Kerala High Court
Mr. Sony George vs The South Indian Bank Ltd on 6 February, 2026
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OP (DRT) 13/2026
2026:KER:11261
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 6TH DAY OF FEBRUARY 2026 / 17TH MAGHA, 1947
OP (DRT) NO. 13 OF 2026
PETITIONERS:
1 MR. SONY GEORGE,AGED 56 YEARS
S/O.LATE MARY GEORGE, BRAMMAKULAM HOUSE,KUTTUR
VILLAGE,THRISSUR, PIN - 680013
2 MRS. LISSA SONY,AGED 49 YEARS, W/O SONY, BRAMMAKULAM HOUSE,
KUTTUR VILLAGE, THRISSUR, PIN - 680013
3 MRS. FANCY JACOB,AGED 63 YEARS, D/O LATE MARY GEORGE,
KALLARAKKAL, PALARIVATTOM, ERNAKULAM, PIN - 682038
BY SMT.NISHA GEORGE
SRI.GEORGE POONTHOTTAM (SR.)
SMT.KAVYA VARMA M. M.
RESPONDENT/S:
1 THE SOUTH INDIAN BANK LTD.,AMALA NAGAR BRANCH,THRISSUR
KUNNAMKULAM ROAD, AMALA NAGAR P.O., THRISSUR, REPRESENTED BY
ITS AUTORISED OFFICER, PIN - 680555
2 AUTHORIZED OFFICER,SOUTH INDIAN BANK LTD., AMALA NAGAR
BRANCH, PLATINUM JUBILEE BUILDING, CIVIL LANE ROAD,
AYYANTHOLE, THRISSUR, PIN - 680003
3 MEJO GEORGE,AGED 51 YEARS, S/O. GEORGE, BRAMMAKULAM HOUSE,
CHITTILAPPILLY, THRISSUR, PIN - 680551
BY SHRI.SUNIL SHANKER
SMT.VIDYA GANGADHARAN
SHRI.THOMAS GLAISON
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON
06.02.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (DRT) 13/2026
2026:KER:11261
JUDGMENT
(Dated this the 6th day of February, 2026) Petitioners are not parties to the loan transaction. They filed S.A.No.783 of 2025 before the Debts Recovery Tribunal, Ernakulam, aggrieved by the recovery measures initiated against their ancestral property. Immovable property having an extent of 40 cents comprised in Sy. no.124/1 in Chittilappilly Village, Thrissur District, originally belonged to late Mary George. After the death of the father, the A schedule of property was allotted to Mejo George/3rd respondent and their mother, Mary George, under partition No.3571/2010 of the Mundur SRO. The 3rd respondent demolished the existing structure, built a new house, and continued to reside there. The 3rd respondent and Mary George agreed to sell the property to the petitioners for a consideration of Rs.4,00,00,000/-, and a written agreement was executed on 02.11.2017. The petitioners paid the 3rd respondent a total of Rs.3,50,00,000/-, and the agreement period was extended considering the ill health of Mary George and the 3rd respondent's circumstances. After the death of Mary George, the full ownership vested with the 3rd respondent. The 3rd respondent mortgaged the property to the 1st respondent without disclosing 3 OP (DRT) 13/2026 2026:KER:11261 the fact to the petitioners, thereby violating the agreement.
2. On 03.06.2025, a legal notice was issued on behalf of the petitioners regarding the sale of the family property. Since no action was taken, the petitioner instituted O.S.No.185 of 2025 seeking a declaration and consequential reliefs in respect of title, possession, and encumbrances. The Bank filed a claim petition in this suit for lifting the attachment passed in the suit.
3. On 17.04.2025, the bank issued a demand notice under Section 13(2) of the SARFAESI Act to the borrower and certain heirs. Thereafter, an application was filed under section 14 before the CJM Court, Thrissur, as C.M.P. No.12321 of 2025 without disclosing the pendency of the civil suit, and the CJM passed Ext.P3 on 14.11.2025 appointing an Advocate Commissioner to take physical possession of the secured assets. The Advocate Commissioner issued a notice dated 28.11.2025 informing that physical possession of the property will be taken after 14 days from the date of receipt of the notice.
4. The petitioners, therefore, preferred I.A.No.4673 of 2025 in the S.A. seeking a stay of all actions. The said application was taken up for hearing on 11.12.2025 and adjourned to 4 OP (DRT) 13/2026 2026:KER:11261 15.12.2025 for counter. The application was heard and reserved for orders on 18.12.2025. On 18.12.2025, the respondent bank filed a memo producing several documents, and the petitioners filed a reply. Thereafter, the case was reopened for a fresh hearing on 07.1.2026. When the bank proceeded further for taking physical possession, before the order was passed in the stay petition, the petitioners approached this Court, and filed O.P. (DRT) No.433 of 2025, and an interim order was passed on 23.12.2025, ordering status quo to be maintained till orders are passed by the DRT in the application for stay. In the meantime, the DRT passed, orders in I.A. No. 4673 of 2025 in S.A.No.783 of 2025 on 02.01.2026, which is produced as Ext.P9. Petitioners impugn Ext.P9 as it was passed in derogation of statutory provisions and the law explained by the hon'ble Apex Court.
