The Authorised Officer vs P Ahamed Koya on 22 January, 2026

[Cites 31, Cited by 0]

Kerala High Court

The Authorised Officer vs P Ahamed Koya on 22 January, 2026

The authorised officer of the Union Bank of India, the respondent in W.P.(C)No.35758 of 2025, has filed this writ appeal, invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958, challenging the interim orders dated 19.12.2025, 13.01.2026 and 15.01.2026 passed by the learned Single Judge in W.P.(C)No.35758 of 2025, which was one filed by the respondent herein-petitioner, who availed a cash credit loan to the limit of Rs.90,00,000/- on 19.04.2002, for a period of 12 months, subject to renewal; a housing loan for Rs.6,75,000/- on 16.04.2012, for a period of 12 years, which expired in the year 2024; and a vehicle loan for Rs.7,50,000/- on 12.02.2014, for a period of 84 months from the Union Bank of India. On account of default committed by the petitioner in effecting repayment, the accounts were classified as Non-Performing Assets (NPA) on 30.11.2019 and 31.01.2020, respectively, and the bank initiated coercive steps under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), by issuing demand notices on 04.12.2019 and 05.02.2020, respectively. In the proceedings W.A.No.124 of 2026 3 2026:KER:5521 initiated under Section 14 of the SARFAESI Act, Ext.P1 notice dated 10.09.2025 was issued by the Advocate Commissioner appointed by the Chief Judicial Magistrate, Kollam in M.C.No.1183 of 2025, vide Ext.P2 order dated 06.08.2025. The petitioner, along with his son, had approached this Court in W.P.(C)No.12457 of 2024, challenging the coercive steps initiated by the bank under the provisions of the SARFAESI Act. The said writ petition was disposed of by Ext.P3 judgment dated 04.04.2024, whereby the petitioners therein were directed to remit the outstanding amount of Rs.1,03,44,640/- in 12 consecutive and equal monthly installments, along with accruing interest and other bank charges, if any, and the first instalment was directed to be paid on or before 04.05.2024. Paragraphs 9 to 11 of Ext.P3 judgment read thus;

"9. The specific case of the petitioners is that the petitioners have been making the repayment and maintaining the loan account initially. The default in repayment of the loan occurred lately due to reasons beyond the control of the petitioners. The petitioners hasve provided substantial security which will safeguard the interest of the Bank.

10. In the facts and circumstances of the case, I am inclined to dispose of the writ petition giving a short and reasonable time to the petitioners to clear off the liability.

11. The writ petition is therefore disposed of with the following directions:

W.A.No.124 of 2026 4

2026:KER:5521

(i) The petitioners shall remit the outstanding amount of Rs.1,03,44,640/- in 12 consecutive and equal monthly instalments along with accruing interest and other Bank charges, if any. First of such instalments shall be paid on or before 04.05.2024.

(ii) If the petitioners commit default in making payments as directed above, the respondents will be at liberty to continue with the coercive proceedings against the petitioners in accordance with law.

(iii) If the petitioners make payments as directed above, coercive proceedings, if any, against the petitioners shall stand deferred.

(iv) If the petitioners make an application for statement of accounts, the respondents shall provide the same."

2. The document marked as Ext.P4 in W.P.(C)No.35758 of 2025 is a sale agreement dated 29.08.2025 entered into between the petitioner and a third party, in relation to the secured asset. The reliefs sought for in W.P.(C)No.35758 of 2025 are as follows;

"1. Issue a writ of mandamus or direction staying the coercive proceedings of physical possession by granting time for repayment.

2. Permit the petitioner-respondent herein to settle the account through a fresh settlement which is amicable for the respondent-appellant.

3. Issue any other appropriate writ, direction or order as this Hon'ble Court deems fit and proper to meet the ends of justice."

The document marked as Ext.P5 is a copy of the affidavit filed by the authorized officer of the bank before the Chief Judicial W.A.No.124 of 2026 5 2026:KER:5521 Magistrate Court, Kollam in M.C.No.1183 of 2025.

