The South Indian Bank vs M/S. Pdmc Industries

2 M/S PDMC CO-RUBBER, HAVING ITS REGISTERED ADDRESS AT III/123-129, CRUMB RUBBER FACTORY, PDMC CO RUBBER BUILDING, 2025:KER:95432 W.A.No.2281 of 2025 2

MUTTOM P.O., THODUPUZHA, IDUKKI-685 587, REPRESENTED BY ITS PROPRIETOR, BOBBY ISAAC MATHEW

3 BOBBY ISSAC MATHEW, AGED 53 YEARS RESIDING AT THAZHATHU PULINGAPPALLIL, ATHIRAMPUZHA ROAD, ETTUMANOOR P.O., KOTTAYAM, PIN - 686631

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

BY ADVS. SMT.NISHA GEORGE SHRI.T.C. KRISHNA, SENIOR PANEL COUNSEL SRI.GEORGE POONTHOTTAM (SR.)

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.10.2025, THE COURT ON 12.12.2025 DELIVERED THE FOLLOWING: 2025:KER:95432 W.A.No.2281 of 2025 3

"C.R" JUDGMENT

Anil K. Narendran, J.

The 2nd respondent in W.P.(C)No.5466 of 2025 has filed this

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

Kerala High Court Act, 1958, challenging the judgment dated

06.08.2025 of the learned Single Judge in that writ petition, which

was one filed by respondents herein-petitioners, invoking the writ

jurisdiction of this Court under Article 226 of the Constitution of

India, seeking the following reliefs;

"i) Issue a writ of certiorari calling for the records leading to Exts.P8, P8(a) and P8 (b) whereby the loan facility was recalled;

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

iii) Issue a writ declaring that the petitioner is entitled to the benefits as per Exts.P3 and P4 and the denial otherwise is violative of the fundamental rights of the petitioners;

iv) Issue a writ of certiorari calling for the records leading to Exts.P23 and P25 orders as well as P24 and P26 notices and all further actions taken thereunder and to quash the same;

v) Issue a writ declaring that the action taken to take possession of the property given as security towards KCC 2025:KER:95432 W.A.No.2281 of 2025 4

loan is a device resorted to defeat the MSME benefits, which the petitioner is entitled and the action is nothing but a fraud on power."

2. The interim relief sought for in W.P.(C)No.5466 of 2025

reads thus;

"For the reasons stated above, it is most respectfully prayed that this Hon'ble Court may be pleased to stay all action initiated and taken which resulted in the issuance of Exts.P23 and P25 orders, and further actions pursuant thereto, including Exts.P24 and P26 notices, pending disposal of the writ petition, in the interest of justice."

3. Going by the averments in the writ petition, the 1 st

petitioner M/s.PDMC Industries is a partnership firm engaged in

metal crushing and M-sand production, having Udyam registration

for Micro, Small and Medium Enterprise (MSME), on 27.11.2020,

as per Ext.P1 Udyam registration certificate dated 17.08.2024,

issued by the 1st respondent Ministry of Micro, Small and Medium

Enterprises, Government of India. The 2nd petitioner M/s.PDMC

Co-Rubber is a proprietary concern engaged in the business of

rubber processing, having Udyam registration for MSME, on

27.11.2020, as per Ext.P2 Udyam registration certificate dated

17.08.2024. The 3rd petitioner is the Managing Partner of

M/s.PDMC Industries and the proprietor of M/s.PDMC Co-Rubber.

2025:KER:95432 W.A.No.2281 of 2025 5

The details of the financial assistance/facilities availed by the 1 st

petitioner and the 2nd petitioner from the 2nd respondent South

Indian Bank are stated in sub-paragraphs (A) and (B) of paragraph

2 of the statement of facts of W.P.(C)No.5466 of 2025. The details

of the Kisan Credit Card overdraft facility availed by the 3 rd

petitioner and his brother Cyriac Mathew are stated sub-paragraph

(C) of paragraph 2 of the statement of facts of the said writ

petition. Along with the writ petition, the petitioners have placed

on record Exts.P1 to P28(a) documents. The document marked as

Ext.P3 is a copy of the notification dated 29.05.2015 issued by the

1st respondent Ministry, namely, the Framework for Revival and

Rehabilitation of Micro, Small and Medium Enterprises; Ext.P4 is a

copy of Reserve Bank of India [Lending to Micro, Small and

Medium Enterprises (MSME) Sector] Directions, 2016; Ext.P8 is a

copy of loan recall notice dated 19.04.2023 issued by the 2nd

respondent Bank to petitioners 1 and 2 and also to Cyriac Mathew,

after the issuance of Ext.P7 notice dated 12.04.2023, classifying

the loan account of the 1st petitioner as Non-Performing Asset

(NPA), with effect from 29.03.2023; Ext.P8(a) is a copy of loan

recall notice dated 02.05.2023 in respect of the loan availed by 2025:KER:95432 W.A.No.2281 of 2025 6

the 2nd petitioner; Ext.P8(b) is a copy of loan recall notice dated

02.05.2023 in respect of the loan availed by the 3rd petitioner and

his brother Cyriac Mathew; Ext.P23 is a copy of order dated

25.11.2024 of the Chief Judicial Magistrate Court in in M.C.No.816

of 2024 in a petition filed by the 2nd respondent Bank, against the

1st petitioner, the 3rd petitioner, his wife Sunitha Sebastain and his

brother Cyriac Mathew, invoking the provisions under Section 14

of the Securitization and Reconstruction of Financial Assets and

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

seeking the assistance of the court to take possession of the

secured asset; Ext.P24 is a copy of the notice dated 16.12.2024

issued by the Advocate Commissioner appointed by Ext.P23 order;

Ext.P25 is a copy of order dated 27.11.2024 of the Chief Judicial

Magistrate Court in in M.C.No.830 of 2024 in a petition filed by the

2nd respondent Bank, against the 3rd petitioner, his wife Sunitha

Sebastain and his brothers Cyriac Mathew and Sebastain Mathew,

invoking the provisions under Section 14 of SARFAESI Act, seeking

the assistance of the court to take possession of the secured asset;

Ext.P26 is a copy of the notice dated 21.12.2024 issued by the

Advocate Commissioner appointed by Ext.P25 order.

2025:KER:95432 W.A.No.2281 of 2025 7

4. In W.P.(C)No.5466 of 2025, the 2nd respondent South

Indian Bank filed a counter affidavit dated 24.03.2025, opposing

the reliefs sought for, producing therewith Exts.R2(a) to R2(j)

documents. Along with I.A.No.1 of 2025 in W.P.(C)No.5466 of

2025, the petitioners produced Ext.P29 e-auction sale notice dated

24.03.2025 issued by the Authorised Officer of the 2nd respondent

Bank. The petitioners filed a reply affidavit dated 07.04.2025 to

the counter affidavit filed by the 2nd respondent Bank, producing

therewith Exts.P30 to P31(f) documents. Along with I.A.No.3 of

2025, the petitioners produced Exts.P32 to P34 documents. Along

with I.A.No.6 of 2025, the petitioners produced Exts.P35 and P36

documents. Along with I.A.No.7 of 2025, the petitioners produced

Ext.P37 document.