5. A counter affidavit is filed by the 2nd respondent on behalf of the 1st respondent, wherein it is contended that the original petition is not maintainable in law or fact. The order passed in I.A. No.4673 of 2025 in S.A.No. 783 of 2025 is an appealable order, and petitioners have not availed the efficacious statutory remedy under Section 18 of the Act. O.P.(DRT) and 5 OP (DRT) 13/2026 2026:KER:11261 S.A. are collusive litigations filed by the petitioners and the 3rd respondent. Those are filed at the instance of the 3rd respondent to avoid the securitisation measures. Petitioner Nos.1 and 3 and the 3rd respondent are the children of Mary George, and the 2nd petitioner is the wife of the 1st petitioner. The proceedings initiated under Section 14, are in respect of credit facilities availed by the 3rd petitioner, which includes a housing loan for Rs. 80 lakhs availed by the 3rd respondent along with his wife, Feema Mejo and her mother, late Mary George. The KCC - OD loan facility is availed by the 3RD respondent. For the said loan, Feema Mejo and late Mary George were guarantors. The facilities were availed by mortgaging having an extent of 16.19 areas with residential building therein, which the 3rd respondent and Mary George obtained, as per partition deed No. 3571/2010 of SRO, Thrissur.
6. As per the recitals in the partition deed, it is specifically provided that on the death of Mary George, the property would become the absolute exclusive property of the third respondent. The original of the partition deed was deposited by the 3rd respondent, and his mother, Mary Geroge on 6 OP (DRT) 13/2026 2026:KER:11261 11.01.2018 to create a mortgage by deposit of title deeds. Mary George died on 14.10.2021, and the secured assets became the absolute property of the 3rd respondent. Due to default, the accounts were classified as NPA on 14.03.2025, and proceedings were initiated under the SARFAESI Act. Notices were issued by the Bank to the 3rd respondent, by registered post, and his wife, Feema Mejo, and the legal heirs of Mary George, since she was a co-borrower, and the same were received by them.
7. Since the debt was not discharged, the respondents initiated proceedings under Section 14 of the Act. The possession notice was issued by registered post, and the same was acknowledged by the 3rd respondent and his wife and the petitioners herein. It was also published in the New Indian Express newspaper, Thrissur edition and Mangalam Newspaper on 07.07.2025. Notice was also affixed on the secured asset. There is no illegality in the proceedings initiated by the Bank against the secured assets, and it is in tune with the Act and Rules. As on 15.12.2025, an amount of Rs. Rs.74,38,451.61 is due under the housing loan facility, and Rs.1,01,32,655.66/- is due under the KCC OD facility.
7OP (DRT) 13/2026 2026:KER:11261
8. The 3rd respondent is the absolute owner in possession of the secured assets. The written agreement of sale dated 02.11.2017 is false and denied. The same is cooked up for the case. The transfer of money, being the sale consideration, is denied. The issuance of a lawyer notice, filing of the suit, and the mediation settlement arrived between the petitioners and 3rd respondent are also conclusive in nature. The respondent bank is not a party to the litigation, and therefore, it is not binding on the bank.
9. The respondents have filed a claim petition in the suit to vacate the order of the attachment. Ext.P9 is valid and legal. The petitioners' case is that they are claiming the property based on an unregistered agreement of sale, and filed a suit, in which a mediation agreement dated 15.11.2025 is entered collusively to delay the proceedings. The petitioners neither have a case that they are in possession of the secured assets, nor do they claim to be the owners of the secured assets. In such circumstances, they cannot seek to interdict the taking of physical possession. Therefore, prayed that the original petition be dismissed.
10. Heard the learned senior counsel for the petitioners 8 OP (DRT) 13/2026 2026:KER:11261 Shri.George Poonthottam and the learned counsel for the respondent Bank, Shri.Sunil Shanker.
11. This O.P. is filed under Article 227 of the Constitution of India, challenging Ext.P9 order passed by the DRT in I.A.No. 4673 of 2025 in S.A.No.783 of 2025 and also for an order restraining the respondent bank from taking any further steps in respect of the subject matter until the claim petition in I.A. No.2 of 2025 in O.S. No.183 of 2025 pending before the Sub Court, Thrissur is adjudicated. A few of the reliefs touching the very constitution of the DRT are also challenged in view of the hon'ble apex court's judgment in the Madras Bar Association case.
