[Cites 24, Cited by 0]
Kerala High Court
M/S. G.K. Granites vs Board Of Directors Of South Indian Bank ... on 26 March, 2026
2026:KER:27195
1
W.P.(C) No. 46770/2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
THURSDAY, THE 26TH DAY OF MARCH 2026 / 5TH CHAITHRA, 1948
WP(C) NO. 46770 OF 2025
PETITIONER:
M/S. G.K. GRANITES, REPRESENTED BY ITS MANAGING PARTNER,
GEORGE ANTONY, AGED 71 YEARS, S/O. ANTONY, KUREEKKAL,
KIZHAKKAMBALAM P.O., KIZHAKKAMBALAM, ERNAKULAM DISTRICT,,
PIN - 683562
BY SMT. MARIA NEDUMPARA
SHRI.SHAMEEM FAYIZ V.P.
SHRI.ROY PALLIKOODAM
RESPONDENTS:
1 BOARD OF DIRECTORS OF SOUTH INDIAN BANK LTD
REPRESENTED BY ITS MANAGING DIRECTOR, T.B ROAD, MISSION
QUARTERS, THRISSUR, PIN - 680001
2 AUTHORISED OFFICER
SOUTH INDIAN BANK LTD, REGIONAL OFFICE, CHRIST NAGAR, AKP
JUNCTION, IRINJALAKUDA, THRISSUR, PIN - 680215
3 MINISTRY OF MICRO SMALL AND MEDIUM ENTERPRISES
REPRESENTED BY ITS SECRETARY, UDYOG BHAWAN, RAFI MARG, NEW
DELHI, DELHI, PIN - 110001
4 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
5 GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ERNAKULAM.
KAKKANAD, PIN - 682030
6 CHAIRMAN
MICRO AND SMALL ENTERPRISE FACILITATION COUNCIL (MSEFC)
2026:KER:27195
2
W.P.(C) No. 46770/2025
DIRECTORATE OF INDUSTRIES COMMERCE, VIKAS BHAVAN P.O,
THIRUVANANTHAPURAM, KERALA, PIN - 695033
7 CHAIRMAN
STATE LEVEL INTER-INSTITUTIONAL COMMITTEE REGIONAL OFFICE,
RESERVE BANK OF INDIA, BAKERY JUNCTION, P.B. NO. 6507,
THIRUVANANTHAPURAM, PIN - 695033
8 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
9 RESERVE BANK OF INDIA, REPRESENTED BY ITS GOVERNOR, NEW
CENTRAL OFFICE BUILDING, SHAHID BHAGAT SINGH ROAD, FORT,
MUMBAI, MAHARASHTRA, PIN - 400001
10 FASIL THAMBIKUDY ABBAS
DIRECTOR, EXODIA PROFESSIONALS PVT. LTD, 22/239 A. MANAKKATT
HMT ROAD, KALAMASSERY, ERNAKULAM, PIN - 683503
11 BASIL MATHAI, RECOVERY OFFICER, SOUTH INDIAN BANK LTD,
IRINJALAKUDA, XVIII/343, BLAZE COURT, MAIN ROAD,
IRIJALAKUDA, THRISSUR, PIN - 680121
12 BIBY AUGUSTIAN
JOINT GENERAL MANAGER, RECOVERY HEAD, SOUTH INDIAN BANK LTD,
RAJAGIRI VALLY, ERNAKULAM, PIN - 682039
13 REMYA MARY JOHN, SENIOR MANAGER, SOUTH INDIAN BANK, ANGAMALY
NORTH., PIN - 683572
14 ANIL DHIRAJLAL AMBANI
SEA WIND, CUFF PARADE, MUMBAI, MAHARASHTRA, PIN - 400005
15 MUKESH DHIRAJLAL AMABANI
ANTILLA, ALTAMOUNT ROAD, CUMBALLA HILL, MUMBAI, MAHARASHTRA,
PIN - 400036
16 THE ATTORNEY GENERAL OF INDIA
OFFICE OF ATTORNEY GENERAL OF INDIA, SUPREME COURT OF INDIA
CAMPUS, TILAK MARG, NEW DELHI, PIN - 110001
17 THE CHAIRMAN
STATE BANK OF INDIA, STATE BANK BHAWAN, NARIMAN POINT,
MUMBAI, PIN - 400021
18 KERALA GRAMIN BANK KGB TOWERS, AK ROAD, UPHILL, PB NO. 10,
MALAPPURAM, REPRESENTED BY ITS CHAIRMAN,
2026:KER:27195
3
W.P.(C) No. 46770/2025
19 DIRECTOR GENERAL OF POLICE
POLICE HEADQUARTERS, THIRUVANATHAPURAM
20 STATION HOUSE OFFICER
CHENGAMMANADU POLICE STATION, ERNAKULAM DISTRICT
(ADDL.R18 to R20 IMPLEADED AS PER ORDER IN I.A.2/26 IN
W.P.(C) No. 46770/25 DT.26.3.2026)
BY SRI.C.AJITH KUMAR
O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF INDIA
SRI.MILLU DANDAPANI
SMT.VARSHA S.S.