3. W.P.(C)No.35758 of 2025, which was filed on 24.09.2025, came up for admission on 26.09.2025. On 26.09.2025, the Authorized Officer of the Bank (the appellant herein) filed a counter affidavit dated 25.09.2025 in the writ petition. In that counter affidavit the question of maintainability of the writ petition was specifically raised, placing reliance on various decisions of the Apex Court including the decision in South Indian Bank Ltd. v. Naveen Mathew Philip [(2023) 17 SCC 311]. In the counter affidavit it was pointed out that as on 26.09.2025 the total outstanding amount in all the loan accounts, which were classified as NPA on 30.11.2019 and 31.01.2020 respectively comes to Rs.1,21,04,620/- with further interest and costs. Despite multiple opportunities and substantial indulgence extended by the Bank, including One Time Settlement (OTS) proposal in the year 2021 and further time under the interim orders of this Court in W.P.(C)No.12457 of 2024, there were repeated defaults in complying with the terms and timelines granted. On account of the default committed by the borrowers, the Bank initiated coercive steps under the provisions of the SARFAESI Act. The Advocate Commissioner appointed by Ext.P2 W.A.No.124 of 2026 6 2026:KER:5521 order dated 06.08.2025 of the Chief Judicial Magistrate, Kollam in M.C.No.1183 of 2025 issued Ext.P1 dispossession notice dated 10.09.2025. Ext.P5 application made by the Bank before the Chief Judicial Magistrate, Kollam, under the provisions of Section 14 of the SARFAESI Act was supported by an affidavit sworn to by the Authorised Officer, establishing statutory compliance, outstanding amounts and the necessity of physical possession of the secured asset.

4. On 19.12.2025, when W.P.(C)No.35758 of 2025 came up for consideration, the learned Single Judge passed an interim order and posted the matter to 13.01.2026. The said interim order reads thus;

"The learned counsel for the petitioner seeks a direction to consider Ext.P7 One Time Settlement proposal. It is seen from Ext.P6 that an amount of Rs.9 lakhs has already been remitted. The petitioner is ready to deposit a further sum of Rs.5 lakhs within a period of two weeks from today. If the amount of Rs.5 lakhs is deposited within two weeks from today, the respondent bank shall consider Ext.P7 and communicate the outcome to the petitioner. The taking of physical possession pursuant to Ext.P2 shall stand deferred for a period of two weeks, subject to the condition that the petitioner remits the aforesaid amount within the stipulated time."

5. On 19.12.2025, along with I.A.No.1 of 2025, the W.A.No.124 of 2026 7 2026:KER:5521 respondent-writ petitioner has placed on record Ext.P6 receipt of payment of Rs.9,00,000/- and Ext.P7 request for One Time Settlement dated 04.12.2025. The interim order dated 19.12.2025 was extended by the order dated 13.01.2026, till 15.01.2026. On 13.01.2026, the Authorized Officer of the Bank, the respondent in the writ petition, filed I.A.No.1 of 2026, producing therewith Exts.R1A to R1G documents. On 15.01.2026, the learned Single Judge extended the interim order till 30.01.2026.

6. On 19.01.2026, when this writ appeal came up for admission, it was admitted on file. The respondent-petitioner entered appearance through counsel. This Court passed a detailed interim order dated 19.01.2026. Paragraphs 4 to 9 of that order read thus;

'4. The document marked as Ext.P7 is the request made by the respondent-petitioner, seeking the benefit of One Time Settlement (OTS). The benefits sought for in Ext.P7 are as follows;

"* A total waiver of all accumulated interest and penal interest.

* An approval to close all three loan accounts for a final lump-sum payment of Rs.55,00,000/-."

5. A copy of Ext.P7 is placed on record along with I.A.No.1 of 2025 filed on 19.12.2025.

W.A.No.124 of 2026 8

2026:KER:5521

6. Along with I.A.No.1 of 2026 filed on 31.01.2026, the appellant Bank has placed on record Ext.R1B communication dated 03.12.2025, whereby the request made by the respondent-petitioner for OTS stands rejected. The documents marked as Exts.R1D, R1E, R1F and R1G are the decisions of this Court in South Indian Bank Ltd. v. Rahim [2025 KLT OnLine 3502], Hyder v. Authorised Officer, Indian Bank [2025 KLT OnLine 2608], Idukki District Police Co-operative Society Ltd. No.1-490 v.