5. The learned Single Judge, by the impugned judgment

dated 06.08.2025, partly allowed W.P.(C)No.5466 of 2025. The

learned Single Judge found that a combined reading of the

judgments in Pro Knits v. Canara Bank [(2024) 10 SCC 292]

and Shri Shri Swami Samarth Construction and Finance

Solution v. NKGSB Coop. Bank Ltd. [2025 SCC OnLine SC

1566] makes it clear that Banks are mandatorily required to 2025:KER:95432 W.A.No.2281 of 2025 8

identify incipient stress and classify MSME accounts under the

Special Mention Account (SMA) categories before declaring them

as NPAs, provided the MSME furnishes authenticated and verifiable

documents establishing its status under the Micro, Small and

Medium Enterprises Development Act, 2006 (MSMED Act). While

Pro Knits [(2024) 10 SCC 292] held that this obligation arises

only upon production of such material before NPA classification,

Shri Shri Swami Samarth Construction and Finance

Solution [2025 SCC OnLine SC 1566] clarified that even if the

Bank has no prior knowledge, once the borrower, in its reply to

the Section 13(2) notice, asserts that it is an MSME and claims the

benefit of the framework citing reasons supported by an affidavit,

the Bank is mandatorily bound to look into such claim and keep

SARFAESI proceedings in abeyance. Both cases caution that

MSMEs cannot raise their status belatedly, after SARFAESI actions

have concluded or failed in litigation. On the facts of the case at

hand, the learned Single Judge found that both the 1st and 2nd

petitioners claimed the benefit of Exts.P3 and P4 notifications

through communication dated 20.03.2023 and 29.03.2023, well

before their accounts were classified as NPAs on 29.03.2023 and 2025:KER:95432 W.A.No.2281 of 2025 9

06.04.2023, respectively. Therefore, the Bank was bound to

comply with the relevant notifications applicable to the MSME

enterprises. In the absence of any material, compliance with the

mandatory structure and procedure under Clause 3 of the MSME

Framework in Ext.P3 notification remains unsubstantiated. A

perusal of Exts.R2(i) and R2(j) minutes of the Committee confirms

that the Committee comprised only internal Bank officials, such as

the DGM, Chief Manager, Assistant General Manager, Manager, and

Assistant Manager, with no indication of any external or

Government representation. Thus, it is clear that there has been

no consideration by a Committee as envisaged under Clause 3 of

the MSME Framework in Ext.P3 notification, which is mandatory.

Accordingly, it follows that the Bank has not complied with the

specific conditions in Exts.P3 and P4 Notifications, in particular

Clause 1, Clause 3, Clause 5 of Ext.P3 and Clause 2.1, Clause 4.8

of Ext.P4, before classifying the accounts of the 1st and 2nd

petitioners as NPAs, thus breaching the principles laid down by the

Apex Court in the judgments referred above. The Bank did not

specifically respond to this assertion of non-communication, but

merely stated in paragraph 8 of the counter that the 1st petitioner 2025:KER:95432 W.A.No.2281 of 2025 10

is "well aware" of the Committee's rejection, a vague claim

unsupported by any material showing actual communication of

Exts.R2(h) and R2(i). Non-communication of the alleged

consideration also violates the intent of the notification.

6. In paragraphs 29 to 31 of the impugned judgment

dated 06.08.2025, the learned Single Judge dealt with the

objection raised by the 2nd respondent Bank on the maintainability

of W.P.(C)No.5466 of 2025. Paragraphs 29 to 31 of the impugned

judgment read thus;

"29. As regards the maintainability of the instant writ petition, it is to be noted that the classification of an account as NPA is a distinct and preliminary act having serious civil consequences, more so when it is in breach of the judgments referred to earlier, besides the notifications concerned. As such, the classification of the accounts of the first and the second petitioners is clearly illegal and liable to be declared so. The grievance of a borrower regarding asset classification and consequential invocation of the SARFAESI Act by issuing notice under Section 13(2) of the SARFAESI Act cannot be redressed under Section 17 of the SARFAESI Act, in the absence of invocation of Section 13(4) of the SARFAESI Act, and judicial review under Article 226 is the only remedy.

30. The remedy under Section 17 is only against the invocation of Section 13(4) of the SARFAESI Act, after a 2025:KER:95432 W.A.No.2281 of 2025 11

legal and valid classification of the accounts as NPA. In the present case, although proceedings under Section 13(4) have since been initiated, the foundational challenge is not to the recovery steps themselves but to the very legality of the NPA classification on the ground that the mandatory procedure prescribed under Exts.P3 and P4 was not followed. This renders the classification as NPA illegal, given the position of law reinforced by the decisions in Pro Knits v. Canara Bank [(2024) 10 SCC 292] and Shri Shri Swami Samarth Construction and Finance Solution v. NKGSB Coop. Bank Ltd. [2025 SCC OnLine SC 1566], that the RBI Framework is binding and must be complied with before NPA classification in MSME accounts. Since the petitioners' grievance arises at the threshold stage of wrongful classification itself, and it cannot be redressed under Section 17 of the SARFAESI Act, the writ petition is therefore maintainable under Article 226 of the Constitution.

31. The objection raised by the respondent Bank that the writ petition is barred by res judicata due to the filing of the earlier writ petitions, W.P.(C)Nos. 29909, 32498, and 32643 of 2023, and subsequent proceedings in R.P.Nos.535 and 536 of 2024 and W.A.Nos.787, 806, and 835 of 2024, also cannot be sustained. In W.P.(C)No.44147 of 2024, the last in the series of petitions, this Court had expressly left all contentions of the petitioners open. Given the above, none of the judgments cited by the respondent apply to the facts of the case." (underline supplied)

7. After repelling the contention raised by the 2nd

respondent Bank on the maintainability of W.P.(C)No.5466 of 2025:KER:95432 W.A.No.2281 of 2025 12

2025, the learned Single Judge allowed the writ petition in part,

declaring that the 1st and 2nd petitioners are entitled to the

benefits as per Exts.P3 and P4 notifications. The learned Single

Judge quashed Ext.P9 notice dated 02.06.2023 issued by the 2nd

respondent Bank, under Section 13(2) of the SARFAESI Act, in

respect of the financial assistance/facilities availed by the 1st

petitioner and Ext.P16 notice dated 31.07.2023 issued by the 2 nd

respondent Bank, under Section 13(2) of the SARFAESI Act, in

respect of the financial assistance/facilities availed by the 2 nd

petitioner. Consequently, there is a direction to the 2nd respondent

Bank to comply with Exts.P3 and P4 notifications, as far as the 1st

and 2nd petitioners are concerned, and, it is ordered that, only

after the said compliance and based on the decision thereon, the

Bank shall decide on the classification of the accounts of the 1 st

and 2nd petitioners as NPA to proceed under the SARFAESI Act.

8. Challenging the judgment dated 06.08.2025 of the

learned Single Judge in W.P.(C)No.5466 of 2025, the appellant-2nd

respondent Bank is before this Court in this writ appeal.

9. Along with this writ appeal, the appellants have placed

on record, Annexures A1 to A4 documents. Paragraphs 7 of the 2025:KER:95432 W.A.No.2281 of 2025 13

statement of facts of W.A.No.2281 of 2025 reads thus;

"7. In this regard, it is humbly submitted that the said writ petition, i.e., W.P.(C)No.44147 of 2024, was filed by the writ petitioner, contending that another writ petition is pending before the Bombay High Court. The copy of the aforesaid writ petition, i.e., W.P.(C)No.44147 of 2024 dated 09.12.2024, is produced as Annexure A1. The copy of the judgment dated 18.02.2025 in W.P.(C)No.44147 of 2024 is also produced as Annexure A2. The copy of W.P.(C)No. 32643 of 2023, dated 03.10.2023, filed by the 2nd petitioner earlier before this Hon'ble Court, is produced as Annexure A3, and the counter affidavit dated 01.11.2023 filed by the Bank in the said writ petition is produced as Annexure A4. It may be noted that the contention in Annexure A1 being left open did not in any way affect the binding inter-party judgment dated 21.05.2024 in W.P.(C)Nos.32643 of 2023, 29909 of 2023 and 32498 of 2023 filed by the writ petitioners, which were dismissed by the learned Single Judge of this own court as not maintainable."

(underline supplied)

10. We heard arguments of the learned counsel for the

appellant-2nd respondent Bank and also the learned Senior

Counsel for the respondents-petitioners.

11. The learned counsel for the appellant Bank contended

that the question of maintainability of W.P.(C)No.5466 of 2025

raised by the 2nd respondent Bank (appellant herein) placing 2025:KER:95432 W.A.No.2281 of 2025 14

reliance on the decisions of the Apex Court in Federal Bank Ltd.

v. Sagar Thomas [(2003) 10 SCC 733], ARC Pvt. Ltd. v.