SRI.K.K.CHANDRAN PILLAI (SR.)
SHRI JAWAHAR JOSE
OTHER PRESENT:
MATHEW J NEDUMPARA SR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 5.03.2026,
THE COURT ON 26.3.2026 DELIVERED THE FOLLOWING:
2026:KER:27195
4
W.P.(C) No. 46770/2025
JUDGMENT
(dated this the 26th day of March 2026)
The petitioner, who claims to be an MSME enterprise,
engaged in the manufacture of food products has defaulted in repaying
the loan facilities availed from the respondents. Respondents, in turn,
had initiated recovery proceedings invoking SARFAESI Act. In the
meanwhile, the petitioner by Ext P6 representation dated 12.06.2024
sought restructuring of the loan account as pe the RBI Circulars. The
3rd respondent classified the accounts of the petitioner as NPA on
26.06.2024 and thereafter, issued Ext P7 demand notice dated 2.8.2024
under section 13(2) of the Act, pursuant to which symbolic possession
of the mortgaged properties was also taken, issuing possession notices
dated 12.9.2025 and 19.9.2025. The 6th respondent as well as the 9th
respondent had also issued demand notices to the petitioners dated
05.5.2025 and 28.10.2025 respectively.
2. When the Bank issued Ext P8 notice dated 06.12.2024
proposing sale of the secured assets, substantial payments were made
2026:KER:27195
by the petitioners along with an OTS proposal. Though Rs.1 Crore was
paid, the petitioner failed to pay the balance, and hence, the proposal
was rejected by the bank. Thereafter, the Bank issued Ext P9 sale notice
dated 17.10.2025, scheduling the auction on 7.11.2025, aggrieved by
which, this writ petition stands filed.
3. According to the petitioners, the respondent Bank had
acted in violation of the notification dated 29.05.2015, issued in
exercise of the powers conferred under Sec.9 of the MSMED Act, 2006,
by the Central Government, and had initiated recovery proceedings
against the petitioners without even referring them before the
Committee constituted under the framework for rehabilitation for
availing benefits as contemplated in the said notification, which is a
nullity in the eyes of law and hence, the entire proceedings done
pursuant thereto is liable to be quashed.
4. Further, they contended that the judgments of the hon'ble
Apex Court in Pro Knits and Shri Shri Swami Samarth, having been
rendered per incuriam, is not at all binding on other courts and tribunals
2026:KER:27195
within the territory of India. They also challenged the legality of
simultaneous proceedings initiated under the SARFAESI Act with that
of the suit filed under the RDB Act. It is also contended that the secured
assets have not been registered by the respondent Bank with CERSAI
and the sale proceedings, hence, would be vitiated due to the violation
of section 26-D of the SARFAESI Act.
5. The counsel for respondent Nos.1 and 2, through their
counter affidavit, contends the very maintainability of the writ petition
under Article 226 of the Constitution of India pointing out the statutory
efficacious remedy available and absence of extraordinary
circumstances warranting the interference of this Court. Taking into
note the earlier litigations instituted on identical grounds and
contentions as well as the judgments binding the petitioners, the same
attracts the bar under the principles of res judicata as well as
constructive res judicata, warranting the dismissal of the present writ
petition.
