Authorised Officer vs Navas Sulaiman

2026:KER:5645

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN

&

THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.

THURSDAY, THE 22ND DAY OF JANUARY 2026 / 2ND MAGHA, 1947

W.A.NO.3183 OF 2025

ARISING FROM THE JUDGMENT DATED 08.12.2025 IN WP(C) NO.45979

OF 2025 OF THE HIGH COURT OF KERALA

APPELLANT/RESPONDENTS 1 AND 2:

1 AUTHORISED OFFICER SOUTH INDIAN BANK LTD., REGIONAL OFFICE, THIRUVALLA, TMJ COMPLEX, RAMAN CHIRA, MUTHOOR P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689107

2 THE MANAGER THE SOUTH INDIAN BANK LTD., ALAPPUZHA BRANCH, CONVENT SQUARE, ALAPPUZHA DISTRICT, PIN - 688001

BY ADVS. SHRI.SUNIL SHANKER SMT.VIDYA GANGADHARAN SHRI.THOMAS GLAISON

RESPONDENT/PETITIONER:

NAVAS SULAIMAN AGED 50 YEARS RESIDING AT KANGAMVELIYIL HOUSE, MANNANCHERRY P.O., PONNAD, ALAPPUZHA DISTRICT, PIN - 688538

BY ADV SHRI.K.C.SUDHEER

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.NO.3183 OF 2025 2

2026:KER:5645

'C.R' JUDGMENT

Anil K. Narendran, J.

Respondents 1 and 2 in W.P.(C)No.45979 of 2025 have filed

this writ appeal, invoking the provisions under Section 5(i) of the

Kerala High Court Act, 1958, challenging the judgment dated

08.12.2025 of the learned Single Judge in that writ petition,

which was one filed by the respondent herein-petitioner,

invoking the writ jurisdiction of this Court under Article 226 of

the Constitution of India, seeking a writ of mandamus

commanding respondents 1 and 2 therein (appellants herein),

namely, the Authorised Officer of South Indian Bank Ltd. and the

Manager, South Indian Bank Ltd., Alappuzha Branch, to grant

time till 31.03.2026 to the petitioner to clear off his liability in

the loan accounts with the Bank. The document marked as

Ext.P1 is a copy of notice dated 14.08.2024 issued by the

Advocate Commissioner appointed by the Chief Judicial

Magistrate, Alappuzha in M.C.No.434 of 2024, a petition filed by

South Indian Bank Ltd., the secured creditor, invoking the

provisions under Section 14 of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security W.A.NO.3183 OF 2025 3

2026:KER:5645

Interest Act, 2002 (SARFAESI Act), seeking assistance in taking

possession of the secured asset. The petitioner along with his

wife had earlier approached this Court in W.P.(C)No.18164 of

2024 aggrieved by the coercive steps initiated by the bank under

the provisions of the SARFAESI Act in respect of various facilities

availed for the proprietorship concern M/s.Oscar Publishing

House as well as housing loans availed by his wife from Convent

Square Branch of South Indian Bank Ltd. at Alappuzha. That writ

petition was disposed of by Ext.P2 judgment dated 23.05.2024,

whereby they were directed to remit the outstanding amount of

Rs.1,25,58,646.12, as on 20.05.2024, in six consecutive and

equal monthly installments, along with accruing interest and

other bank charges and the first installment payable on or before

15.06.2024. In Ext.P2 judgment, it was made clear that if the

petitioners therein commit a single default in making payment,

as directed above, the respondents therein will be at liberty to

continue with the coercive proceedings against them, in

accordance with law. Exts.P3 to P7 receipts would show that the

petitioners in W.P.(C)No.18164 of 2024, paid an amount of

Rs.5,00,000/- on 01.11.2024, Rs.9,00,000/- on 11.12.2024,

Rs.8,00,000/- on 07.07.2025, Rs.8,00,000/- on 29.08.2025 and W.A.NO.3183 OF 2025 4

2026:KER:5645

Rs.7,00,000/- on 30.08.2025, amounting to a total sum of

Rs.37,00,000/-. After committing default in payment of the

outstanding amount in terms of the directions contained in

paragraph 10 of Ext.P2 judgment, the appellant-petitioner, who

was the 1st petitioner in W.P.(C)No.18164 of 2024, has chosen

to file W.P.(C)No.45979 of 2025 seeking a writ of mandamus

commanding the appellants herein to grant him time till

31.03.2026 to clear off his liability in the loan accounts with the

Bank.

