDIA, SUPREME COURT COMPLEX,
TILAK MARG, NEW DELHI, PIN - 110001
15 THE CHAIRMAN,STATE BANK OF INDIA, STATE BANK BHAWAN, NARIMAN
POINT, MUMBAI, PIN - 400021
16 ANIL DHIRAJLAL AMBANI,
SEA WIND, CUFFE PARADE, MUMBAI, PIN - 400005
3
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17 MUKESH DHIRAJLAL AMBANI,
ANTILLA, ALTAMOUNT ROAD, CUMBALLA HILL, MUMBAI, PIN - 400036
18 CENTRAL REGISTRY OF SECURITISATION ASSET RECONSTRUCTION AND
SECURITY INTEREST OF INDIA (CERSAI),
TOWER 1, OFFICE BLOCK, 4TH FLOOR, PLATE-A, NBCC, KIDWAI
NAGAR (EAST), NEW DELHI REPRESENTED BY ITS CENTRAL
REGISTRAR, PIN - 110023
BY SHRI.P.PAULOCHAN ANTONY, SC
SRI.KARTHIK S. ACHARYA
SHRI.SREEJITH K.
SHRI.S.NIKHIL RAJEEV
SHRI. G.VISWANATHAN
SMT.ASWNI M.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 8.1.2026,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
4
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2026:KER:4084
JUDGMENT
(Dated this the 16th day of January 2026)
The 1st petitioner is a Sole Proprietorship of the 2nd
Petitioner engaged in the trading of agricultural produce, which
claims to be a registered Medium MSME enterprise having a
history of more than 5 years in trade. The 1st Respondent Bank is
the Board of Directors, represented by its chairman and the 2nd
Respondent is its authorised Officer. It is the case of the petitioners
that they have availed credit facilities from Respondent Nos. 1-10
lenders to the tune of Rs. 20 crores. The loan facilities were renewed
from time to time and the said loan was fully covered by collateral
facilities.
2. However, due to various factors beyond the control
of the Petitioners, the business of the MSME faced financial stress
which led to default on the repayment obligations. Consequently, a
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demand notice dated 20.05.2025 under Section 13(2) of the
SARFAESI Act, 2002 and a possession notice dated 16.08.2025
under Section 13(4) of the SARFAESI Act, 2002 was issued by the
1st respondent Bank.
3. Thereafter, the 2nd respondent, along with the
Advocate Commissioner, tried to dispossess the Petitioners from
their residential home on the strength of the Order dated 14 -10-
2025 passed by the Chief Judicial Magistrate, Thrissur, under
Section 14 of the SARFAESI Act. Consequently, a letter by the
Advocate Commissioner dated 17/11/2025, informing the
Petitioners regarding taking of possession of the secured assets was
also sent to the petitioners. Aggrieved by the coercive proceedings
initiated at the instance of the respondent lenders, this petition
stands filed.
4. Heard both the learned counsels appearing for the
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petitioners as well as the respondents.
5. The primary contention of the learned counsel for
the petitioners is that the 1st petitioner, being an MSME enterprise,
within the meaning of S. 7 (1) of the MSMED Act,2006, is entitled
to the protection of the notification dated 29.05.2015. A copy of the
UDYAM registration certificate has been produced as Ext.P1,
evidencing the MSME status of the petitioners, but the fact remains
that as per the said certificate, the petitioners' unit is not an MSME.
However, according to the petitioners, as per the said notification
which has been issued in exercise of the powers conferred in the
Central Government under Section 9 of the MSMED Act, the Banks
and financial institutions are imposed with a duty to extend to the
MSME borrowers, the benefit of the rehabilitation framework, but
that the same has been denied to the petitioners' firm. Therefore,
prays that all proceedings done in furtherance of the classification
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of the loan account of the petitioner enterprise without referring the
same to the Committee for identifying incipient stress for availing
the opportunity of rehabilitation is illegal and liable to be quashed.
6. The learned counsel for the petitioners has also
made available in court a copy of a reference letter submitted for
the rectification of error in the Udyam Registration Certificate
before the Ministry of MSME who has issued the same, to the
extent it states that the petitioner enterprise is "not an MSME".
