[Cites 14, Cited by 0]
Kerala High Court
Delanthabettu Kanyana Shaul Hameed vs K. Mohammed Iqbal on 31 January, 2026
Author: Anil K. Narendran
Bench: Anil K. Narendran
WA Nos.3045 & 3046 of 2025 1 2026:KER:7931
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
SATURDAY, THE 31ST DAY OF JANUARY 2026 / 11TH MAGHA, 1947
WA NO. 3045 OF 2025
AGAINST THE ORDER DATED 18.11.2025 IN OP (DRT) NO.350 OF
2025 OF HIGH COURT OF KERALA
APPELLANT(S)/RESPONDENTS 2 TO 4:
1 DELANTHABETTU KANYANA SHAUL HAMEED
AGED 71 YEARS
S/O MOHAMMED HAJEE, 15-4-190/14,
KADRI WESTWIND APARTMENT, D NO. 1703, 17 TH FLOOR,
BENDOORWELL POST, MANGALORE, KANKANADY, PIN - 575002
2 MOHAMMED HASIR.B.K
AGED 25 YEARS
S/O ABDUL KHADER, AYOOB MANZIL,
KAINOTH, KALANAD.P.O, KASARGODE, PIN - 671317
3 MUSTHAFA.P
AGED 53 YEARS
C/O MOIDU.C.P, BAITHUL NOOR,
SOUTH CHITHARI, CHITHARI, KASARGOD, PIN - 671316
BY ADVS.
SRI.JAGAN ABRAHAM M.GEORGE
SRI.JOSEPH GEORGE (KANNAMPUZHA)
SHRI.GEORGE JOSEPH
SHRI.YOHAAN KAITHARA XAVIER
RESPONDENT(S)/PETITIONERS & 1ST RESPONDENT:
1 K. MOHAMMED IQBAL
AGED 54 YEARS
S/O K.MOIDEENKUTTY HAJI, PATTUVATHIL HOUSE,
CHATTANCHAL.P.O, THEKKIL,
KASARGODE, PIN - 671541
WA Nos.3045 & 3046 of 2025 2 2026:KER:7931
2 K.MOIDEENKUTTY HAJI
AGED 90 YEARS
S/O LATE. KUNHAPPU, PATTUVATHIL HOUSE,
CHATTANCHAL.P.O, THEKKIL, KASARGODE, PIN - 671541
3 T.K.FAIZAL
AGED 48 YEARS
S/O K.MOIDEENKUTTY HAJI, PATTUVATHIL HOUSE,
CHATTANCHAL.P.O, THEKKIL, KASARGODE, PIN - 671541
4 UNION BANK OF INDIA
REPRESENTED BY ITS CHIEF MANAGER & AMP; AUTHORISED
OFFICER, 2 ND FLOOR, UNION BANK BHAVAN, M.G.ROAD,
ERNAKULAM, PIN - 682035
OTHER PRESENT:
SRI. C. MURALIKRISHNAN,SC, UBI
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2026,
ALONG WITH WA.3046/2025, THE COURT ON 31.01.2026 DELIVERED THE
FOLLOWING:
WA Nos.3045 & 3046 of 2025 3 2026:KER:7931
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
SATURDAY, THE 31ST DAY OF JANUARY 2026 / 11TH MAGHA, 1947
WA NO. 3046 OF 2025
AGAINST THE ORDER DATED 18.11.2025 IN OP (DRT) NO.348 OF
2025 OF HIGH COURT OF KERALA
APPELLANT(S)/RESPONDENTS 1 TO 3 (SOUGHT TO BE IMPLEADED):
1 DELANTHABETTU KANYANA SHAUL HAMEED
S/OMOHAMMED HAJEE, 15-4-190/14, KADRI WESTWINF
APARTMENT, D NO. 1703, 17 TH FLOOR, BENDOORWELL POST,
MANGALORE, KANKANADY, PIN - 575002
2 MOHAMMED HASIR.B.K
AGED 25 YEARS
S/O ABDUL KHADER, AYOOB MANZIL, KAINOTH,
KALANAD.P.O, KASARGODE, PIN - 671317
3 MUSTHAFA.P
AGED 53 YEARS
C/O MOIDU.C.P, BAITHUL NOOR, SOUTH CHITHARI,
CHITHARI, KASARGOD, PIN - 671316
BY ADVS.