2. In W.P.(C)No.45979 of 2025, the respondents

(appellants herein) have filed a counter affidavit dated

06.12.2025, opposing the relief sought for, producing therewith

Ext.R1(a) letter dated 20.06.2025, whereby One Time

Settlement (OTS) facility was extended by the Bank, based on

the request dated 10.06.2025 made by the petitioners in

W.P.(C)No.18164 of 2024.

3. On 08.12.2025, when W.P.(C)No.45979 of 2025 came

up for consideration, the learned Single Judge disposed of the

same with the directions contained in paragraph 5 of that

judgment. Paragraphs 4, 5 and also the last paragraph of that

judgment read thus;

W.A.NO.3183 OF 2025 5

2026:KER:5645

"4. Heard the learned Counsel on both sides.

5. Since the limited relief of the petitioner is only to allow him to approach the Debts Recovery Tribunal to avail the statutory remedy, this Court deems it appropriate to dispose of this writ petition directing the petitioner to remit Rs.15 Lakhs on or before 22.12.2025 and the coercive proceedings against him shall be deferred till 24.12.2025.

The writ petition is disposed of with the above direction."

4. The judgment dated 08.12.2025 of the learned Single

Judge is under challenge in this writ appeal filed by the

respondents in W.P.(C)No.45979 of 2025. In the writ appeal, it

is contended that, in view of the admitted non-compliance of

Ext.P2 judgment in W.P.(C)No.18164 of 2024, the respondent

herein is not entitled to any consideration in equity in the

subsequent writ petition, i.e., W.P.(C)No.45979 of 2025. In

support of that contention, the appellants would place reliance

on the decision of the Apex Court in Prestige Lights Ltd. v.

State Bank of India [(2007) 8 SCC 449]. Further, the relief

sought for in W.P.(C)No.45979 of 2025 is not in relation to

discharge of any public function by the Bank and therefore the

writ petition is not maintainable in law. In support of the said

contention, the appellants would place reliance on the decision W.A.NO.3183 OF 2025 6

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of the Apex Court in Phoenix ARC (P) Ltd. v. Vishwa Bharati

Vidya Mandir [(2022) 5 SCC 345] and Federal Bank Ltd. v.

Sagar Thomas [(2003) 10 SCC 733]. On the maintainability

of a writ petition under Article 226 of the Constitution of India

challenging the measures taken by the secured creditor under

the provisions of the SARFAESI Act, in view of statutory remedy

provided under Section 17 of the said Act, the appellants would

place reliance on the decisions of the Apex Court in United Bank

of India v. Satyavati Tandon [(2010) 8 SCC 110], South

Indian Bank Ltd. v. Naveen Mathew Philip [(2023) 17 SCC

311], etc.

5. On 19.12.2025, when this writ appeal came up for

admission, it was admitted on file. Urgent notice by speed post

was ordered to respondent-petitioner, returnable within three

weeks. This Court granted an interim order dated 19.12.2025.

Paragraphs 3 to 6 of that order read thus;

"3. The learned counsel for the appellants-respondents in W.P.(C)No.45979 of 2025 would point out that the only relief sought for in the writ petition is a writ of mandamus commanding respondents 1 and 2 to grant time till 31.03.2026 to clear off the dues in the loan account. The document marked as Ext.P1 is a notice dated 14.08.2024 issued by the Advocate Commissioner appointed by the W.A.NO.3183 OF 2025 7

2026:KER:5645

Chief Judicial Magistrate Court, Alappuzha, in M.C.No.434 of 2024. Ext.P2 is a copy of the judgment dated 23.05.2024 of the learned Single Judge in W.P.(C)No.18164 of 2024, whereby the petitioners were granted instalment facility to clear the outstanding of Rs.1,25,58,646.12 in six consecutive equal monthly instalments along with accrued interest and bank charges commencing from 15.06.2024. The respondent-petitioner could not clear the dues in terms of the directions contained in Ext.P2 judgment, though certain payments were made.