Rasheed [2025 (3) KLT 514] and M/s. Classic Agencies v. Regional Office, Indian Overseas Bank [2025 (5) KLT 275].

7. Raising the question of maintainability, the appellant Bank has filed a counter affidavit dated 25.09.2025 in W.P.(C)No.35758 of 2025, placing reliance on the judgment of the Apex Court in South Indian Bank Ltd. v. Naveen Mathew Philip [(2023) 17 SCC 311].

8. Having considered the materials on record and also the preliminary arguments made at the Bar, in the light of the law laid down in the decisions referred to supra and also the law laid down by a Larger Bench of this Court in K.S. Das v. State of Kerala [1992 (2) KLT 358], we find that the appellant Bank has made out a prima facie case for staying the operation of the impugned interim orders of the learned Single Judge in W.P.(C)No.35758 of 2025.

9. In the result, there will be an interim stay of the order dated 19.12.2025, for a period of three weeks.'

7. Heard the learned counsel for the appellant-respondent and the learned counsel for the respondent-petitioner. W.A.No.124 of 2026 9

2026:KER:5521

8. The learned counsel for the appellant-respondent would contend that when the question of maintainability of the writ petition was specifically raised in the counter affidavit dated 25.09.2025 filed in W.P.(C)No.35752 of 2025, placing reliance on the law laid down by the Apex Court on the point, the learned Single Judge committed a grave error in granting the interim orders dated 19.12.2025, 13.01.2026 and 15.01.2026 restraining the Bank from taking physical possession of the secured asset pursuant to Ext.P2 order dated 06.08.2025 of the Chief Judicial Magistrate, Kollam in M.C.No.1183 of 2025, on the petitioner remitting an amount of Rs.5,00,000/- within a period of two weeks from 19.12.2025. Even in the absence of a valid challenge against Ext.P2 order of the Chief Judicial Magistrate, Kollam, in a proceedings initiated under Section 14 of the SARFAESI Act, the learned Single Judge interfered with the steps taken by the Bank, which is a secured creditor, to take physical possession of the secured asset. As stated in the counter affidavit dated 25.09.2025, despite multiple opportunities and substantial indulgence extended by the Bank, including One Time Settlement (OTS) proposal in the year 2021 and further time under the interim orders of this Court in W.P.(C)No.12457 of 2024, there were W.A.No.124 of 2026 10 2026:KER:5521 repeated defaults in complying with the terms and timelines granted. On account of the default committed by the borrowers, the Bank initiated coercive steps under the provisions of the SARFAESI Act. Having failed to effect payment of the outstanding amount along with accruing interest and other charges, in monthly installments, in terms of the directions contained in Ext.P3 judgment dated 04.04.2024 in W.P.(C)No.12457 of 2024, the respondent-petitioner cannot again invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by filing W.P.(C)No.35758 of 2025.

9. On the other hand, the learned counsel for the respondent-petitioner would contend that after accepting the remittance of Rs.5,00,000/- made by the petitioner in terms of the interim order dated 19.12.2025 in W.P.(C)No.35758 of 2025, the appellant-respondent cannot challenge the interim orders dated 19.12.2025, 13.01.2026 and 15.01.2026 in an intra-court appeal filed under Section 5(i) of Kerala High Court Act, 1958. The learned counsel would place reliance on the decision of the Apex Court in Union of India v. N. Murugesan [(2022) 2 SCC 25], on the principle of approbate and reprobate.

