Rosamma Tony vs The South Indian Bank Ltd on 27 August, 2025

[Cites 28, Cited by 0]

Kerala High Court

Rosamma Tony vs The South Indian Bank Ltd on 27 August, 2025

The appellant-petitioner has filed this writ appeal, invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958, challenging the judgment dated 19.06.2025 of the learned Single Judge in W.P.(C)No.20781 of 2025, which was one filed invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus or any other appropriate writ, order or direction, directing the respondent South Indian Bank Ltd., represented by its Authorised Officer and Chief Manager, not to take any steps for possession or boundary demarcation with respect to plaint A schedule property in O.S.No.180 of 2023 on the file of the Sub Court, Irinjalakuda till the said suit is disposed of by that court. In the writ petition, on behalf of the respondent Bank, a counter affidavit dated 16.06.2025 was placed on record, opposing the reliefs sought for, producing therewith Exts.R1(a) to R1(h) documents. By the judgment dated 19.06.2025, the learned Single Judge disposed of W.P.(C)No.20781 of 2025 with the directions contained in paragraph 4 of that judgment. Paragraphs 2 to 4 of the judgment dated 19.06.2025 read thus;

W.A.No.1812 of 2025 2025:KER:64922 3 '2. The petitioner, for claiming the above reliefs, relies on Ext.P5, the injunction order passed by the Sub Court, Irinjalakuda, which reads as follows:-

"The respondent/defendant is restrained from unilaterally or arbitrarily fixing the boundary of the plaint A and B schedule property, until further orders. But it is made clear that this order will not in any way stand in the way of the respondent in proceeding against the plaint B schedule property under the SARFAESI Act."

3. The learned Standing Counsel for the respondent bank submits that even going by the sketch produced by the petitioner, the secured asset, the building is situated in plaint B scheduled property, which is not interdicted in any manner by Ext.P5 order. That apart, if it is a case of the petitioner that the bank is proceeding in violation of the order of injunction granted through Ext.P5, the remedy is to file an appropriate application before the same court which passed the order.

4. The actions of the secured creditor against the property in Plaint B schedule cannot be affected by Ext.P5 order at all. Over and above, if the petitioner is aggrieved by any of the measures taken by the secured creditor, the remedy lies under Section 17 of the SARFAESI Act, 2002. No further orders are required to be passed in this writ petition.'

2. This writ appeal is one filed along with C.M.Appl.No.1 of 2025 seeking an order to condone the delay of 3 days in filing the appeal, which was condoned by the order dated 08.08.2025.

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3. Heard the learned Senior Counsel for the appellant- petitioner and also the learned counsel for the respondent Bank.

4. The issue that requires consideration in this writ appeal is as to whether any interference is warranted in the judgment dated 19.06.2025 of the learned Single Judge in W.P.(C)No.20781 of 2025.

5. The learned Senior Counsel for the appellant- petitioner would contend that when the boundary dispute between plaint A and B schedule properties in O.S.No.180 of 2023 is sub judice before the Sub Court, Irinjalakuda, any action by the respondent Bank to take possession of the secured asset or to fix the boundary between the said properties will impinge the civil rights of the appellant, which is the subject matter in O.S.No.180 of 2023. The learned Single Judge failed to appreciate the fact that by Ext.P5 order dated 08.08.2024 of the Sub Court, Irinjalakuda in I.A.No.6 of 2024 in O.S.No.180 of 2023, the respondent Bank (the defendant therein) is restrained from unilaterally or arbitrarily fixing the boundary of plaint A and B schedule properties, until further orders. In the said order, it was made clear that the order of interim injunction will not stand in the way of the respondent Bank proceeding against the plaint W.A.No.1812 of 2025 2025:KER:64922 5 B schedule property under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Therefore, any action under Section 14 of the SARFAESI Act by the respondent Bank, which may lead to taking possession of the secured asset, which requires identification of boundary, in the proceedings before the Chief Judicial Magistrate under Section 14 of the said Act would have a direct impact on the rights of the appellant, which is the subject matter in O.S.No.180 of 2023 and would amount to violation of the interim injunction granted by the civil court by Ext.P5 order. The dispute raised in the writ petition, which is connected with the civil rights of the appellant over the plaint schedule property in O.S.No.180 of 2023 is not amenable to adjudication in a proceedings under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal.

