JUDGMENT : This Original Petition filed under Article 227 of the Constitution of India calls into question Ext.P6 order of the Debts Recovery Tribunal – 1, Ernakulam in I.A.No.1702 of 2022 in S.A.No.398 of 2022. 2. The facts of the case (to the extent necessary to adjudicate the issues raised), in brief, are that the petitioner availed a loan for business purposes from the respondent Bank. Among the items of the property, which were mortgaged for securing the repayment of the loan, was a property having an extent of approximately 44.60 cents. It is the case of the petitioner that the said property is agricultural land, against which proceedings cannot be initiated under the provisions of the SARFAESI Act. It is the case of the petitioner that the Tribunal wrongly relied upon an undertaking stated to have been obtained from the petitioner at the time of sanction of the loan that the property in question is non-agricultural land. It is submitted that the application for appointment of an Advocate Commissioner as well as the application for stay of proceedings under the SARFAESI Act, has been rejected by the Tribunal relying on the undertaking which is on record in this case as Ext.R1(b) along with a counter affidavit filed by respondents 1 and 2. 3. Adv. B.N. Shivsankar, the learned counsel appearing for the petitioner, would contend that Ext.R1(b) undertaking cannot be taken into consideration or acted upon since the undertaking would be contrary to the provisions of Section 31 of the SARFAESI Act. It is submitted that if the banks and financial institutions are allowed to act on such undertakings, this would mean that they would be allowed to defeat the provisions of Section 31 of the SARFAESI Act, which exclude agricultural land from the operation of the SARFAESI Act. It is submitted that the decision of the Supreme Court in ITC Limited v. Blue Coast Hotels Ltd. and others [2018 KHC 6194] and the decision of the Telangana High Court in M/s. Concern Readymix v. The Authorised Officer, Corporation Bank [Writ petition No.20729 of 2018], were rendered in entirely different fact circumstances and, therefore, cannot be taken as authority for the proposition that whenever an undertaking in the form of Ext.R1(b) has been taken, the borrower will be precluded from raising a defence that the property in question cannot be proceeded against under the provisions of the SARFAESI Act. It is submitted with reference to the facts in ITC Limited (supra) that the said case was a case where a substantial hotel building had been constructed on the land in question and where the promoters/borrowers had even filed an application for conversion of the land from agricultural to non-agricultural land. It is submitted that the undertaking is hit by the provisions of Section 23 of the Contract Act, and such a question was never considered in either of the decisions referred to above. It is submitted that the petitioner had applied for the appointment of an Advocate Commissioner to show that the land in question is actually a coconut garden consisting of coconut trees which are more than 30 years old. It is submitted that the mere fact that the property also houses the residence of the petitioner is no ground to hold that the property is not agricultural land. It is submitted that the land was obtained by the petitioner from a cultivating tenant, who obtained the land by virtue of the provisions contained under the Kerala Land Reforms Act and this by itself is sufficient to establish that the land in question is agricultural land. It is pointed out that the land in question was registered under the National Rural Employment Guarantee Act of 2005. Therefore, according to the learned Counsel, there cannot be any question regarding the nature of the land. It is also pointed out that the land tax receipts in respect of the land will show that the land is agricultural land. The learned counsel for the petitioner has also placed reliance on the judgment of the Supreme Court in Central Inland Water Transport Corporation Ltd. and Another v. Brojo Nath Ganguly and Another [1986 KHC 810] to contend that when the contract is between parties with unequal bargaining power, this Court must adopt the construction which would ensure that a valuable right vested in the borrower is not lost on account of an undertaking in the nature of Ext.R1(b). Reference is also made to the judgment of a learned single judge of this Court in Smart Security and Secret Service Agency v. State Bank of India [ 2016(3) KHC 409 ] to contend that where there are clauses in the agreement between the parties, which would authorize the Bank to take action which is opposed to public policy and public interest they cannot be enforced. 4. Adv. Mathew Jacob, the learned counsel appearing for respondents 1 and 2 vehemently opposes the grant of any relief to the petitioner. Firstly, it is pointed out that an original petition under Article 227 of the Constitution of India is not maintainable raising a challenge to Ext.P6 order on account of the fact that the petitioner has an effective alternative remedy of appeal before the Debts Recovery Appellate Tribunal. It is submitted that the decision of the Tribunal cannot be termed as perverse or in any manner exceeding the jurisdiction vested in the Tribunal or as a failure to exercise any jurisdiction vested in the Tribunal, and therefore, it is not liable to be corrected in exercise of the jurisdiction vested in this Court under Article 227 of the Constitution of India. It is submitted with reference to the judgment in ITC Limited (supra) that the fact situation considered by the Supreme Court in ITC Limited (supra) was almost identical to the fact situation obtaining in this case, and therefore, the petitioner cannot contend that the land in question is agricultural land, in respect of which proceedings cannot be initiated under the provisions of the SARFAESI Act. It is pointed out that the present liability in the loan account is in excess of Rs.3.50 Crores and any further delay in continuing with the proceedings under the SARFAESI Act will cause severe prejudice and hardship to the respondent Bank. I have considered the contentions raised. 5. Having regard to the facts and circumstances of the case, I am of the view that there is considerable merit in the contention taken by the learned counsel appearing for respondents 1 and 2. I have considered the contentions raised. 