Porinchu Roy vs Cholamandalam Investment And Finance ... on 12 September, 2025

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Kerala High Court

Porinchu Roy vs Cholamandalam Investment And Finance ... on 12 September, 2025

The appellant, who availed a business loan for Rs.20,00,000/- in the year 2023 from the 1st respondent Cholamandalam Investment And Finance Company Ltd., which is a private non-banking financial institution, by mortgaging his property, filed W.P.(C)No.12478 of 2025, invoking the writ jurisdiction under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 sale notice dated 27.02.2025 issued by 1st respondent and Ext.P2 notice dated 12.03.2025 issued by the Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Thrissur in Crl.M.P.No.2272 of 2025, an application filed under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act); and a writ of mandamus commanding the 1st respondent Bank to grant 12 monthly installments to pay the overdue amount and to regularise the loan account.

2. In W.P.(C)No.12478 of 2025, the respondents filed counter affidavit dated 26.03.2025, opposing the reliefs sought for. In the counter affidavit, the respondents have also raised the W.A.No.2188 of 2025 3 2025:KER:68029 question of maintainability of the writ petition, placing reliance on the decision of the Apex Court in United Bank of India v. Satyawathi Tandon [(2010) 8 SCC 110], Authorised Officer, State Bank of Travancore v. Mathew K.C. [2018 (1) KHC 786] and PHR Invent Educational Society v. UCO Bank [AIR 2024 SC 1893].

3. The learned Single Judge, by the judgment dated 27.03.2025, disposed of W.P.(C)No.12478 of 2025 with the directions contained in paragraph 5 of that judgment, which reads thus;

"5. Accordingly, there will be a direction to the respondent financial institution to accept repayment of the entire overdue amount of Rs.22,32,662/- along with any accrued interest, costs and charges from the petitioner and regularise the loan account of the petitioner in the following manner;

i. The petitioner shall pay a sum of Rs.5,00,000/- on or before 03.04.2025; The balance overdue amount along with any accrued interest, costs and charges shall be repaid in 10 equal monthly instalments;

ii. The first instalment shall be paid on or before 05.05.2025 and the subsequent instalments shall be paid on or before the 5th day of every succeeding months;

iii. Petitioner shall continue to pay the regular W.A.No.2188 of 2025 4 2025:KER:68029 EMI's/instalments along with the instalments directed above;

iv. In the event of default of any one instalment, the respondent financial institution shall be entitled to proceed in accordance with the law;

v. If the petitioner pays the amount of Rs.5,00,000/- on or before 03.04.2025, the confirmation of any sale held on 04.04.2025 shall be postponed. If the petitioner fails to comply with any condition, it will be open to the respondent financial institution to either confirm sale if any held on 04.04.2025 or to conduct fresh sale of the property of the petitioner."

4. The appellant did not comply with any of the conditions stipulated in paragraph 5 of the judgment dated 27.03.2025 in W.P.(C)No.12478 of 2025. Seeking review of the said judgment, the appellant filed R.P.No.748 of 2025, invoking the provisions under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. That review petition ended in dismissal by the order dated 25.07.2025, which is under challenge in this writ appeal filed invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958.

5. Heard the learned counsel for the appellant-petitioner and the learned counsel for the respondents.

6. The issue that requires consideration in this writ appeal W.A.No.2188 of 2025 5 2025:KER:68029 is as to whether any interference is warranted on the order dated 25.07.2025 of the learned Single Judge in R.P.No.748 of 2025.

7. The learned counsel for the appellant-petitioner would contend that the learned Single Judge, by the order dated 25.07.2025 dismissed R.P.No.748 of 2025, without properly appreciating the legal and factual contentions raised by the appellant. On account of the inability in complying with the conditions stipulated in paragraph 5 of the judgment dated 27.03.2025 in W.P.(C)No.12478 of 2025, the appellant has filed the said review petition, invoking the provisions under Order XLVII Rule 1 of the Code.

8. On the other hand, the learned counsel for the respondents would contend that having failed to comply with the conditions stipulated in paragraph 5 of the judgment dated 27.03.2025 of the learned Single Judge in W.P.(C)No.12478 of 2025, the appellant cannot invoke review jurisdiction of this Court under Order XLVII Rule 1 of the Code, in order to seek modification of the conditions stipulated in that judgment. The learned counsel would point out the contentions raised in the counter affidavit filed by the respondent in the writ petition on the question of maintainability under Article 226 of the Constitution of India.