10. In South Indian Bank Ltd. v. Naveen Mathew W.A.No.124 of 2026 11 2026:KER:5521 Philip [(2023) 17 SCC 311], in the context of the challenge made against the notices issued under Section 13(4) of the SARFAESI Act, the Apex Court reiterated the settled position of law on the interference of the High Court invoking Article 226 of the Constitution of India in commercial matters, where an effective and efficacious alternative forum has been constituted through a statute. In the said decision, the Apex Court took judicial notice of the fact that certain High Courts continue to interfere in such matters, leading to a regular supply of cases before the Apex Court. The Apex Court reiterated that a writ of certiorari is to be issued over a decision when the court finds that the process does not conform to the law or the statute. In other words, courts are not expected to substitute themselves with the decision-making authority while finding fault with the process along with the reasons assigned. Such a writ is not expected to be issued to remedy all violations. When a Tribunal is constituted, it is expected to go into the issues of fact and law, including a statutory violation. A question as to whether such a violation would be over a mandatory prescription as against a discretionary one is primarily within the domain of the Tribunal. The issues governing waiver, acquiescence and estoppel are also primarily W.A.No.124 of 2026 12 2026:KER:5521 within the domain of the Tribunal. The object and reasons behind the SARFAESI Act are very clear as observed in Mardia Chemicals Ltd. v. Union of India [(2004) 4 SCC 311]. While it facilitates a faster and smoother mode of recovery sans any interference from the court, it does provide a fair mechanism in the form of the Tribunal being manned by a legally trained mind. The Tribunal is clothed with a wide range of powers to set aside an illegal order, and thereafter, grant consequential reliefs, including repossession and payment of compensation and costs. Section 17(1) of the SARFAESI Act gives an expansive meaning to the expression 'any person', who could approach the Tribunal.

11. In Naveen Mathew Philip [(2023) 17 SCC 311], the Apex Court noticed that, in matters under the SARFAESI Act, approaching the High Court for the consideration of an offer by the borrower is also frowned upon by the Apex Court. A writ of mandamus is a prerogative writ. The court cannot exercise the said power in the absence of any legal right. More circumspection is required in a financial transaction, particularly when one of the parties would not come within the purview of Article 12 of the Constitution of India. When a statute prescribes a particular mode, an attempt to circumvent that mode shall not be encouraged by a W.A.No.124 of 2026 13 2026:KER:5521 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. In paragraph 17 of the decision, the Apex Court reiterated the position of law regarding the interference of the High Courts in matters pertaining to the SARFAESI Act by quoting its earlier decisions in Federal Bank Ltd. v. Sagar Thomas [(2003) 10 SCC 733], United Bank of India v. Satyawati Tondon [(2010) 8 SCC 110], State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85], Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir [(2022) 5 SCC 345] and Varimadugu Obi Reddy v. B. Sreenivasulu [(2023) 2 SCC 168] wherein the said practice has been deprecated while requesting the High Courts not to entertain such cases. In paragraph 18 of the said decision, the Apex Court observed that the powers conferred under Article 226 of the Constitution of India are rather wide, but are required to be exercised only in extraordinary circumstances in matters pertaining to proceedings and adjudicatory scheme qua a statute, more so in commercial matters involving a lender and a borrower, when the legislature has provided for a specific mechanism for appropriate redressal.

W.A.No.124 of 2026 14

2026:KER:5521

12. Section 14 of the SARFAESI Act deals with the powers of the Chief Metropolitan Magistrate or the District Magistrate to assist a secured creditor in taking possession of a secured asset.

13. In Indian Bank v. D. Visalakshi [(2019) 20 SCC 47], a Two-Judge Bench of the Apex Court considered the question as to whether 'the Chief Judicial Magistrate' is competent to deal with the request of the secured creditor to take possession of the secured asset under Section 14 of the SARFAESI Act as can be done by the Chief Metropolitan Magistrate in metropolitan areas and the District Magistrate in non-metropolitan areas. The Apex Court noted that the Chief Judicial Magistrate is equated with the Chief Metropolitan Magistrate for the purposes referred to in the Criminal Procedure Code, 1973, and those expressions are used interchangeably, being synonymous with each other. Approving the view taken by this Court in Muhammed Ashraf v. Union of India [2008 (3) KHC 935] and Radhakrishnan V.N. v. State of Kerala [2008 (4) KHC 989], by the Karnataka High Court in Kaveri Marketing v. Saraswathi Cooperative Bank Ltd. [2013 SCC OnLine Kar 18], by the Allahabad High Court in Abhishek Mishra v. State of U.P. [AIR 2016 All 210] and by the High Court of Andhra Pradesh in T.R. Jewellery v. State W.A.No.124 of 2026 15 2026:KER:5521 Bank of India [AIR 2016 Hyd 125], the Apex Court held that the Chief Judicial Magistrate is equally competent to deal with the application moved by the secured creditor under Section 14 of the SARFAESI Act.