6. On the other hand, the learned counsel for the respondent Bank after referring to the pleadings in the counter affidavit dated 16.06.2025 filed in W.P.(C)No.20781 of 2025 would contend that the appellant-petitioner had approached this Court, invoking the writ jurisdiction under Article 226 of the Constitution of India, suppressing material facts from the notice W.A.No.1812 of 2025 2025:KER:64922 6 of this Court. The appellant had earlier approached this Court in O.P.(DRT)No.350 of 2023, R.P.No.1108 of 2023, O.P.(DRT)No.473 of 2023 and W.P.(C)No.10106 of 2024 seeking various reliefs in respect of the proceedings initiated by the Bank under the SARFAESI Act. Apart from that, invoking the provisions under Section 17 of the SARFAESI Act, the appellant approached the Debts Recovery Tribunal in S.A.No.23 of 2023, which ended in dismissal. The residential building of the appellant is situated in the secured asset, i.e., plaint B schedule property in O.S.No.180 of 2023, which is evident from the sketch which forms part of Ext.P3 report dated 19.12.2023 submitted by the Advocate Commissioner appointed by the Sub Court, Irinjalakuda. On the maintainability of the writ petition under Article 226 of the Constitution of India against the respondent Bank, the learned counsel would place reliance on the decision of the Apex Court in Shoba S. v. Muthoot Finance Ltd. [2025 (2) KHC 229].

7. On the contention raised by the learned counsel for the respondent Bank regarding suppression of material facts, the learned Senior Counsel for the appellant-petitioner would contend that though the statement of facts or grounds of the writ petition do not contain any averments regarding the nature W.A.No.1812 of 2025 2025:KER:64922 7 of transactions with the respondent Bank or the details of the earlier proceedings before this Court under Article 226 as well as Article 227 of the Constitution of India in respect of the proceedings initiated by the respondent Bank under the provisions of the SARFAESI Act, a copy of the written statement dated 11.01.2024 filed by the respondent Bank in O.S.No.180 of 2023 is marked as Ext.P4 in the writ petition. In paragraph 7 of that written statement the respondent Bank has stated about the proceedings initiated by the Bank before the Chief Judicial Magistrate Court invoking the provisions under Section 14 of the SARFAESI Act and also O.P.(DRT)No.3501 of 2023 filed by the appellant invoking the provisions under Article 227 of the Constitution of India in respect of the proceedings before the Debts Recovery Tribunal in S.A.No.23 of 2023. The learned Senior Counsel would also submit that though in the writ petition appellant has referred to Article 226 of the Constitution of India, in the synopsis the appellant has stated that she is invoking the provisions under Article 226 as well as Article 227 of the Constitution of India. The learned Senior Counsel would point out that in the writ petition the appellant has placed reliance on the decision of the Apex Court in Central Bank of India v. Smt. W.A.No.1812 of 2025 2025:KER:64922 8 Prabha Jain [2025 SCC OnLine SC 121].

8. In the counter affidavit dated 16.06.2025 filed by the respondent Bank in W.P.(C)No.20781 of 2025 a specific contention was raised that the appellant had approached this Court in that writ petition, by suppressing material facts. The averments to that effect contained in paragraphs 4 to 7 of the counter affidavit read thus;