Viswa Bharati Vidya Mandir [(2022) 5 SCC 345], and Sobha

S. v. Muthoot Finance Limited [2025 (2) KHC 229], against

a private company doing banking business as a Scheduled Bank,

was not considered by the learned Single Judge. The 2nd

respondent Bank has also raised specific contention in the counter

affidavit that W.P.(C)No.5466 of 2025 is barred by the principles

of res judicata and constructive res judicata as well as estoppel by

judgment, in view of Ext.R2(a) to R2(f) judgments/order. The

contention raised by the appellant Bank, placing reliance on the

decision of the Apex Court in Celir LLP v. Sumati Prasad Bafna

[2024 SCC OnLine 3727] and that of this Court in Jayaprakash

J. v. Union Bank of India [2023 SCC OnLine Ker 9106 : 2023

(7) KHC 282] and Esthappan M.D. v. Reserve Bank of India

[2025 KHC OnLine 655], were not dealt with appropriately by

the learned Single Judge, on the ground that, as per Annexure A2

judgment dated 18.02.2025 in W.P.(C)No.44147 of 2024, a

learned Single Judge of this Court had expressly left all the

contentions of the writ petitioners open. The contention raised by 2025:KER:95432 W.A.No.2281 of 2025 15

the 2nd respondent Bank in the counter affidavit about the conduct

of the writ petitioners (respondents herein) in suppressing

material facts, i.e., facts relating to Exts.R2(a) to R2(f)

judgments/order of this Court, while filing W.P.(C)No.5466 of 2025

before this Court, was not dealt with by the learned Single Judge

in the impugned judgment. The learned Single Judge ought to

have dismissed the W.P.(C)No.5466 of 2025 on the ground of

suppression of material facts.

12. The learned counsel for the appellant Bank pointed out

that W.P.(C)No.44147 of 2024 was filed by the writ petitioners,

contending that writ petitions are pending before the Bombay High

Court. Annexure A2 judgment dated 18.02.2025 of the learned

Single Judge in W.P.(C)No.44147 of 2024, would not in any

manner affect the binding inter-parte judgment, i.e., Ext.R2(b)

judgment dated 21.05.2024 in W.P.(C)Nos.32643 of 2023, 29909

of 2023 and 32498 of 2023 filed by the writ petitioners. The

question of maintainability of the writ petitions, decided in

Ext.R2(b) common judgment dated 21.05.2024 of the leaned

Single Judge, is not modified or varied either in Ext.R2(c) common

order dated 31.05.2024 in R.P.Nos.534 of 2025, 535 of 2025 and 2025:KER:95432 W.A.No.2281 of 2025 16

536 of 2025 or in Exts.R2(d) to R2(f) judgments dated 30.06.2024

of the Division Bench in W.A.Nos.787 of 2024, 806 of 2024 and

835 of 2024. The Division Bench dismissed as withdrawn the

above writ appeals, by Exts.R2(d) to R2(f) judgments, after

recording the submission made by the learned counsel for the

appellants (respondents herein) to withdraw the writ appeals with

the liberty to avail the alternate remedy.

13. The learned counsel for the appellant Bank contended

that the finding of the learned Single Judge in the impugned

judgment dated 06.08.2025 that the classification of an account

as NPA cannot be agitated before the Debts Recovery Tribunal

under Section 17 of the SARFAESI Act, and only a judicial review

is permissible, is per se arbitrary and illegal, and is against the law

laid down by a Division Bench of this Court in Kuruvithadam

Agencies (Pvt.) Ltd. and another v. Authorised Officer,

Standard Chartered Bank [2021:KER:20923] - judgment

dated 28.05.2021 in W.A.No.1584 of 2020. The 2nd petitioner, at

no point of time, had claimed the benefit of Exts.P3 and P4

notifications. In the writ petition, no such details are forthcoming.

None of the documents produced in the writ petition would also 2025:KER:95432 W.A.No.2281 of 2025 17

substantiate the said fact. In the reply affidavit filed in the writ

petition, the petitioners produced a copy of an e-mail addressed

to the Branch, to show that they have obtained Udyam

Registration Certificate.

14. On the other hand, the learned Senior Counsel for the

respondents-petitioners contented that the reasoning of the

learned Single Judge in the impugned judgment dated 06.08.2025

in W.P.(C)No.5466 of 2025 is neither perverse nor patently illegal,

warranting an interference of this Court in this intra-court appeal

filed under Section 5(i) of the Kerala High Court Act. The judgment

of the learned Single Judge is one rendered after taking note of

the law laid down by the Apex Court in Pro Knits [(2024) 10

SCC 292] and Shri Shri Swami Samarth Construction and

Finance Solution [2025 SCC OnLine SC 1566]. During the

pendency of W.P.(C)No.44147 of 2024, the respondents herein

filed W.P.(C)No.5466 of 2025. In the light of the filing of

W.P.(C)No.5466 of 2025, it was submitted before the learned

Single Judge that W.P.(C)No.44147 of 2024 may be dismissed as

withdrawn, reserving the liberty of the petitioners (respondents

herein) to raise all contentions in W.P.(C)No.5466 of 2025. It was 2025:KER:95432 W.A.No.2281 of 2025 18

also submitted that S.A.Nos.598 of 2024 and 600 of 2024,

pending before the Debts Recovery Tribunal-II, Ernakulam, will be

withdrawn. Taking into consideration the above submission, the

learned Single Judge dismissed W.P.(C)No.44174 of 2024 as

withdrawn, by Annexure A2 judgment dated 18.02.2025, leaving

open all contentions and reserving the right of the petitioners to

raise those contentions in W.P.(C)No.5466 of 2025. Therefore, the

learned Single Judge rightly entertained W.P.(C)No.5466 of 2025

and rendered the impugned judgment, repelling the contention of

the 2nd respondent Bank as to the maintainability of the writ

petition, and also the contention that the writ petition is barred by

the principles of res judicata and constructive res judicata. The

learned Single judge rightly considered the challenge made by the

petitioners in W.P.(C)No.5466 of 2025, against the proceedings

initiated by the 2nd respondent Bank (appellant herein) under the

provisions of the SARFASEI Act and interfered with Exts.P9 and

P16 notices issued under Section 13(2) of the said Act and issued

consequential directions.

15. In W.P.(C)No.5466 of 2025, the 2nd respondent Bank

(appellant herein) filed a counter affidavit dated 24.03.2025, 2025:KER:95432 W.A.No.2281 of 2025 19

raising the question of maintainability of the writ petition, by

contending that the writ petition is barred by the principles of res

judicata and constructive res judicata. In the counter affidavit, it

was also contended that the writ petition is liable to be dismissed

on the ground of suppression of material facts. The averments to

that effect are contained in paragraphs 2 and 3 of the counter

affidavit, which read thus;

"2. The Writ Petitioners had earlier approached this Hon'ble Court by filing W.P.(C)Nos. 32643 of 2023, 29909 of 2023 and 32498 of 2023. The Writ Petitioners had sought for re- structuring of their loans while challenging the SARFAESI proceedings. Copy of the W.P.(C)No.29909 of 2023 is produced as Ext.R2(a). As per the common judgment dated 21.05.2024, the above writ petitions were dismissed by this Hon'ble Court, holding that the remedy of the Writ Petitioner is to approach the Debts Recovery Tribunal. Copy of the common judgment dated 21.05.2024 in W.P.(C)Nos.32643 of 2023, 29909 of 2023 and 32498 of 2023 is produced as Ext.R2(b). Against the same, the Petitioners had filed a review petition, and this Hon'ble Court, as per common order dated 31.05.2024, dismissed the above review petitions, directing the Debts Recovery Tribunal to consider condonation of delay, treating the period during which the writ petitions were pending before this Hon'ble Court. Copy of the common order dated 31.05.2024 in R.P.Nos.535 of 2024, 535 of 2024 and 536 of 2024 is produced as Ext.R2(c).

2025:KER:95432 W.A.No.2281 of 2025 20

Thereafter, the writ petitioners had filed appeals before the Division Bench of this Hon'ble Court as W.A. Nos.787 of 2024, 806 of 2024 and 835 of 2024. As per the judgments dated 20.06.2024, the aforesaid appeals were also dismissed by this Hon'ble Court, granting the liberty to avail the alternative remedy. Copy of the judgments dated 20.06.2024 in W.A.Nos.787 of 2024, 806 of 2024 and 835 of 2024 is produced as Ext.R2(d), Ext.R2(e) and Ext.R2(f), respectively. It is humbly submitted that the writ petitioners have suppressed the filing of the above writ petitions, review petitions and appeals before this Hon'ble Court, and on the sole ground of suppression of material facts, the present writ petition is liable to be dismissed.