6. As regards the additional plea raised in respect of the non-
2026:KER:27195
registration of the secured asset under CERSAI, the same would also
fail, as the secured assets have been validly registered before the
CERSAI portal, as early as on 26.7.2016. Moreover, it is also pertinent
to note that in S.A. No. 577/2025 which is pending before the DRT-II,
Ernakulam, filed by the petitioner challenging the e-auction
proceedings of the bank, there was no such challenge raised regarding
the CERSAI Registration, and hence, the attempt on the part of the
petitioner in taking up such a contention in the present writ petition is
nothing but sheer abuse of process of law and is liable to be dismissed.
7. A reply has been filed by the petitioner to the counter
affidavit wherein, it was stated that the respondent bank has failed to
discharge its duty right from the identification of incipient stress and
the failure in constituting a Committee for resolution of stress; due to
which, the petitioners were denied the benefits conferred under the
revival framework as per the MSMED Act. Also, the DRT is not vested
with the jurisdiction to adjudicate disputes in the realm of the MSMED
Act.
2026:KER:27195
8. As far as obtaining the protection conferred under the
revival framework of MSMED Act is concerned, the petitioners herein
failed to adhere to the guidelines as held by the hon'ble Supreme Court
in Pro Knits v. Canara Bank reported in (2024) 10 SCC 292].
Relevant paragraphs of the above dictum read as follows: -
"16. We may hasten to add that under the "Framework for
Revival and Rehabilitation of MSMEs", the banks or creditors
are required to identify the incipient stress in the account of the
Micro, Small and Medium Enterprises, before their accounts
turn into non-performing assets, by creating three sub-
categories under the "Special Mention Account" Category.
However, while creating such sub-categories, the Banks must
have some authenticated and verifiable material with them as
produced by the concerned MSME to show that loan account is
of a Micro, Small and Medium Enterprise, classified and
registered as such under the MSMED Act. The said Framework
also enables the Micro, Small or Medium Enterprise to
voluntarily initiate the proceedings under the said Framework,
by filing an application along with the affidavit of an authorized
person. Therefore, the stage of identification of incipient stress
in the loan account of MSMEs and categorization under the
Special Mention Account category, before the loan account of
MSME turns into NPA is a very crucial stage, and therefore it
would be incumbent on the part of the concerned MSME also
2026:KER:27195
to produce authenticated and verifiable documents/material for
substantiating its claim of being MSME, before its account is
classified as NPA. If that is not done, and once the account is
classified as NPA, the banks i.e., secured creditors would be
entitled to take the recourse to Chapter III of the SARFAESI Act
for enforcement of security interest.
17. It is also pertinent to note that sufficient safeguards have
been provided under the said Chapter for safeguarding the
interest of the Defaulters-Borrowers for giving them
opportunities to discharge their debt. However, if at the stage of
classification of the loan account of the borrower as NPA, the
borrower does not bring to the notice of the concerned
bank/creditor that it is a Micro, Small or Medium Enterprise
under the MSMED Act and if such an Enterprise allows the
entire process for enforcement of security interest under the
SARFAESI Act to be over, or it having challenged such action
of the concerned bank/creditor in the court of law/tribunal and
having failed, such an Enterprise could not be permitted to
misuse the process of law for thwarting the actions taken under
the SARFAESI Act by raising the plea of being an MSME at a
belated stage. Suffice it to say, when it is mandatory or
obligatory on the part of the Banks to follow the
Instructions/Directions issued by the Central Government and
the Reserve Bank of India with regard to the Framework for
Revival and Rehabilitation of MSMEs, it would be equally
incumbent on the part of the concerned MSMEs to be vigilant
2026:KER:27195
enough to follow the process laid down under the said
Framework, and bring to the notice of the concerned Banks, by
producing authenticated and verifiable documents/material to
show its eligibility to get the benefit of the said Framework."
