M/S. G.K. Granites represented by its managing partner, George Antony vs Board of Directors of South Indian Bank Ltd.

W.A.No.3095 of 2025 1 2025:KER:96898

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 19TH DAY OF DECEMBER 2025 / 28TH AGRAHAYANA, 1947

W.A.NO.3095 OF 2025

AGAINST THE ORDER DATED 12.12.2025 IN WP(C) NO.46770 OF

2025 OF THE HIGH COURT OF KERALA

APPELLANT/PETITIONER:

M/S. G.K. GRANITES REPRESENTED BY ITS MANAGING PARTNER, GEORGE ANTONY, AGED 71 YEARS, S/O. ANTONY, KUREEKKAL, KIZHAKKAMBALAM P.O., KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN - 683562

BY ADV SMT. MARIA NEDUMPARA

RESPONDENTS/RESPONDENTS:

1 BOARD OF DIRECTORS OF SOUTH INDIAN BANK LTD REPRESENTED BY ITS MANAGING DIRECTOR, T.B ROAD, MISSION QUARTERS, THRISSUR, PIN - 680001

2 AUTHORISED OFFICER SOUTH INDIAN BANK LTD, REGIONAL OFFICE, CHRIST NAGAR, AKP JUNCTION, IRINJALAKUDA, THRISSUR, PIN - 680215

3 MINISTRY OF MICRO SMALL AND MEDIUM ENTERPRISES REPRESENTED BY ITS SECRETARY, UDYOG BHAWAN, RAFI MARG, NEW DELHI, DELHI, PIN - 110001

4 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FINANCIAL SERVICES, MINISTRY OF FINANCE, 3RD FLOOR, JEEVAN DEEP BUILDING, SANSAD MARG, NEW DELHI, PIN - 110001

5 GENERAL MANAGER DISTRICT INDUSTRIES CENTRE, ERNAKULAM. KAKKANAD, PIN - 682030 W.A.No.3095 of 2025 2 2025:KER:96898

6 CHAIRMAN MICRO AND SMALL ENTERPRISE FACILITATION COUNCIL (MSEFC) DIRECTORATE OF INDUSTRIES COMMERCE, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, KERALA, PIN - 695033

7 CHAIRMAN STATE LEVEL INTER-INSTITUTIONAL COMMITTEE REGIONAL OFFICE, RESERVE BANK OF INDIA, BAKERY JUNCTION, P.B. NO. 6507, THIRUVANANTHAPURAM, PIN - 695033

8 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

9 RESERVE BANK OF INDIA REPRESENTED BY ITS GOVERNOR, NEW CENTRAL OFFICE BUILDING, SHAHID BHAGAT SINGH ROAD, FORT, MUMBAI, MAHARASHTRA, PIN - 400001

10 FASIL THAMBIKUDY ABBAS DIRECTOR, EXODIA PROFESSIONALS PVT. LTD, 22/239 A. MANAKKATT HMT ROAD, KALAMASSERY, ERNAKULAM, PIN - 683503

11 BASIL MATHAI RECOVERY OFFICER, SOUTH INDIAN BANK LTD, IRINJALAKUDA, XVIII/343, BLAZE COURT, MAIN ROAD, IRIJALAKUDA, THRISSUR, PIN - 680121

12 BIBY AUGUSTIAN JOINT GENERAL MANAGER, RECOVERY HEAD, SOUTH INDIAN BANK LTD, RAJAGIRI VALLY, ERNAKULAM, PIN - 682039

13 REMYA MARY JOHN SENIOR MANAGER, SOUTH INDIAN BANK, ANGAMALY NORTH., PIN - 683572

14 ANIL DHIRAJLAL AMBANI SEA WIND, CUFF PARADE, MUMBAI, MAHARASHTRA, PIN - 400005

15 MUKESH DHIRAJLAL AMABANI ANTILLA, ALTAMOUNT ROAD, CUMBALLA HILL, MUMBAI, MAHARASHTRA, PIN - 400036

16 THE ATTORNEY GENERAL OF INDIA OFFICE OF ATTORNEY GENERAL OF INDIA, SUPREME COURT OF INDIA CAMPUS, TILAK MARG, NEW DELHI, PIN - 110001

17 THE CHAIRMAN STATE BANK OF INDIA, STATE BANK BHAWAN, NARIMAN POINT, MUMBAI, PIN - 400021 W.A.No.3095 of 2025 3 2025:KER:96898

R1 AND R2 BY ADV.C.AJITHKUMAR R5 AND R8 BY SR. G.P. T.K.VIPINDAS O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF INDIA

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2025, THE COURT ON 19.12.2025 DELIVERED THE FOLLOWING: W.A.No.3095 of 2025 4 2025:KER:96898

"C.R" JUDGMENT

Anil K. Narendran, J.

The appellant, a Micro, Small and Medium Enterprise (MSME)

issued with Ext.P1 Udyam Certificate dated 24.03.2021 by the

Ministry of Micro, Small and Medium Enterprises, Government of

India, filed W.P.(C)No.46770 of 2025, invoking the writ jurisdiction

of this Court under Article 226 of the Constitution of India, seeking

the following reliefs;

"a) To declare that the notification dated 29.05.2015, in unmistakable terms, declares that the MSME-borrower has no obligation to make an application for resolution of stress and, on the contrary, that banks and financial institutions are duty-bound to identify incipient stress based on the illustrative signs indicated in Annexure-I to the RBI Circular dated 17.03.2016; and further, that in any case where the bank has failed to identify incipient stress, it is duty-bound to classify the account as SMA-1 if the default is more than 31 days and as SMA-2 if the default is more than 61 days, and thereafter shall constitute a Committee and make a reference to that Committee for resolution of stress; and further, that the Committee is empowered to permit recovery in terms of Para 5(3)(iv) if the resolution of stress is not feasible;

b) In furtherance of prayer (a) above, to declare that the judgments of the Supreme Court in Pro Knits v. Canara Bank W.A.No.3095 of 2025 5 2025:KER:96898