SRI.JAGAN ABRAHAM M.GEORGE
SRI.JOSEPH GEORGE (KANNAMPUZHA)
SHRI.GEORGE JOSEPH
SHRI.YOHAAN KAITHARA XAVIER
RESPONDENT(S)/PETITIONERS & 1ST RESPONDENT:
1 K.MOHAMMED IQBAL
AGED 54 YEARS
S/O K.MOIDEENKUTTY HAJI, PATTUVATHIL HOUSE,
CHATTANCHAL.P.O, THEKKIL,
KASARGODE., PIN - 671541
WA Nos.3045 & 3046 of 2025 4 2026:KER:7931
2 K.MOIDEENKUTTY HAJI
AGED 90 YEARS
S/O LATE. KUNHAPPU, PATTUVATHIL HOUSE,
CHATTANCHAL.P.O, THEKKIL, KASARGODE, PIN - 671541
3 T.K.FAIZAL
AGED 48 YEARS
S/O K.MOIDEENKUTTY HAJI, PATTUVATHIL HOUSE,
CHATTANCHAL.P.O, THEKKIL, KASARGODE, PIN - 671541
4 UNION BANK OF INDIA
REPRESENTED BY ITS CHIEF MANAGER & AUTHORISED OFFICER,
2 ND FLOOR, UNION BANK BHAVAN, M.G.ROAD, ERNAKULAM,
PIN - 682035
BY ADV SHRI.C.MURALIKRISHNAN (PAYYANUR)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2026,
ALONG WITH WA.3045/2025, THE COURT ON 31.01.2026 DELIVERED THE
FOLLOWING:
WA Nos.3045 & 3046 of 2025 5 2026:KER:7931
JUDGMENT
[WA Nos.3045/2025 & 3046/2025]
Muralee Krishna S., J.
The appellants, who are third parties and are sought to be
impleaded as respondents 2 to 4 in OP(DRT)No.350 of 2025 and
as respondents 1 to 3 in OP(DRT)No.348 of 2025 filed
W.A.No.3045 of 2025 and W.A.No.3046 of 2025, respectively,
under Section 5(i) of the Kerala High Court Act, 1958, challenging
the common interim order dated 18.11.2025 passed by the
learned Single Judge in those original petitions. Since the point to
be considered in these writ appeals is the same, they are heard
together and are being disposed of by this common judgment.
2. The petitioners in OP(DRT)No.350 of 2025 are the
applicants in S.A.No.182 of 2025 pending before the Debt
Recovery Tribunal I, Ernakulam ('the Tribunal' for short).
Similarly, the petitioners in OP(DRT)No.348 of 2025 are the
applicants in S.A.No.183 of 2025 pending before the Tribunal. The
petitioners in both the OP(DRT)s are borrowers and guarantors of
term loans availed by them from the Union Bank of India ('the
Bank' for short), which is the 4th respondent in both the writ
WA Nos.3045 & 3046 of 2025 6 2026:KER:7931
appeals. When the loan accounts were classified as Non
Performing Assets ('NPA' for short) and the bank initiated recovery
steps under the provisions of Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
('SARFAESI Act' for short), the petitioners filed the respective
S.A.s before the Tribunal contending that the secured assets are
agricultural land and they are exempted under Section 31(i) of the
SARFAESI Act. According to the petitioners, during the pendency
of the S.A.s, the 4th respondent-bank issued a fresh e-auction sale
notice dated 19.09.2025, which was produced before the Tribunal
as Annexure A11. Therefore, the petitioners filed interlocutory
applications under Section 17 of the SARFAESI Act to amend the
SAs to incorporate the challenge against the said notice, which
were numbered as I.A.No.3940 of 2025 in S.A.No.182 of 2025 and
I.A.No.3942 of 2025 in S.A.No.183 of 2025. They have also filed
interlocutory applications in the SAs for stay, production of the
valuation report and appointment of an Advocate Commissioner.