9. A division Bench of this Court in P.K. Krishnakumar v.
IndusInd Bank, [2024 (6) KLT 606] had also stated that MSMEs
cannot later assert benefits, if they did not notify the banks before
classification as NPA thereby stressing the obligation incumbent upon
the concerned MSMEs for notifying the Banks regarding the MSME
status in order to obtain the benefits attached thereto, before the NPA
classification is effected. Relevant extract from the above dictum is as
follows: -
"19. xxx xxxx xxxx xxxx xxxxx xxx In cases
where a borrower who qualifies as MSME does not initially
raise its status to challenge a bank's recovery proceedings
under the SARFAESI Act but instead participates fully in
the process without objection, cannot later use their MSME
status to argue that the proceedings were without
jurisdiction. The power of the High Court under Article 226
of the Constitution of India is discretionary based on the
principles of fairness and justice, which include examining
the conduct of the parties involved. When the Appellants,
by their actions, accepted the Bank's authority without
objection, the High Court will refuse to exercise its writ
2026:KER:27195
jurisdiction to assist such Appellants, even if there are
questions about the jurisdiction of the Bank. This is because
the Appellants' own conduct disqualifies them from
claiming such relief. When the High Court declines to
interfere in such circumstances, it does not mean that the
Appellants' waiver vested the Bank with jurisdiction,
assuming it is inherently lacking; it means that the borrower
is not entitled to invoke writ jurisdiction irrespective of
whether the Bank's actions are without jurisdiction or not.
These two concepts are distinct, and the distinction is
emphasized by the Hon'ble Supreme Court in the case of
M/s. Pro Knit."
10. In a recent judgment of the hon'ble Supreme court in
Shri Shri Swami Samarth Construction & Finance Solution and
Ors. v. The Board of Directors of NKGSB Co-op. Bank Ltd. and
Ors. (2025 SCC Online SC 1566), the dictum was as follows: -
"6. xxxx xxxx xxxx We would read and interpret the
seemingly confusing terms of the Framework
harmoniously to ensure that a right under the MSME Act
is not destroyed by the SARFAESI Act or vice versa. In
our reading, the terms of the Framework do not prohibit
the lending bank / secured creditor (assuming that it has no
conscious knowledge that the defaulting borrower is an
MSME) to classify the account of the defaulting MSME as
NPA and to even issue the demand notice under S.13(2) of
the SARFAESI Act without such identification of incipient
stress in the account of the defaulting borrower (MSME);
however, upon receipt of the demand notice, if such
borrower in its response under S.13(3A) of the SARFAESI
2026:KER:27195
Act asserts that it an MSME and claims the benefit of the
Framework citing reasons supported by an affidavit, the
lending bank/secured creditor would then be mandatorily
bound to look into such claim keeping further action under
the SARFAESI Act in abeyance; and, should the claim be
found to be worthy of acceptance within the framework of
the Framework, to act in terms thereof for securing revival
and rehabilitation of the defaulting borrower.
7. As has been noted above, the petitioning enterprise does
not seem to have ever claimed the benefit of the terms of
the Framework after the demand notice under s.13(2) of
the SARFAESI Act was issued. It is at the stage of
compliance with an order passed by the relevant
Magistrate under s.14 of the SARFAESI Act that this writ
petition has been presented before this Court claiming
benefits of the Framework to restrain the respondent no.2
and its officers from proceeding further under the
SARFAESI Act and other enactments except in the manner
contemplated under the said Notification. We find the bona
fides of the petitioning enterprise to be suspect.
8. Pro Knits is a decision of a coordinate Bench of this
Court holding. Inter alia, that the Notification is binding on
the lending banks / secured creditors. Finding to the
contrary by the High Court of Bombay in the judgment and
order under challenge in the appeal was, thus, quashed.
Though while stressing that the terms of the Framework
need to be followed by the lending banks / secured
creditors before the account of an MSME is classified as
NPA, this decision also lays stress on the obligation of the
MSMEs by holding that "it would be equally incumbent on
the part of the MSMEs concerned to be vigilant enough to
follow the process laid down under the said Framework,
and bring to the notice of the Banks concerned, by
producing authenticated and verifiable
2026:KER:27195
documents/material to show its eligibility to get the benefit
of the said Framework". It was cautioned that "if such an
Enterprise allows the entire process for enforcement of
security interest under the SARFAESI Act to be over, or it
having challenged such action of the bank / creditor
concerned in the court of law/tribunal and having failed,
such an Enterprise could not be permitted to misuse the
process of law for thwarting the actions taken under the
SARFAESI Act by raising the plea of being an MSME at a
belated stage". This decision, however, left unsaid
something which we have explained hereinabove while
construing the terms consistently to prevent undermining
the rights that one central enactment confers on by
another."