"4. Without prejudice to the above, it may also be noted that the petitioner herself has admitted the fact that the residential building from which the petitioner is sought to be evicted is situated in security property, i.e., even as per the Schedule-B property in Ext.P1 suit and the same is also evidenced by Ext.P3 commission report produced in the writ petition. It is also submitted that the respondent bank had filed Section 14 Application under the SARFAESI Act before the CJM, Thrissur, i.e., M.C.No.782 of 2022 seeking assistance to take the physical possession of the security property owing to the default committed by the petitioner in the repayment of the liabilities due to the 1st respondent bank. The Hon'ble CJM, Thrissur had appointed an Advocate Commissioner to take the physical possession of the security property and had also as per order dated 19.01.2024 in M.C.No.782 of 2022 appointed the Taluk Surveyor, Kodungallur Taluk to identify and demarcate the security property. Copy of the said order dated 19.01.2024 in M.C.No.782 of 2022 is produced as Ext.R1(a). Pursuant to the above said order of the Hon'ble CJM, Thrissur, the Taluk Surveyor conducted the survey of the property and the W.A.No.1812 of 2025 2025:KER:64922 9 security property was identified and demarcated. Copy of the sketch prepared by the Taluk Surveyor is produced as Ext.R1(b). Still further, it is submitted that the petitioner had approached the Hon'ble DRT-II, Ernakulam by filing S.A.No.23 of 2023 challenging SARFAESI measures initiated by respondent bank and copy of the said S.A is produced as Ext.R1(c). The petitioner then approached this Hon'ble Court by filing O.P.(DRT)No.350 of 2023 and copy of the judgment dated 30.01.2023 disposing the said O.P(DRT)No.350 of 2023 is produced as Ext.R1(d). The petitioner had again approached this Hon'ble Court by filing R.P.No.1108 of 2023 against Ext.R1(d) judgment and copy of the judgment dated 31.10.2023 disposing the same is produced as Ext.R1(e). Thereafter, the petitioner had again approached this Hon'ble Court by filing O.P.(DRT)No.473 of 2023 against order of the DRT and copy of the judgment dated 14.11.2023 disposing the said O.P.(DRT)No.473 of 2023 is produced as Ext.R1(f). The petitioner again approached this Hon'ble Court by filing yet another W.P.(C)No.10106 of 2024 and copy of the judgment dated 09.07.2024 dismissing the same as withdrawn is produced as Ext.R1(g). It is submitted that this is in fact the 6th round of litigation by the petitioner and the petitioner with ulterior motives is filing frivolous petitions before various forums one after the other to interdict and stall the lawful recovery measures initiated by the respondent bank by invoking the provisions of SARFAESI Act.

5. This respondent submits that the petitioner was enjoying a KCC OD facility for Rs.145 Lakhs from the Kattoor Branch of the respondent bank since the year 2015 and at her request the aforesaid facility was enhanced to Rs.400 lakhs on 23.03.2017 to meet cultivation expenses of multiple crops in W.A.No.1812 of 2025 2025:KER:64922 10 25 acres of leased land in Thrissur; Vegetable cultivation in 25 acres of leased land in Palakkad; and 4 acres of leased land in Ernakulam mixed up crop cultivation in 37.67 acres of leased land in Idukki and 10 acres of leased land in Kottayam. At the request of the petitioner, the aforesaid KCC OD facility was restructured on account of the floods that happened in the State of Kerala during the second quarter of the Financial Year 2018-19 so as to help the petitioner to meet the interest demand portion of the KCC OD facility. The 1st respondent had executed the restructuring term loan agreement (working capital) dated 22.11.2019 for Rs.45,89,132/- agreeing to repay the amounts with interest @ 11.35% per annum with yearly rest by way of 2 half yearly instalments in accordance with the various terms and conditions therein. The KCC OD facility was also renewed on 24.12.2019 and the letter of renewal of credit facilities dated 24.12.2019 executed by the petitioner along with the guarantors. The account had become NPA on 01.06.2022.

6. It is humbly submitted that in spite of personal requests and reminders, the petitioner did not regularize the aforesaid account and the respondent was constrained to initiate proceedings under the SARFAESI Act by issuing Section 13(2) notice demanding repayment of an amount of Rs.5,61,80,683.66 with further interest and penal interest. Subsequently, the respondent bank took the symbolic possession of the security property and the respondent bank thereafter approached Hon'ble CJM, Thrissur by filing Section 14 Application, i.e., M.C.No.782 of 2022 and the Hon'ble CJM allowed the said petition and appointed an Advocate Commissioner to take the physical possession of the security property. There is no illegality or irregularity in the SARFAESI W.A.No.1812 of 2025 2025:KER:64922 11 measures initiated by the respondent bank. Thereafter the Hon'ble CJM, Thrissur as per Ext.R1(a) order had appointed the Taluk Surveyor to identify and demarcate the security property and pursuant to the said order the Taluk Surveyor identified and demarcated the security property as evidenced by Ext.R1(b) sketch produced before the Hon'ble CJM, Thrissur in M.C.No.782 of 2022.