[(2024) 10 SCC 292] and Shree Shree Swami Samarth Construction v. The Board of Directors of NKGSB Co-op Bank [2025 SCC OnLine SC 1566] were rendered per incuriam and sub silentio and will not bind the courts and tribunals in this country under Article 141 of the Constitution, inasmuch as- (i) in Pro Knits, the Court had, contrary to the letter and spirit of the notification, observed that if the MSME had allowed its account to be classified as NPA and for recovery action to be initiated, having failed to bring to the notice of the bank that it is an MSME supported by identifiable and verifiable documents, it cannot be allowed to "thwart" the SARFAESI action at a later stage; and (ii) in Shree Shree Swami Samarth, the Court observed that if the MSME had not even replied to the notice under Section 13(2) and claimed protection as an MSME supported by an affidavit, the recovery action cannot thereafter be challenged - which, to repeat, are contrary to the very letter as well as the spirit of the notification and have created a scenario where the said judgments have been instrumental in denying the benefit of the notification to MSMEs across the country.

c) To declare that the entire proceedings initiated by the Respondent against the Petitioners under Sections 13(2), 13(4) and 14 of the SARFAESI Act, are unconstitutional, illegal and void, being in violation of Paragraph 5(4)(iii) of the notification dated 29.5.2015 under the MSMED Act and without jurisdiction for more than one reason;

d) To issue a writ in the nature of certiorari or any other appropriate writ, order or direction, calling for the entire records and proceedings leading to the classification of the Petitioners' account as a Non-Performing Asset (NPA), the W.A.No.3095 of 2025 6 2025:KER:96898

issuance of notices under Sections 13(2) and 13(4), and the order passed under Section 14 of the SARFAESI Act, 2002 as well as the records pertaining to the purported auctions conducted by the Respondent Bank.

e) to declare that insofar as the MSMED Act and the notification dated 29.05.2015 creates certain obligations and burden as against the Bank and certain rights and protection in favour of the MSME borrower in furtherance of larger public interest, and has not provided for any forum for the enforcement of the said inter se rights/adjudication of disputes, the Civil Court jurisdiction is not ousted;

f) To issue an order or direction, calling for the entire records and proceedings leading to the classification of the Petitioners' account as a Non-Performing Asset (NPA), the issuance of notices under Sections 13(2) and 13(4), and the order passed under Section 14 of the SARFAESI Act, 2002 as well as the records pertaining to the purported auctions conducted by the Respondent Bank.

g) to declare that while the Respondent Bank is entitled to enforce all remedies available in law as against the Petitioner, common law, equitable or declaratory, it can only have one forum, and that it having instituted a suit in the DRT, the SARFAESI action is without jurisdiction and void;

h) To declare that the secured asset in question not having been registered with the Central Registry, the Respondent Bank is disentitled to enforce the same by invoking the SARFAESI Act and to quash and set aside the said action for the same reason; i) pass such further and other orders as the nature and circumstances of the case may require.

W.A.No.3095 of 2025 7 2025:KER:96898

2. The interim reliefs sought for in W.P.(C)No.46770 of

2025 reads thus;

"a) Grant an ad-interim injunction restraining and prohibiting Banks and financial institutions from taking recourse to recovery of the amounts due from the petitioner/MSME under the SARFAESI Act, RDB Act, NI Act, IBC, etc., except in the manner contemplated under paragraph 5(4)(iii) of the notification;

b) Direct the respondent Bank to constitute committees for resolution of stress in the notification dated 29.05.2015, as also to the RBI to monitor the implementation of the same;

c) To restrain and prohibit the respondent Bank from confirming the auction and handing over the possession of the secured asset as also to restrain the auction purchaser from alienating the same or creating third party rights or in any manner dealing the same in case the auction has already been confirmed;

d) Pass any other order which the Hon'ble Court deems fit owing to the nature of the circumstances.

3. The notification dated 29.05.2015, referred to in the

reliefs sought for in W.P.(C)No.46770 of 2025, i.e., Framework for

Revival and Rehabilitation of Micro, Small and Medium Enterprises,

issued by the 3rd respondent Ministry of Micro, Small and Medium

Enterprises, Government of India, is marked as Ext.P2. A

communication dated 17.03.2016 of the 9th respondent Reserve

Bank of India, addressed to all Scheduled Commercial Banks W.A.No.3095 of 2025 8 2025:KER:96898

(excluding Regional Rural Banks), enclosing therewith a copy of

Framework for Revival and Rehabilitation of Micro, Small and

Medium Enterprises, is marked as Ext.P3.

4. In the writ petition, it is alleged that South Indian Bank

Ltd. did not heed the petitioner's plea not to classify its account as

a Non-Performing Asset (NPA). The Bank classified the account of

the petitioner as NPA and invoked the provisions under the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (SARFAESI Act),

without following the mandatory procedure prescribed by Exts.P2

and P3, to ascertain the possibility of revival of the MSME

Enterprise facing financial stress, or to restructure the loan,

including providing additional financial assets.

5. The document marked as Ext.P6 is a copy of a

representation dated 12.06.2024, stated to have been made by

the petitioner, to the Senior Manager of South Indian Bank Ltd.,

Angamaly North Branch, with a request for restructuring the loan

account and extension of MSME support. Ext.P6 representation

does not even contain the details of the financial assistance/

facilities availed by the petitioner. Ext.P7 is a copy of notice dated

02.08.2024 issued by the 2nd respondent Authorised Officer of W.A.No.3095 of 2025 9 2025:KER:96898

South Indian Bank Ltd, under Section 13(2) of SARFAESI Act, in

respect of the financial assistance/facilities extended to the

petitioner, M/s.G.K.Granites, a partnership firm represented by its

partners.