11. In view of the law laid down by the hon'ble Apex
Court in Pro Knits (supra) and that laid down by the Division
Bench of this Court in P.K. Krishnakumar(supra), if, at the stage
prior to the classification of the loan accounts as NPA, the borrowers
do not bring to the notice of the Bank that it is an MSME and allow
the proceedings under the SARFAESI Act to go through, then they
will be precluded from raising it at a belated stage. A combined
reading of these judgments along with that of Shri Shri Swami
Samarth (supra), made the position more clarified that MSME
Framework provisions must be read harmoniously wherein both
2026:KER:27195
Banks and MSMEs have complementary obligations regarding
obtaining the benefits associated with the said Framework.
12. It is already established that while the Bank/creditors
are incumbent to identify the incipient stress in an MSME account
before its classification as an NPA, it is equally incumbent upon the
concerned MSME to initiate the proceedings to avail the stipulated
benefits. That is, in clear words, the MSME is duty-bound to provide
authenticated documents and materials, along with an affidavit, to
substantiate its claim of being an MSME entitled to protection
before the NPA classification is effected. If an enterprise fails to
notify the concerned Bank/creditor of its status as a Micro, Small,
or Medium Enterprise under the MSMED Act, and subsequently
allows the entire enforcement of security interest under the
SARFAESI Act to be completed, such an enterprise cannot be
permitted to misuse the process of law by belatedly raising the plea
of being an MSME to frustrate the actions taken under the
SARFAESI Act.
2026:KER:27195
13. In the present case, the petitioner firm has neither
produced any authenticated/verifiable materials to prove their status
of MSME, nor had they even replied to Section 13(2) notice issued
by the respondent bank. Hence, this inaction on the part of the
petitioners in providing relevant documents to substantiate their
MSME status reveals that they failed to discharge their obligation to
become eligible for claiming the protection and revival benefits
under the MSMED Act.
14. Regarding the reliefs sought touching the question of
legality of simultaneous proceedings instituted by the respondent
bank, the position is well settled in 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
the 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
2026:KER:27195
simultaneously.
15. A learned Single Judge of this Court in M.D. Esthappan
(supra), had also reiterated the permissibility of simultaneous
proceedings under both the SARFAESI as well as the RDB Acts in the
light of M/s Transcore (supra). 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 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/FI, based not only on
default in repayment but also on the borrower's failure
to maintain margin and asset value, thereby enabling
2026:KER:27195
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."
16. Hence, the contentions mooted by the counsel for the
petitioners questioning the legality of parallel proceedings under
SARFAESI as well as the RDB Acts cannot be sustained, as the
exhaustion of both the remedies are complementary rather
exclusive, and therefore can be resorted to simultaneously, in view
2026:KER:27195
of the law laid down in M/s Transcore (supra) and in M.D.
Esthappan Infrastructure (supra).
17. The second relief sought in the Writ Petition that the
judgments in Pro Knits (supra) and Shri Shri Swami Samarth
(supra), are wrongly decided, otherwise, is rendered per incuriam
and sub silentio, also cannot be accepted. In Bajaj Alliance
General Insurance Co. Ltd. v. Rambha Devu [2025) 3 SCC 95],
the hon'ble apex Court had emphasized that the doctrine of per
incuriam allows a decision to be disregarded only when it
demonstrably fails to consider a binding statutory provision or
authoritative precedent that would have necessarily led to a
different outcome. This principle is confined to the ratio decidendi
and does not apply to obiter dicta. Therefore, departure from an
established precedent must be rare and based on sound legal
principles.
18. A perusal of Article 141 of the Constitution of India
reads as follows: -
2026:KER:27195
"Article 141. Law declared by Supreme Court to be
binding on all courts.
The law declared by the Supreme Court shall be binding
on all courts within the territory of India."
19. As per the Doctrine of Precedent enshrined under
Article 141 of the Constitution of India, the law declared by the
Supreme Court is binding on all courts within the country,
including the High Courts and subordinate judiciary. This
constitutional mandate ensures that the law of the land remains
uniform and certain, requiring lower courts to strictly follow the
ratio decidendi established by the Apex Court. While the Supreme
Court is not bound by its own previous rulings and may overrule
them to correct errors or adapt to societal changes, all other judicial
bodies are duty-bound to apply its precedents. Even the obiter
dicta, or incidental observations made by the Supreme Court, carry
significant persuasive authority. Given this, the contentions mooted
by the petitioners challenging the binding nature of the judgments
in Pro Knits (supra) and Shri Shri Swami Samarth (supra) also
2026:KER:27195
goes in vain as it holds strong binding authority on all other Courts
and Tribunals within the territory of India.