7. It is submitted that as the things stood so, the petitioner approached the Hon'ble DRT-II, Ernakulam by filing Ext.R1(c) securitization application against the SARFAESI measures initiated by the respondent bank along with stay petition, i.e, I.A.No.2646 of 2023 and petition to appoint Advocate Commissioner, i.e., I.A.No.2647 of 2023. In the meanwhile, the petitioner approached this Hon'ble Court by filing O.P.(DRT)No.350 of 2023 seeking reliefs to consider the above said petitions and to stay the SARFAESI measures initiated by the respondent bank and the same was disposed by Ext.R1(d) judgment. It is submitted that against Ext.R1(d) judgment, the petitioner approached this Hon'ble Court by filing Review Petition, i.e., R.P.No.1108 of 2023. The said Review Petition was dismissed by this Hon'ble Court by Ext.R1(e) judgment directing the Debts Recovery Tribunal to consider above said stay petition and petition to appoint the Advocate Commissioner within one week from the date of judgment. It is submitted that pursuant to Ext.R1(e) judgment, the Hon'ble Debts Recovery Tribunal considered the stay petition and the petition to appoint Advocate Commissioner filed by the petitioner in S.A.No.23 of 2023 and the same was dismissed by the Hon'ble Debts Recovery Tribunal by order dated 06.11.2023. Copy of the said order dated 06.11.2023 in I.A.Nos.2646 of 2023 and 2647 of 2023 W.A.No.1812 of 2025 2025:KER:64922 12 in S.A.No.23 of 2023 is produced as Ext.R1(h). The petitioner against Ext.R1(h) order approached this Hon'ble Court by filing O.P.(DRT)No.473 of 2023 and the same was dismissed by this Hon'ble Court by Ext.R1(f) judgment. Thereafter, the petitioner again approached this Hon'ble Court by filing yet another writ petition against the SARFAESI measures initiated by the respondent bank, i.e., W.P.(C)No.10106 of 2024 and the same was dismissed by Ext.R1(g) judgment as withdrawn."

9. As stated by Scrutton, L.J, in R. v. Kensington Income Tax Commissioners [(1917) 1 K.B. 486], an applicant who does not come with candid facts and 'clean breast' cannot hold a writ of the court with 'soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction.

10. In Prestige Lights Limited v. State Bank of India [(2007) 8 SCC 449] the Apex Court reiterated that a prerogative remedy is not a matter of course. Therefore, in exercising extraordinary power, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppress relevant materials or is otherwise guilty of misleading the court, the Court may dismiss the action without adjudicating the matter. This rule W.A.No.1812 of 2025 2025:KER:64922 13 has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.

11. In Prestige Lights Limited [(2007) 8 SCC 449] the Apex Court held further that, under Article 226 of the Constitution of India, the High Court is exercising discretionary and extraordinary jurisdiction. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.