3. It is also submitted that the present writ petition is also barred by the principles of res judicata and constructive res judicata. The contentions raised in the writ petition have been raised substantially in the earlier writ petition, and in view of Exts.R2(a) to R2(c) judgments, the said contentions are not liable to be raised again, and are barred by the principles of estoppel by judgment. Still further, even if any contention that has not been raised in the earlier writ petition is attempted to be raised by way of this writ petition, the same is also barred by the principles of constructive res judicata." (underline supplied)

16. The reliefs sought for in W.P.(C)No.29909 of 2023 filed

by the 1st respondent herein [1st petitioner in W.P.(C)No.5466 of

2025], read thus;

"i) To issue a writ of mandamus or any other writ, order or 2025:KER:95432 W.A.No.2281 of 2025 21

direction directing the 1st respondent not to proceed with steps under the SARFAESI Act already initiated against the petitioner and to grant an opportunity to the petitioner for paying the defaulted installment and interest and to revive the Unit.

ii) To issue a writ of mandamus or any other writ, order or direction directing the 1st respondent to consider and take effective action on Ext.P3 and Ext.P10 representations.

iii) To call for the records leading up to Exhibit P6 and to quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction; and

iv) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue, and the petitioner may pray from time to time." (underline supplied)

17. The interim relief sought for in W.P.(C)No.29909 of

2023 filed by the 1st respondent herein [1st petitioner in

W.P.(C)No.5466 of 2025], reads thus;

"For the reasons stated in the writ petition (civil) and in the accompanying affidavit, it is respectfully prayed that this Hon'ble Court may be pleased to pass an order staying all legal proceedings initiated against the petitioner under the provisions of the SARFAESI Act, pending disposal of the above writ petition (civil)." (underline supplied)

18. The grounds raised in W.P.(C)No.29909 of 2023 filed by

the 1st respondent herein [1st petitioner in W.P.(C)No.5466 of

2025], read thus;

"a) It was in unavoidable circumstances, the unit had to be 2025:KER:95432 W.A.No.2281 of 2025 22

stopped temporarily. The functioning of the unit has already commenced. When the inspection was conducted by the Bank authorities, the installment was overdue for only a period of one month. The failure of the stock was also temporary, and the same was made good already. The unit is now ready for operation in full swing. Petitioner is ready to pay the defaulted installments and interest. If proceedings under the SARFAESI Act are proceeded with, the unit will suffer loss, and the unit will have to be closed permanently. The employees of the unit will also face hardships.

b) There was no reason for declaring the unit as a Non-

Performing Asset. The declaration of the unit as NPA and all the steps taken in pursuance of the said declaration are improper and illegal, and the same is liable to be interfered with by this Hon'ble Court.

c) the 1st respondent is duty-bound to take effective action on Ext.P3 and Ext.P10 representations.

d) Ext.P6 is bad in law since the same does not comply with the guidelines and circulars issued by the Reserve Bank of India." (underline supplied)

19. The document marked as Ext.P4 in W.P.(C)No.29909 of

2023 is a copy of a notice dated 02.06.2023 issued by the 2nd

respondent Bank, under Section 13(2) of the SARFAESI Act, in

respect of the financial assistance/facilities availed by the

petitioner-M/s. PDMC Industries. The very same notice is marked

as Ext.P9 in W.P.(C)No.5466 of 2025. The document marked as 2025:KER:95432 W.A.No.2281 of 2025 23

Ext.P6 in W.P.(C)No.29909 of 2023, which has been referred to in

ground (d), is a copy of the reply dated 07.07.2023 sent by the

Authorised Officer of the Bank, to Ext.P5 objection of the petitioner.

The said objection is marked as Ext.P10 in W.P.(C)No.5466 of 2025.

Similarly, the document marked as Ext.P3 in W.P.(C)No.32643 of

2023 is a copy of a notice dated 31.07.2023 issued by the 2nd

respondent Bank, under Section 13(2) of the SARFAESI Act, in

respect of the financial assistance/facilities availed by the

petitioner-M/s. PDMC Co Rubber. The very same notice is marked

as Ext.P16 in W.P.(C)No.5466 of 2025. By the impugned judgment

dated 06.08.2025, the learned Single Judge set aside both Exts.P9

and P16 notices issued by the 2nd respondent Bank (appellant

herein), even in the absence of a specific challenge made in

W.P.(C)No.5466 of 2025, against Exts.P9 and P16 notices, by

seeking a writ of certiorari.

20. By Ext.R2(b) common judgment dated 21.05.2024, the

learned Single Judge dismissed W.P.(C)No.29909 of 2023 filed by

M/s.PDMC Industries (1st respondent herein), W.P.(C)No.32498 of

2023 filed by Bobby Isaac Mathew (3rd respondent herein) and

W.P.(C)No.32643 of 2023 filed by M/s.PDMC Co Rubber (2nd 2025:KER:95432 W.A.No.2281 of 2025 24

respondent herein) on the ground that, in the light of the

categorical pronouncements made by the Apex Court and by this

Court in the decisions referred to therein, the writ petitions are

not maintainable. Paragraphs 7 to 12 and also the last paragraph

of the said decision read thus;

"7. The 1st respondent in all these writ petitions is a private Bank. The Hon'ble Apex Court has held in the judgment in Federal Bank Limited v. Sagar Thomas [(2003) 10 SCC 733] that a writ petition is not maintainable against a private company. Furthermore, the petitioners are challenging proceedings initiated by the 1st respondent- Bank invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

8. It is settled law that no writ would lie against the proceedings initiated by a financial institution under the provisions of the SARFAESI Act. In United Bank of India v. Satyawati Tondon and others [(2010) 8 SCC 110], the Hon'ble Apex Court declared that no writ petition shall be entertained against the proceedings initiated under the SARFAESI Act at the instance of a defaulter since the statute provides for an efficacious alternate remedy.

9. In the judgment in Authorised Officer, State Bank of Travancore v. Mathew K.C. [2018 (1) KLT 784], the Hon'ble Apex Court reiterated that no writ petition would lie against the proceedings under the SARFAESI Act in view of the statutory remedy available under the said Act.

2025:KER:95432 W.A.No.2281 of 2025 25

10. Following the judgment in Satyawati Tondon (supra), a Division Bench of this Court in the judgment in Anilkumar v. State Bank of India [2020 (2) KLT 756] declined to exercise jurisdiction under Article 226 of the Constitution of India against the proceedings initiated under the Securitisation Act.

11. In South Indian Bank Limited v. Naveen Mathew Philip [2023 (4) KLT 29], the Apex Court held that when the legislature has provided a specific mechanism for appropriate redressal, the powers conferred under Article 226 of the Constitution of India shall be exercised only in extraordinary circumstances.

12. In Jayakrishnan A. v. Union Bank of India and others - W.P.(C)No.30803 of 2023, this Court held that writ petition challenging any proceedings under the Securitisation Act is not maintainable since the aggrieved person has an effective and efficacious remedy before the Tribunal constituted under the Act which is competent to adjudicate the issues of fact and law, including statutory violations.

In the light of the categorical pronouncements of law made by the Apex Court and by this Court, the above writ petition is [sic: writ petitions are] not maintainable, and it is dismissed."

21. Seeking review of Ext.R2(b) common judgment dated

21.05.2024, the respondents herein filed R.P.Nos.534 of 2024,

535 of 2024 and 536 of 2024, invoking the provisions under Order

XLVII, Rule 1 of the Code of Civil Procedure, 1908. Those review 2025:KER:95432 W.A.No.2281 of 2025 26

petitions were disposed of by Ext.R2(c) common order dated

31.05.2024, clarifying to the extent that the petitioners will be at

liberty to approach the Debts Recovery Tribunal or any other

appropriate Forum, in which case the said Tribunal/Forum may

consider condonation of delay treating the period during which the

writ petitions are pending before this Court as period during which

the petitioners are bona fide prosecuting their claims. Ext.R2(c)

common order dated 31.05.2024 read thus;

"After arguing the Review Petitions for a considerable time, counsel for the petitioners submits that the petitioners' right to approach the Debts Recovery Tribunal or any other appropriate Forum may be preserved, and unless it is so clarified, the petitioners' remedy is likely to be lost due to delay.

2. In the facts of the case, the judgment dated 21.05.2024 in W.P.(C)Nos.29909, 32643 and 32498 of 2023 is clarified to the extent that the petitioners will be at liberty to approach the Debts Recovery Tribunal or any other appropriate Forum, in which case the said Tribunal/Forum may consider condonation of delay treating the period during which the writ petitions are pending before this Court as period during which the petitioners are bona fide prosecuting their claims.