20. It is seen that the present petition is filed for non-
consideration of Ext P6 request for restructuring, which was
produced as Ext P3 in W.P.(C) No. 41807/2025 filed earlier by this
petitioner before this Court. Apart from the same, in the earlier
round of litigation by the very same petitioner as W.P.(C) No.
27271/2025, the only prayer sought was to provide instalments,
rather, there was no plea of denial of MSME benefits under the
MSMED Act. Although W.P.(C) No. 41807/2025 stands dismissed
by this Court by Ext R1(d) dated 11.12.2025 for reasons stated
therein as well as for non-compliance of the interim order, a Special
Leave to Appeal (C) was preferred against the said judgment as
SLP No. 2750/2026, which was also dismissed on 23.01.2026,
thereby sustaining the order of this Court. Hence, when a speaking
order stands already passed by this Court, another writ petition on
identical grounds and contentions is nothing but abuse of process
2026:KER:27195
of law.
21. In the light of the previously mentioned judgments,
as the challenge raised by the petitioners regarding benefit under
the MSMED Act claimed in the above writ petition stands
concluded and the pleadings and reliefs sought in the present writ
petition are identical to those already adjudicated in W.P.(C) No.
41807/2025, the present writ petition is an abuse of process of law.
Moreover, the attempt made by them in simultaneously filing this
writ petition contending similar facts and prayers, is impermissible
as it expressly attracts the statutory bar under res judicata as well
as constructive res judicata.
22. The hon'ble Supreme Court in Kalinga Mining
Corp. v. Union of India, (2013 5 SCC 252), held that the legal
validity or correctness of a judicial decision does not influence its
operation as res judicata, rather, a decision rendered by a court of
competent jurisdiction remains binding between the parties
regardless of whether it is perceived as right or wrong. Under the
2026:KER:27195
principles of Section 11 of the Code of Civil Procedure, it is the
actual decision declaring the rights of the parties rather than the
underlying legal reasoning or principles that constitutes res
judicata. Consequently, when a matter of fact or law has been
directly and substantially at issue and subsequently adjudicated,
that decision definitively concludes those rights, irrespective of
whether the dispute involved pure points of law or different causes
of action. In fact, the reliefs sought in the current writ petition are
identical to those rejected in previous rounds.
23. The Hon'ble Supreme Court in Celir LLP v. Sumati
Prasad Bafna and Ors. (2024 SCC Online SC 3727) went on to
hold that where the same set of facts give rise to multiple causes of
action, a litigant cannot be permitted to agitate one cause in one
proceeding and reserve the other for future litigation. Such
fragmentation aggravates the burden of litigation and is
impermissible in law. The Court reiterated that all claims and
grounds of defence or attack which could and ought to have been
2026:KER:27195
raised in earlier proceedings are barred from being re-agitated
subsequently. A party must bring forward the entirety of its case in
one proceeding and not in a piecemeal or selective manner. Courts
must examine whether a matter could and should have been raised
earlier, considering the scope of the earlier proceedings and their
nexus to the controversy at hand. Once a cause of action has been
judicially determined, all fundamental issues related to it are
deemed conclusively decided and any attempt to revisit these
matters, even if by formal distinctions in pleadings violates the
principle of finality.
24. As far as the jurisdiction vested with DRT in matters
dealing with MSMED Act is concerned, in South Indian Bank v.
M/s.PDMC Industries (2025 KHC 1307), a Division Bench of
this Court, relying on the judgment in Kuruvithadam Agencies
(Pvt.) Ltd. and another v. Authorised Officer, Standard
Chartered Bank (2021 KER 20923), held that if the bank has not
followed the guidelines/ directives issued by the RBI in the matter
2026:KER:27195
of treating of an account as NPA, the same will squarely come
under the procedure as contemplated under Section 13 of
SARFAESI Act and therefore, there is a clear remedy under the
statute. Though the decision in South Indian Bank (supra) was
challenged before the Supreme court in S.L.P. © No.36925 of 2025,
the same was dismissed by order dated 18.12.2025, thereby the
position stands settled.