4. The learned counsel has pointed out the specific contentions raised in the counter affidavit dated

06.12.2025 filed by the respondents in W.P.(C)No.45979 of 2025, wherein the question of maintainability of the writ petition was also raised, pointing out that the total liability as on 05.12.2025 comes to Rs.1,21,11,478.03/- along with further interests, costs and charges.

5. In the aforesaid circumstances, we find that the appellants have made out a prima facie case for staying the operation of the directions contained in paragraph 5 of the judgment dated 08.12.2025 in W.P.(C)No.45979 of 2025, which reads thus;

"Since the limited relief of the petitioner is only to allow him to approach the Debts Recovery Tribunal to avail the statutory remedy, this Court deems it appropriate to dispose of this writ petition directing the petitioner to remit Rs.15 Lakhs on or before 22.12.2025 and the coercive proceedings against him shall be deferred till 24.12.2025."

6. In such circumstances, there will be an interim stay of W.A.NO.3183 OF 2025 8

2026:KER:5645

operation of the direction contained in paragraph 5 of the judgment dated 08.12.2025 of the learned Single Judge to defer coercive measures against the respondents- petitioners, for a period of one month."

6. The interim order granted on 19.12.2025 was

extended for a period of one month, by the order dated

16.01.2026.

7. We heard arguments of the learned counsel for the

appellants-respondents and also the learned counsel for

respondent-petitioner.

8. The learned counsel for the appellants-respondents

would contend that the judgment dated 08.12.2025 of the

learned Single Judge in W.P.(C)No.45979 of 2025 is one

rendered without taking note of the legal and factual contentions

raised by the respondents on the maintainability of the writ

petition as well as dis-entitlement of the petitioner to any

consideration in equity, in view of the admitted non-compliance

of the directions contained in Ext.P2 judgment dated 23.05.2024

in W.P.(C)No.18164 of 2024. The learned Single Judge

committed a grave error in interfering with the coercive steps

taken by the Bank, while disposing of the writ petition by the

impugned judgment dated 08.12.2025, despite the fact that on W.A.NO.3183 OF 2025 9

2026:KER:5645

account of the default committed by the petitioner and his wife

in complying with the conditions in Annexure R1(a) letter dated

20.06.2025, the OTS facility was automatically cancelled. The

learned counsel for the appellants would point out that the wife

of the respondent-petitioner has already approached the Debts

Recovery Tribunal-2, Ernakulam in S.A.No.4 of 2026, invoking

the provisions under Section 17 of the SARFAESI Act, which is

now pending consideration.

9. The learned counsel for the respondent-petitioner

would contend that by the impugned judgment dated

08.12.2025, the learned Single Judge has only granted a

breathing time to the petitioner to avail the statutory remedy,

by approaching the Debts Recovery Tribunal. Therefore, no

serious prejudice is caused to the appellants on account of the

directions contained in the said judgment dated 08.12.2025.

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 W.A.NO.3183 OF 2025 10

2026:KER:5645

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. 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 W.A.NO.3183 OF 2025 11

2026:KER:5645

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. In paragraph 17 of the decision, the Apex Court W.A.NO.3183 OF 2025 12

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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 the instant case, the respondents in W.P.(C)No.