The Review Petitions are disposed of as above."

22. Ext.R2(b) common judgment dated 21.05.2024 was 2025:KER:95432 W.A.No.2281 of 2025 27

under challenge in W.A.Nos.787 of 2024, 806 of 2024 and 835 of

2024 filed by respondents herein, invoking the provisions under

Section 5(i) of the Kerala High Court Act, 1958. By Exts.R2(d),

R2(e) and R2(f) judgments dated 20.06.2024, those writ appeals

were dismissed as withdrawn with liberty to avail alternate remedy.

The judgments are similarly worded. Ext.R2(d) judgment in

W.A.No.787 of 2024, arising out of the judgment dated

21.05.2024 in W.P.(C)No.32643 of 2023, reads thus;

"When the matter is called out, the learned counsel appearing for the appellant seeks permission to withdraw the appeal with the liberty to avail alternate remedy. In the light of the above submission, the writ appeal is dismissed as withdrawn with the liberty sought. Pending interlocutory applications, if any, shall stand closed."

(underline supplied)

23. After Exts.R2(d), R2(e) and R2(f) judgments dated

20.06.2024 of the Division Bench, whereby W.A.Nos.787 of 2024,

806 of 2024 and 835 of 2024 filed by the respondents herein were

dismissed as withdrawn with liberty to avail alternate remedy,

they filed W.P.(C)No.44147 of 2024, through another counsel,

again invoking the writ jurisdiction of this Court under Article 226

of the Constitution of India, seeking the following reliefs;

"a) To declare that Section 14 of the SARFAESI Act is 2025:KER:95432 W.A.No.2281 of 2025 28

violative of Articles 14, 19 and 21 of the constitution and is therefore unconstitutional and void inasmuch as it does not expressly state that the Magistrate shall observe the principles of natural justice;

b) To declare that the Magistrate has no jurisdiction to pass orders under Section 14 of the SARFAESI Act when the validity of the action taken by the Bank under Section13(2) and 13(4) of the SARFAESI Act is challenged before the High Court of Bombay and the High Court is in seisin of the matter, having issued notice to the respondents;

c) To declare that the various writ petitions and other proceedings which the Petitioner has instituted, as detailed in the Exhibit P12/Chart, do not constitute a Cause of Action Estoppel, nay, estoppel per rem judicatam/res judicata, not even issue estoppel

d) To issue a writ in the nature of prohibition restraining and prohibiting the Respondent Bank, its authorized officer, Court Commissioner, and the Police from dispossessing the Petitioner from their home, the purported security interest, till the W.P.(L)No.30531 of 2024 and W.P.(L)No.30600 of 2024 are disposed of;

e) issue such other appropriate writ order or direction as this Honourable Court may deem fit just and proper to grant on the facts and circumstances of the case."

24. During the pendency of W.P.(C)No.44147 of 2024, the

respondents herein filed W.P.(C)No.5466 of 2025, through their

present counsel. On 18.02.2025, when W.P.(C)No.44147 of 2024

came up for consideration, the learned Senior Counsel for the 2025:KER:95432 W.A.No.2281 of 2025 29

respondents herein submitted that in the light of the filing of

W.P.(C)No.5466 of 2025, W.P.(C)No.44147 of 2024 may be

dismissed as withdrawn, reserving the liberty of the petitioners to

raise all contentions in W.P.(C)No.5466 of 2025. It was also

submitted that S.A.Nos.598 of 2024 and 600 of 2024, pending

before the Debts Recovery Tribunal-II, Ernakulam, will be

withdrawn. Taking into consideration the above submission of the

learned Senior Counsel for the petitioners, the learned Single

Judge dismissed as withdrawn W.P.(C)No.44174 of 2024, by

Annexure A2 judgment dated 18.02.2025, leaving open all

contentions and reserving the right of the petitioners to raise those

contentions in W.P.(C)No.5466 of 2025. The undertaking given by

the petitioners in W.P.(C)No.44174 of 2024 that S.A.Nos. 598 of

2024 and 600 of 2024 pending before the Debts Recovery

Tribunal-II, Ernakulam, will be withdrawn, was also recorded.

Annexure A2 judgment dated 18.02.2025 in W.P.(C)No.44174 of

2024, reads thus;

"The learned Senior Counsel appearing for the petitioners would submit that in the light of the filing of W.P.(C)No.5466 of 2025, W.P.(C)No.44147 of 2024 may be dismissed as withdrawn, reserving the liberty of the petitioners to raise all contentions in W.P.(C)No.5466 of 2025. It is also 2025:KER:95432 W.A.No.2281 of 2025 30

submitted that S.A.Nos.598 of 2024 and 600 of 2024, pending before the Debts Recovery Tribunal-II, Ernakulam, will be withdrawn.

2. Taking into consideration of the submission of the learned Senior Counsel appearing for the petitioners, this Writ Petition is dismissed as withdrawn, leaving open all contentions and reserving the right of the petitioners to raise those contentions in W.P.(C)No.5466 of 2025. The undertaking given by the petitioners before this Court that S.A.Nos. 598 of 2024 and 600 of 2024, now pending before the Debts Recovery Tribunal-II, Ernakulam, will be withdrawn is also recorded." (underline supplied)

25. As already noticed hereinbefore, the impugned

judgment dated 06.08.2025 of the learned Single Judge is one

rendered after taking note of the law laid down by the Apex Court

in Shri Shri Swami Samarth Construction and Finance

Solution [2025 SCC OnLine SC 1566]. In the said decision, a

Two-Judge Bench of the Apex Court observed that a micro, small

and medium enterprise, despite finding that its business is failing

or that it is unable to pay its debts or accumulation of losses equals

to half or more of its entire net worth and classification of its

account as non-performing asset is imminent, it would rest on its

oars believing that it has no responsibility and that its account will

not be classified as non-performing asset because it is the entire 2025:KER:95432 W.A.No.2281 of 2025 31

obligation of the lending bank/secured creditor to do what the

framework requires. The Two-Judge Bench said that it would read

and interpret the seemingly confusing terms of the Framework

harmoniously to ensure that a right under the Micro, Small and

Medium Enterprise Act is not destroyed by the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, or vice versa. The terms of the framework do not

prohibit the lending bank/secured creditor (assuming that it has

no conscious knowledge that the defaulting borrower is a micro,

small and medium enterprise) to classify the account of the

defaulting micro, small and medium enterprise as non-performing

asset and to even issue the demand notice under section 13(2) of

the SARFAESI Act, without such identification of incipient stress in

the account of the defaulting borrower (MSME); however, upon

receipt of the demand notice, if such borrower in its response

under section 13(3A) of the SARFAESI Act asserts that it is a

micro, small and medium enterprise and claims the benefit of the

said Act, citing reasons supported by an affidavit, the lending

bank/secured creditor would then be mandatorily bound to look

into such claim keeping further action under the SARFAESI Act in 2025:KER:95432 W.A.No.2281 of 2025 32

abeyance; and should the claim be found to be worthy of

acceptance within the framework of the framework, to act in terms

thereof for securing revival and rehabilitation of the defaulting

borrower.

26. In paragraph 8 of the decision in Shri Shri Swami

Samarth Construction and Finance Solution [2025 SCC

OnLine SC 1566], the Two-Judge Bench referred to the decision

of a co-ordinate Bench in Pro Knits [(2024) 10 SCC 292]

holding, inter alia, that the notification is binding on the lending

banks/secured creditors. The Two-Judge Bench, while dismissing

the writ petition on the ground that no case for interference under

Article 32 of the Constitution has been made out, made it clear

that the petitioning enterprise will be at liberty to pursue its

remedy under section 17 of the SARFAESI Act, in accordance with

law. After noting the arguments advanced by the learned counsel

for the petitioning enterprise at paragraph 3 of the decision, the

Two-Judge Bench stated at paragraph 4 of the said decision that

the respondents are not required to be issued with notice since

the Bench is not persuaded to agree with any of the submissions

advanced by the learned counsel for the petitioning enterprise.

2025:KER:95432 W.A.No.2281 of 2025 33

27. 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 2025:KER:95432 W.A.No.2281 of 2025 34

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.

