Bobby Issac Mathew vs The South Indian Bank on 13 January, 2026

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Kerala High Court

Bobby Issac Mathew vs The South Indian Bank on 13 January, 2026

The petitioners in W.P.(C)No.42944 of 2025 have filed this writ appeal under Section 5(i) of the Kerala High Court Act, 1958, challenging the judgment dated 17.11.2025, passed by the learned Single Judge in that writ petition.

2. The appellants filed W.P.(C)No.42944 of 2025, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking the following reliefs;

"i) Issue a writ of certiorari calling for the records leading to Exhibit P6 Order of the Hon'ble CJM Court, Kottayam passed without verifying whether a valid security interest has been created over the properties scheduled therein;

ii) Issue a writ of certiorari calling for the records leading Exhibit P3 demand notice and all consequential actions resulting therefrom are bad for contravention of the mandate of Section 26D of the SARFAESI Act and quash the same;

iii) Issue a writ declaring that recovery measures adopted under SARFAESI Act cannot be proceeded with when the secured creditor has failed to create a valid security interest in terms of Section 20 of the Act;

iv) Issue a writ declaring further that the classification of the loan account of the petitioners as NPA by resorting to circuitous methods is bad in law;

v) Issue a writ declaring that the action taken to take W.A.No.2835 of 2025 4 2026:KER:1741 possession of the property given as security towards KCC loan is a device resorted to defeat the MSME benefits granted vide Exhibit P11 Judgment is nothing but a fraud on power;

vi) Issue a writ declaring that the declaration of the KCC loan as NPA and all recovery measures pursuant thereto being consequent to the declaration of the other loans of the borrower cannot be proceeded with in the light of Ext-P11 judgment"

3. From the pleadings in the writ petition, it could be gathered that Appellants 1 and 2 availed a KCC overdraft facility from the respondent bank ('the bank' for short). Appellants 3 and 4 stood as guarantors to the said loan transaction. The property having an extent of 24.19 ares in Re.Sy. No.24/5-2 and 24/6 at Ettumanoor village, belonging to appellants 1 and 3, were offered as security for the loan. Apart from that, the 1st appellant individually availed an additional overdraft facility from the bank in his capacity as the Managing Partner of M/s. PDMC Industries, and as the Proprietor of M/s. PDMC CO Rubber.

3.1. According to the appellants, both PDMC Industries and PDMC CO Rubber were registered as MSME and Udyam entities, making them eligible for the 'Framework for Revival and Rehabilitation of Micro, Small and Medium Enterprises' W.A.No.2835 of 2025 5 2026:KER:1741 (Framework for MSMEs) as per notifications issued by the Ministry dated 29.05.2015 and the RBI dated 21.07.2016. However, this framework was not extended to them before their accounts were classified as Non-Performing Assets ('NPA' for short). Following the classification of PDMC Industries and PDMC CO Rubber's accounts as NPA, the bank recalled the KCC overdraft facility availed by appellants 1 and 2. Specifically, the 1st appellant's KCC loan account was classified as NPA on 06.04.2023, leading to the filing of Ext.P4 objection dated 12.09.2023, to which the bank replied via Ext.P5 reply dated 29.09.2023. Subsequently, the 1st appellant challenged the bank's action against the KCC overdraft facility by filing W.P.(C) No.32498 of 2023, which was disposed of by a common judgment that relegated the appellants to approach the Tribunal.

3.2. Following the disposal of W.P.(C) No. 32498 of 2023, the appellants filed R.P. No. 536 of 2024 against the common judgment, which was subsequently disposed of with a clarification that the appellants are entitled to avail the statutory remedy under the Debts Recovery Tribunal ('the Tribunal' for short). Consequently, the appellants preferred S.A. No. 598 of 2024 before the tribunal, challenging the recovery measures initiated W.A.No.2835 of 2025 6 2026:KER:1741 by the bank, including the possession notice for the KCC overdraft loan account. Meanwhile, the bank approached the Chief Judicial Magistrate Court, Kottayam ('CJM' for short), by filing M.C. No. 830 of 2024 under Section 14 of the SARFAESI Act, which resulted in the passing of Ext.P6 order appointing an Advocate Commissioner to take physical possession of the secured assets.

3.3. In the meanwhile, PDMC Industries, PDMC Co-Rubber and the 1st appellant herein, filed W.P.(C) No.5466 of 2025 before this Court seeking the following reliefs:

"i) To issue a writ of certiorari calling for the records leading to Ext. P8, Ext. P8(a) and Ext. P8(b) whereby the loan facilities were recalled.

ii) To issue a writ declaring further that the classification of the loan accounts of the petitioners as NPA by resorting to circuitous methods contrary to the provisions of law is bad in law.

iii) To issue a writ declaring that the petitioners are entitled to the benefits as per Ext. P3 and Ext. P4 notifications, and that the denial of the same is violative of their fundamental rights.

iv) To issue a writ of certiorari calling for the records leading to Ext. P23 and Ext. P25 orders as well as Ext. P24 and Ext.