Alleging that the inaction on the part of the Tribunal in disposing
of those interlocutory applications amounts to failure of
jurisdiction under Section 17(7) of the SARFAESI Act, petitioners
WA Nos.3045 & 3046 of 2025 7 2026:KER:7931
in the OP(DRT)s approached this Court by filing the respective
original petitions under Article 227 of the Constitution of India,
seeking a direction to the Tribunal to consider and dispose of the
interlocutory applications within a time frame fixed by this Court
and also other ancillary reliefs.
3. On 18.11.2025, when the original petitions came up for
consideration, the learned Single Judge passed the impugned
common interim order, which reads thus:
"Petitioner is directed to remit an amount of
Rs.1,16,00,000/-(Rupees one crore sixteen lakhs only) on
or before 28.11.2025 by 5 pm.
2. The total outstanding amount as on 04.11.2025 is
Rs.3,96,31,161.77/- and the balance to be remitted by the
petitioner as on date comes to Rs.2,31,99,477.77/- with
other charges and interest.
3. The amount already deposited, and the amount sought
to be deposited shall be kept in a separate account. Since I
have permitted the petitioner to pay the amount, 75%
balance, if tendered by the auction purchaser, need not be
accepted for the time being.
Post on 02.12.2025, interim order is extended till then."
4. The appellants, who are the auction purchasers of the
properties which were offered as secured assets by the borrowers
and guarantors, who are sought to be impleaded in the original
WA Nos.3045 & 3046 of 2025 8 2026:KER:7931
petitions, filed these writ appeals seeking leave of this Court to
challenge the interim order dated 18.11.2025 passed by the
learned Single Judge.
5. On 08.12.2025, when these writ appeals, along with
the applications filed by the appellants seeking leave to appeal
came up for consideration, this Court allowed the interlocutory
applications filed in both the writ appeals by the appellants seeking
leave to challenge the impugned interim order passed by the
learned Single Judge. In that order, it was made clear that the
question of maintainability of the writ appeals will be decided after
numbering the writ appeals.
6. Heard the learned counsel for the appellants, the
learned counsel for the original petitioners and the learned
Standing Counsel for the Bank.
7. The learned counsel for the original petitioners raised
a preliminary objection that these writ appeals are not
maintainable since the original petitions are filed under Article 227
of the Constitution of India, invoking the supervisory jurisdiction
of this Court. To that argument, the learned counsel for the
appellants would submit that though the original petitions are filed
WA Nos.3045 & 3046 of 2025 9 2026:KER:7931
under Article 227 of the Constitution of India, the interim relief
under challenge granted by the learned Single Judge is the one
that can be granted only by exercising jurisdiction under Article
226 of the Constitution of India and therefore the writ appeals are
maintainable against the impugned order.
8. Since the contesting respondents-original petitioners in
these intra court appeals raised the question of maintainability of
an appeals under Section 5(i) of the Kerala High Court Act, 1958,
challenging the impugned interim order which according to the
original petitioners is one passed invoking the supervisory
jurisdiction of this Court under Article 227 of the Constitution of
India and whereas according to the appellants the directions in
that impugned order are of the nature that can be passed only by
exercising jurisdiction under Article 226 of the Constitution of
India, we answer the said point first.
9. In State Bank of India v. M /s Kinship Services
(India) (P) Ltd. [2013 (4) KHC 21], a Division Bench of this
Court, considered the appeal filed against an interim order passed
by a learned Single Judge staying confirmation of sale till further
orders in respect of one item of property which is sought to be
WA Nos.3045 & 3046 of 2025 10 2026:KER:7931
sold in an auction scheduled in a proceedings under the provisions
of the SARFAESI Act. By relying on the judgment of the Apex
Court in State of M.P. v. Sanjay Keralkar [(2009) 17 SCC
766], the Division Bench held that the nature of the interim relief
granted therein by the learned Single Judge is nothing but a
discretion exercised under Article 226 of the Constitution of India.