12. In the instant case, though the appellant-petitioner had approached this Court in O.P.(DRT)No.350 of 2023, R.P.No.1108 of 2023, O.P.(DRT)No.473 of 2023 and W.P.(C)No.10106 of 2024 seeking various reliefs in respect of the W.A.No.1812 of 2025 2025:KER:64922 14 proceedings initiated by the respondent Bank under the provisions of the SARFAESI Act and she had also approached the Debts Recovery Tribunal in S.A.No.23 of 2023, which ended in dismissal, the averments in the writ petition are silent on the above material facts. On the above aspect, the submission made by the learned Senior Counsel for the appellant-petitioner is that though the statement of facts or grounds of the writ petition do not contain any averments regarding the nature of transactions with the respondent Bank or the details of the earlier proceedings before this Court under Article 226 as well as 227 of the Constitution of India in respect of the proceedings initiated under the provisions of the SARFAESI Act, a copy of the written statement filed by the respondent Bank in O.S.No.180 of 2023 is marked as Ext.P4 in the writ petition. Paragraph 7 of that written statement contains averments regarding the proceedings initiated by the respondent Bank before the Chief Judicial Magistrate Court under Section 14 of the SARFAESI Act and also O.P.(DRT)No.3501 of 2023 filed by the appellant invoking the provisions under Article 227 of the Constitution of India in respect of the proceedings before the Debts Recovery Tribunal in S.A.No.23 of 2023. Having considered the pleadings and W.A.No.1812 of 2025 2025:KER:64922 15 materials on record and also the submissions made at the Bar, in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the appellant-petitioner approached this Court in W.P.(C)No.20781 of 2025 suppressing material facts from the notice of this Court. The appellant-petitioner, who is guilty of misleading the Court by not disclosing full facts in the writ petition, cannot hold a writ of the Court with 'soiled hands'. As stated by Scrutton, L.J, in R. v. Kensington Income Tax Commissioners [(1917) 1 K.B. 486], suppression or concealment of material facts is not an advocacy.

13. As already noticed hereinbefore, the only relief sought for in W.P.(C)No.20781 of 2025 is a writ of mandamus or any other appropriate writ, order or direction, directing the respondent South Indian Bank Ltd., represented by its Authorised Officer and Chief Manager, not to take any steps for possession or boundary demarcation with respect to plaint A schedule property in O.S.No.180 of 2023 on the file of the Sub Court, Irinjalakuda till the said suit is disposed of by that court.

14. The submission made by the learned Senior Counsel for the appellant-petitioner is that though in the writ petition appellant has referred to only Article 226 of the Constitution of W.A.No.1812 of 2025 2025:KER:64922 16 India, in the synopsis the appellant has stated that she is invoking the provisions under Article 226 as well as Article 227 of the Constitution of India.

15. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

16. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

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17. In Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

18. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there W.A.No.1812 of 2025 2025:KER:64922 18 has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

19. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.

20. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a court or tribunal over which it W.A.No.1812 of 2025 2025:KER:64922 19 exercises such a jurisdiction. The supervisory jurisdiction cannot be exercised to correct all errors in the order or judgment of such a court or tribunal acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 of the Constitution of India can be exercised only in a case where the order or judgment of such a court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India this Court cannot issue an order or direction, directing the respondent Bank not to take any steps for possession or boundary demarcation with respect to plaint A schedule property in O.S.No.180 of 2023 on the file of the Sub Court, Irinjalakuda, till the said suit is disposed of by that court.

21. In Central Bank of India v. Prabha Jain [(2025) 4 SCC 38], a decision relied on by the learned Senior Counsel for the appellant-petitioner, the Apex Court held that the SARFAESI Act is enacted essentially to provide a speedy mechanism for recovery of debts by banks and financial institutions and it has not been enacted for providing a mechanism upon the validity of documents or to determine questions of title finally. Further, the W.A.No.1812 of 2025 2025:KER:64922 20 Debts Recovery Tribunal does not the jurisdiction to grant a declaration with respect to mortgage deed or the sale deed as sought by the plaintiff. The jurisdiction to declare a sale deed or mortgage deed being illegal is vested with the civil court under Section 9 of the Code of Civil Procedure, 1908. On the facts of the case on hand, the Apex Court found that the plaintiff could not have sought from the Debts Recovery Tribunal the relief of being given possession, as the plaintiff is neither a borrower nor a person claiming under/through the borrower and the plaintiff has a claim independent of and adverse to the borrower. The plaintiff was not in possession and hence, the question of the Debts Recovery Tribunal restoring possession to the plaintiff did not arise.