5. Having regard to the facts and circumstances of the case, I am of the view that there is considerable merit in the contention taken by the learned counsel appearing for respondents 1 and 2. The reasons which compel me to take such a view are the following : (1) A reading of the judgment in ITC Limited (supra) makes it clear that a person who gives an undertaking in terms similar to the undertaking given in Ext.R1(b) cannot turn around and contend that proceedings under the SARFAESI cannot be continued against the land in question on account of the fact that the land is agricultural land. In particular, it is necessary to refer to the following findings of the Supreme court in ITC Limited (supra). “38. The purpose of enacting S.31(i) and the meaning of the term "agricultural land" assume significance. This provision, like many others is intended to protect agricultural land held for agricultural purposes by agriculturists from the extraordinary provisions of this Act, which provides for enforcement of security interest without intervention of the Court. The plain intention of the provision is to exempt agricultural land from the provisions of the Act. In other words, the creditor cannot enforce any security interest created in his favour without intervention of the Court or Tribunal, if such security interest is in respect of agricultural land. The exemption thus protects agriculturists from losing their source of livelihood and income i.e. the agricultural land, under the drastic provision of the Act. It is also intended to deter the creation of security interest over agricultural land as defined in S.2(zf). Thus, security interest cannot be created in respect of property specified in S.31. 39. In the present case, security interest was created in respect of several parcels of land, which were meant to be a part of single unit i.e. the five star hotel in Goa. Some parcels of land now claimed as agricultural land were apparently purchased by the debtor from agriculturists and are entered as agricultural lands in the revenue records. The debtor applied to the revenue authorities for the conversion of these lands to non agricultural lands which is pending till date due to policy decision. 40. It is undisputed that these lands were mortgaged in favour of the creditor under a deed dated 26/02/2010. The debtor applied to the revenue authorities for the conversion of these lands to non agricultural lands which is pending till date due to policy decision. 40. It is undisputed that these lands were mortgaged in favour of the creditor under a deed dated 26/02/2010. Obviously, since no security interest can be created in respect of agricultural lands and yet it was so created, goes to show that the parties did not treat the land as agricultu ral land and that the debtor offered the land as security on this basis. The undisputed position is that the total land on which the Goa Hotel was located admeasures 182225 sq. mtrs. Of these, 2335 sq. mtrs. are used for growing vegetables, fruits, shrubs and trees for captive consumption of the hotel. There is no substantial evidence about the growing of vegetables but what seems to be on the land are some trees bearing curry leaves and coconut. This amounts to about 12.8 % of the total area. xxx xxxx xxxx xxxx 44. In 'Commissioner of Wealth Tax, Andhra Pradesh v. Officer-in-Charge (Court of Wards) Paigah, 1976 (3) SCC 864 , this Court interpreted the definition of the term 'Agricultural Land' with respect to S.2(e) of the Wealth Tax Act, 1957 that excluded the said term from the definition of assets. This Court observed: "We agree that the determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case. What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality, which will only affect its valuation as part of "assets", but its actual condition and intended user which has to be seen for purposes of exemption from wealth-tax. One of the objects of the exemption seemed to be to encourage cultivation or actual utilisation of land for agricultural purposes. It is not the mere potentiality, which will only affect its valuation as part of "assets", but its actual condition and intended user which has to be seen for purposes of exemption from wealth-tax. One of the objects of the exemption seemed to be to encourage cultivation or actual utilisation of land for agricultural purposes. If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owners or possessors, so as to connect it with an agricultural purpose, the land could not be "agricultural land" for the purposes of earning an exemption under the Act. Entries in revenue records are, however, good prima facie evidence." (emphasis supplied) Similarly, in the case of Kunjukutty Saheb v. State of Kerala, 1972 (2) SCC 364 , this Court held as follows : "We suppose that something or other can be, and often is, grown on any vacant land, but that would not necessarily make it agricultural land for our purposes. To give an example the possibility of cultivating, or even the actual cultivation of, what is essentially a building site in the heart of a town would not make it agricultural land. It is the purpose for which it is held that determines its character and the existence of a few coconut trees or a vegetable patch on the land cannot alter the fact that it is held for purposes of building and not for purposes of agriculture." In any event, having regard to the character of the land and the purpose for which it is set apart, we are of the view that the land in question is not an agricultural land. The High Court mis-directed itself in holding that the land was an agricultural land merely because it stood as such in the revenue entries, even though the application made for such conversation lies pending till date.” M/s. Concern Readymix (supra), was again a case where an undertaking similar to Ext.R1(b) was considered by the Division Bench of the Telangana High Court. That Court came to the definite conclusion that a person who makes a representation of a crucial fact in the form of a sworn affidavit, which essentially induced the Bank to grant a loan on its strength cannot go back from the representation and contend that the land in question is agricultural land against which proceedings cannot be taken under the provisions of the SARFAESI Act. (2) The contention based on Section 23 of the Indian Contract Act, 1872 must necessarily fail. Section 23 of the Contract Act reads as follows : “23. What considerations