10. In Sanjay Keralkar [(2009) 17 SCC 766], the Apex
Court held thus:
"2. Having heard learned counsel for the respective parties,
we are unable to sustain the order passed by the Division
Bench of the Madhya Pradesh High Court dismissing the
appeal as preferred by the appellant herein on the ground
that the appeal had been preferred against an order passed
under Article 227 of the Constitution. We have had occasion
to look into the petition which had been filed before the
Single Bench of the High Court, which has been styled as
writ petition under Article 226/227 of the Constitution of
India. The Division Bench of the High Court appears to have
not taken into consideration the fact that the petition had
been styled as a writ petition under Article 226 as well and
that the frame of the petition was that of a writ petition as
would also be evident from the prayers made therein.
3. We are unable to agree with the High Court that the
learned Single Judge had passed order under Article 227 of
the Constitution of India and that the appeal was not
WA Nos.3045 & 3046 of 2025 11 2026:KER:7931
maintainable".
11. Jogendra Sinhji Vijay Singhji v. State of Gujarat
[(2015) 9 SCC 1], the Apex Court held thus:
"Where the facts justify a party in filing an application either
under Article 226 or 227 of the Constitution, and the party
chooses to file his application under both these articles, in
fairness and justice to such party and in order not to deprive
him of the valuable right of appeal the court ought to treat
the application as being made under Article 226, and if in
deciding the matter, in the final order the court gives
ancillary directions which may pertain to Article 227, this
ought not to be held to deprive a party of the right of appeal
under Clause 15 of the Letters Patent where the substantial
part of the order sought to be appealed against is under
Article 226, If the judgment under appeal falls squarely
within four corners of Article 227, it goes without saying that
intra-court appeal from such judgment would not be
maintainable. On the other hand, if the petitioner has
invoked the jurisdiction of the High Court for issuance of
certain writ under Article 226, although Article 227 is also
mentioned, and principally the judgment appealed against
falls under Article 226, the appeal would be maintainable.
What is important to be ascertained is the true nature of
order passed by the Single judge and not what provision he
mentions while exercising such powers. A statement by a
Single judge that he has exercised power under Article 227,
cannot take away right of appeal against such judgment if
power is otherwise found to have been exercised under
WA Nos.3045 & 3046 of 2025 12 2026:KER:7931
Article 226. The vital factor for determination of
maintainability of the intra court appeal is the nature of
jurisdiction invoked by the party and the true nature of
principal order passed by the Single judge".
(Underline supplied)
12. In General Manager, Northern Railways v. Harleen
Kaur [2025 SCC Online Del 1317], the High Court of Delhi,
while considering the question of maintainability of an intra-Court
appeal against the judgment of the learned Single Judge in a
petition filed under Article 227 of the Constitution of India, held
thus:
"7. A bare perusal of the provisions as quoted above would
reveal that Letters Patent Appeal would not lie against a
judgment passed by the learned Single Judge in exercise of
appellate jurisdiction or against an order made in exercise
of or against an order made by the Court which is subject to
superintendence of this Court.
8. The jurisdiction available to this Court under Article 227
of the Constitution of India is primarily in the nature of
superintendence and accordingly, the Letters Patent Appeal
would not lie in the instant matter".
13. The Bombay High Court in Advani Oerlikon Ltd. v.
Machindra Govind Makasare [AIR 2011 Bom. 84] while
considering the issue whether an appeal can lie under clause 15
of the letter patent against a decision of a Single Judge rendered
WA Nos.3045 & 3046 of 2025 13 2026:KER:7931
in the petition invoking Articles 226 /227 of the Constitution of
India, held thus:
"20. Upon this discussion, we now proceed to answer the
questions formulated in the order of reference:
xxxx xxxx xxxx
Re: 5 : The cause title, the averments and prayers in the
petition can be taken into account while deciding whether
the petition is one under Art.226 and / or 227 of the
Constitution.