14. In United Bank of India v. Satyawati Tondon [(2010) 8 SCC 110], a Two-Judge Bench of the Apex Court held that if the 1st respondent guarantor had any tangible grievance against the notice issued under Section 13(4) of the SARFAESI Act or the action taken under Section 14, then he could have availed remedy by filing an application under Section 17(1) before the Debts Recovery Tribunal. The expression 'any person' used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.

15. In Satyawati Tondon [(2010) 8 SCC 110], on the facts of the case at hand, the Apex Court noted that the High Court W.A.No.124 of 2026 16 2026:KER:5521 overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. While dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves, inasmuch as, they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing the remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.

16. In view of the law laid down by the Apex Court in Satyawati Tondon [(2010) 8 SCC 110] and reiterated in Naveen Mathew Philip [(2023) 17 SCC 311], if the respondent-petitioner has any grievance against the proceedings initiated by the secured creditor under Section 14 of the SARFAESI W.A.No.124 of 2026 17 2026:KER:5521 Act, based on Ext.P2 order dated 06.08.2025 of the Chief Judicial Magistrate, Kollam in M.C.No.1183 of 2025 and Ext.P1 notice dated 10.09.2025 issued by the Advocate Commissioner appointed in M.C.No.1183 of 2025, he could have availed the statutory remedy by filing an application under Section 17 of the said Act before the Debts Recovery Tribunal.

17. Section 5 of the Kerala High Court Act deals with appeal from judgment or order of Single Judge. As per Section 5(i) of the Act, an appeal shall lie to a Bench of two Judges from a judgment or order of a Single Judge in the exercise of original jurisdiction.

18. On the question of maintainability of the writ appeal under Section 5(i) of the Kerala High Court Act, against an interim order passed by a learned Single Judge during the pendency of the writ petition, the Larger Bench in K.S. Das v. State of Kerala [1992 (2) KLT 358] held that the word 'order' in Section 5(i) of the Kerala High Court Act includes, apart from other orders, orders passed by the High Court in miscellaneous petitions filed in the writ petitions provided the orders are to be in force pending the writ petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause W.A.No.124 of 2026 18 2026:KER:5521 substantial prejudice to the parties. The nature of the 'order' appealable belongs to the category of 'intermediate orders' referred to by the Apex Court in Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551]. The word 'order' is not confined to 'final order' which disposes of the writ petition. The 'orders' should not however, be ad-interim orders in force pending the miscellaneous petition or orders merely of a procedural nature.

19. In Thomas P. T. and another v. Bijo Thomas and others [2021 (6) KLT 196], a Division Bench of this Court noticed that the view that was upheld by the Larger Bench in K.S. Das [1992 (2) KLT 358] was that even though an appeal could be filed against an interlocutory order passed in a writ petition, in order to be qualified for challenge in an appeal, the order shall be either substantially affecting or touching upon the substantial rights or liabilities of the parties or which are matters of moment and cause substantial prejudice to the parties. According to the Larger Bench, the nature of the order appealable belongs to the category of intermediate orders referred to by the Apex Court in Madhu Limaye [(1977) 4 SCC 551]. It was, however, clarified by the Larger Bench that such orders should not, however, be ad interim orders or orders merely of a procedural nature. W.A.No.124 of 2026 19