45979 of 2025 (appellants herein) have filed a counter affidavit

dated 06.12.2025 in that writ petition raising a specific W.A.NO.3183 OF 2025 13

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contention that the writ petition is not maintainable in view of

the law laid down by the Apex Court in Mathew K.C. [(2018)

3 SCC 85], Naveen Mathew Philip [(2023) 17 SCC 311],

Satyawati Tondon [(2010) 8 SCC 110], Phoenix ARC (P)

Ltd. [(2022) 5 SCC 345], etc. It was also pointed out that

since the petitioners in W.P.(C)No.18164 of 2024 defaulted

payment in terms of the directions contained in Ext.P2

judgment, the Bank moved the Chief Judicial Magistrate,

Alappuzha in M.C.No.434 of 2024 (invoking the provisions under

Section 14 of the SARFAESI Act) and the Advocate

Commissioner appointed in that proceedings issued Ext.P1

notice dated 14.08.2024 to take possession of the property. In

paragraph 3 of the impugned judgment dated 08.12.2025, the

learned Single Judge noticed the above contentions raised by the

learned counsel for the Bank. Paragraph 3 of the judgment dated

08.12.2025 reads thus;

"3. The learned Counsel for the respondent Bank has filed a counter affidavit, wherein it is contended that the writ petition is not maintainable in view of the decision of the Apex Court in South Indian Bank Ltd. v. Naveen Mathew Philip [(2023) 17 SCC 311]. It is also submitted that the petitioner has already approached this Court and obtained Ext.P2 judgment, which is not W.A.NO.3183 OF 2025 14

2026:KER:5645

complied with and thereafter, the Bank moved the Chief Judicial Magistrate with M.C.No.434 of 2024, wherein the Advocate Commissioner has issued a notice to take physical possession of the property of the petitioner. In the meanwhile, a proposal was submitted for One Time Settlement, which was accepted by the Bank, but the petitioner failed to comply with the said condition and now possession is sought to be taken tomorrow. The learned Standing Counsel submits that the petitioner does not intend to remit any amount and only seeks to prolong the litigation and defer the coercive proceedings against him and prays that such a person cannot be given any indulgence by this Court."

13. Section 14 of the SARFAESI Act deals with the powers

of the Chief Metropolitan Magistrate or the District Magistrate to

assist a secured creditor in taking possession of a secured asset.

14. 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 to deal with the request of the secured creditor to

take possession of the secured asset under Section 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 W.A.NO.3183 OF 2025 15

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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 Section 14 of

the SARFAESI Act.

15. In United Bank of India v. Satyawati Tondon

[(2010) 8 SCC 110], a Two-Judge Bench of the Apex Court

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 Section 14, then he

could have availed remedy by filing an application under Section

17(1) before the Debts Recovery Tribunal. The expression 'any W.A.NO.3183 OF 2025 16

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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 Sections

17 and 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.

16. 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 Article 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.

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 W.A.NO.3183 OF 2025 17

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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 Article 226 of

the Constitution, a person must exhaust the remedies available

under the relevant statute.

17. In view of the law laid down by the Apex Court in

Satyawati Tondon [(2010) 8 SCC 110] and reiterated in

Naveen Mathew Philip [(2023) 17 SCC 311], if the

respondent-petitioner has any grievance against the

proceedings initiated by the secured creditor under Section 14

of the SARFAESI Act, he could have availed the statutory remedy

by filing an application under Section 17 of the said Act before

the Debts Recovery Tribunal. The expression 'any person' used

in Section 17(1) of the Act is of wide import, which takes within

its fall, 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 of the said Act.

18. When the remedy available to an aggrieved person

under Section 17 of the SARFAESI Act is both expeditious and W.A.NO.3183 OF 2025 18

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effective, as held by the Apex Court in Satyawati Tondon

[(2010) 8 SCC 110], the borrower, the guarantor or any other

person who may be affected by the action taken by the secured

creditor under Section 14 of the SARFAESI Act have to approach

the Debts Recovery Tribunal availing the statutory remedy

provided under Section 17 of the said Act, instead of invoking

the writ jurisdiction of this Court under Article 226 of the

Constitution of India.