P26 notices, and all further actions taken thereunder, and to quash the same.

v) To issue a writ declaring that the action taken to take W.A.No.2835 of 2025 7 2026:KER:1741 possession of the property given as security towards the KCC loan is a device resorted to defeat the MSME benefits which the petitioners are entitled to, and that such action amounts to a fraud on power."

3.4 The said Writ Petition was allowed as per Ext.P11 judgment dated 06.08.2025, the operative portion of which reads as under:

"For the foregoing reasons, it is declared that the first and second petitioners are entitled to the benefits as per Ext. P3 and P4 notifications. Ext. P9 and P16 are quashed. Consequently, there will be a direction to the respondents to comply with Ext. P3 and P4 Notifications, as far as the first and second petitioners are concerned, and only after the said compliance and based on the decision thereon, the bank shall decide on the classification of the accounts of the first and second petitioners as Non-Performing Assets to proceed under the SARFAESI Act."

3.5. Following these developments, the bank filed W.A. No. 2281 of 2025. Meanwhile, the Advocate Commissioner appointed in M.C.No.830 of 2024 by the CJM Court, Kottayam issued Ext.P12 notice on 07.11.2025, proposing to take physical possession of the secured assets related to the KCC OD account on 17.11.2025.

3.6. According to the appellants there are inherent defects in the description of the property in Ext.P12 notice. The appellants plead that the asset-based search report from the CERSAI website W.A.No.2835 of 2025 8 2026:KER:1741 reveals a mis-description of the property that is sought to be taken into physical possession by the Advocate Commissioner. The appellants contend that there is no CERSAI registration for the property, which is a mandatory requirement under Section 26-D of the SARFAESI Act. Therefore, the Ext.P6 order by the CJM Court, Kottayam, under Section 14 of the SARFAESI Act was one passed without application of mind and without adequately reviewing the documents regarding the correctness of the survey number and the extent of the land. In such circumstances, the appellants preferred the present writ petition, i.e., W.P.(C)No.42944 of 2025, as mentioned above.

4. On 17.11.2025, when the writ petition came up for consideration, after hearing the learned Senior Counsel appearing for the appellants and the learned counsel for the respondent, by the impugned judgment, the learned Single Judge dismissed that writ petition. Being aggrieved, the appellants filed the present writ appeal.

5. Heard the learned counsel for the appellants and the learned counsel for the respondent bank.

6. During the course of arguments, the learned counsel for the appellants would submit that the appellants are more W.A.No.2835 of 2025 9 2026:KER:1741 aggrieved by the finding of the learned Single Judge in paragraph 12 of the judgment, on the point of the mis-description of the property raised by the appellants, since it will tie the hands of the appellants from agitating that issue before the Tribunal.

7. On the other hand, the learned counsel for the respondent bank pointed out that by the judgment dated 12.12.2025, this Court allowed W.A.No.2281 of 2025 filed by the respondent Bank, and even though M/s. PDMC industries and others filed SLP(C)No.36925 of 2025 before the Apex Court, the same was dismissed by the order dated 18.12.2025. According to the learned counsel for the respondent, there is no illegality in the impugned judgment of the learned Single Judge and hence there is no ground to interfere with that judgment.

8. From the materials placed on record and from the judgment of this Court dated 12.12.2025 in W.A.No.2281 of 2025, which is reported as South Indian Bank v. PDMC Industries [2025 KHC OnLine 1307], we notice that the relief sought in W.P.(C)No.5466 of 2025 and in the present writ petition, that is W.P.(C)No.42944 of 2025 are identical. The 1st appellant did not appeal against the judgment in W.P.(C)No.5466 of 2025, and therefore, as found by the learned Single Judge, the said judgment W.A.No.2835 of 2025 10 2026:KER:1741 is conclusive against the 1st appellant as well as the co-borrower and guarantors, who are appellants 2 to 4 in the present writ appeal.

9. Moreover, from the submissions made at the Bar, we notice that by the judgment dated 12.12.2025 in W.A.No.2281 of 2025, this Court reversed the judgment dated 06.08.2025 in W.P.(C)No.5466 of 2025, whereby the learned Single Judge quashed the demand notice with respect to appellants 1 and 2 and directed compliance with the MSME notification, and this Court dismissed that writ petition as not maintainable under Article 226 of the Constitution. The said finding of this Court attained finality by the dismissal of the SLP(C)No.36925 of 2025 by the Apex Court as per the order dated 18.12.2025.

10. At this juncture, it is relevant to note some of the judgments of the Apex Court as well as this Court regarding the maintainability of a writ petition under Article 226 of the Constitution of India, challenging the proceedings initiated by the financial institutions under the provisions of the SARFAESI Act.

11. 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 W.A.No.2835 of 2025 11 2026:KER:1741 to deal with the request of the secured creditor to take possession of the secured asset under S.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 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 S.14 of the SARFAESI Act.

12. In United Bank of India v. Satyawati Tondon [(2010) 8 SCC 110], a Two - Judge Bench of the Apex Court W.A.No.2835 of 2025 12 2026:KER:1741 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 Section14, 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 Section 17 and Section 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.

13. 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 Art.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 W.A.No.2835 of 2025 13 2026:KER:1741 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 Art.226 of the Constitution, a person must exhaust the remedies available under the relevant statute.