6. As per Ext.P7 notice, the accounts of the petitioner with

Angamaly North Branch of South Indian Bank Ltd. are classified

as NPA, on 26.06.2024. The total liability of the petitioner and its

partners, in respect of the financial assistance/facilities availed

from the Bank, as on 01.08.2024, was (i) Rs.4,23,32,455.86, (ii)

Rs.10,15,62,234.88 and (iii) Rs.3,68,13,655.49, with future

interest at the rate of 17.79% per annum, with monthly rests and

applicable penal interest/penal charges from 01.08.2024. Ext.P7

notice was followed by Ext.P8 sale notice dated 06.12.2024 issued

under Section 13(8) of the SARFAESI Act, read with Rule 8(6) of

the Security Interest (Enforcement) Rules, 2002 and Ext.P9 e-

auction sale notice dated 17.10.2025.

7. On 12.12.2025, when W.P.(C)No.46770 of 2025 came

up for admission, as 'today motion' the learned Single Judge

passed the impugned interim order, which reads thus;

'Adv. C. Ajithkumar takes notice for respondents 1 and 2. Learned Deputy Solicitor General of India takes notice for W.A.No.3095 of 2025 10 2025:KER:96898

respondents 3, 4 and 16. Learned Government Pleader takes notice for respondents 5, 6 and 8. Issue notice by speed post to respondents 6, 7, 9 and 10 to 13. Notice to respondents 14, 15 and 17 are dispensed with for the time being.

2. Espousing urgency with respect to the interim relief, this case is moved as 'Today'. Under challenge in this writ petition is the recovery proceedings initiated by respondents 1 to 9, which, according to the petitioner, are illegal for being in gross violation of Exts.P2 and P3 statutory notifications/ circulars issued by the Central Government and the Reserve Bank of India. The following are the interim reliefs sought for:

"a. Grant an ad interim injunction restraining and prohibiting Banks and financial institutions from taking recourse to recovery of the amounts due from the Petitioners/MSMEs under the SARFAESI Act, RDB Act, NI Act, IBC, etc. except in the manner contemplated under Paragraph 5(4)(iii) of the notification;

b. To direct the Respondent Banks to constitute committees for resolution of stress in terms of the notification dated 29.5.2015, as also to the RBI to monitor the implementation of the same;

c. To restrain and prohibit the Respondent Bank from confirming the auction and handing over the possession of the secured asset as also to restrain the auction purchaser from alienating the same or creating third party rights or in any manner dealing the same in the case that the auction has already been confirmed."

W.A.No.3095 of 2025 11 2025:KER:96898

3. Learned counsel for respondents 1 and 2 (Bank) would submit that the property has already been sold in auction and sale certificate has been issued, after receipt of the sale price.

4. Learned counsel for the petitioner would submit that all further proceedings pursuant to the sale certificate, including delivery of the property, has to be stayed.

5. Having perused the grounds urged in this writ petition, this Court is not inclined to grant the above relief, as sought for by the petitioner. In the circumstances, there will be an interim order to the effect that the proceedings pursuant to the issuance of the sale certificate in favour of the auction purchaser will be subject to the result of this writ petition.'

8. Challenging the interim order dated 12.12.2025 of the

learned Single Judge in W.P.(C)No.46770 of 2025, the appellant-

petitioner is before this Court in this writ appeal, invoking the

provisions under Section 5(i) of the Kerala High Court Act, 1958.

9. On 15.12.2025, when this writ appeal came up for

admission as 'today motion', we heard arguments of the learned

counsel for the appellant-petitioner, the learned counsel for South

Indian Bank Ltd. for respondents 1 and 2 and also the learned

Senior Government Pleader for respondents 5 and 8. The writ

appeal was ordered to be listed on 16.12.2025, for arguments in

reply by the learned counsel for the appellant. On 16.12.2025, we

heard arguments in reply by the learned counsel for the appellant W.A.No.3095 of 2025 12 2025:KER:96898

and further arguments by the learned counsel for South Indian

Bank Ltd. and also the learned Senior Government Pleader.

10. The learned counsel for the appellant-petitioner

contended that the learned Single Judge did not afford a

meaningful hearing to the petitioner while passing the impugned

interim order dated 12.12.2025. Therefore, the said order is a

nullity. The order dated 12.12.2025 was neither dictated nor

pronounced in open court; instead, it was passed by the learned

Single Judge in the Chambers. Therefore, the said order is a

nullity. In support of the said contention, the learned counsel for

the appellant placed reliance on the decision of a Three-Judge

Bench of the Apex Court in Surendra Singh v. State of Uttar

Pradesh [(1953) 2 SCC 468] and the decision of a Two-Judge

Bench in Institute of Chartered Accountants of India v. L.K.

Ratna [(1986) 4 SCC 537]. The learned counsel contended that

the recovery action under the SARFAESI Act is wholly

unmaintainable, violating the Micro, Small and Medium

Enterprises Act, 2006, and also Section 26D of the SARFAESI Act.

The learned counsel submitted that he is not addressing

arguments on the merits of the contentions raised in

W.P.(C)No.46770 of 2025, since the challenge made in this writ W.A.No.3095 of 2025 13 2025:KER:96898

appeal is only against the interim order dated 12.12.2025 of the

learned Single Judge, declining the interim reliefs sought for in the

writ petition, by limiting the same to the effect that the

proceedings pursuant to the issuance of sale certificate in favour

of the auction purchaser will be subject to the result of the writ

petition.