25. As regards the maintainability of the present petition
under Article 226 of the Constitution of India, owing to the
statutory remedy available under section 17 of the Act, the hon'ble
apex court in United Bank of India v. Satyawati Tondon and
others [(2010) 8 SCC 110] and in South Indian Bank Ltd. (M/s.)
v. Naveen Mathew Philip [2023 KHC 6435] held that if any
aggrieved person has any grievance against the proceedings
initiated by the secured creditor under section 14 of the SARFAESI
Act, they could avail the statutory remedy by filing an application
under Section 17 of the SARFAESI Act before the DRT, instead of
2026:KER:27195
invoking the writ jurisdiction of this Court under Article 226 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.
26. Having regard to the fact that the petitioners neither
previously raised their MSME status nor provided authenticated
documents to substantiate their claim, as held in Pro Knits(supra),
P.K. Krishnakumar(supra), and Shri Shri Swami
Samarth(supra), it is appropriate to hold that they stand estopped
from seeking protection and associated benefits under the relevant
notification at this late stage, particularly after allowing the
SARFAESI proceedings to commence without objection. Also, in
view of the judgment in Transcore (supra) and other relevant
decisions regarding the legality of parallel proceedings, it is proper
to hold that the invoking remedies under SARFAESI as well as the
2026:KER:27195
RDB Acts simultaneously, is permissible. As far as the binding
nature of Pro Knits (supra) and Shri Shri Swami Samarth
(supra) is concerned, the dictum laid down by the hon'ble supreme
court in these decisions must be observed by all the other courts
and Tribunals as per Article 141 of the Constitution of India.
27. As regards the challenges made against the
SARFAESI proceedings, it is well established that the petitioners
have already instituted a writ petition before this Court, which was
dismissed, against which an SLP was preferred, which also came
to be dismissed, therefore, the contentions and reliefs sought by
them in the present writ petition is expressly barred by res judicata
and constructive res judicata owing to the similarity in facts and
prayers finding place in the earlier litigations. Therefore, it is only
to be held that the present petition is devoid of any merits and is
nothing but an abuse of process of law as this Court finds no valid
grounds to invoke the jurisdiction of Article 226 of the Constitution
of India. Hence, the petitioners are not entitled to any reliefs from
2026:KER:27195
this Court.
Since the petitioner has already approached the DRT - II,
Ernakulam by S.A.No.577 of 2025, which is pending
consideration, this W.P. stands dismissed with the above
observations granting liberty to the petitioner to raise all
contentions in the pending S.A.
Sd/-
BASANT BALAJI, JUDGE
dl/
2026:KER:27195
APPENDIX OF WP(C) NO. 46770 OF 2025
PETITIONER EXHIBITS
Exhibit P1 A COPY OF THE UDYAM CERTIFICATE NO. UDYAM-KL-02-
0014662 DATED 24-03-2021, ISSUED TO THE PETITIONER
BY THE MSME MINISTRY, GOVERNMENT OF INDIA
Exhibit P2 A TRUE COPY OF 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 TRUE COPY OF THE REPRESENTATION DATED 12-06-2024
SUBMITTED BY THE PETITIONER TO THE RESPONDENT-BANK
Exhibit P7 A TRUE COPY OF THE DEMAND-NOTICE DATED 02-08-2024
U/S. 13(2), ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER
Exhibit P8 A TRUE COPY OF THE NOTICE DATED 06-12-2024 ISSUED
BY THE RESPONDENT-BANK
Exhibit P9 A TRUE COPY OF THE SALE-NOTICE DATED 17-10-2025
ISSUED BY THE RESPONDENT-BANK
Exhibit P10 A COPY OF THE RBI NOTIFICATION RBI/2012-13/156
DATED 01.08.2012
Exhibit P11 A COPY OF THE JUDGEMENT DATED 01.05.2023 PASSED BY
SUPREME COURT IN CIVIL APPEAL NO.6662/2022, KOTAK
MAHINDRA BANK LTD V. GIRNAR CORRUGATORS PVT. LTD
&ORS
Exhibit P12 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.