22. As pointed out in the counter affidavit dated 16.06.2025 filed by the respondent Bank in W.P.(C)No.20781 of 2025, in the proceedings initiated under Section 14 of the SARFAESI Act before the Chief Judicial Magistrate, Thrissur, as M.C.No.782 of 2022, the Taluk Surveyor, Kodungallur was appointed by Ext.R1(a) order dated 19.01.2024 to identify and demarcate the secured asset for the purpose of taking possession under the SARFAESI Act. The Taluk Surveyor W.A.No.1812 of 2025 2025:KER:64922 21 conducted survey of the property and the secured asset was identified and demarcated. A copy of the survey sketch prepared by the Taluk Surveyor is marked as Ext.R1(b) along with the counter affidavit. The learned counsel for the respondent Bank would submit that, as noticed by the learned Single Judge in the judgment dated 19.06.2025 in W.P.(C)No.20781 of 2025, if the appellant-petitioner has a case that the respondent Bank has violated Ext.P5 order of interim injunction granted by the Sub Court, Irinjalakkuda in I.A.No.6 of 2024 in O.S.No.180 of 2023, the remedy lies under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 before the said court.

23. On the maintainability of the writ petition, i.e., W.P.(C)No.20781 of 2025 under Article 226 of the Constitution of India, seeking interference with any proceedings initiated under the provisions of the SARFAESI Act, including proceedings initiated for taking possession of the secured asset, the learned counsel for the appellant Bank would rely on the decisions of the Apex Court in South Indian Bank Ltd. v. Naveen Mathew Philip [(2023) 17 SCC 311] and Shobha v. Muthoot Finance Ltd. [2025 (2) KHC 229].

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24. In 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, 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 W.A.No.1812 of 2025 2025:KER:64922 23 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.

25. 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 W.A.No.1812 of 2025 2025:KER:64922 24 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 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, W.A.No.1812 of 2025 2025:KER:64922 25 when the legislature has provided for a specific mechanism for appropriate redressal.

26. In Shoba 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 financial company/a private company carrying on banking business as a Scheduled Bank, 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 W.A.No.1812 of 2025 2025:KER:64922 26 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.

(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 W.A.No.1812 of 2025 2025:KER:64922 27 general definition of public authority or public action. The facts of each case decide the point. (underline supplied)

27. In view of the law laid down by the Apex Court in Shoba S. [2025 (2) KHC 229], a writ petition seeking interference in the proceedings initiated by the respondent Bank, which is a private company carrying on banking business as a Scheduled Bank, for taking possession of the secured asset, is not maintainable under Article 226 of the Constitution of India. In case the appellant-petitioner is aggrieved by any measures taken by the respondent Bank under the provisions of the SARFAESI Act against the secured asset, the remedy lies under Section 17 of the said Act before the Debts Recovery Tribunal. If the appellant-petitioner has a case that the respondent Bank has violated Ext.P5 order of interim injunction dated 08.08.2024 granted by the Sub Court, Irinjalakuda in I.A.No.6 of 2024 in O.S.No.180 of 2023, the remedy lies under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 before the said court. We notice that, in Ext.P5 order the Sub Court has made it clear that the order of interim injunction will not stand in the way of the respondent Bank in proceeding against plaint B schedule property under the provisions of the SARFAESI Act.

In the above circumstances, we find no reason to interfere W.A.No.1812 of 2025 2025:KER:64922 28 with the impugned judgment of the learned Single Judge dated 19.06.2025 in W.P.(C)No.20781 of 2025. This writ appeal fails and the same is accordingly dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

                               MURALEE KRISHNA S., JUDGE
AV
 W.A.No.1812 of 2025                              2025:KER:64922
                                 29

                      APPENDIX OF WA 1812/2025

PETITIONER ANNEXURES


Annexure I             TRUE COPY OF IA 9/2025 DATED 04/01/2025
                       IN O.S. NO. 180/2023 BEFORE THE SUB
                       COURT, IRINJALAKUDA

Annexure II            TRUE COPY OF THE PROCEEDINGS DATED
                       15/01/2025 IN O.S. NO. 180/2023 BEFORE
                       THE SUB COURT, IRINJALAKUDA, DOWNLOADED
                       FROM THE E-COURTS WEBSITE

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