11. The learned counsel for South Indian Bank, for

respondents 1 and 2, contended that the present writ appeal is

not maintainable in law, in view of the law laid down by a Larger

Bench of this Court in K.S. Das v. State of Kerala [1992 (2)

KLT 358] and the judgment of a Division Bench in Thomas P.T.

and another v. Bijo Thomas and others [2021 (6) KLT 196].

The writ petition was moved as a 'today motion' on 12.12.2025.

When the matter was heard in open Court, and the learned Single

Judge was about to dictate the interim order, it was virtually

obstructed by Adv. Mathew J. Nedumpara, the learned counsel

who appeared for the petitioner. Therefore, the learned Single

Judge observed that orders on the interim reliefs sought for in

W.P.(C)No.46770 of 2025 shall be passed on that day itself.

Thereafter, the learned Single Judge dictated the interim order in

Chambers, and the order was uploaded immediately thereafter, on W.A.No.3095 of 2025 14 2025:KER:96898

12.12.2025 itself. The learned counsel submitted that the

appellant-petitioner had earlier approached this Court in

W.P.(C)No.41807 of 2025, challenging the very same proceedings

initiated by South Indian Bank Ltd., under the provisions of the

SARFAESI Act. On 08.12.2025, after hearing both sides, when the

judgment was being dictated in open court, the learned counsel

for the petitioner submitted that the petitioner is willing to pay to

the Bank, on 08.12.2025 itself, the bid amount in the auction

conducted, as the full and final settlement. Based on that

undertaking, the learned Single Judge passed an order dated

08.12.2025, granting time to the petitioner till 10.12.2025, 5

p.m., to pay the entire amount due to the Bank. On 11.12.2025,

Adv. Mathew J. Nedumpara entered appearance for the petitioner

in W.P.(C)No.41807 of 2025, since the earlier counsel Adv. Ranjish

S. Menon relinquished vakalath. The petitioner filed I.A.No.2 of

2025 seeking an order to recall/modify the order dated

08.12.2025 in W.P.(C)No.41807 of 2025. The learned Single Judge

dismissed W.P.(C)No.41807 of 2025, on 11.12.2025, by a separate

judgment.

12. It is averred in paragraph 3 of the affidavit dated

11.12.2025 filed in support of W.P.(C)No.46770 of 2025 that the W.A.No.3095 of 2025 15 2025:KER:96898

petitioner has not filed any cases, except W.P.(C)No.27271 of 2025

and W.P.(C)No.41807 of 2025, before this Court or any other Court

seeking similar and identical reliefs.

13. W.P.(C)No.27271 of 2025, referred to in the affidavit

filed in support of W.P.(C)No.46770 of 2025, is one filed before

this Court on 13.07.2025, by the appellant and its partners,

seeking the following reliefs against the SARFAESI proceedings

initiated by South Indian Bank Ltd., in respect of the very same

financial assistance/facilities;

"(i) To issue a writ of mandamus directing the respondents No.1 to 3 to provide 15 monthly instalments to pay the outstanding loan liability of Rs.18,17,65,411.73, as on 29.06.2025 to the petitioners and thus settle the entire financial liability burdened on them.

(ii) To issue any other writ or direction appropriate in the circumstances of this case."

14. The interim relief sought for in W.P.(C)No.27271 of

2025 reads thus;

"It is humbly prayed that this Hon'ble Court may be pleased to stay all further proceedings pursuant to Exhibit P8 e- auction sale notice issued by the respondents, pending disposal of the Writ Petition."

15. On 29.07.2025, when W.P.(C)No.27271 of 2025 came

up for admission, the learned Single Judge issued notice before W.A.No.3095 of 2025 16 2025:KER:96898

admission. The learned counsel for South Indian Bank Ltd. took

notice for the respondents. The interim order dated 29.07.2025 in

W.P.(C)No.27271 of 2025 reads thus;

"For deciding the maintainability of the writ petition and to consider the prayers seeking instalment facility and to defer further coercive steps against the petitioners, as an interim measure, there will be a direction to the petitioners to remit an amount of Rs.2.5 crores on or before 13.08.2025 and the balance 2.5 crores on or before 31.08.2025. It is made clear that if the above payment is not made, the respondents will be at liberty to proceed further, in accordance with law. Post on 16.09.2025." (underline supplied)

16. The petitioners in W.P.(C)No.27271 of 2025 failed to

remit an amount of Rs.2.5 crores on or before 13.08.2025 and the

balance 2.5 crores on or before 31.08.2025, in terms of the

directions contained in the interim order dated 29.07.2025. By the

judgment dated 16.09.2025, the learned Single Judge dismissed

W.P.(C)No.27271 of 2025, after taking note of the law laid down

by the Apex Court in South Indian Bank Ltd. v. Naveen

Mathew Philip [(2023) 17 SCC 311], without prejudice to the

right of the petitioners to challenge the measures taken by the

secured creditor as provided under the SARFAESI Act, if so W.A.No.3095 of 2025 17 2025:KER:96898

advised. Paragraphs 2 to 5 and also the last paragraph of that

judgment read thus;

"2. An interim order was passed by this court on 29.07.2025 as follows;

Notice before admission. The learned Standing Counsel takes notice for the respondents. For deciding the maintainability of the writ petition and to consider the prayers seeking instalment facility and to defer further coercive steps against the petitioners, as an interim measure, there will be a direction to the petitioners to remit an amount of Rs.2.5 crores on or before 13.08.2025 and the balance 2.5 crores on or before 31.08.2025. It is made clear that if the above payment is not made, the respondents will be at liberty to proceed further, in accordance with law. Post on 16.09.2025.