W.A.No.2188 of 2025 6 2025:KER:68029

9. In South Indian Bank Ltd. v. Naveen Mathew Philip [2023 SCC online (SC) 435], 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, W.A.No.2188 of 2025 7 2025:KER:68029 acquiescence and estoppel are also primarily 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.

10. In Naveen Mathew Philip [2023 SCC OnLine (SC) 435] 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 W.A.No.2188 of 2025 8 2025:KER:68029 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. 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 W.A.No.2188 of 2025 9 2025:KER:68029 appropriate redressal.

11. In Shobha S. v. Muthoot Finance Ltd. [2025 (2) KHC 229], on the question of maintainability of writ petitions under Article 226 of the Constitution of India against a private non- banking finance company, the Apex Court laid down as follows;

(1) For issuing a writ against a legal entity, it would have to be an instrumentality or agency of a State or should have been entrusted with such functions as are Governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence Governmental.

(2) A writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State Government; (ii) Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function.

(3) Although a non-banking finance company like the Muthoot Finance Ltd. with which we are concerned is duty bound to follow and abide by the guidelines provided by the Reserve Bank of India for smooth conduct of its affairs in carrying on its business, yet those are of regulatory measures to keep a check and provide guideline and not a participatory dominance or control over the affairs of the company.

W.A.No.2188 of 2025 10 2025:KER:68029 (4) A private company carrying on banking business as a Scheduled bank cannot be termed as a company carrying on any public function or public duty.

(5) Normally, mandamus is issued to a public body or authority to compel it to perform some public duty cast upon it by some statute or statutory rule. In exceptional cases, a writ of mandamus or a writ in the nature of mandamus may issue to a private body, but only where a public duty is cast upon such private body by a statute or statutory rule and only to compel such body to perform its public duty. (6) Merely because a Statute or a rule having the force of a statute requires a company or some other body to do a particular thing, it does not possess the attribute of a statutory body.

(7) If a private body is discharging a public function and the denial of any rights is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial but, nevertheless, there must be a public law element in such action.

(8) According to Halsbury's Laws of England, 3rd Ed. Vol.30, p.682, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform, and which performs the duties and carries out its transactions for the benefit of the public and not for private profit". There cannot be any general definition of public authority or public action. The facts of each case decide the point.

12. As already noticed hereinbefore, the 1st respondent W.A.No.2188 of 2025 11 2025:KER:68029 Cholamandalam Investment and Finance Company Limited is a non-banking financial company. In view of the law laid down by the Apex Court in Shobha S. [2025 (2) KHC 229], the appellant cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India for seeking the reliefs sought for in W.P.(C)No.12478 of 2025. Moreover, the appellant cannot challenge Ext.P1 sale notice or Ext.P2 notice issued by the Advocate Commissioner, in a writ petition filed under Article 226 of the Constitution of India, in view of the law laid down by the Apex Court in Naveen Mathew Philip [2023 SCC OnLine (SC) 435].

13. By the judgment dated 27.03.2025 the learned Single Judge disposed of W.P.(C)No.12478 of 2025, with the directions contained in paragraph 5 of that judgment. Admittedly, the appellant has not chosen to comply with any of the conditions stipulated in paragraph 5 of that judgment. Instead, the appellant filed R.P.No.748 of 2025 invoking the provisions under Order XLVII Rule 1 of the Code, seeking review of the judgment dated 27.03.2025, in order to modify the conditions stipulated in paragraph 5 of the judgment dated 27.03.2025.

14. In Thungabhadra Industries Ltd v. Government of W.A.No.2188 of 2025 12 2025:KER:68029 Andhra Pradesh [AIR 1964 SC 1372] the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors.

15. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167] the Apex Court held that, if the view adopted by the Court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record.

16. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition W.A.No.2188 of 2025 13 2025:KER:68029 has a limited purpose and cannot be allowed to be 'an appeal in disguise'.

17. Later, in Lily Thomas v. Union of India [(2006) 3 SCC 224] the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.

18. In Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534] the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self - evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits.

19. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII, Rule 1 of the Code is very limited and unless there is mistake or error apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the W.A.No.2188 of 2025 14 2025:KER:68029 Court cannot be oblivious of the provisions contained in Order XLVII, Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of decisions.

20. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in this review petition fall within the ambit and scope of Order XLVII, Rule 1 of the Code. Therefore, the learned Single Judge cannot be found fault with in dismissing R.P.No.748 of 2025, by the order dated 25.07.2025, for the reason that no ground has been made out to review the judgment dated 27.03.2025 in W.P.(C)No.12478 of 2025.

In the result, this writ appeal fails and the same is accordingly dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE MIN

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