28. 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 2025:KER:95432 W.A.No.2281 of 2025 35

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 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 2025:KER:95432 W.A.No.2281 of 2025 36

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.

29. The reliefs sought for in W.P.(C)No.29909 of 2023 filed

by the 1st respondent herein [1st petitioner in W.P.(C)No.5466 of

2025], are extracted hereinbefore at paragraph 17; the interim

relief sought for is extracted hereinbefore at paragraph 18; and

the grounds raised therein are extracted hereinbefore at

paragraph 19. The document marked as Ext.P4 in

W.P.(C)No.29909 of 2023 is a copy of a notice dated 02.06.2023

issued by the 2nd respondent Bank, under Section 13(2) of the

SARFAESI Act, in respect of the financial assistance/facilities

availed by the petitioner-M/s. PDMC Industries. The very same

notice is marked as Ext.P9 in W.P.(C)No.5466 of 2025. The

document marked as Ext.P6 in W.P.(C)No.29909 of 2023, which

has been referred to in ground (d), is a copy of the reply dated

07.07.2023 sent by the Authorised Officer of the Bank to Ext.P5

objection of the petitioner. The said objection is marked as Ext.P10

in W.P.(C)No.5466 of 2025. The document marked as Ext.P3 in 2025:KER:95432 W.A.No.2281 of 2025 37

W.P.(C)No.32643 of 2023 is a copy of a notice dated 31.07.2023

issued by the 2nd respondent Bank, under Section 13(2) of the

SARFAESI Act, in respect of the financial assistance/facilities

availed by the petitioner-M/s. PDMC Co Rubber. The very same

notice is marked as Ext.P16 in W.P.(C)No.5466 of 2025.

30. By Ext.R2(b) common judgment dated 21.05.2024, the

learned Single Judge dismissed W.P.(C)No.29909 of 2023 filed by

M/s.PDMC Industries (1st respondent herein), W.P.(C)No.32498 of

2023 filed by Bobby Isaac Mathew (3rd respondent herein) and

W.P.(C)No.32643 of 2023 filed by M/s.PDMC Co Rubber (2nd

respondent herein) on the ground that, in the light of the

categorical pronouncements made by the Apex Court and by this

Court in the decisions referred to therein, which includes the

decisions referred to hereinbefore, the writ petitions are not

maintainable. R.P.Nos.534 of 2024, 535 of 2024 and 536 of 2024

filed seeking review of Ext.R2(b) common judgment were

disposed of by Ext.R2(c) common order dated 31.05.2024,

clarifying to the extent that the petitioners will be at liberty to

approach the Debts Recovery Tribunal or any other appropriate

Forum, in which case the said Tribunal/Forum may consider 2025:KER:95432 W.A.No.2281 of 2025 38

condonation of delay treating the period during which the writ

petitions are pending before this Court as period during which the

petitioners are bona fide prosecuting their claims. By Exts.R2(d),

R2(e) and R2(f) judgments dated 20.06.2024, W.A.Nos.787 of

2024, 806 of 2024 and 835 of 2024 filed by respondents herein

against Ext.R2(b) common judgment were dismissed as

withdrawn with liberty to avail alternate remedy.

31. It was after Exts.R2(d), R2(e) and R2(f) judgments of

the Division Bench, whereby W.A.Nos.787 of 2024, 806 of 2024

and 835 of 2024 were dismissed as withdrawn with liberty to avail

alternate remedy, respondents herein filed W.P.(C)No.44147 of

2024, through another counsel, again invoking the writ jurisdiction

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

the reliefs extracted hereinbefore at paragraph 24. During the

pendency of W.P.(C)No.44147 of 2024, the respondents herein

filed W.P.(C)No.5466 of 2025, through their present counsel. On

18.02.2025, when W.P.(C)No.44147 of 2024 came up for

consideration, the learned Senior Counsel for the respondents

herein submitted that in the light of the filing of W.P.(C)No.5466

of 2025, W.P.(C)No.44147 of 2024 may be dismissed as withdrawn, 2025:KER:95432 W.A.No.2281 of 2025 39

reserving the liberty of the petitioners to raise all contentions in

W.P.(C)No.5466 of 2025. It was also submitted that S.A.Nos.598

of 2024 and 600 of 2024, pending before the Debts Recovery

Tribunal-II, Ernakulam, will be withdrawn.

32. Taking into consideration the aforesaid submission of

the learned Senior Counsel for the petitioners, the learned Single

Judge dismissed W.P.(C)No.44174 of 2024 as withdrawn, by

Annexure A2 judgment dated 18.02.2025, leaving open all

contentions and reserving the right of the petitioners to raise those

contentions in W.P.(C)No.5466 of 2025. As already noticed

hereinbefore, the dismissal of W.P.(C)Nos.29909 of 2023, 32498

of 2023 and 32643 of 2023 by Ext.R2(b) common judgment dated

21.05.2024 of the learned Single Judge was on the ground that,

in the light of the categorical pronouncements made by the Apex

Court and by this Court in the decisions referred to therein, which

includes the decisions referred to hereinbefore, the writ petitions

are not maintainable. After the disposal of R.P.Nos.534 of 2024,

535 of 2024 and 536 of 2024 with the clarification contained in

Ext.R2(c) common order dated 31.05.2024, W.A.Nos.787 of 2024,

806 of 2024 and 835 of 2024 filed by respondents herein against 2025:KER:95432 W.A.No.2281 of 2025 40

Ext.R2(b) common judgment were dismissed as withdrawn by

Exts.R2(d), R2(e) and R2(f) judgments dated 20.06.2024 of the

Division Bench, with liberty to avail alternate remedy, since

learned counsel appearing for the appellant in the respective writ

appeals (respondents herein) sought permission to withdraw the

appeals with the liberty to avail alternate remedy. In view of the

inter-partes judgment on the question of maintainability, which

has attained finality, the remedy open to the respondents herein

is to approach the Debts Recovery Tribunal, invoking the statutory

remedy provided under Section 17 of the SARFAESI Act, instead

of filing writ petitions seeking various reliefs. Therefore, the

finding of the learned Single Judge in the impugned judgment

dated 06.08.2025 that, since the learned Single Judge had

expressly left all the contentions of the petitioners open in

Annexure A2 judgment dated 18.02.2025 in W.P.(C)No.44147 of

2024, the objections raised by the 2nd respondent Bank as to the

maintainability of W.P.(C)No.5466 of 2025 cannot be sustained, is

per se arbitrary and legally unsustainable.

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

of the Chief Metropolitan Magistrate or the District Magistrate to 2025:KER:95432 W.A.No.2281 of 2025 41

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

34. 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 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 2025:KER:95432 W.A.No.2281 of 2025 42

the Chief Judicial Magistrate is equally competent to deal with the

application moved by the secured creditor under Section 14 of the

SARFAESI Act.

35. 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 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.

36. In Satyawati Tondon [(2010) 8 SCC 110], on the

facts of the case at hand, the Apex Court noted that the High Court 2025:KER:95432 W.A.No.2281 of 2025 43

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 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.

37. 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

respondents-petitioners have any grievance against the 2025:KER:95432 W.A.No.2281 of 2025 44

proceedings initiated by the secured creditor under Section 14 of

the SARFAESI Act, they could have availed the statutory remedy

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

Debts Recovery Tribunal, instead of invoking the writ jurisdiction

of this Court under Article 226 of the Constitution of India. At any

rate, the learned Single Judge committed a grave error in setting

aside Exts.P9 and P16 notices issued by the 2nd respondent Bank

(appellant herein) under Section 13(2) of the SARFAESI Act, even

in the absence of a specific challenge made in W.P.(C)No.5466 of

2025, against Exts.P9 and P16 notices, by seeking a writ of

certiorari.

38. In Kuruvithadam Agencies (Pvt.) Ltd. and another

v. Authorised Officer, Standard Chartered Bank [2021:KER:

20923] - judgment dated 28.05.2021 in W.A.No.1584 of 2020,

the grievance of the appellants was that the Bank had not followed

the guidelines and directives issued by the Reserve Bank of India

in the matter of treating the account as Non-Performing Asset. The

Division Bench noticed that a reading of Section 13 of the

SARFAESI Act makes it categorically clear that Parliament has

provided a scheme thereunder, enabling an aggrieved person to 2025:KER:95432 W.A.No.2281 of 2025 45

ventilate his grievances by resorting to the procedure prescribed

thereunder. The grievance of the appellants was that the

respondent Bank is not entitled to proceed against them, since the

conduct on the part of the Bank in converting the account of the

appellants into a Non-Performing Asset is not in accordance with

the Reserve Bank of India guidelines. The Division Bench held that

it was a subject matter that ought to have been pointed out by

the appellants before the Bank itself, since the statute prescribes

a modality enabling a party to make a suitable representation.