19. In the instant case, as already noticed hereinbefore,

the only relief sought for by the respondent-petitioner in

W.P.(C)No.45979 of 2025 was a writ of mandamus commanding

respondents 1 and 2 therein (appellants herein) to grant time till

31.03.2026 to the petitioner to clear off his liability in the loan

accounts with the Bank. The petitioner along with his wife had

earlier approached this Court in W.P.(C)No.18164 of 2024

aggrieved by the coercive steps initiated by the Bank under the

provisions of the SARFAESI Act in respect of various facilities

availed for the proprietorship concern M/s.Oscar Publishing

House as well as housing loans availed by his wife from Convent

Square Branch of South Indian Bank Ltd. at Alappuzha.

20. By Ext.P2 judgment dated 23.05.2024 of the learned W.A.NO.3183 OF 2025 19

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Single Judge, W.P.(C)No.18164 of 2024 was disposed of,

whereby the petitioners therein (the respondent herein and his

wife) were directed to remit the outstanding amount of

Rs.1,25,58,646.12, as on 20.05.2024, in six consecutive and

equal monthly installments, along with accruing interest and

other bank charges and the first installment payable on or before

15.06.2024. As made clear in Ext.P2 judgment, if the petitioners

therein commit a single default in making payment, as directed

in that judgment, the respondents therein (appellants herein)

will be at liberty to continue with the coercive proceedings

initiated against them, in accordance with law.

21. Since there was default on the part of the petitioners

in W.P.(C)No.18164 of 2024 in remitting the outstanding amount

of Rs.1,25,58,646.12, as on 20.05.2024, in six consecutive and

equal monthly installments, along with accruing interest and

other bank charges, within the time limit stipulated in Ext.P2

judgment, as per the default clause in the said judgment, the

Bank continued with the coercive proceedings, which had

resulted in the issuance of Ext.P1 notice dated 14.08.2024

issued by the Advocate Commissioner appointed by the Chief

Judicial Magistrate, Alappuzha in M.C.No.434 of 2024, in a W.A.NO.3183 OF 2025 20

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petition filed by the Bank invoking the provisions under Section

14 of the SARFAESI Act, seeking assistance in taking physical

possession of the secured asset. Ext.P1 notice is one issued by

the Advocate Commissioner about two months after 15.06.2024,

the date fixed in Ext.P2 judgment for payment of the first

installment. It is after the receipt of Ext.P1 notice dated

14.08.2024, the petitioners in W.P.(C)No.18164 of 2024 paid an

amount of Rs.5,00,000/- on 01.11.2024, Rs.9,00,000/- on

11.12.2024, Rs.8,00,000/- on 07.07.2025, Rs.8,00,000/- on

29.08.2025 and Rs.7,00,000/- on 30.08.2025, amounting to a

total sum of Rs.37,00,000/-, as evidenced by Exts.P3 to P7

receipts produced along with W.P.(C)No.45979 of 2025, against

the outstanding amount of Rs.1,25,58,646.12 as on 20.05.2024.

22. In the counter affidavit filed by the respondents in

W.P.(C)No.45979 of 2025, it was pointed out that the

continuance of the credit facilities as NPA will cause severe

prejudice to the bank, as provisioning requires banks to set aside

capital based on asset quality, as per the guidelines issued by

the Reserve Bank of India.

23. In Authorised Officer, State Bank of Travancore

v. Mathew K.C. [2018 (1) KLT 784], the Apex Court held that W.A.NO.3183 OF 2025 21

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no writ petition would lie against the proceedings under the

SARFAESI Act, in view of the statutory remedy available under

the said Act.

24. In Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya

Mandir [(2022) 5 SCC 345] the Apex Court was dealing with

a case in which Phoenix ARC (P) Ltd. (for brevity 'ARC'), which

is a private financial institution, proposed to take action under

the SARFAESI Act to recover the borrowed amount as a secured

creditor. The Apex Court held that ARC as such cannot be said

to be performing public functions which are normally expected

to be performed by State authorities. During the course of a

commercial transaction and under the contract, the bank/ARC

lends money to the borrowers and the said activity of the

bank/ARC cannot be said to be as performing a public function,

which is normally expected to be performed by the State

authorities. If proceedings are initiated under the SARFAESI Act

and/or any proposed action is to be taken, and the borrower is

aggrieved by any of the actions of the private bank/bank/ARC,

he has to avail the remedy under the SARFESI Act, and no writ

petition would lie and/or is maintainable and/or entertainable.