30885/2024, SARK SPICE V. RBI DATED 22/11/2024 OF
THIS HONOURABLE COURT
Exhibit P13 A 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 P14 A TRUE COPY OF THE COMMON JUDGMENT IN THE 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 P15 A COPY OF THE JUDGMENT DATED 07/11/2024 IN WRIT
APPEAL NO.1728/2024 PK KRISHNAKUMAR V INDUSIND
BANK &ORS
2026:KER:27195
Exhibit P16 A COPY OF THE JUDGMENT DATED 28.02.2025 IN W.P.(C)
NO. 39257/2024 IN M/S ASHOK RUBBER FACTORY V.
RESERVE BANK OF INDIA & OTHERS
Exhibit P17 A TRUE COPY OF THE JUDGEMENT OF THE SUPREME COURT
DATED 28/07/2025 IN WPC 684/2025 [IN SHRI SHRI
SAMARTH CONSTRUCTION & FINANCE SOLUTION V. THE
BOARD OF DIRECTORS OF NKGSB BANK LTD. & ORS.]
Exhibit P18 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 P19 A 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 P20 A COPY OF THE ORDERS OF THE NCLT MUMBAI IN CP(IB)
NO.3025(MB) OF 2019
Exhibit P21 A COPY OF THE ORDER OF NCLT-I, MUMBAI, PASSED IN
CP(IB) NO.845(MB) OF 2022
Exhibit P22 A TRUE COPY OF THE AGREEMENT DATED 13-08-2025
ENTERED INTO BETWEEN THE PETITIONER AND FASIL
THAMBIKUDY ABBAS,
Exhibit P23 A COPY OF THE ORDER DATED 8.12.2025 IN WPC
41807/2025 OF THIS HOBOURABLE COURT
Exhibit P24 A COPY OF THE INTERIM APPLICATION, IA NO.2/2025 IN
WPC 41807/2025 DATED 10.12.2025 FILED BY THE
PETITIONER
Exhibit P25 A COPY OF THE I.A 2/2025 IN WPC 41807/2025
Exhibit P26 A COPY OF THE ORDER I.A 2/2025 IN WPC 41807/2025
DATED 11.12.2025
RESPONDENT EXHIBITS
Exhibit-R1(b) True copy of the counter affidavit filed by the
2nd respondent in Ext.R1(a)
Exhibit-R1(c) True copy of the order dated 11/12/2025 in Ext.P24
passed by this Hon'ble Court
Exhibit-R1(d) True copy of the judgment dated 11/12/2025 in W.P
(C) 41807/2025 of this Hon'ble Court
Exhibit-R1(e) True copy of the CERSAI registration of the secured
asset
Exhibit-R1(f) True copy of the valuation report dated 04/01/2025
of the secured asset
Exhibit-R1(g) True copy of the E-auction sale notice dated
18/11/2025 issued by the bank
Exhibit-R1(h) True copy of the sale certificate dated 12/12/2025
issued by the 2nd respondent
2026:KER:27195
Exhibit-R1(i) True photocopy of the photograph taken at the time
of handing over the sale certificate by the bank
Exhibit-R1(j) True copy of the judgment in Writ Appeal
No.3095/2025 of this Hon'ble Court
Exhibit-R1(a) True copy of W.P (C) 41807/2025 filed by petitioner
before this Hon'ble Court (without Exhibits)
Exhibit-R1(k) TRUE COPY OF THE COMMISSION REPORT DATED
12/01/20126 FILED BY THE ADVOCATE
COMMISSIONERINM.C.627 OF 2025 ON THE FILES OF ACJM
COURT, ERNAKULAM.
PETITIONER EXHIBITS
Exhibit P27 A TRUE COPY OF THE LETTER ADDRESSED TO THE CHIEF
JUSTICE DATED 01-02-2026
Exhibit P28 TRUE COPY OF THE AFFIDAVIT DATED 07.02.2026, OF
THE PETITIONER'S EMPLOYEE SHRI ANI ASHOK
Exhibit P29 TRUE COPY OF THE AFFIDAVIT DATED 07.02.2026, OF
THE PETITIONER'S EMPLOYEE SHRI RANGA SWAMY
Exhibit P30 A copy of the letter dated 1.2.2026 which was send
to the Chief Justice
Exhibit P31 A copy of the letter dated 1.2.2026 which was send
to the Registrar Judicial
