P.B. Manaf vs Union Bank Of India on 29 May, 2025

[Cites 17, Cited by 0]

Kerala High Court

P.B. Manaf vs Union Bank Of India on 29 May, 2025

The appellants, who are respondents 1 to 4 in W.P.(C) No.14656 of 2025, have filed this writ appeal invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958 challenging the judgment of the learned Single Judge dated 10.04.2025 in that writ petition, which was one filed by the 1 st respondent herein-petitioner, invoking the writ jurisdiction under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 order dated 08.01.2025 of the Sessions Court, Ernakulam in Crl.M.P.No.102 of 2025 in Crl.R.P.No.3 of 2025. That writ petition was allowed by the impugned judgment dated 10.04.2025. Paragraphs 5, 6 and also the last paragraph of the judgment read thus;

"5. Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents, I am of the view that the petitioner is entitled to succeed. The jurisdiction exercised by the Chief Judicial Magistrate in a proceeding under Section 14 of the SARFAESI Act has been considered in various decisions of the Supreme Court - Balkrishna Rama Tarle v. Phoenix ARC Pvt. Ltd. [(2023) 1 SCC 662] and R.D. Jain and Co. v. Capital First Ltd. [2022 (5) KLT 361 (SC)] - as also of this 4 WA NO.1021 of 2025 2025:KER:37622 Court - State Bank of India v. Chief Judicial Magistrate [2021 (6) KLT 72] and Canara Bank v. Sachin Shyam [2023 (1) KLT 387]. The Magistrate exercising jurisdiction under Section 14 of the SARFAESI Act is exercising a statutory power under the provisions of the SARFAESI Act, and any order passed in exercise of that power can be challenged only by invoking the statutory remedy under Section 17 of the SARFAESI Act. Therefore, even assuming that the order of the learned Magistrate in restoring the application filed by the petitioner bank was illegal, the same could have been challenged only by filing an application under Section 17 of the SARFAESI Act, and no revision is maintainable under the provisions of the BNSS.

6. Coming to the contention of the learned counsel appearing for the respondents that a writ petition under Article 226 of the Constitution of India is not maintainable to challenge Ext.P1 order, it is settled that mere description or the nomenclature of a petition filed does not determine the nature of jurisdiction that may be exercised by this Court - Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58]. It is well within the jurisdiction of this Court under Article 227 of the Constitution of India to set aside an order of any Court subordinate to it where this Court is of the opinion that the Court subordinate to it has exercised a jurisdiction not vested in it. Here, I am clear in my mind that the exercise of the power of revision by the Sessions Court was not warranted for reasons already indicated. Therefore, I have no hesitation to set aside Ext.P1 in the exercise of jurisdiction vested in this Court under Article 227 of the Constitution of India.

WA NO.1021 of 2025 2025:KER:37622 Accordingly, this petition is allowed. Ext.P1 order is set aside. It is declared that any order passed by a Magistrate in the exercise of jurisdiction under Section 14 of the SARFAESI Act cannot be challenged by filing a revision petition under any provision of the BNSS or the Code of Criminal Procedure. I leave it open to the respondents to challenge any proceeding that may have been initiated by the Chief Judicial Magistrate by approaching the Debts Recovery Tribunal by filing a Securitisation Application under Section 17 of the SARFAESI Act."

(underline supplied)

2. Feeling aggrieved by the judgment of the learned Single Judge, the appellants-respondents 1 to 4 are before this Court in this writ appeal.

3. On 13.05.2025, when this writ appeal came up for admission, the learned Standing Counsel for the 1 st respondent Bank took notice on admission. Notice on admission by special messenger was ordered to respondents 2 to 5, returnable by 20.05.2025.

4. The 1st respondent Bank has filed a counter affidavit dated 27.05.2025, in which the question of maintainability of the writ appeal is also raised, since in the impugned judgment dated 10.04.2025, the learned Single Judge exercised the supervisory jurisdiction under Article 227 of the Constitution of India, in 6 WA NO.1021 of 2025 2025:KER:37622 order to interfere with Ext.P1 order dated 08.01.2025 of the Sessions Court, Ernakulam in Crl.M.P.No.102 of 2025 in Crl.R.P.No.3 of 2025.