Re: 6 : If the petitioner elects to invoke Art.226 and / or
227 of the Constitution and the facts justify such invocation,
a Letters Patent Appeal against the order of the Learned
Single Judge would be maintainable even though the Single
Judge has purported to exercise jurisdiction only under
Art.227 of the Constitution. The fact that the Learned Single
Judge has adverted only to the provisions of Art.227 of the
Constitution would not bar the maintainability of such an
appeal. The true test is whether the facts justify the
invocation of Art.226 and Art.227 and this has to be
determined on the facts of each case having due regard to
(i) the nature of the jurisdiction invoked; (ii) the averments
contained in the petition; (iii) the reliefs sought; and (iv) the
true nature of the principal order passed by the Single
Judge. The true nature of the order passed by the Single
Judge has to be determined on the basis of the principal
character of the relief granted. The fact that an ancillary
direction has been issued under Art.227 of the Constitution
would not dilute the character of an order as one with
WA Nos.3045 & 3046 of 2025 14 2026:KER:7931
reference to Art.226. What has to be ascertained is the true
nature of the order passed by the Single Judge and not what
provision is mentioned while exercising this power.
xxxx xxxx xxxx
Re: 9 : In a situation where a petition is filed under Art.227
of the Constitution and judgment is rendered in favour of
the Petitioner, recourse to an appeal under Clause 15 of the
Letters Patent is not barred to the Respondent before the
Single Judge merely on the ground that the petition was
under Art.227. In State of Madhya Pradesh v.. Visan Kumar
Shiv Charanlal (supra), the appeal before the Division Bench
was filed by the Respondent to the proceedings before the
Single Judge in a petition which had been instituted under
Art.227. Accepting the submission that a nomenclature is of
no consequence and it is the nature of the reliefs sought and
the controversy involved which determine which Article is
applicable, the Supreme Court held that the appeal before
the Division Bench was maintainable. A similar position
arose in the decision of the Supreme Court in M.M.T.C. v..
Commissioner of Commercial Tax (supra). The Division
Bench of the High Court had held that since the petition
before the Single Judge was under Art.227 of the
Constitution, an appeal at the behest of the Respondent to
the petition was not maintainable. The Supreme Court held
that the High Court was not justified in holding that the
Letters Patent Appeal was not maintainable since the High
Court did not consider the nature of the controversy and the
prayers involved in the Writ Petition".
(underline supplied)
WA Nos.3045 & 3046 of 2025 15 2026:KER:7931
14. In the judgment dated 26.06.2025 in W.A. No.1514 of
2025, this Court held thus:
"9. In State Bank of India v. M/s. Kinship Services (India)
(P) Ltd. [2013 (4) KHC 21] a Division Bench of this Court,
after taking note of the judgment of the Apex Court in State
of Madhya Pradesh v. Sanjay Kerlaker [(2009) 17 SCC 766],
held that a writ appeal can be entertained under Section 5(i)
of the Kerala High Court Act, 1958 against the interim order
dated 06.09.2013 passed by the learned Single Judge in
O.P.(DRT)No.2931 of 2013, staying confirmation of sale till
further orders in respect of one item of property, which was
sought to be sold in the auction scheduled to be held on
11.09.2013 under SARFAESI proceedings, since the nature
of the interim relief granted by the learned Single Judge is
nothing but a discretion exercised under Article 226 of the
Constitution of India.
xxxxx
11. In the case on hand, the first relief sought for in
O.P.(DRT)No.173 of 2025 is an order directing the
1st appellant Bank to keep in abeyance the proceedings for
dispossession of the petitioners until Ext.P2 appeal filed
before the Debts Recovery Appellate Tribunal get listed and
orders passed on Ext.P3 stay petition and Ext.P4 application
for waiver of pre-deposit, which is one invoking the writ
jurisdiction of this Court under Article 226 of the
Constitution of India. The direction contained in the
impugned judgment dated 16.06.2025 of the learned Single
Judge, which is under challenge in this writ appeal, i.e., the
WA Nos.3045 & 3046 of 2025 16 2026:KER:7931
direction to the appellants to keep in abeyance further
coercive steps against the respondents under the provisions
of the SARFAESI Act, till appropriate orders are passed by
the Debts Recovery Appellate Tribunal, Chennai, in Ext.P3
application for stay and Ext.P4 application for waiver of pre-
deposit, is one granted by the learned Single Judge in
exercise of the discretion under Article 226 of the
Constitution of India. In view of the law laid down by the
Division Bench in M/s. Kinship Services (India) (P) Ltd.