Therefore, the proceedings initiated by the Bank squarely come

under the procedure contemplated under Section 13 of the

SARFAESI Act, and the appellants have a clear remedy as is

statutorily prescribed under the said Act. The question as regards

the action initiated by the Bank illegally can be raised by the

appellants before the Debt Recovery Tribunal, at the appropriate

time, as is prescribed under law, and the Tribunal is vested with

ample powers to consider such aspects, regarding the loan

account maintained by an aggrieved person with a Bank, the

conduct on the part of the Bank in making the account a Non-

Performing Asset and the failure on the part of the Bank to follow 2025:KER:95432 W.A.No.2281 of 2025 46

the Reserve Bank guidelines. That apart, there is a clear remedy

of appeal provided under the SARFAESI Act, if aggrieved, on any

order passed by the Debt Recovery Tribunal, which thus means,

the statute has provided a clear mechanism to tackle all and any

situations of an aggrieved person under law, and therefore, a writ

court would be slow in interfering with the action initiated by the

Bank, especially because the SARFAESI Act was introduced with

the avowed object of speedy recovery of amounts, without

unnecessary interference of courts.

39. In view of the law laid down in the decision of the

Division Bench in Kuruvithadam Agencies (Pvt.) Ltd.

[2021:KER:20923] the finding of the learned Single Judge in the

impugned judgement dated 06.08.2025 that the classification of

an account as NPA cannot be agitated before the Debts Recovery

Tribunal under Section 17 of the SARFAESI Act, and only a judicial

review is permissible, is per se arbitrary and legally unsustainable.

40. In Sobha S. v. Muthoot Finance Limited [2025 (2)

KHC 229 : 2025 SCC OnLine SC 177], the Apex Court

considered the question of maintainability of writ petitions under

Article 226 of the Constitution of India against a private non-

2025:KER:95432 W.A.No.2281 of 2025 47

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.

41. In the instant case, the 2nd respondent Bank (appellant

herein) is a private company carrying on banking business as a

Scheduled Bank. The contention raised by the 2nd respondent

Bank in this regard, placing reliance on various decisions of the

Apex Court, was not considered by the learned Single Judge in the

impugned judgment dated 06.08.2025.

42. In Devilal Modi v. Sales Tax Officer, Ratlam [AIR

1965 SC 1150], a Constitution Bench of the Apex Court held that,

if the underlying rule of constructive res judicata is not applied to

writ proceedings, it would be open to the party to take one

proceeding after another and urge new grounds every time, and

would be inconsistent with considerations of public policy.

2025:KER:95432 W.A.No.2281 of 2025 48

43. 'Henderson Principle' is a foundational doctrine in

common law that addresses the issue of multiplicity in litigation.

It embodies the broader concept of procedural fairness, abuse of

process and judicial efficiency by mandating that all claims and

issues that could and ought to have been raised in a previous

litigation should not be relitigated in subsequent proceedings. The

extended form of res judicata, known as constructive res judicata,

contained in Section 11, Explanation VII of the Code of Civil

Procedure, 1908, originates from this principle.

44. In Henderson v. Henderson [(1843) 3 Hare 999],

the English Court of Chancery speaking through Sir James Wigram,

Vice-Chancellor, held that where a given matter becomes the

subject of litigation and the adjudication of a court of competent

jurisdiction, the parties so litigating are required to bring forward

their whole case. Once the litigation has been adjudicated by a

Court of competent jurisdiction, the same parties will not be

permitted to reopen the lis in respect of issues which might have

been brought forward as part of the subject in contest but were

not, irrespective of whether the same was due to any form of

negligence, inadvertence, accident or omission. It was further held 2025:KER:95432 W.A.No.2281 of 2025 49

that the principle of res judicata applies not only to points upon

which the Court was called upon by the parties to adjudicate and

pronounce a judgment, but also to every possible or probable

point or issue that properly belonged to the subject of litigation

and the parties ought to have brought forward at the time.

45. The above proposition of law came to be known as the

'Henderson Principle' and underwent significant evolution,

adapting to changing judicial landscapes and procedural

requirements. The House of Lords in Johnson v. Gore Wood

and Co. [(2002) 2 A.C. 1], upon examining the 'Henderson

Principle', authoritatively approved it. In Virgin Atlantic Airways

Ltd. v. Zodiac Seats UK Ltd. [(2014) A.C. 160], Lord

Sumption JSC further expounded the 'Henderson Principle' as

although separate and distinct from cause of action estoppel or

res judicata yet having the same underlying public interest that

there should be finality in litigation and that a party should not be

twice vexed in the same matter. Even in a common law action, it

was said by Blackburn, J. in Newington v. Levy [(1870) L.R. 6

C.P. 180] that the doctrine of res judicata applies to all matters

which existed at the time of giving of the judgment and which the 2025:KER:95432 W.A.No.2281 of 2025 50

party had an opportunity of bringing before the Court.

46. The 'Henderson Principle' was approvingly referred to

and applied by a Three-Judge Bench of the Apex Court in State of

U.P. v. Nawab Hussain [(1977) 2 SCC 806] as the underlying

principle for res judicata and constructive res judicata for assuring

finality to litigation. The Three-Judge Bench found that the same

set of facts may give rise to two or more causes of action. If, in

such a case, a person is allowed to choose and sue upon one cause

of action at one time and to reserve the other for subsequent

litigation, that would aggravate the burden of litigation. The Courts

have therefore treated such a course of action as an abuse of its

process. Res judicata for this purpose is not confined to the issues

which the court is actually asked to decide, but that it covers

issues or facts which are so clearly part of the subject matter of

the litigation and so clearly could have been raised that it would

be an abuse of the process of the court to allow a new proceeding

to be started in respect of them. This is, therefore, another and

an equally necessary and efficacious aspect of the same principle,

for it helps in raising the bar of res judicata by suitably construing

the general principle of subduing a cantankerous litigant. That is 2025:KER:95432 W.A.No.2281 of 2025 51

why this other rule has sometimes been referred to as constructive

res judicata, which, in reality, is an aspect or amplification of the

general principle.

47. In Celir LLP v. Sumati Prasad Bafna [2024 SCC

OnLine SC 3727], a decision relied on by the learned counsel for

the appellant-2nd respondent Bank, a Two-Judge Bench of the

Apex Court held that the fundamental policy of the law is that

there must be finality to litigation. Multiplicity of litigation benefits

not the litigants whose rights have been determined, but those

who seek to delay the enforcement of those rights and prevent

them from reaching the rightful beneficiaries of the adjudication.

The 'Henderson Principle', in the same manner as the principles

underlying res judicata, is intended to ensure that grounds of

attack or defence in litigation must be taken in one of the same

proceedings. A party that avoids doing so does it at its own peril.

In deciding as to whether a matter might have been urged in the

earlier proceedings, the court must ask itself as to whether it could

have been urged. In deciding whether the matter ought to have

been urged in the earlier proceedings, the court will have due

regard to the ambit of the earlier proceedings and the nexus which 2025:KER:95432 W.A.No.2281 of 2025 52

the matter bears to the nature of the controversy. In holding that

a matter ought to have been taken as a ground of attack or

defence in the earlier proceedings, the court is indicating that the

matter is of such a nature and character and bears such a

connection with the controversy in the earlier case that the failure

to raise it in that proceeding would debar the party from agitating

it in the future. The doctrine itself is based on public policy flowing

from the age-old legal maxim interest reipublicae ut sit finis litium,

which means that in the interest of the State, there should be an

end to litigation and no party ought to be vexed twice in a litigation

for one and the same cause.