14. In Kuruvithadam Agencies (Pvt.) Ltd. and another v. Authorised Officer, Standard Chartered Bank (2021 KER 20923) - judgment dated 28/05/2021 in W.A.No.1584 of 2020, the grievance of the appellants was that the Bank had not followed the guidelines and directives issued by the Reserve Bank of India in the matter of treating the account as Non - Performing Asset. The Division Bench noticed that a reading of S.13 of the SARFAESI Act makes it categorically clear that Parliament has provided a scheme thereunder, enabling an aggrieved person to ventilate his grievances by resorting to the W.A.No.2835 of 2025 14 2026:KER:1741 procedure prescribed thereunder. The grievance of the appellants was that the respondent Bank is not entitled to proceed against them, since the conduct on the part of the Bank in converting the account of the appellants into a Non - Performing Asset is not in accordance with the Reserve Bank of India guidelines. The Division Bench held that it was a subject matter that ought to have been pointed out by the appellants before the Bank itself, since the statute prescribes a modality enabling a party to make a suitable representation. Therefore, the proceedings initiated by the Bank squarely come under the procedure contemplated under S.13 of the SARFAESI Act, and the appellants have a clear remedy as is statutorily prescribed under the said Act. The question as regards the action initiated by the Bank illegally can be raised by the appellants before the Debt Recovery Tribunal, at the appropriate time, as is prescribed under law, and the Tribunal is vested with ample powers to consider such aspects, regarding the loan account maintained by an aggrieved person with a Bank, the conduct on the part of the Bank in making the account a Non - Performing Asset and the failure on the part of the Bank to follow the Reserve Bank guidelines. That apart, there is a clear remedy of appeal provided under the SARFAESI Act, if aggrieved, on any W.A.No.2835 of 2025 15 2026:KER:1741 order passed by the Debt Recovery Tribunal, which thus means, the statute has provided a clear mechanism to tackle all and any situations of an aggrieved person under law, and therefore, a writ court would be slow in interfering with the action initiated by the Bank, especially because the SARFAESI Act was introduced with the avowed object of speedy recovery of amounts, without unnecessary interference of courts.

15. In Authorized Officer, State Bank of Travancore and Another v. Mathew K.C. [2018 (1) KHC 786], the Apex Court held that the High Court under Article 226 of the Constitution of India can entertain a writ petition only under exceptional circumstances and that it is a self imposed restraint by the High Court. The four exceptional circumstances such as, where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, were re iterated in paragraph 6 of the said judgment by relying on the judgment of the Apex Court in Commissioner of Income Tax and Others v. Chhabil Dass Agarwal [(2014) 1 SCC W.A.No.2835 of 2025 16 2026:KER:1741 603].

16. This position was reiterated by the Apex Court in South Indian Bank Ltd. (M/s.) v. Naveen Mathew Philip [2023 (4) KLT 29] and after discussing the various judgments on the point as well as the circumstances in which the High Court can interfere with in matters pertaining to the SARFAESI Act, held as under:

"Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Art.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. In our view, 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 remedy under Art.226 of the Constitution, a person must exhaust the remedies available under the relevant statute".

17. In PHR Invent Educational Society v. UCO Bank W.A.No.2835 of 2025 17 2026:KER:1741 [2024 (3) KHC SN 3] the Apex Court held that it is more than a settled legal position of law that in matters arising out of RDB Act and SARFAESI Act, the High Court should not entertain a petition under Art.226 of the Constitution particularly when an alternative statutory remedy is available.

18. A learned Single Judge of this Court in Jasmin K. v. State Bank of India [2024 (3) KHC 266] reiterated the position of law laid down by the Apex Court in the aforementioned judgments.

19. In the light of the judgments referred to supra regarding the entitlement of the appellants to challenge the proceedings initiated by the bank, we find no exceptional circumstances as held in Mathew K. C. [2018 (1) KHC 786], to hold that the present writ petition filed under Article 226 of the Constitution of India is maintainable. So also, in view of the finality attained to Ext.P11 judgment dated 06.08.2025 filed by the 1 st appellant and other, we find no reason to hold that the finding of the learned Single Judge regarding res judicata and constructive res judicata is not applicable to the facts of the instant case.

20. Having considered the pleadings and materials on record and the submissions made at the Bar, we find no ground W.A.No.2835 of 2025 18 2026:KER:1741 to interfere with the impugned judgment of dismissal of the writ petition passed by the learned Single Judge.

In the result, the writ appeal stands dismissed; however, making it clear that the observation made in paragraph 12 of the impugned judgment of the learned Single Judge will not stand in the way of the appellants taking appropriate legal and factual contentions regarding the misdescription of property raised, if they are otherwise entitled to challenge Ext.P6 order of the Chief Judicial Magistrate's Court, Kottayam, and Ext.P12 notice issued by the Advocate Commissioner, before the Tribunal.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE MSA W.A.No.2835 of 2025 19 2026:KER:1741 APPENDIX OF WA NO. 2835 OF 2025 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE E-AUCTION SALE NOTICE DATED 24.03.2025 ISSUED BY THE RESPONDENT BANK.

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