According to the said application dated 12.12.2025, the applicant's
unit falls squarely within the definition given for medium enterprise
given under section 7 of the MSMED Act, 2006, and the
notification issued by the Central Government under the said Act.
In terms of the Notification no. S.O 2119 (E) dated 26.6.2020 of the
Central Government, all the enterprises where the investment in
plant and machinery is under Rs.50 crores and the turnover is less
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than Rs. 250 crores are medium enterprises. By Notification no. S.O
1364 (E) dated 21.3.2025, the said limits have been further
enhanced to Rs. 125 crores and Rs. 500 crores, respectively.
7. Hence, the counsel points out that even if going
by the aforesaid notifications of the year 2020 and 2025 enhancing
the monetary limit prescribed for MSMEs, it is well and good to
attribute MSME status to the petitioner enterprise as they claim that
the enterprise is having the requisite turnover which would
obviously accommodate the said enterprise within the definition of
medium MSME as per the said section. Hence, since Ext P1 is under
challenge, it cannot be considered as the sole evidence for denying
MSME status to the petitioner enterprise.
8. A perusal of Ext P1 evidences the fact that the
petitioner enterprise unit for the years 2023-24 and 2024-25 is
shown as "Not an MSME". Therefore, the MSME status as
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presently claimed by the petitioner enterprise itself has gone in vain.
Consequently, all other contentions regarding denial of benefits as
contemplated in the notification of the year 2015, which is available
to a registered MSME, also, need not be answered to, as it goes out
of play. Since no finality has been arrived in the rectification
application submitted with respect to Ext P1, as of now, there is no
evidence at hand to substantiate the quantum of turnover as claimed
by the petitioner enterprise to attribute them a medium enterprise
status. Hence, Ext P1 being the sole evidence to rely upon, as
regards the MSME status, it can only be inferred that the petitioner
enterprise is not an MSME as seen in Ext P1.
9. The second question mooted by the counsel for the
petitioners is that while considering an application made by a
secured creditor under Section 14 of the Act, whether the CJM is
obliged to issue notice to the borrower. Section 14 of the Act
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provides that when the possession of any secured asset is required
to be taken by the secured creditor or if any of the secured asset is
required to be sold or transferred by the secured creditor under the
provisions of this Act, the secured creditor may, for the aforesaid
purpose, make a request, in writing, to the Chief Metropolitan
Magistrate or the District Magistrate within whose jurisdiction any
such secured asset or other documents relating thereto may be
situated or bound, to take possession thereof. It further provides that
once such a request is made, the Magistrate concerned shall take
possession of such asset and forward the same to the secured
creditor.
10. In R.D. Jain and Co. (M/s) v. Capital First Ltd.
And Others reported in (2022 SCC Online SC 921), the hon'ble
Apex Court has taken into consideration the decision of NKGSB
Cooperative Bank Limited v. Subir Chakravarthy and Others
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(Civil appeal No. 1637/2022) decided on 25.02.2022, wherein it
was held that under Section 14 of the Act, the process of taking
possession of secured assets is a purely ministerial step performed
by the Chief Metropolitan Magistrate (CMM) or District Magistrate
(DM). The law does not require the Magistrate to personally visit
the site, instead, they may execute the order themselves or authorize
a subordinate officer or even an advocate Commissioner who is
legally recognized as an officer of the court to act on their behalf.
This ensures that securing the property is carried out efficiently
through authorized personnel without necessitating the personal
presence of the Magistrate.
11. Relevant paragraph of R.D. Jain and Co. (supra)
reads thus: -
" 8.1. ** ** ** ** **
While disposing of the application under S.14 of the
SARFAESI Act, no element of quasi-judicial function or
application of mind would require. The Magistrate has to
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adjudicate and decide the correctness of the information given
in the application and nothing more. Therefore, S.14 does not
involve an adjudicatory process qua points raised by the
borrower against the secured creditor taking possession of
secured assets.