2026:KER:5521

20. By the interim order dated 19.12.2025 in W.P.(C)No.35758 of 2025, the learned Single Judge ordered that taking of physical possession pursuant to Ext.P2 order dated 06.08.2025 of the Chief Judicial Magistrate, Kollam in M.C.No.1183 of 2025 shall be deferred for a period of two weeks, if the petitioner (respondent herein) deposits an amount of Rs.5,00,000/-, within two weeks. The said interim order, whereby the learned Single Judge interfered with the coercive steps initiated by the secured creditor against the petitioner, under the provisions of the SARFAESI Act, is one passed without taking into consideration the specific contention raised in the counter affidavit dated 25.09.2025 filed in W.P.(C)No.35758 of 2025 raising the question of maintainability, placing reliance on the decisions of the Apex Court referred to supra. Therefore, the said interim order dated 19.12.2025 passed by the learned Single Judge, which substantially affects the right of the appellant Bank to proceed with the coercive steps under the provisions of the SARFAESI Act, based on Ext.P2 order dated 06.08.2025 of the Chief Judicial Magistrate, Kollam in M.C.No.1183 of 2025 and Ext.P1 notice dated 10.09.2025 issued by the Advocate Commissioner appointed in that proceedings, is an order appealable under W.A.No.124 of 2026 20 2026:KER:5521 Section 5(i) of the Kerala High Court Act, in view of the law laid down by the Larger Bench in K.S. Das [1992 (2) KLT 358].

21. In State Bank of India v. Arvindra Electronics Pvt. Ltd. [(2023) 1 SCC 540] - judgment dated 04.11.2022 in Civil Appeal No.6954 of 2022 - the Apex Court reiterated the law laid down in Bijnor Urban Cooperative Bank Limited [(2023) 2 SCC 805] - judgment dated 15.12.2021 in Civil Appeal No.7411 of 2021 - that no writ of mandamus can be issued by the High Court in exercise of the powers under Article 226 of the Constitution of India directing a financial institution/bank to positively grant the benefit of One Time Settlement (OTS) to a borrower; the grant of benefit under OTS is always subject to eligibility criteria mentioned under OTS scheme and guidelines issued from time to time. Such a decision should be left to the commercial wisdom of the bank, whose amount is involved, and it is always to be presumed that a financial institution/bank shall take a prudent decision whether to grant a benefit or not under the OTS scheme. Therefore, the High Court materially erred and exceeded in its jurisdiction in issuing a writ of mandamus directing the bank to positively consider/grant the benefit of OTS to the borrower.

W.A.No.124 of 2026 21

2026:KER:5521 22 In Arvindra Electronics Pvt. Ltd. [(2023) 1 SCC 540], the Apex Court held that directing the bank to reschedule the payment under OTS would tantamount to modification of the contract, which can be done by mutual consent under Section 62 of the Contract Act, 1872. Further, rescheduling the payment under OTS and granting extension of time would tantamount to rewriting the contract, which is not permissible while exercising the powers under Article 226 of the Constitution of India.

23. The specific stand taken in the counter affidavit dated 25.09.2025 filed in W.P.(C)No.35758 of 2025 is that, despite multiple opportunities and substantial indulgence extended by the Bank, including an OTS proposal in the year 2021 and further time under the interim orders of this Court in W.P.(C)No.12457 of 2024, there were repeated defaults in complying with the terms and timelines granted. On account of the default committed by the borrowers, the Bank initiated coercive steps under the provisions of the SARFAESI Act.