25. In Sobha S. v. Muthoot Finance Limited [2025 W.A.NO.3183 OF 2025 22

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(2) KHC 229], the Apex Court considered the question of

maintainability of writ petitions under Article 226 of the

Constitution of India against a private non-banking financial

company and also a private company carrying on banking

business as a Scheduled Bank. In the said case, the Apex Court

held that 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. 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.

26. In the instant case, the only relief sought for by the

respondent-petitioner in W.P.(C)No.45979 of 2025 was a writ of

mandamus commanding respondents 1 and 2 therein

(appellants herein) to grant time till 31.03.2026 to the petitioner

to clear off his liability in the loan accounts with the Bank.

Admittedly, South Indian Bank Ltd. is a private company

carrying on banking business as a Scheduled Bank. In view of

the law laid down by the Apex Court in Phoenix ARC (P) Ltd.

[(2022) 5 SCC 345] and Sobha S. [2025 (2) KHC 229],

during the course of a commercial transaction and under the W.A.NO.3183 OF 2025 23

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contract, South Indian Bank Ltd. lend money to the borrowers

and the said activity of the bank cannot be said to be as

performing a public function, which is normally expected to be

performed by the State authorities. If proceedings are initiated

by the said bank under the provisions of the SARFAESI Act and

the borrower or the guarantor or any other person is affected by

the action taken by the bank, he has to avail the statutory

remedy provided under Section 17 of the SARFESI Act, and no

writ petition would lie, maintainable or entertainable under

Article 226 of the Constitution of India. The legal contentions on

the question of maintainability of W.P.(C)No.45979 of 2025

raised in the counter affidavit dated 06.12.2025 filed by the

respondents (appellants herein), were not dealt with by the

learned Single Judge, while disposing of that writ petition by the

impugned judgment dated 08.12.2025, with a direction to defer

the coercive proceedings against the petitioner till 24.12.2025,

on remittance of an amount of Rs.15,00,000/- on or before

21.12.2025.

27. By Ext.R1(a) letter dated 20.06.2025, the Bank

granted OTS facility on payment of an amount of

Rs.1,27,00,000/- in respect of various facilities availed for the W.A.NO.3183 OF 2025 24

2026:KER:5645

proprietorship concern, M/s.Oscar Publishing House as well as

housing loans availed by the petitioner's wife from Convent

Square Branch of South Indian Bank Ltd. at Alappuzha., subject

to the terms and conditions stipulated in that letter, whereby a

payment of Rs.10,00,000/- has to be made on or before

30.06.2025, Rs.25,00,000/- on or before 31.07.2025, and

Rs.92,00,000/- on or before 31.08.2025. The said letter also

provides for debt settlement terms to be executed by all the

parties, in terms of the compromise arrived.

28. In paragraph 10 of the counter affidavit filed by the

respondents in W.P.(C)No.45979 of 2025, it is stated that the

petitioner failed to comply with the stipulated conditions, and

the OTS was automatically cancelled. In paragraph 11 of the

counter affidavit, it is stated that subsequently the Advocate

Commissioner along with other Bank officials attempted to take

physical possession of the secured asset on 25.11.2025.

Aggrieved by that action, the petitioner has approached this

Court on 05.12.2025, by filing W.P.(C)No.45979 of 2025. As on

05.12.2025, an amount of Rs.38,61,478.07 is due under the

credit facilities availed by M/s.Oscar Publishing House and

Rs.82,49,999.96 under the credit facilities availed by the W.A.NO.3183 OF 2025 25

2026:KER:5645

petitioner's wife. Thus, a total amount of Rs.1,21,11,478.03

along with further interest, cost and charges is due from all the

credit facilities availed by the borrowers.