3. It is not disputed before me that the above order has not been complied with by the petitioners.

4. This Court exercises very limited jurisdiction in matters arising under the SARFAESI Act, as repeatedly held by the Honourable Supreme Court in several judgments, including in South Indian Bank Ltd. v. Naveen Mathew Philip [(2023)

17 SCC 311] 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. When this Court is approached with a prayer to permit the borrowers W.A.No.3095 of 2025 18 2025:KER:96898

to clear the liability in instalments, the borrowers must prove bona fides. The non-compliance of the interim order indicates that the petitioners in this case have not shown any bona fides to enable this Court to permit them to clear the liability in instalments.

5. Therefore, I find no reason to grant the reliefs sought for in this writ petition, and the same will stand dismissed without prejudice to the right of the petitioners to challenge the measures taken by the secured creditor as provided under the SARFAESI Act, if so advised.

The writ petition is dismissed as above." (underline supplied)

17. W.P.(C)No.41807 of 2025, referred to in the affidavit

filed in support of W.P.(C)No.46770 of 2025, is another writ

petition filed by the appellant herein before this Court on

06.11.2025, seeking the following reliefs against the SARFAESI

proceedings initiated by South Indian Bank Ltd., in respect of the

very same financial assistance/facilities;

"(a) issue a writ of mandamus or any other appropriate Writ, order or direction, thereby directing the respondent Bank to recall the classification of petitioner MSME account as NPA and forward the accounts to the Stress Committee for deciding a Corrective Action Plan in accordance with the regulations in the prescribed Framework; and

(b) issue a writ of certiorari or any other appropriate Writ, order or direction, thereby quashing (i) the notice vide which the accounts of the petitioner MSME were classified as NPA as on 26.06.2024 and (ii) all proceedings emanating from W.A.No.3095 of 2025 19 2025:KER:96898

and initiated in pursuance of the classification of the petitioner's credit facility account as NPA; and

(c) Pass such other order(s) and/or direction(s) as this Hon'ble Court, in light of the facts and circumstances of the present case, deem appropriate and necessary, in the interest of justice."

18. The interim reliefs sought for in W.P.(C)No.41807 of

2025 read thus;

"(a) direct the Respondents to maintain status quo with respect to the assets of the petitioner MSME secured with the respondent Bank; and

(b) pass such other order(s) or direction(s) that this Hon'ble Court deems fit in the facts and circumstances of the case, in the interest of justice and equity."

19. On 05.12.2025, when W.P.(C)No.41807 of 2025 came

up for admission, the learned Single Judge passed the following

order;

"The counsel for the respondent will specifically get instructions as to what is the amount in arrears in the petitioner's loan account. It is clarified that the data to be furnished before this Court is with respect to the arrears only; and not with respect to the entire outstanding amount. Let the data be made available by 08.12.2025."

20. On 08.12.2025, when W.P.(C)No.41807 of 2025 came

up for consideration before another learned Single Judge, the

following order was passed;

W.A.No.3095 of 2025 20 2025:KER:96898

"After hearing both parties, when the judgment was being dictated, the learned counsel for the petitioner made a submission, upon receiving instructions from the client, that the party is willing to pay the bid amount in the auction conducted, today itself, as full and final settlement, due to the Bank.

2. The learned counsel for the Bank was directed to get instructions whether they are amenable to accept the bid amount as one time settlement. The learned counsel submits that the Bank is ready and willing to accept the amount, provided the amount is deposited by 5 pm on today itself.

3. The learned counsel for the petitioner submits that since it is difficult for him to raise such a huge amount before 5 p.m. today, he seeks a breathing time to pay the same. Since tomorrow (09.12.2025) is a non-working day for the Bank due to the Kerala Local Body Election, the petitioner is unable to arrange the fund and remit it tomorrow. Hence, he seeks time till 5 p.m on 10.12.2025.

4. Taking note of the fact that the property is having an extent of 59.42 Ares sold today in the e-auction, and the petitioner has come forward to pay the entire amount on or before 5 p.m on 10.12.2025, I am inclined to grant time to the petitioner till 5 p.m on 10.12.2025.

The amount deposited amounting to 25% by the auction purchaser shall be kept in a separate account and the balance 75% need not be accepted for the time being. If the petitioner does not remit the amount of Rs.19,82,32,000/- (Rupees Nineteen crore eighty two lakhs thirty two thousand only), the Bank is free to accept the balance 75% from the W.A.No.3095 of 2025 21 2025:KER:96898

auction purchaser and proceed in accordance with law. Till the next date of posting, the sale certificate shall not be issued."

21. On 11.12.2025, when W.P.(C)No.41807 of 2025 came

up for further consideration, Adv. Mathew J. Nedumpara entered

appearance for the petitioner, since the earlier counsel Adv.

Ranjish S. Menon relinquished vakalath. The petitioner filed

I.A.No.2 of 2025 seeking an order to recall/modify the order dated

08.12.2025 to the extent which it permits the confirmation of the

auction in the event of the petitioner failing to pay the bid amount

of Rs.19,82,32,000/- on or before 5 p.m. on 11.12.2025 and

further to stay the entire proceedings under Sections 13(2), 13(4)

and 14 of the SARFAESI Act and the rules thereunder. By the order

dated 11.12.2025, the learned Single Judge dismissed I.A.No.2 of

2025 in W.P.(C)No.41807 of 2025. The said order reads thus;

'Today, Sri. Adv. Mathew J. Nedumpara appears and has filed vakalath after relinquishing the vakalath held by Sri. Ranjish S. Menon.