24. As already noticed in paragraph 4 of the interim order dated 19.01.2026 in this writ appeal, in Ext.P7 request dated 04.12.2025 made by the respondent-petitioner, the benefits sought for under OTS facility are a total waiver of all accumulated W.A.No.124 of 2026 22 2026:KER:5521 interest and penal interest; and an approval to close all the three loan accounts for a final lump-sum payment of Rs.55,00,000/-. Along with I.A.No.1 of 2026 in W.P.(C)No.35758 of 2025 filed on 13.01.2026, the appellant has placed on record Ext.R1A proposal dated 04.11.2025 made by the respondent herein for OTS facility with a request for a total waiver of all accumulated interest and penal interest; and an approval to close the three loan accounts for a lump-sum payment of Rs.55,00,000/-. The request made in Ext.R1A was considered and rejected by the Bank and the decision was communicated to the respondent herein, vide Ext.R1B letter dated 03.12.2025. In the affidavit filed in support of I.A.No.1 of 2026 it is stated that the respondent herein has not submitted the proposal produced as Ext.P7. As stated in paragraph 3 of the counter affidavit dated 25.09.2025 filed in W.P.(C)No.35758 of 2025, the total outstanding amount in the loan accounts as on that date comes to Rs.1,21,04,620/-, with further interest and costs. At any rate, the learned Single Judge went wrong in granting interim order dated 19.12.2025, 13.01.2026 and 15.01.2026 in W.P.(C)No.35758 of 2025, restraining the Bank from taking physical possession of the secured asset, pursuant to Ext.P2 order of the Chief Judicial Magistrate, Kollam and Ext.P1 W.A.No.124 of 2026 23 2026:KER:5521 notice issued by the Advocate Commissioner, even in the absence of a valid challenge raised against the coercive steps initiated by the Bank against the secured asset, under the provisions of the SARFAESI Act.

25. The learned counsel for the respondent-petitioner would contend that after accepting the remittance of Rs.5,00,000/- made by the petitioner pursuant to the interim order dated 19.12.2025, the appellant-bank cannot challenge the interim orders in W.P.(C)No.35758 of 2025, in this intra-court appeal. In support of the said contention, the learned counsel placed reliance on the decision of the Apex Court in N. Murugesan [(2022) 2 SCC 25], on the principle of approbate and reprobate. Paragraph 26 of that decision reads thus;

"26. These phrases are borrowed from the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while W.A.No.124 of 2026 24 2026:KER:5521 questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally."

26. On the aforesaid contention raised by the learned counsel for the respondent-petitioner, the learned counsel for the appellant-respondent would point out that the remittance of Rs.5,00,000/- made by the petitioner in terms of the interim order dated 19.12.2025 of the learned Single Judge is kept in a non-lien account, based on Ext.R1C request dated 01.01.2026 made by the petitioner. The said request made by the petitioner reads thus;

"31.10.2025 ൽ ഒൻപത് ലക്ഷം (9 lakhs) രൂപ ഞാൻ No Lien Accountൽ അടച്ചു. അതിന്റെ കൂറട 19.12.2025 ൽ ബഹുമാനറെട്ട ഹഹക്കാടതി ക്േ ഉത്തരവ് പ്പകാരം 01.01.2026 ൽ അഞ്ചു ലക്ഷം (five lakhs) കൂടി ഞാൻ No Lien Account അടയ്ക്കുന്നു. ഈ തുക വസ്തു റകാടുകാറമന്ന് സമ്മതിച്ചു അവരിൽ നിന്നിം അഡ്വാൻസ് വാങ്ങിയതാണ് Loan Account ൽ മാറ്റരുത് എന്ന് ഇതിനാൽ അെിയികുന്നു."

27. Having made such a request in Ext.R1C dated 01.01.2026, the respondent-petitioner cannot now contend that the appellant-respondent cannot challenge the interim order dated W.A.No.124 of 2026 25 2026:KER:5521 19.12.2025 of the learned Single Judge in W.P.(C)No.35758 of 2025, after accepting the remittance of Rs.5,00,000/- made by the petitioner pursuant to the said interim order. Therefore, we find absolutely no merits in the contention raised by the learned counsel for the respondent-petitioner, placing reliance on the decision of the Apex Court in N. Murugesan [(2022) 2 SCC 25].

28. In view of the law laid down in the decisions referred to supra, the interim orders dated 19.12.2025, 13.01.2026 and 15.01.2026 in W.P.(C)No.35758 of 2025 granted by the learned Single Judge without adverting to the legal contention raised in the counter affidavit dated 25.09.2025 on the maintainability of the writ petition, placing reliance on the decisions of the Apex Court on the point, cannot be sustained in law.

In the result, this writ appeal is disposed of by setting aside the interim orders dated 19.12.2025, 13.01.2026 and 15.01.2026 in W.P.(C)No.35758 of 2025 of the learned Single Judge.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE MSA

Unlock Advanced Research with PRISMAI

Kerala High Court