[2013 (4) KHC 21], we find that the challenge made in this
writ appeal against the impugned judgment of the learned
Single Judge to the extent of granting such a direction
against the 1st appellant Bank is perfectly maintainable in
an intra court appeal filed under Section 5(i) of the Kerala
High Court Act. (Underline supplied)
15. In the judgment dated 23.07.2025 in W.A.No.1571 of
2025, this Court held thus:
"13. While going through the direction issued by the
learned Single Judge in the instant case, in the light of the
judgment in M/s. Kinship Services (India) (P) Ltd.
[2013 (4) KHC 21], we are of the considered opinion that
the order of the learned Single Judge not to take coercive
steps against the 1st respondent till a decision is taken by
the Debts Recovery Tribunal is the one that can be passed
only under Article 226 of the Constitution of India and not
under Article 227 of the Constitution of India".
16. It is true that the original petitions were filed by the
WA Nos.3045 & 3046 of 2025 17 2026:KER:7931
petitioners under Article 227 of the Constitution of India, invoking
the supervisory jurisdiction of this Court, seeking certain
directions to the Tribunal. In OP(DRT)No.350 of 2025, the
petitioners sought the following reliefs:
"i. Issue a direction to the Debts Recovery Tribunal-I,
Ernakulam, to consider and dispose of I.A.Nos.3940, 3939
and 3840 of 2025 in S.A. No. 182 of 2025 within a time
frame fixed by this Hon'ble Court.
ii. To stay all further proceedings pursuant to the e-auction
sale notice dated 23.09.2025 issued by the respondent
bank, pending disposal of S.A.No.182 of 2025 before the
Tribunal.
iii. To declare that the secured assets being agricultural
lands included in the Data Bank maintained under the Kerala
Conservation of Paddy Land and Wetland Act, 2008, are
exempted from the operation of the SARFAESI Act by virtue
of Section 31(i).
iv. To call for the records pertaining to the proceedings in
S.A.No.182 of 2025 dated 22.10.2025 on the file of the
Hon'ble Debt Recovery Tribunal- I, Ernakulam, and to set
aside the said proceedings as illegal, arbitrary, and passed
without proper application of mind.
v. To direct the respondent bank to produce the original
valuation reports relied upon for fixing the reserve prices in
each of the sale notices, including the latest valuation
report, if any, obtained prior to the auction dated
15.10.2025, as well as the valuation report, if any, prepared
WA Nos.3045 & 3046 of 2025 18 2026:KER:7931
at the time of creation of the mortgage;
vi. To stay all further proceedings related to the properties
in question till the final disposal of the S.A."
17. Similarly, in OP(DRT)No.348 of 2025, the petitioners
sought the following reliefs:
"i. Issue a direction to the Debts Recovery Tribunal-I,
Ernakulam, to consider and dispose of I.A.Nos.3943, 3944
and 3945 of 2025 in S.A.No.183 of 2025 within a time frame
fixed by this Hon'ble Court.
ii. To stay all further proceedings pursuant to the e-auction
sale notice dated 19.09.2025 issued by the respondent
bank, pending disposal of S.A.No.183 of 2025 before the
Tribunal.
iii. To declare that the secured assets being agricultural
lands included in the Data Bank maintained under the Kerala
Conservation of Paddy Land and Wetland Act, 2008, are
exempted from the operation of the SARFAESI Act by virtue
of Section 31(i).