2. In the order dated 08.12.2025, it is specifically stated that both the parties were heard fully and when the judgment was dictated in full and the Writ Petition was about to be dismissed, the counsel for the petitioner has made a submission, on instructions from the petitioner that he is willing to pay the bid amount in the auction conducted W.A.No.3095 of 2025 22 2025:KER:96898

provided, the bank accepts the same as full and final settlement towards the loan. The bank, on instructions, submitted that they are ready to accept the bid amount as full and final settlement, provided the amount is deposited by 5 pm today (08.12.2025) itself.

3. In such circumstances only, though the judgment was dictated fully, as an indulgence, the petitioner was granted a time till 5.00 p.m. on 10.12.2025, taking note of the fact that 09.12.2025 was a non working day for the bank due to the Kerala local body elections. The present petition is filed for modification of the order dated 08.12.2025 with the present prayer as follows:-

"To recall/modify the order dated 08.12.2025 to the extent which it permits the confirmation of the auction in the event of the Petitioner failing to pay the bid amount of Rs. 19,82,32,000/- on or before 5p.m on 11.12.2025 and further to stay the entire proceedings under Section 13(2), 13(4) and 14 the SARFAESI Act and the rules thereunder;"

4. In paragraph No.9 of the affidavit, the counsel for the petitioner has averred that this court was not inclined to allow the W.P. and when it was almost dismissed, the counsel, in his anxiety, to protect the interest of his client from inequality and injustice, after consulting with the petitioner, made the submission that he is willing to pay the bid amount on 8.12.2025. Since the petitioner has not complied with the undertaking that he will remit the bid amount for which time was given till 5 pm on 10.12.2025, I am not inclined to grant the prayer sought for in this I.A. Accordingly, this I.A. stands dismissed.' W.A.No.3095 of 2025 23 2025:KER:96898

22. It is submitted at the Bar, by the learned counsel for

the appellant and the learned counsel for South Indian Bank Ltd.,

for respondents 1 and 2, that the learned Single Judge dismissed

W.P.(C)No.41807 of 2025 on 11.12.2025, by a separate judgment

dictated in open court.

23. On 12.12.2025, the appellant-petitioner moved

W.P.(C)No.46770 of 2025 before the learned Single Judge, as

'today motion', seeking the reliefs extracted hereinbefore in the

1st paragraph against the SARFAESI proceedings initiated by South

Indian Bank Ltd., in respect of the very same financial

assistance/facilities. Relief (b) sought for in W.P.(C)No.46770 of

2025, in furtherance of relief (a), is a declaration that the

judgments of the Supreme Court in Pro Knits v. Canara Bank

[(2024) 10 SCC 292] and Shree Shree Swami Samarth

Construction v. The Board of Directors of NKGSB Co-op

Bank [2025 SCC OnLine SC 1566] were rendered per incuriam

and sub silentio and will not bind the courts and tribunals in this

country under Article 141 of the Constitution, inasmuch as- (i) in

Pro Knits, the Court had, contrary to the letter and spirit of the

notification, observed that if the MSME had allowed its account to

be classified as NPA and for recovery action to be initiated, having W.A.No.3095 of 2025 24 2025:KER:96898

failed to bring to the notice of the bank that it is an MSME

supported by identifiable and verifiable documents, it cannot be

allowed to "thwart" the SARFAESI action at a later stage; and (ii)

in Shree Shree Swami Samarth, the Court observed that if the

MSME had not even replied to the notice under Section 13(2) and

claimed protection as an MSME supported by an affidavit, the

recovery action cannot thereafter be challenged - which are

contrary to the very letter as well as the spirit of the notification

and have created a scenario where the said judgments have been

instrumental in denying the benefit of the notification to MSMEs

across the country.

24. The appellant and its partners had earlier approached

this Court in W.P.(C)No.27271 of 2025 seeking reliefs against the

SARFAESI proceedings initiated by South Indian Bank Ltd., in

respect of the very same financial assistance/facilities. The said

writ petition was dismissed by the judgment dated 16.09.2025,

after taking note of the law laid down by the Apex Court in South

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

311], without prejudice to the right of the petitioners to challenge

the measures taken by the secured creditor as provided under the

SARFAESI Act, if so advised.

W.A.No.3095 of 2025 25 2025:KER:96898

25. In Naveen Mathew Philip [(2023) 17 SCC 311], in

the context of the challenge made against the notices issued under

Section 13(4) of the SARFAESI Act, the Apex Court reiterated the

settled position of law on the interference of the High Court

invoking Article 226 of the Constitution of India in commercial

matters, where an effective and efficacious alternative forum has

been constituted through a statute. In the said decision, the Apex

Court took judicial notice of the fact that certain High Courts

continue to interfere in such matters, leading to a regular supply

of cases before the Apex Court. The Apex Court reiterated that a

writ of certiorari is to be issued over a decision when the court

finds that the process does not conform to the law or the statute.

In other words, courts are not expected to substitute themselves

with the decision-making authority while finding fault with the

process along with the reasons assigned. Such a writ is not

expected to be issued to remedy all violations. When a Tribunal is

constituted, it is expected to go into the issues of fact and law,

including a statutory violation. A question as to whether such a

violation would be over a mandatory prescription as against a

discretionary one is primarily within the domain of the Tribunal.

The issues governing waiver, acquiescence and estoppel are also W.A.No.3095 of 2025 26 2025:KER:96898

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.

26. 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 W.A.No.3095 of 2025 27 2025:KER:96898

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.

