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2025 DIGILAW 2470 (KER)

Sudhir. A. C, S/o Chandrasekharan Nambudiri Ayinippillil Mana v. South Indian Bank

2025-09-16

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Anil K. Narendran, J. The appellants are the partners of a firm, by name 'AYRO Industries,' which is carrying on the business of making interlock bricks. The firm along with its partners availed various credit facilities from the 1 st respondent South Indian Bank, including a term loan and overdraft facility. The appellants-petitioners have approached this Court in W.P.(C) No.25118 of 2025, invoking the writ jurisdiction under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to renew the business overdraft loan account of the petitioners, without reducing the limit, in the interest of justice; and to stay all further recovery proceedings pursuant to Exts.P2 to P4 notices issued by the 3 rd respondent Authorised Officer under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and grant an opportunity to renew the overdraft loan account, in the interest of justice. 2. On 10.07.2025, when that writ petition came up for admission, the learned Single Judge closed the same. Paragraph 2 and also the last paragraph of that judgment read thus; "2. These prayers cannot be granted by this Court under Article 226 of the Constitution of India, as it is for the bank to consider the request of the borrower or through mutual agreement between them. Accordingly, the writ petition is closed without prejudice to the right of the petitioners to approach the Bank in case they are seeking any concession/financial assistance." 3. Feeling aggrieved by the judgment dated 10.07.2025 of the learned Single Judge in W.P.(C)No.25118 of 2025, the appellants-petitioners are before this Court in this writ appeal, invoking the provisions under Section 5 (i) of the Kerala High Court Act, 1958 . This writ appeal is one filed along with C.M.Appl.No.1 of 2025, seeking an order to condone the delay of 16 days in filing the appeal, which is condoned by a separate order of this date (16.09.2025). 4. Heard the learned counsel for the appellants- petitioners and the learned Standing Counsel for South Indian Bank for the respondents. 5. The issue that requires consideration in this writ appeal is as to whether any interference is warranted on the judgment dated 10.07.2025 of the learned Single Judge in W.P.(C)No.25118 of 2025. 6. 4. Heard the learned counsel for the appellants- petitioners and the learned Standing Counsel for South Indian Bank for the respondents. 5. The issue that requires consideration in this writ appeal is as to whether any interference is warranted on the judgment dated 10.07.2025 of the learned Single Judge in W.P.(C)No.25118 of 2025. 6. The learned counsel for the appellants-petitioners would contend that the judgment of the learned Single Judge is per se arbitrary and illegal, since the learned Single Judge rendered that judgment, without adverting to the legal and factual contentions raised by the petitioners. 7. On the other hand, the learned Standing Counsel for South Indian Bank for the respondents would contend that when the reliefs sought for in the writ petition are not maintainable, the learned Single Judge cannot be found fault with in closing the same, by the judgment dated 10.07.2025. 8. The document marked as Ext.P1 is a copy of the judgment of this Court dated 16.03.2022 in W.P.(C) No.20896 of 2021, in respect of the proceedings initiated by the Bank under the provisions of the SARFAESI Act, relating to the loan account and overdraft facility availed by the appellants from the 1 st respondent Bank. The said writ petition is one filed by the 1 st appellant, who is the Managing Partner of the firm. That writ petition was disposed of by Ext.P1 judgment dated 16.03.2022, whereby the 1 st respondent Bank was directed to regularise the term loan account and renew the overdraft facility, subject to the conditions stipulated in paragraph 6 of that judgment. During the course of arguments, it is submitted by the learned counsel for the appellants that in terms of the directions contained in Ext.P1 judgment, the appellant cleared the entire amount in the term loan account. 9. The document marked as Ext.P2 is a notice issued by the 3 rd respondent Authorised Officer of the 1 st respondent Bank, invoking the provisions under Section 13 (2) of the SARFAESI Act, on account of the default committed by the appellants in the cash credit and overdraft facility in Account No.0132081000065143. The balance amount outstanding, as on 21.01.2025, in Ext.P2 notice was Rs.1,26,30,833.44. The said notice was followed by Ext.P3 possession notice dated 15.05.2025, invoking the provisions under Section 13 (12) of the SARFAESI Act. The balance amount outstanding, as on 21.01.2025, in Ext.P2 notice was Rs.1,26,30,833.44. The said notice was followed by Ext.P3 possession notice dated 15.05.2025, invoking the provisions under Section 13 (12) of the SARFAESI Act. The document marked as Ext.P4 is the redemption notice dated 20.05.2025 issued by the 3 rd respondent Authorised Officer, invoking the provisions under Section 13 (8) of the SARFAESI Act read with Rule 8(6) of the Security Interest (Enforcement) Rules, 2002. In W.P. (C)No.25118 of 2025, which was one filed on 07.07.2025, the appellants-petitioners have not chosen to challenge Exts.P2 to P4 notices issued by the 3 rd respondent Authorised Officer under the provisions of the SARFAESI Act. However, one of the reliefs sought for in that writ petition is to stay all further recovery proceedings pursuant to Exts.P2 to P4 notices and to grant an opportunity to renew the overdraft loan account. 10. 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, 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. 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. 11. 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 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. 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 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. 12. In view of the law laid down by the Apex Court in Naveen Mathew Philip [ (2023) 17 SCC 311 ] , the appellants- petitioners cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India to challenge the proceedings initiated by the 1 st respondent Bank, through its Authorised Officer, the 3 rd respondent, under the provisions of the SARFAESI Act, which had resulted in the issuance of Exts.P2 to P4 notices. Therefore, instead of filing a writ petition before this Court, the appellants-petitioners ought to have approached the Debts Recovery Tribunal, invoking the provisions under Section 17 of the SARFAESI Act, seeking appropriate relief. 13. Therefore, instead of filing a writ petition before this Court, the appellants-petitioners ought to have approached the Debts Recovery Tribunal, invoking the provisions under Section 17 of the SARFAESI Act, seeking appropriate relief. 13. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145] , a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. 14. In Oriental Bank of Commerce v. Sunder Lal Jain [ (2008) 2 SCC 280 ] the Apex Court held that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. 15. Without challenging the proceedings initiated by the 1 st respondent Bank, through the 3 rd respondent Authorised Officer, under the provisions of the SARFAESI Act, which had resulted in the issuance of Exts.P2 to P4 notices, the appellants- petitioners cannot seek a writ of mandamus in the writ petition filed under Article 226 of the Constitution of India, for interference with the recovery proceedings initiated by the Bank under the provisions of the SARFAESI Act. The renewal of the overdraft loan account, which is the subject matter of the proceedings initiated by the Bank, is not a matter in respect of which this Court can issue a writ of mandamus. The renewal of the overdraft loan account, which is the subject matter of the proceedings initiated by the Bank, is not a matter in respect of which this Court can issue a writ of mandamus. In such circumstances, none of the reliefs sought for in W.P.(C)No.25118 of 2025 were not maintainable under Article 226 of the Constitution of India, and as such the learned Single Judge cannot be found fault with in closing the writ petition without prejudice to the right of the appellants, as stated in the last paragraph of that judgment. We find absolutely no grounds to interfere with the judgment dated 10.07.2025 of the learned Single Judge in W.P.(C)No.25118 of 2025. In the result, this writ appeal fails and the same is accordingly dismissed.