9. Thus, in view of the scheme of the SARFAESI Act, more
particularly, S.14 of the SARFAESI Act and the nature of the
powers to be exercised by learned Chief Metropolitan Magistrate /
learned District Magistrate, the High Court in the impugned
judgment and order has rightly observed and held that the power
vested in the learned Chief Metropolitan Magistrate / learned
District Magistrate is not by way of persona designate ."
12. Reliance has also been placed in Vijaya Bank v.
State of Kerala, (2007 supreme (Online) (KER) 6787), which
reads as follows: -
"5. *** **** *** Reading of the terms of the Act would also show that
while considering such a request, no adjudication is expected from a
Magistrate. On the other hand, once an application is preferred by the
secured creditor, the Magistrate is mandatorily obliged to act upon the
same and take possession of the secured asset and forward such asset to
the secured creditor. The provision concerned does not leave any part of
the duties of the Magistrate, to his discretion."
13. Thus, the CJM who acts under the said section lacks
jurisdiction to adjudicate borrowers' petitions as this section limits
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the power vested with the CJM to ministerial actions only without
adjudicatory processes as held in The Federal Bank Limited v.
Chief Judicial Magistrate, Kozhikode (2025 (3) KLT 146) and,
any aggrieved party is to be relegated to raise objections in the
proceedings under section 17 of the Act, before the DRT within 45
days. If the DRT concludes that the secured creditor took possession
of the asset violating any statutory provision, it can even direct
restoration of possession of the assets to the borrower, under sub-
section.3 of sec.17 of the Act. See also, Balkrishna Rama Tarle
v. Phoenix ARC (P) Ltd, (2023 (1) SCC 662) and C.R. Sindhu v.
State of Kerala (2007 (4) KHC 944).
14. In Union of India v. Tulsi Ram Patel [(1985) II
LLJ 206 SC], the hon'ble Supreme Court observed that "in certain
circumstances, application of principles of natural justice should be
modified and even excluded." According to the Court, where a right
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to a prior notice and an opportunity of hearing would obstruct
prompt action, such a right could be excluded. The Supreme Court
clarified that, if the action to be taken, its object and purpose, and
the scheme of the relevant statutory provisions warrant, the right to
prior notice and hearing stand excluded. If legislation and the
necessities of a situation, the Supreme Court also observed, "can
exclude the principles of natural justice including the audi alteram
partem rule, a fortiori, so can a provision of the Constitution."
Therefore, it is very well made out that the CJM need not give
notice to or hear the borrower or any person in possession of the
secured asset while dealing with applications under section 14 of
the Act.
15. The learned counsel for the petitioners further
contended the legality of simultaneous proceedings instituted by the
respondent bank under SARFAESI as well as the RDB Acts and
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prayed for the dismissal of the same. This question is already
covered by the judgment of M/s Transcore v. Union of India, (AIR
2007 SC 712), wherein the hon'ble Supreme Court had upheld the
legality of concurrent proceedings initiated under both SARFAESI
and RDB Acts, emphasizing that the principle of doctrine of
election of remedies does not apply to the said context as remedies
under both the statutes are complementary rather than exclusive and
hence, both the remedies can be availed of simultaneously.
16. A learned Single Judge of this Court in M.D.
Esthappan Infrastructure Pvt Ltd. and Ors. V. Reserve Bank of
India and Ors., reported in (2025 KHC OnLine 2176), had also
reiterated the permissibility of simultaneous proceedings under
both the Acts. The relevant portion of the above judgment is
extracted herein for reference:
"17. The principles laid down in the Transcore judgment dealt with
the interplay between the Recovery of Debts and Bankruptcy Act (RDB
Act) and the SARFAESI Act. The Hon'ble Supreme Court held that the
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first and third provisos to Section 19(1) of the DRT Act are enabling
provisions introduced to align the DRT Act, NPA Act, and Order XXIII
CPC. Withdrawal of the O. A. is not a precondition for invoking the NPA
Act, and the bank/FI may act under the NPA Act with or without DRT's
permission, depending on the circumstances. The doctrine of election does
not apply to the DRT Act and the NPA Act, as they are not inconsistent or
repugnant but together constitute a single, complementary remedy. The
NPA Act provides a non-adjudicatory mechanism for enforcing the
security interest created by the borrower in favour of the bank/Fl, based
not only on default in repayment but also on the borrower's failure to
maintain margin and asset value, thereby enabling secured creditors to act
without court intervention. Issuance of notice under Section 13(2) of the
SARFAESI Act constitutes initiation of "action" within the meaning of the
first proviso to Section 19(1) of the DRT Act.