W.A.No.3095 of 2025 28 2025:KER:96898

27. In W.P.(C)No.46770 of 2025, at paragraph 6 of the

statement of facts, the appellant-petitioner has stated that in

W.P.(C)No.27271 of 2025 filed by the petitioner seeking 15

monthly installments to discharge its liability, this Court directed

payment of Rs.2.5 crores each by 13.08.2025 and 31.08.2025,

and the case was dismissed by the judgment dated 16.09.2025

due to non-compliance with the interim order by the petitioner. A

copy of the judgment dated 16.09.2025 in W.P.(C)No.27271 of

2025 is not marked as an exhibit in W.P.(C)No.46770 of 2025,

though in both the writ petitions, reliefs are sought against the

SARFAESI proceedings initiated by South Indian Bank Ltd., in

respect of the very same financial assistance/facilities. As already

noticed hereinbefore, by the judgment dated 16.09.2025, the

learned Single Judge dismissed W.P.(C)No.27271 of 2025, after

taking note of the law laid down by the Apex Court in South

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

311], without prejudice to the right of the petitioners to challenge

the measures taken by the secured creditor as provided under the

SARFAESI Act, if so advised. Therefore, a factually incorrect

statement has been made by the appellant-petitioner in

W.P.(C)No.46770 of 2025, at paragraph 6 of the statement of W.A.No.3095 of 2025 29 2025:KER:96898

facts, that the dismissal of W.P.(C)No.27271 of 2025, by the

judgment dated 16.09.2025, was due to non-compliance with the

interim order by the petitioner.

28. As stated by Scrutton, L.J, in R. v. Kensington

Income Tax Commissioners [(1917) 1 K.B. 486], an

applicant who does not come with candid facts and 'clean breast'

cannot hold a writ of the court with 'soiled hands'. Suppression or

concealment of material facts is not an advocacy. It is a jugglery,

manipulation, manoeuvring or misrepresentation, which has no

place in equitable and prerogative jurisdiction.

29. In Prestige Lights Limited v. State Bank of India

[(2007) 8 SCC 449], the Apex Court reiterated that a

prerogative remedy is not a matter of course. Therefore, in

exercising extraordinary power, a writ court will indeed bear in

mind the conduct of the party who is invoking such jurisdiction. If

the applicant does not disclose full facts or suppress relevant

materials or is otherwise guilty of misleading the court, the Court

may dismiss the action without adjudicating the matter. This rule

has been evolved in the larger public interest to deter

unscrupulous litigants from abusing the process of the court by

deceiving it. The very basis of the writ jurisdiction rests on the W.A.No.3095 of 2025 30 2025:KER:96898

disclosure of true, complete and correct facts. If the material facts

are not candidly stated or are suppressed or are distorted, the

very functioning of the writ courts would become impossible.

30. In Prestige Lights Limited [(2007) 8 SCC 449], the

Apex Court held further that, under Article 226 of the Constitution

of India, the High Court is exercising discretionary and

extraordinary jurisdiction. Over and above, a Court of Law is also

a Court of Equity. It is, therefore, of utmost necessity that when a

party approaches a High Court, he must place all the facts before

the court without any reservation. If there is suppression of

material facts on the part of the applicant or twisted facts have

been placed before the court, the writ court may refuse to

entertain the petition and dismiss it without entering into the

merits of the matter.

31. In W.P.(C)No.46770 of 2025, at paragraph 6 of the

statement of facts, the appellant-petitioner has placed reliance on

Ext.P18 judgment dated 06.08.2025 of a learned Single Judge in

W.P.(C)No.5466 of 2025 - M/s.PDMC Industries v. Ministry of

Micro, Small and Medium Enterprises. The said judgment was

set aside by the Division Bench, by the judgment dated

12.12.2025 in W.A.No.2281 of 2025 - South Indian Bank v.

W.A.No.3095 of 2025 31 2025:KER:96898

M/s. PDMC Industries - [2025 KHC OnLine 1307], holding

that the 'Henderson Principle' operates on the broader contours of

judicial propriety and fairness, ensuring that the judicial system

remains an instrument of justice rather than a platform for

procedural manipulation. Judicial propriety demands that courts

maintain the finality and integrity of their decisions, preventing

repeated challenges to settled matters. Once a matter has been

adjudicated, it should not be revisited unless exceptional

circumstances warrant such reconsideration. Repeated litigation of

the same issue not only wastes judicial resources but also subjects

the opposing party to unnecessary expense and harassment.

judicial processes are not merely technical mechanisms but are

rooted in principles of equity and justice.

32. On the question of maintainability of a writ appeal

under Section 5(i) of the Kerala High Court Act, 1958, against an

interim order passed by the learned Single Judge, during the

pendency of the writ petition, the Larger Bench of this Court in K.

S. Das v. State of Kerala [1992 (2) KLT 358] held that the

word 'order' in Section 5(i) of the Kerala High Court Act includes,

apart from other orders, orders passed by the High Court in

miscellaneous petitions filed in the writ petitions provided the W.A.No.3095 of 2025 32 2025:KER:96898

orders are to be in force pending the writ petition. An appeal would

lie against such orders only if the orders substantially affect or

touch upon the substantial rights or liabilities of the parties or are

matters of moment and cause substantial prejudice to the parties. The nature of the 'order' appealable belongs to the category of

'intermediate orders' referred to by the Apex Court in Madhu

Limaye v. State of Maharashtra [(1977) 4 SCC 551]. The

word 'order' is not confined to 'final order' which disposes of the

writ petition. The 'orders' should not, however, be ad-interim

orders in force pending the miscellaneous petition or orders

merely of a procedural nature.

33. In Thomas P. T. and another v. Bijo Thomas and

others [2021 (6) KLT 196], a Division Bench of this Court

noticed that the view that was upheld by the Larger Bench in K.S.