5. Heard the learned counsel for the appellants- respondents 1 to 4, the learned counsel for the 1 st respondent Bank and also the learned counsel for respondents 2, 3 and 5.

6. Though the learned counsel for the appellants- respondents 1 to 4 would address arguments relying on the decision of the Division Bench of this Court in Trivandrum Appollo Towers Pvt. Ltd v. Union of India [2025 (2) KLT 858], the question that requires consideration is as to whether a writ appeal under Section 5(i) of the Kerala High Court Act can be entertained, when the jurisdiction that has been exercised by the learned Single Judge while interfering with Ext.P1 order dated 08.01.2025 of the Sessions Court, Ernakulam in Crl.M.P.No.102 of 2025 in Crl.R.P.No.3 of 2025 is under Article 227 of the Constitution of India, as stated explicitly in paragraph 6 of that judgment.

7. In John V.O. v. Catholic Syrian Bank and others [2009 (1) KHC 337], a Division Bench of this Court held that supervisory jurisdiction under Article 227 of the Constitution of 7 WA NO.1021 of 2025 2025:KER:37622 India is not an original jurisdiction and therefore no writ appeal is maintainable under Section 5(i) of the Kerala High Court Act when the relief granted by the learned Single Judge is one exercising the supervisory jurisdiction under Article 227 of the Constitution of India. Section 5 of the Act provides for intra court appeal only against an order passed by the learned Single Judge under the original jurisdiction.

8. In view of the law laid down by the Division Bench in John V.O. [2009 (1) KHC 337], the appellants-respondents 1 to 4 cannot invoke the appellate jurisdiction of this Court under Section 5(i) of the Kerala High Court Act in order to challenge the impugned judgment dated 10.04.2025 of the learned Single Judge in W.P.(C)No.14656 of 2025.

In the result, this writ appeal fails on the ground of maintainability and the same is accordingly dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.V. BALAKRISHNAN, JUDGE bng 8 WA NO.1021 of 2025 2025:KER:37622 APPENDIX OF WA 1021/2025 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE ORDER DATED 04.12.2024 IN M.C. NO.198/2020 PASSED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM ANNEXURE A2 TRUE COPY OF THE 21.12.2024 IN C.M.P. NO.9594/2024 IN M.C. NO.198/2020 PASSED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM RESPONDENT ANNEXURES ANNEXURE R1A A TRUE COPY OF THE FINAL ORDER PASSED BY THE DRT-1 EMAKULAM IN SA NO. 209/2020 ON 29.4.2025 ANNEXURE R1B A TRUE COPY OF THE DECISION PASSED BY THE HONOURABLE SUPREME COURT IN PEPSI FOODS LIMITED AND ANOTHER V. SPECIAL JUDICIAL MAGISTRATE AND OTHERS [1998(5) SCC 749] I ANNEXURE R1C A TRUE COPY OF THIS DECISION DATED 16.10.2024 PASSED BY THE HONOURABLE SUPREME COURT IN LALU YADAV V. STATE OF UTTER PRADESH [2024(6) KHC 518] ANNEXURE R1D A TRUE COPY OF THIS DECISION DATED 31.10.2023 PASSED BY THIS HONOURABLE COURT HAS HELD SO IN ALPHA ONE GLOBAL BUILDERS PVT. LTD. V. NIRMALA PADMANABHAN [2023 (6) KLT 59 ANNEXURE R1E A TRUE COPY OF THE DECISION DATED 12.4.2006 PASSED BY THE HONOURABLE SUPREME COURT IN MINU KUMARI AND ANOTHER V. STATE OF BIHAR AND OTHERS [2006(4) SCC 359]

Unlock Advanced Research with PRISMAI

Kerala High Court