18. The Hon'ble Apex Court also held that Section 13(10) of the
SARFAESI Act shows that SARFAESI and DRT remedies are
complementary and can be pursued simultaneously. Section 13(13) of
SARFAESI demonstrates that a Section 13(2) notice has substantive legal
consequences and is not merely a show cause notice. Withdrawal under
the first proviso to Section 19(1) may be necessary in cases where assets
are in possession of a court receiver or under injunction, but not otherwise.
The objective behind the proviso is to provide procedural flexibility and
not to restrict enforcement under SARFAESI, The High Court's view that
the proviso is mandatory was overruled, and it was held that the bank may
proceed under SARFAESI without DRT's prior leave.
** ** ** **"
17. The primary relief sought for by the petitioners
claiming protection available to MSMEs under the framework of
rehabilitation as per the notification dated 29.5.2015 fail for the
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very reason that the 1st petitioner cannot be attributed the status of
an MSME as seen in Ext.P1. It is also held that the
petitioners/borrowers need not be served by notices by the learned
CJM while dealing with Section 14 of the Act. Another contention
mooted by the counsel for the petitioners questioning the legality of
parallel proceedings under SARFAESI as well as the RDB Acts also
cannot be sustained, as the exhaustion of both the remedies are
complementary rather exclusive, and therefore can be resorted to
simultaneously, in view of the law laid down in the aforementioned
decisions. Hence, considering the facts and circumstances of the
case at hand and taking into note the above given decisions, it is
only to be held that the petitioners are disentitled to the reliefs
sought in the present petition.
In the result, the W.P (C) stands dismissed.
Sd/-BASANT BALAJI, JUDGE
dl/
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APPENDIX OF WP(C) NO. 48711 OF 2025
PETITIONER EXHIBITS
Exhibit P1 A COPY OF THE UDYAM REGISTRATION CERTIFICATE NO.
UDYAM-KL-02-0005052, ISSUED BY THE MINISTRY OF
MICRO, SMALL & MEDIUM ENTERPRISES (MSME),
GOVERNMENT OF INDIA, DATED 30.10.2020
Exhibit P2 A COPY OF THE MSME NOTIFICATION NO. S.O.1432 (E)
DATED 29.05.2015, ISSUED BY THE MSME MINISTRY,
GOVERNMENT OF INDIA
Exhibit P3 A TRUE COPY OF THE RBI NOTIFICATION NO. RBI
NOTIFICATION NO. FIDD.MSME & NFS.BC.NO.
21/06.02.31 /2015-16, DATED 17.03.2016
Exhibit P4 A COPY OF THE RBI NOTIFICATION RPCD.NO. PL
NFS.BC.57/06.04.01/2001-2002- DATED 16.01.2002
Exhibit P5 A COPY OF THE RBI NOTIFICATION DBOD.BP.BC.NO.
34/21.04.132/2005-06- DATED 8.9.2005
Exhibit P6 A COPY OF THE JUDGEMENT DATED 05.01.2023 PASSED BY
SUPREME COURT IN IN CIVIL APPEAL NO.6662/2022,
KOTAK MAHINDRA BANK LTD V. GIRNAR CORRUGATORS PVT.