12. The petitioners are not the owners of the secured asset. It belongs to the 3rd respondent, along with his mother, who has mortgaged the property to avail financial assistance. When there was a default, the bank initiated proceedings against the secured assets. The main contention raised by the senior counsel for the petitioners is that through an unregistered written agreement dated 2.11.2017, the 3rd respondent, along with his mother, agreed to sell the property for a consideration of 4 crores, and the petitioners have paid a total of Rs. 3.5 crores, and the 9 OP (DRT) 13/2026 2026:KER:11261 period of agreement was extended due to the ill health of the mother. After the death of the mother, the property absolutely vested wtih the 3rd respondent.
13. A suit for specific performance was filed, and the same is now compromised in a mediation. The bank had already filed a Claim Petition as I.A. No.2 of 2024 in the O.S. No.185 of 2025 pending before the Sub Court, Thrissur, for lifting the attachment and the same was not heard, and orders are passed. In the counter affidavit filed by the bank, a contention is raised that Ext.P9 is an appealable order under Section 18 of the Act.
14. Section 18 of the Act deals with an appeal to the Appellate Tribunal. It reads that any person aggrieved by any order passed by the Debt Recovery Tribunal, under Section 17, may prefer an appeal, along with such fee as may be prescribed, to the Appellate Tribunal within 30 days from the date of receipt of the order from the Debt Recovery Tribunal.
15. It is not in dispute that Ext.P9 is an order passed under Section 17 of the Act. The hon'ble apex court has cautioned that the invocation of Article 227 of the Constitution of India is to be sparingly used, and it cannot be used as an appellate 10 OP (DRT) 13/2026 2026:KER:11261 forum for adjudication of all disputes. When an efficacious remedy is available to the petitioner under Section 18 of the Act, the petitioners cannot directly rush to this court challenging Ext.P9 order under Article 227 of the Constitution of India. The very ground raised in this O.P. cannot be adjudicated by this court, and the same are to be raised before the appellate tribunal only.
16. The hon'ble apex court in Estralla Rubber v. Dass Estate (P) Ltd. [(2001) 8 SCC 97] held as follows:
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the 11 OP (DRT) 13/2026 2026:KER:11261 finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
In view of the settled proposition of the law regarding the invocation of Article 227 of the Constitution of India and the fact that the petitioners have an efficacious alternate remedy, this Writ Petition is not entertained and left open all the contentions in the O.P. are left open to be raised in any appeal challenging Ext.P9 order under Section 18 of the SARFAESI Act before the DRAT. Taking note of the fact that Ext.P9 is passed on 02.01.2026 and coercive steps against the petitioner as per Ext.P3 and P4 are pending and also the fact that the petitioners were bonafidely prosecuting this Writ Petition before this court, for the ends of justice, I direct that taking physical possession of the secured assets, pursuant to Ext.P4 shall be kept in abeyance till 28.02.2026, to enable the petitioner to avail the remedy before the DRAT.
The Original Petition is disposed of.
Sd/-
BASANT BALAJI, JUDGE.
dl/ 12 OP (DRT) 13/2026 2026:KER:11261 APPENDIX OF OP (DRT) NO. 13 OF 2026 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SECURITIZATION APPLICATION NO.
783/2025 BEFORE THE HON'BLE DEBT RECOVERY TRIBUNAL-II, ERNAKULAM DATED 06.12.2025 PREFERRED BY THE PETITIONERS ALONG WITH ANNEXURES Exhibit P2 TRUE COPY OF THE DEMAND NOTICE DATED 17.04.2025 ISSUED BY THE 1ST RESPONDENT BANK Exhibit P2(a) TRUE COPY OF THE DEMAND NOTICE DATED 17.04.2025 ISSUED BY THE 1ST RESPONDENT BANK Exhibit P3 TRUE COPY OF THE ORDER PASSED IN CMP NO.12321/2025 BY THE HON'BLE CHIEF JUDICIAL MAGISTRATE'S COURT, THRISSUR DATED 14.11.2025 Exhibit P4 TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER DATED 28.11.2025 Exhibit P5 TRUE COPY OF THE INTERIM APPLICATION BEARING I.A. NO. 4673/2025 IN SA NO. NO. 783/2025 OF THE HON'BLE DEBT RECOVERY TRIBUNAL. II, ERNAKULAM Exhibit P6 TRUE COPY OF THE MEMO FILED BY THE RESPONDENT BANK IN SA NO. NO.783/2025 BEFORE THE HON'BLE DEBT RECOVERY TRIBUNAL. II, ERNAKULAM Exhibit P7 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN SA NO. 783/2025 BEFORE THE HON'BLE DEBT RECOVERY TRIBUNAL. II, ERNAKULAM Exhibit P8 TRUE COPY OF THE PROCEEDINGS DATED 18.12.2025 IN S.A.NO.783/2025 BEFORE THE HON'BLE DRT, ERNAKULAM AS PUBLISHED IN THE WEBSITE Exhibit P9 TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE DEBT RECOVERY TRIBUNAL IN I.A.NO.4673/2025 IN S.A. NO.783/2025 DATED 02.01.2026