and objects are lawful, and what not. — The consideration or object of an agreement is lawful, unless— it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” It is not open to the petitioner to contend that the provision contained in Section 31 excluding agricultural lands from the purview of the SARFAESI Act is on the ground of public policy. This is because there is no legal bar in the mortgage of agricultural land and the petitioner has no case that the land in question cannot be proceeded against at all by the Bank for recovery of its liabilities. Moreover, the Supreme Court in ITC Limited (supra) has explained why there is a provision of the nature specified in sub-section (i) of Section 31 excluding agricultural lands from the purview of the provisions of the SARFAESI Act. A reading of the judgment makes it clear that the exclusion was not on the ground of any public policy and was only intended as a protection against the operation of drastic provisions of the Act against land which forms the bread and butter of agriculturists, who may be deriving income from carrying out agricultural operations in the land in question. The facts of this case do not indicate that the petitioner is depending on the income from the land (income arising from the coconut palms on it) for livelihood. The facts of this case do not indicate that the petitioner is depending on the income from the land (income arising from the coconut palms on it) for livelihood. I see no averment that even attempts to suggest so. I also cannot read Ext.R1(b) undertaking as falling foul of the 1st part of Section 23. The 1st part of Section 23 of the Contract Act provides that the consideration or object of an agreement is lawful unless it is forbidden by law or is of such a nature that if permitted, it would defeat the provisions of any law. It is settled that the mere description of the land as agricultural land in the Revenue Records or other documents relating to the land is not decisive of the nature of the land. The undertaking given in the form of Ext.R1(b) is actually an undertaking regarding the nature of the land as held by the Division Bench of the Telangana High Court in M/s. Concern Readymix (supra). It is this undertaking which prompted the Bank to extend the loan. The fact that the petitioner gave an undertaking regarding the nature of the land, which resulted in the land not being treated as agricultural land for the purpose of Section 31 of the SARFAESI Act is, in my opinion, not a ground to contend that the said undertaking is hit by the provisions of the 1st part of Section 23 of the Contract Act, which deals with objects or considerations which are forbidden by law or if permitted would defeat the provisions of any law. In other words, since the undertaking relates to the nature of the land and contains an express statement that the land in question is not agricultural land, it cannot be said that the taking of such undertaking is hit by the provisions of Section 23 of the Contract Act. (3) The contention of the learned counsel for the petitioner that the Tribunal should have allowed the commission application and should have considered the nature of the land before it rejected the application for interim relief, is also not acceptable. The purpose of taking an undertaking in the form of Ext.R1(b) is to ensure that there is no argument taken at a later point in time that the land in question is agricultural land to which the provisions of the SARFAESI Act do not apply. The purpose of taking an undertaking in the form of Ext.R1(b) is to ensure that there is no argument taken at a later point in time that the land in question is agricultural land to which the provisions of the SARFAESI Act do not apply. If borrowers are permitted to contend that the land in question is agricultural land even after giving an undertaking in the form of Ext.R1(b), it would defeat the purpose for which an undertaking in the form of Ext.R1(b) has been obtained. As I have already found that Ext.R1(b) is not hit by the provisions of Section 23 of the Contract Act, it does not lie in the mouth of the petitioner to now seek to establish that the land in question is agricultural land by the appointment of an Advocate Commissioner to determine the nature of the land. (4) The petitioner cannot be allowed to approbate and reprobate and the petitioner cannot take a contention today that the land in question is agricultural land. The rule is succinctly stated in the opinion of Scrutton L.J. in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. (1921) 2 K.B. 608, in the following words:- "A plaintiff is not permitted to "approbate and reprobate." The phrase is apparently borrowed from the Scots law, where it is used to express the principle embodied in our doctrine of election - namely, that no party can accept and reject the same instrument: Ker v. Wauchope, (1819) 1 Bli. 1,21; Douglas - Menzies v. Umphelby, (1908) A.C. 224. The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction." The Supreme Court in Chairman, N.T.P.C. Ltd. v. Reshmi Constructions, Builders and Contractors, (2004 KHC 170), has held:- “36. In Halsbury’s Laws of England, 4th Edition, Vol. 16 (Reissue) para 957 at page 844 it is stated: On the principle that a person may not approbate and reprobate a special species of estoppel has arisen. In Halsbury’s Laws of England, 4th Edition, Vol. 16 (Reissue) para 957 at page 844 it is stated: On the principle that a person may not approbate and reprobate a special species of estoppel has arisen. The principle that a person may not approbate and reprobate express two propositions: (1) That the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile. (2) That he will be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct, which he has first pursued and with which his subsequent conduct is inconsistent.” The petitioner has derived the benefit of sanction of a loan by issuing an undertaking in the form of Ext.R1(b). It is, therefore, not open to him to now turn around and contend that, the said undertaking is contrary to law and cannot be pressed into service by the Bank to substantiate that the action initiated under the SARFAESI Act is valid and legal. (5) The impugned order is not perverse and the Tribunal has not committed any error requiring its correction in proceedings under Article 227 of the Constitution of India. The Original Petition fails and it is accordingly dismissed. No costs.