Boban Joseph Mailakal vs Indusind Bank Ltd on 17 February, 2026

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Kerala High Court

Boban Joseph Mailakal vs Indusind Bank Ltd on 17 February, 2026

The appellants filed W.P.(C)No.29696 of 2025 under Article 226 of the Constitution of India, seeking a writ of mandamus restraining the respondent Bank from proceeding further against the property of the 1st appellant having an extent of 20.75 Ares in Re.Sy.No.69/14 in Aluva East Village of Aluva Taluk in Ernakulam District and described in the schedule to sale deed No.2509/1990 of Aluva Sub Registrar Office on the basis of Ext.P3 notice dated 01.08.2025 and a writ of mandamus commanding the respondent Bank and the Advocate Commissioner not to initiate coercive steps such as taking possession of the petrol bunk, namely, Moly and Boban Agencies on the basis of Ext.P3 notice. By the judgment dated 17.12.2025, the learned Single Judge dismissed the writ petition, without prejudice to the right of the petitioners to raise the contentions in the writ petition as well as other available contentions before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act or in the original application pending before the Debts Recovery Tribunal-I, Ernakulam.

2. Heard arguments of the learned counsel for the 3 W.A.No.334 of 2026 2026:KER:14543 appellants-petitioners and also the learned counsel for the respondent Bank.

3. The issue that requires consideration in this writ appeal is as to whether any interference is warranted on the judgment dated 17.12.2025 of the learned Single Judge in W.P.(C)No.29696 of 2025, whereby that writ petition stands dismissed for the reasons stated therein.

4. 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 4 W.A.No.334 of 2026 2026:KER:14543 time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.

5. In Satyawati Tondon [(2010) 8 SCC 110], on the facts of the case at hand, the Apex Court noted that the High Court 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 5 W.A.No.334 of 2026 2026:KER:14543 the Constitution, a person must exhaust the remedies available under the relevant statute.

6. In South Indian Bank Ltd. v. Naveen Mathew 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, 6 W.A.No.334 of 2026 2026:KER:14543 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 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.

7. 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 7 W.A.No.334 of 2026 2026:KER:14543 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 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 8 W.A.No.334 of 2026 2026:KER:14543 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.

8. 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.

9. 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 9 W.A.No.334 of 2026 2026:KER:14543 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 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.

10. 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 appellants-petitioners have any grievance against the proceedings initiated by the secured creditor under Section 14 of the SARFAESI Act, they could have availed the statutory remedy 10 W.A.No.334 of 2026 2026:KER:14543 by filing an application under Section 17 of the said Act before the Debts Recovery Tribunal. The expression 'any person' used in Section 17(1) of the Act is of wide import, which takes within its fall, 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 of the said Act.

11. When the remedy available to an aggrieved person under Section 17 of the SARFAESI Act is both expeditious and effective, as held by the Apex Court in Satyawati Tondon [(2010) 8 SCC 110], the borrower, the guarantor or any other person who may be affected by the action taken by the secured creditor under Section 14 of the SARFAESI Act have to approach the Debts Recovery Tribunal availing the statutory remedy provided under Section 17 of the said Act, instead of invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India.

12. In Authorised Officer, State Bank of Travancore v. Mathew K.C. [2018 (1) KLT 784], the Apex Court held that no writ petition would lie against the proceedings under the SARFAESI Act, in view of the statutory remedy available under 11 W.A.No.334 of 2026 2026:KER:14543 the said Act.

13. In Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir [(2022) 5 SCC 345] the Apex Court was dealing with a case in which Phoenix ARC (P) Ltd. (for brevity 'ARC'), which is a private financial institution, proposed to take action under the SARFAESI Act to recover the borrowed amount as a secured creditor. The Apex Court held that ARC as such cannot be said to be performing public functions which are normally expected to be performed by State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lends money to the borrowers and the said activity of the bank/ARC cannot be said to be as performing a public function, which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken, and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, he has to avail the remedy under the SARFESI Act, and no writ petition would lie and/or is maintainable and/or entertainable.

14. In Sobha S. v. Muthoot Finance Limited [2025 (2) KHC 229], the Apex Court considered the question of 12 W.A.No.334 of 2026 2026:KER:14543 maintainability of writ petitions under Article 226 of the Constitution of India against a private non-banking financial company and also a private company carrying on banking business as a Scheduled Bank. In the said case, the Apex Court held that 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. 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.

15. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that if the appellants-petitioners are feeling aggrieved by the measures taken by the respondent Bank, which is a private company carrying on banking business as a Scheduled Bank, under the provisions of the SARFAESI Act, their remedy lies before the Debts Recovery Tribunal in an application filed under Section 17 of the Act, and not in a writ petition filed under Article 226 of the Constitution of India. In such circumstances, we find no reason to interfere with the judgment dated 17.12.2025 of the learned 13 W.A.No.334 of 2026 2026:KER:14543 Single Judge in W.P.(C)No.29696 of 2025.

In the result, this writ appeal fails and the same is accordingly dismissed; however, leaving open the legal and factual contentions raised by the appellants-petitioners and the right of the petitioners to approach the Debts Recovery Tribunal with a proper application under Section 17 of the SARFAESI Act.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE AV

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