Das [1992 (2) KLT 358] was that even though an appeal could

be filed against an interlocutory order passed in a writ petition, in

order to be qualified for challenge in an appeal, the order shall be

either substantially affecting or touching upon the substantial

rights or liabilities of the parties or which are matters of moment

and cause substantial prejudice to the parties. According to the

Larger Bench, the nature of the order appealable belongs to the W.A.No.3095 of 2025 33 2025:KER:96898

category of intermediate orders referred to by the Apex Court in

Madhu Limaye [(1977) 4 SCC 551]. It was, however, clarified

by the Larger Bench that such orders should not, however, be ad

interim orders or orders merely of a procedural nature.

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

W.P.(C)No.27271 of 2025 filed by appellant-petitioner in which

reliefs were sought against the SARFAESI proceedings initiated by

South Indian Bank Ltd., in respect of the very same financial

assistance/facilities, ended in dismissal by the judgment dated

16.09.2025, after taking note of the law laid down by the Apex

Court in South Indian Bank Ltd. v. Naveen Mathew Philip

[(2023) 17 SCC 311], without prejudice to the right of the

petitioners to challenge the measures taken by the secured

creditor as provided under the SARFAESI Act, if so advised.

Instead of invoking the statutory remedy provided under the

SARFAESI Act, the appellant has chosen to file writ petitions before

this Court, raising repeated challenges against the SARFAESI

proceedings initiated by South Indian Bank Ltd., in respect of the

very same financial assistance/facilities. In the impugned interim

order dated 12.12.2025, the learned Single Judge, after quoting

the interim reliefs sought for in W.P.(C)No.46770 of 2025, granted W.A.No.3095 of 2025 34 2025:KER:96898

an interim order to the effect that the proceedings pursuant to the

issuance of the sale certificate in favour of the auction purchaser

will be subject to the result of this writ petition. In the said order,

the learned Single Judge has also noticed the submission made by

the learned counsel for South Indian Bank Ltd., for respondents 1

and 2, that the property has already been sold in auction and a

sale certificate has been issued after receipt of the sale price. In

the above circumstances, no interference is warranted on the

interim order dated 12.12.2025 of the learned Single Judge in

W.P.(C)No.46770 of 2025, to the extent of declining the interim

reliefs sought for in that writ petition, by limiting the same to the

effect that the proceedings pursuant to the issuance of sale

certificate in favour of the auction purchaser will be subject to the

result of W.P.(C)No.46770 of 2025, in this intra-court appeal filed

under Section 5(i) of the Kerala High Court Act, 1958.

35. Relying on the decision of a Three-Judge Bench of the

Apex Court in Surendra Singh v. State of Uttar Pradesh

[(1953) 2 SCC 468] and also the decision of a Two-Judge Bench

in Institute of Chartered Accountants of India v. L.K. Ratna

[(1986) 4 SCC 537], the learned counsel for the appellant-

petitioner would contend that the impugned interim order dated W.A.No.3095 of 2025 35 2025:KER:96898

12.12.2025 of the learned Single Judge is a nullity, since it was

neither dictated nor pronounced in open Court, and the said order

is passed without affording a meaningful hearing to the petitioner.

36. In Surendra Singh [(1953) 2 SCC 468] in the

context of Section 369 of the Code of Criminal Procedure 1898,

the Apex Court held that a judgment is the final decision of the

Court intimated to the parties and to the world at large by formal

'pronouncement' or 'delivery' in open court. After the judgment

has been delivered provision is made for review. In L.K. Ratna

[(1986) 4 SCC 537], in the context of disciplinary proceedings

under Section 21 of the Chartered Accountants Act, 1949, the

Apex Court noticed the legal principle that a failure of natural

justice in the trial body cannot be cured by a sufficiency of natural

justice in an appellate body.

37. In the case at hand, during the course of arguments,

the specific submission made by the learned counsel for South

Indian Bank Ltd., for respondents 1 and 2, is that when

W.P.(C)No.46770 of 2025, which was moved as a 'Today motion'

came up for consideration on 12.12.2025 (Friday), the learned

Single Judge heard the matter in open Court, and when the

learned Single Judge was about to dictate the interim order, it was W.A.No.3095 of 2025 36 2025:KER:96898

virtually obstructed by Adv. Mathew J. Nedumpara, the learned

counsel who appeared for the petitioner. Therefore, the learned

Single Judge observed that orders on the interim reliefs sought for

in W.P.(C)No.46770 of 2025 shall be passed on that day itself.

Thereafter, the learned Single Judge dictated the interim order in

Chambers, and the order was uploaded immediately thereafter, on

12.12.2025 itself.

38. As already noticed hereinbefore, one of the reliefs

sought for in W.P.(C)No.46770 of 2025 is a declaration that the

judgments of the Supreme Court in Pro Knits v. Canara Bank

[(2024) 10 SCC 292] and Shree Shree Swami Samarth

Construction v. The Board of Directors of NKGSB Co-op

Bank [2025 SCC OnLine SC 1566] were rendered per incuriam

and sub silentio and will not bind the courts and tribunals in this

country under Article 141 of the Constitution. If as a matter of

fact, what transpired in the court on 12.12.2025 is as submitted

by the learned counsel for the South Indian Bank Ltd., for

respondents 1 and 2, the learned Single Judge cannot be found

fault with in adopting the procedure stated hereinbefore, in order

to uphold the dignity and decorum of the court. In such

circumstances, the contention of the learned counsel for the W.A.No.3095 of 2025 37 2025:KER:96898

appellant-petitioner that the impugned order dated 12.12.2025 of

the learned Single Judge in W.P.(C)No.46770 of 2025 is a nullity

and that it is one passed without affording a meaningful hearing

to the petitioner can only be repelled as untenable and we do so.

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

interfere with the interim order dated 12.12.2025 of the learned

Single Judge in W.P.(C)No.46770 of 2025.

This writ appeal fails and the same is accordingly dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

MURALEE KRISHNA S., JUDGE

bkn/-