iv. To call for the records pertaining to the proceedings in
S.A.No.183 of 2025 dated 22.10.2025 on the file of the
Hon'ble Debt Recovery Tribunal-I, Ernakulam, and to set
aside the said proceedings as illegal, arbitrary, and passed
without proper application of mind.
v. To direct the respondent bank to produce the original
valuation reports relied upon for fixing the reserve prices in
each of the sale notices, including the latest valuation
report, if any, obtained prior to the auction dated
15.10.2025, as well as the valuation report, if any, prepared
WA Nos.3045 & 3046 of 2025 19 2026:KER:7931
at the time of creation of the mortgage;
vi. To stay all further proceedings related to the properties
in question till the final disposal of the S.A."
18. The above reliefs sought by the petitioners in the
respective original petitions would show that the petitioners want
to stall the proceedings under the SARFAESI Act initiated by the
bank against them. Therefore, all the reliefs sought in the original
petitions cannot be termed as falling under the purview of
supervisory jurisdiction exercisable by this Court under Article 227
of the Constitution of India.
19. It is true that in some of the judgments cited supra,
such as Sanjay Keralkar [(2009) 17 SCC 766], Jogendra
Sinhji Vijay Singhji [(2015) 9 SCC 1] and Machindra Govind
Makasare [AIR 2011 Bom. 84], the cases were filed by quoting
both Articles 226 and 227 of the Constitution of India. But the
principle laid down in the above-referred judgments would make
it clear that while considering the challenge against the orders
passed by the Court, what is relevant is the nature of such orders.
The impugned order passed by the learned Single Judge,
preventing acceptance of the balance bid amount from the auction
purchasers, can only be treated as one passed under Article 226
WA Nos.3045 & 3046 of 2025 20 2026:KER:7931
and not under Article 227 of the Constitution of India. Similar is
the case of the direction of the learned Single Judge to keep the
amount already deposited by the appellants in separate accounts..
Therefore, we find that the present writ appeals are maintainable
against the common impugned order dated 18.11.2025, passed
by the learned Single Judge in OP(DRT)No.348 of 2025 and
OP(DRT)No.350 of 2025.
20. Now coming to the merits of the appeals, the grievance
of the appellants is that the right to deposit the balance auction
amount is a valuable right of the auction purchaser under the law,
and the said right cannot be taken away in an original petition filed
under Article 227 of the Constitution of India. Whereas the
contention of the Bank is that the original petition itself is not
maintainable under Article 227 of the Constitution of India, since
the remedy available to the original petitioners against an order
by the Tribunal is before the Debt Recovery Appellate Tribunal
under Section 18 of the SARFAESI Act.
21. During the course of arguments, the learned counsel
on either side submitted that as far as the property in respect of
which the full amount is deposited by the auction purchasers-
WA Nos.3045 & 3046 of 2025 21 2026:KER:7931
appellants, the sale certificate was already issued by the bank.
The balance of the sale price cannot be received in respect of the
remaining items of properties due to the impugned order of the
learned Single Judge.
22. Having considered the submissions made at the Bar
and the materials placed on record, we are of the opinion that the
appellants can raise the question of maintainability of the original
petitions before the learned Single Judge, since the original
petitions are still pending consideration therein. No prejudice will
be caused to the appellants by not permitting them to deposit the
balance bid amount for a short period, as ordered by the learned
Single Judge, since the question of maintainability of the original
petitions itself is yet to be decided, referring to the statutory
provisions and the principles laid down in various judgments of
the Apex Court.
In such circumstances, without expressing anything on the
legal and factual contentions raised by the parties regarding the
maintainability of the original petitions filed under Article 227 of
the Constitution of India by the original petitioners and also
without interfering with the impugned common order of the
WA Nos.3045 & 3046 of 2025 22 2026:KER:7931
learned Single Judge., these writ appeals are disposed of,
however, making it clear that the appellants can raise the question
of maintainability of the original petitions before the learned Single
Judge. Needless to mention that the appellants can point out the
necessity of early hearing of the matter, if they are so advised, by
filing appropriate applications in the respective original petitions.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
nak