LTD &ORS
Exhibit P7 A COPY OF THE JUDGEMENT DATED 30/11/2023 PASSED BY
THIS HON'BLE COURT IN WRIT APPEAL NO.1730/2023,
ABDUL NAZER V. UNION BANK OF INDIA
Exhibit P8 A COPY OF THE JUDGMENT DATED 07/11/2024 IN WRIT
APPEAL NO.1728/2024, PK KRISHNAKUMAR V INDUSIND
BANK &ORS. OF THIS HONOURABLE COURT
Exhibit P9 A COPY OF THE ORDER DATED 13/12/2024 IN SPECIAL
LEAVE TO APPEAL NO.29302/2024 OF THE SUPREME COURT
Exhibit P10 17. TRUE COPY OF THE COMMON JUDGMENT IN THE I WRIT
PETITIONS NOS. 45166/2024 AND 46514/2024,
ESTHAPPAN INFRASTRUCTURE PVT. LTD V. RESERVE BANK
OF INDIA DATED 11/03/2025 OF THIS HONOURABLE COURT
Exhibit P11 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.
30885/2024, SARK SPICE V. RBI DATED 22/11/2024 OF
THIS HONOURABLE COURT
Exhibit P12 TRUE COPY OF THE JUDGMENT IN WP(L) NO. 34253/2022,
ALEXIS BUSINESS SOLUTIONS PVT. LTD. VS. ADITYA
BIRLA FINANCE LTD. DATED 2/12/2022 OF THE BOMBAY
HIGH COURT
Exhibit P13 TRUE COPY OF THE JUDGMENT IN WP(L) NO. 5781/2025,
M/S. RAY PROJECTS PVT. LTD V. THE BOARD OF
DIRECTORS OF CANARA BANK DATED 7/10/2025 OF THE
BOMBAY HIGH COURT
Exhibit P14 TRUE COPY OF THE JUDGMENT IN WP(C) NO.14203/2024,
M/S. CRAFT KNIT GARMENTS V. THE BOARD OF DIRECTORS
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OF SIDBI &ORS & CONNECTED CASES DATED 22/07/2024
OF THE MADRAS HIGH COURT
Exhibit P15 A CHART OF THE VARIOUS PROCEEDINGS MS. MANISHA
MEHTA HAD TO INSTITUTE
Exhibit P16 A COPY OF THE JUDGMENT DATED 07.10.2025 OF THE
BOMBAY HIGH COURT IN W.P. NO. 14829 OF 2025
Exhibit P17 A COPY OF THE SANCTION MEMORANDUM BEARING
REFERENCE NO. AXIS/OAS/2024-25/592119 DATED
24.09.2024 ISSUED BY THE RESPONDENT NO. 1 BANK
WHICH CLEARLY RECORDS THE PETITIONER NO. 1 MSME AS
MSME
Exhibit P18 A COPY OF THE PETITIONER NO. 1'S EMAIL DATED
18.02.2025
Exhibit P19 A COPY OF THE DEMAND NOTICE DATED 20.05.2025 UNDER
SECTION 13(2) OF THE SARFAESI ACT, 2002 ISSUED BY
THE RESPONDENT NO. 1 AXIS BANK
Exhibit P20 A COPY OF THE POSSESSION NOTICE DATED 16.08.2025
UNDER SECTION 13(4) OF THE SARFAESI ACT, 2002
ISSUED BY THE RESPONDENT NO. 1 AXIS BANK
Exhibit P21 A COPY OF THE NOTICE DATED 17-11-2025 ISSUED BY
THE ADVOCATE COMMISSIONER APPOINTED BY THE CHIEF
JUDICIAL MAGISTRATE, THRISSUR
Exhibit P22 A COPY OF THE JUDGMENT DATED 06.8.2025 IN WPC
5466/2025 OF THIS HONOURABLE COURT, PDMC
INDUSTRIES V. MINISTRY OF MICRO SMALL AND MEDIUM
ENTERPRISES
Exhibit P23 TRUE COPY OF THE JUDGMENT DATED 03.06.2025 IN
WP(MD) 23328/2024 OF THIS HONOURABLE MADURAI BENCH
OF MADRAS HIGH COURT, A.K. KARTHIKEYAN V. THE
AUTHORIZED OFFICER, CANARA BANK
Exhibit P24 COPY OF THE ORDER OF THE NCLT MUMBAI IN CP(IB)
NO.3025(MB) OF 2019
Exhibit P25 A COPY OF THE ORDER OF NCLT-I, MUMBAI, PASSED IN
CP(IB) NO.845(MB) OF 2022