29. In the counter affidavit filed by the respondents in

W.P.(C)No.45979 of 2025, it is stated that due to the default

committed by the borrowers, the credit facilities were classified

as Non-Performing Asset (NPA) on 08.11.2023 and 14.11.2023

respectively. Demand notices dated 27.12.2023 were issued

under the provisions of Section 13(2) of the SARFAESI Act. Since

the liability was not discharged, the Bank proceeded with the

matter further. Possession notice dated 09.05.2024, issued by

the Bank was under challenge in W.P.(C)No.18164 of 2024. The

petitioner and his wife failed to comply with the conditions

stipulated in Ext.P2 judgment dated 23.05.2024. Therefore, the

Bank initiated proceedings under Section 14 of the SARFAESI Act

and the Advocate Commissioner appointed by the Chief Judicial

Magistrate, Alappuzha in M.C.No.434 of 2024 issued Ext.P1

notice dated 14.08.2024. The payments evidenced by Exts.P3 to

P7 receipts were made by the petitioners in W.P.(C)No.18164 of

2024 only after the issuance of Ext.P1 notice.

30. In State Bank of India v. Arvindra Electronics W.A.NO.3183 OF 2025 26

2026:KER:5645

Pvt. Ltd. [(2023) 1 SCC 540] - judgment dated 04.11.2022

in Civil Appeal No.6954 of 2022 - the Apex Court reiterated the

law laid down in Bijnor Urban Cooperative Bank Limited

[(2023) 2 SCC 805] - judgment dated 15.12.2021 in Civil

Appeal No.7411 of 2021 - that no writ of mandamus can be

issued by the High Court in exercise of the powers under Article

226 of the Constitution of India directing a financial

institution/bank to positively grant the benefit of One Time

Settlement (OTS) to a borrower; the grant of benefit under OTS

is always subject to eligibility criteria mentioned under OTS

scheme and guidelines issued from time to time. Such a decision

should be left to the commercial wisdom of the bank, whose

amount is involved, and it is always to be presumed that a

financial institution/bank shall take a prudent decision whether

to grant a benefit or not under the OTS scheme. Therefore, the

High Court materially erred and exceeded in its jurisdiction in

issuing a writ of mandamus directing the bank to positively

consider/grant the benefit of OTS to the borrower.

31. In Arvindra Electronics Pvt. Ltd. [(2023) 1 SCC

540], the Apex Court held that directing the bank to reschedule

the payment under OTS would tantamount to modification of the W.A.NO.3183 OF 2025 27

2026:KER:5645

contract, which can be done by mutual consent under Section

62 of the Contract Act, 1872. Further, rescheduling the payment

under OTS and granting extension of time would tantamount to

rewriting the contract, which is not permissible while exercising

the powers under Article 226 of the Constitution of India.

32. In paragraph 2 of the impugned judgment dated

08.12.2025 in W.P.(C)No.45979 of 2025, the learned Single

Judge noticed the submission made by the learned counsel for

the bank that the petitioner has defaulted payment as per the

OTS benefit extended by the bank vide Ext.R1(a) letter dated

20.06.2025. Instead of paying a total sum of Rs.35,00,000/- on

or before 31.07.2025, the total payment made was only

Rs.23,00,000/-. The learned Single Judge has also noticed the

prayer of the petitioner that he may be given a breathing time

to approach the Debts Recovery Tribunal to challenge the

proceedings against him. Paragraph 2 of the judgment dated

08.12.2025 read thus;

"2. The learned Counsel for the respondent Bank, on instructions, submitted that the petitioner has not complied with the directions in Ext.P2 judgment, but later he approached the Bank with a proposal for One Time Settlement (OTS), which was duly replied by Ext.R1(a) W.A.NO.3183 OF 2025 28

2026:KER:5645

fixing the amount as Rs.1,27,00,000/- and the petitioner was directed to remit Rs.10 Lakhs on or before 30.06.2025, Rs.25 Lakhs on or before 31.07.2025 and Rs.92 Lakhs on or before 31.08.2025. It is seen that the petitioner had remitted only Rs.8 Lakhs on 07.07.2025, another Rs.8 Lakhs on 29.08.2025 and Rs.7 Lakhs on 30.08.2025. When added up, the said amount would come to Rs.23 Lakhs only. As per the OTS proposal, the petitioner ought to have paid Rs.35 Lakhs on or before 31.07.2025. The prayer now sought for is that he may be given a breathing time to approach the DRT and to challenge the proceedings against him."