47.1. In Celir LLP [2024 SCC OnLine SC 3727], the Apex

Court reiterated that the 'Henderson Principle' is a core

component of the broader doctrine of abuse of process, aimed at

enthusing in the parties a sense of sanctity towards judicial

adjudications and determinations. It ensures that litigants are not

subjected to repetitive and vexatious legal challenges. At its core,

the principle stipulates that all claims and issues that could and

should have been raised in an earlier proceeding are barred from

being raised in subsequent litigation, except in exceptional 2025:KER:95432 W.A.No.2281 of 2025 53

circumstances. This rule not only supports the finality of

judgments but also underscores the ideals of judicial propriety

and fairness.

47.2. In Celir LLP [2024 SCC OnLine SC 3727], the Apex

Court noticed that there are four situations where, in second

proceedings between the same parties, doctrine res judicata as a

corollary of the principle of abuse of process may be invoked; (i)

cause of action estoppel, where the entirety of a decided cause of

action is sought to be relitigated; (ii) issue estoppel or, 'decided

issue estoppel', where an issue is sought to be relitigated, which

has been raised and decided as a fundamental step in arriving at

the earlier judicial decision; (iii) extended or constructive res

judicata, i.e., 'unraised issue estoppel', where an issue is sought

to be litigated which could, and should, have been raised in a

previous action but was not raised; (iv) a further extension of the

aforesaid to points not raised in relation to an issue in the earlier

decision, as opposed to issues not raised in relation to the decision

itself. As part of the broader rule against abuse of process, the

'Henderson Principle' is rooted in the idea of preventing the

judicial process from being exploited in any manner that tends to 2025:KER:95432 W.A.No.2281 of 2025 54

undermine its integrity. This idea of preventing abuse of judicial

process is not confined to specific procedure rules, but rather

aligned to a broader purport of giving quietus to litigation and

finality to judicial decisions. The essence of this rule is that

litigation must be conducted in good faith, and parties should not

engage in procedural tactics that fragment disputes, prolong

litigation, or undermine the outcomes of such litigation. It is not

a rigid rule but rather a flexible principle to prevent oppressive,

unfair, or detrimental litigation.

47.3. In Celir LLP [2024 SCC OnLine SC 3727], the Apex

Court held that piecemeal litigation where issues are deliberately

fragmented across separate proceedings to gain an unfair

advantage is in itself a facet of abuse of process of law and would

also fall foul of the 'Henderson Principle'. Merely because one

proceeding initiated by a party differs in some aspects from

another proceeding or happens to be before a different forum, will

not make the subsequent proceeding distinct in nature from the

former, if the underlying subject matter or the seminal issues

involved remains substantially similar to each other or connected

to the earlier subject matter by a certain degree, then such 2025:KER:95432 W.A.No.2281 of 2025 55

proceeding would tantamount to 'relitigating' and the 'Henderson

Principle' would be applicable. Parties cannot be allowed to exploit

procedural loopholes and different fora to revisit the same matters

they had deliberately chosen not to pursue earlier. Thus, where a

party deliberately withholds certain claims or issues in one

proceeding with the intention to raise them in a subsequent

litigation disguised as a distinct or separate remedy or proceeding

from the initial one, such subsequent litigation will also fall foul of

the 'Henderson Principle'. Similarly, where a plea or issue was

raised in earlier proceedings but later abandoned, it is deemed

waived and cannot be relitigated in subsequent proceedings.

Allowing such pleas to be resurrected in later cases would not only

undermine the finality of judgments but also incentivize strategic

behaviour, where parties could withdraw claims in one case with

the intention of reintroducing them later. Abandonment signifies

acquiescence, barring its reconsideration in subsequent litigation.

This ensures that judicial processes are not misused for tactical

advantage and that litigants are held accountable for their

procedural choices. Parties must litigate diligently and in good

faith, presenting their entire case at the earliest opportunity.

2025:KER:95432 W.A.No.2281 of 2025 56

47.4. In Celir LLP [2024 SCC OnLine SC 3727], the Apex

Court held 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.

48. As laid down by a Three-Judge Bench of the Apex Court

in Nawab Hussain [(1977) 2 SCC 806], as the underlying

principle for res judicata and constructive res judicata for assuring

finality to litigation. The same set of facts may give rise to two or

more causes of action. If, in such a case, a person is allowed to

choose and sue upon one cause of action at one time and to

reserve the other for subsequent litigation, that would aggravate 2025:KER:95432 W.A.No.2281 of 2025 57

the burden of litigation. The Courts have therefore treated such a

course of action as an abuse of its process. Res judicata for this

purpose is not confined to the issues which the court is actually

asked to decide, but that it covers issues or facts which are so

clearly part of the subject matter of the litigation and so clearly

could have been raised that it would be an abuse of the process

of the court to allow a new proceeding to be started in respect of

them. This is, therefore, another and an equally necessary and

efficacious aspect of the same principle, for it helps in raising the

bar of res judicata by suitably construing the general principle of

subduing a cantankerous litigant. That is why this other rule has

sometimes been referred to as constructive res judicata, which, in

reality, is an aspect or amplification of the general principle.

49. As reiterated by the Apex Court in Celir LLP [2024

SCC OnLine SC 3727], the 'Henderson Principle' is a core

component of the broader doctrine of abuse of process, aimed at

enthusing in the parties a sense of sanctity towards judicial

adjudications and determinations. It ensures that litigants are not

subjected to repetitive and vexatious legal challenges. At its core,

the principle stipulates that all claims and issues that could and 2025:KER:95432 W.A.No.2281 of 2025 58

should have been raised in an earlier proceeding are barred from

being raised in subsequent litigation, except in exceptional

circumstances. This rule not only supports the finality of

judgments but also underscores the ideals of judicial propriety

and fairness.

50. 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.

51. Therefore, after the dismissal of W.P.(C)Nos.29909 of

2023, 32498 of 2023 and 32643 of 2023 by Ext.R2(b) common

judgment dated 21.05.2024 of the learned Single Judge on the 2025:KER:95432 W.A.No.2281 of 2025 59

ground that, in the light of the categorical pronouncements made

by the Apex Court and by this Court in the decisions referred to

therein, which includes the decisions in Satyawati Tondon

[(2010) 8 SCC 110] and Naveen Mathew Philip [(2023) 17

SCC 311], the writ petitions are not maintainable, and Exts.R2(d),

R2(e) and R2(f) judgments dated 20.06.2024 of the Division

Bench, whereby W.A.Nos.787 of 2024, 806 of 2024 and 835 of

2024 filed by respondents herein against Ext.R2(b) common

judgment were dismissed as withdrawn, with liberty to avail

alternate remedy, since learned counsel appearing for the

appellant in the respective writ appeals (respondents herein)

sought permission to withdraw the appeals with the liberty to avail

alternate remedy, the respondents herein are not legally entitled

invoke the writ jurisdiction of this Court under Article 226 of the

Constitution of India seeking interference in the proceedings

initiated by the appellant-2nd respondent Bank under the

provisions of the SARFAESI Act, instead of invoking the statutory

remedy provided under Section 17 of the said Act before the Debts

Recovery Tribunal. Therefore, the learned Single Judge ought to

have dismissed W.P.(C)No.5466 of 2025, as not maintainable and 2025:KER:95432 W.A.No.2281 of 2025 60

directed the respondents-writ petitioners to approach the Debts

Recovery Tribunal, invoking the statutory remedy provided under

Section 17 of the SARFAESI Act.

In the above circumstances, this writ appeal is allowed by

setting aside the impugned judgment dated 06.08.2025 of the

learned Single Judge in W.P.(C)No.5466 of 2025, and the said writ

petition is dismissed as not maintainable under Article 226 of the

Constitution of India; however, without prejudice to the right of

the respondents-writ petitioners, in accordance with law, to

approach the Debts Recovery Tribunal, raising appropriate legal

and factual contentions.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.M. MANOJ, JUDGE

AV 2025:KER:95432 W.A.No.2281 of 2025 61

APPENDIX OF WA NO. 2281 OF 2025

PETITIONER ANNEXURES

Annexure A1 COPY OF THE WRIT PETITION I.E. WP(C) NO.

44147/2024(WITHOUT EXHIBITS) Annexure A2 COPY OF THE JUDGMENT DATED 18.02.2025 IN WP(C) NO. 44147/2024 Annexure A3 COPY OF THE W.P(C) NO. 32643/2023 FILED EARLIER BY THE 2 ND PETITIONER BEFORE THIS HON'BLE COURT Annexure A4 COPY COUNTER AFFIDAVIT FILED BY THE BANK IN W.P(C).NO. 32643/2023