33. The learned counsel for the Bank would point out that

S.A.No.4 of 2026 filed by the wife of the respondent-petitioner

is now pending consideration before the Debts Recovery

Tribunal-2, Ernakulam.

34. As stated in the counter affidavit filed by the

respondents in W.P.(C)No.45979 of 2025, though the Bank vide

Ext.R1(a) letter dated 20.06.2025 granted OTS facility to the

petitioners in W.P.(C)No.18164 of 2024, on payment of an

amount of Rs.1,27,00,000/- in respect of various facilities

availed for the proprietorship concern M/s.Oscar Publishing

House as well as housing loans availed by the petitioner's wife

from Convent Square Branch of South Indian Bank Ltd. at W.A.NO.3183 OF 2025 29

2026:KER:5645

Alappuzha, subject to the terms and conditions stipulated in that

letter and execution of debt settlement terms by all the parties,

in terms of the compromise arrived, the petitioner failed to

comply with the stipulated conditions, and the OTS was

automatically cancelled. Therefore, the petitioner is not legally

entitled to claim the benefit of OTS facility sanctioned vide

Ext.R1(a) letter dated 20.06.2025.

35. As stated in the counter affidavit filed by the

respondents in W.P.(C)No.45979 of 2025, due to the default

committed by the borrowers, the accounts were classified as NPA

in November, 2023. Challenging the possession notice dated

09.05.2024, the borrowers had approached this Court in

W.P.(C)No.18164 of 2024, which was disposed of by Ext.P2

judgment dated 23.05.2024. They defaulted remittance of the

outstanding amounts of Rs.1,25,58,646.12 as on 20.05.2025,

along with accruing interest and other bank charges within the

time limit stipulated in Ext.P2 judgment. As per the default

clause in Ext.P2 judgment, the Bank continued with the coercive

proceedings which had resulted in the issuance of Ext.P1 notice

dated 14.08.2024 issued by the Advocate Commissioner

appointed by the Chief Judicial Magistrate, Alappuzha in W.A.NO.3183 OF 2025 30

2026:KER:5645

M.C.No.434 of 2024, in a petition filed by the Bank under Section

14 of the SARFAESI Act. In the absence of a valid challenge

against the measures taken by the Bank under Section 13 or

Section 14 of the SARFAESI Act, the learned Single Judge went

wrong in disposing of W.P.(C)No.45979 of 2025 with a direction

that the coercive proceedings against the petitioner shall be

deferred till 24.12.2025, on the petitioner remitting a sum of

Rs.15,00,000/- on or before 22.12.2025, especially when such

coercive proceedings were initiated as per the default clause in

Ext.P2 judgment dated 23.05.2024 in W.P.(C)No.18164 of 2024,

since not even a single payment towards the outstanding

amount was made by the petitioner and his wife, who were the

petitioners therein, within the time limit stipulated in that

judgment.

36. In the above circumstances, we find no reason to

sustain the impugned judgment dated 08.12.2025 of the learned

Single Judge in W.P.(C)No.45979 of 2025, which was one

rendered without adverting to the legal contention raised by the

appellants herein on the maintainability of the writ petition,

placing reliance on the decisions of the Apex Court in Satyawati

Tondon [(2010) 8 SCC 110], Mathew K.C. [(2018) 3 SCC W.A.NO.3183 OF 2025 31

2026:KER:5645

85], Naveen Mathew Philip [(2023) 17 SCC 311], Phoenix

ARC (P) Ltd. [(2022) 5 SCC 345] and Sobha S. [2025 (2)

KHC 229].

In the result, this writ appeal is allowed by setting aside

the judgment dated 08.12.2025 of the learned Single Judge in

W.P.(C)No.45979 of 2025 and that writ petition is dismissed on

the ground of maintainability.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

MURALEE KRISHNA S., JUDGE

MIN