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Kerala High Court
Abdul Majeed vs The Joint Registrar Of Co-Operative … on 23 June, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
W.A.No.1500 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
W.A.NO.1500 OF 2025
AGAINST THE JUDGMENT DATED 17.06.2025 IN W.P.(C)NO.21913 OF 2025
OF THE HIGH COURT OF KERALA
APPELLANT/PETITIONER:
ABDUL MAJEED,
AGED 62 YEARS
S/O. MOHAMMEDKUTTY, THALAPPIL HOUSE, AREETHALA,
A.R.NAGAR P.O., MALAPPURAM DISTRICT, PIN - 676305
BY ADV SRI.C.M.MOHAMMED IQUABAL
RESPONDENTS/RESPONDENTS:
1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, MALAPPURAM,
OFFICE OF THE JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE
SOCIETIES, CIVIL STATION, MALAPPURAM DISTRICT, PIN - 676505
2 THE KOTTAKKAL CO-OPERATIVE URBAN BANK LIMITED,
REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, KOTTAKKAL,
KOTTAKKAL P.O., MALAPPURAM DISTRICT, PIN - 676503
3 THE BRANCH MANAGER,
KOTTAKKAL CO-OPERATIVE URBAN BANK LIMITED, ACHANAMBALAM
BRANCH, ACHANAMBALAM P.O., MALAPPURAM DISTRICT, PIN -
676501
OTHER PRESENT:
SMT NISHA BOSE., SR. GP.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.1500 of 2025
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JUDGMENT
Anil K. Narendran, J.
The appellant filed W.P.(C)No.21913 of 2025 invoking the
writ jurisdiction of this Court under Article 226 of the Constitution
of India, seeking a writ of mandamus commanding the 3 rd
respondent Branch Manager of the 2nd respondent Kottakkal
Co-operative Urban Bank Ltd. to restore the possession of the
residential house and property having an extent of 9.20 cents of
land in Re.Sy.No.326/4 of A.R. Nagar Village after permitting him
to clear the dues with the 2nd respondent bank. The further relief
sought for is a writ of mandamus commanding the 1st respondent
Joint Registrar of Co-operative Societies to consider and pass
appropriate orders on Ext.P5 representation dated 03.06.2025
made by the appellant-petitioner, within a time frame to be
stipulated by this Court.
2. The document marked as Ext.P1 is a copy of the
judgment of this Court dated 20.10.2022 in W.P.(C)No.31703 of
2022, which was one filed by the petitioner challenging the
proceedings initiated by the Bank under the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (SARFAESI Act) for recovery of the amount.
W.A.No.1500 of 2025
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That writ petition was disposed of by the judgment dated
20.10.2022 in W.P.(C)No.31703 of 2022, based on the submission
made on behalf of the petitioner, whereby the relief was confined
to an opportunity for repaying the overdue amount in 15
instalments and, thereafter, if the amount so directed is repaid
within the time, to obtain regularisation of the loan account.
Paragraphs 5 and 6 of that judgment read thus;
‘5. Having regard to the circumstances of the case and the
situation now prevailing, apart from the submissions made
as recorded above, I am of the view that the petitioner can
be granted an opportunity to repay the overdue amount in
fifteen (15) instalments and thereafter, if the amount so
directed is repaid within the time as directed above, to have
the loan account regularised.
6. Accordingly, there will be a direction to the respondent
bank to accept repayment of the entire overdue amount of
Rs.18,22,117/- (Rupees Eighteen lakh twenty two thousand
one hundred and seventeen only) along with bank charges
from the petitioner and regularise the loan account of the
petitioner in the following manner:-
(i) The overdue amount of Rs.18,22,117/- (Rupees
Eighteen lakh twenty two thousand one hundred and
seventeen only) along with any accrued interest and
charges shall be repaid in fifteen (15) equated
monthly instalments;
(ii) The first instalment shall be paid on or before
07.11.2022 and the subsequent instalments shall be
paid on or before the 20th day of each succeeding
month;
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(iii) Petitioner shall continue to pay the regular
EMI’s/instalments along with the instalments directed
above;
(iv) In the event of default of any one instalment, the
respondent bank shall be entitled to proceed in
accordance with law;
(v) In order to enable the petitioner to repay the
entire amounts, all coercive proceedings shall be kept
in abeyance.’
3. The appellant did not comply with the conditions
stipulated in Ext.P1 judgment dated 20.10.2022 in
W.P.(C)No.31703 of 2022. He filed I.A.No.1 of 2023 in
W.P.(C)No.31703 of 2022, seeking extension of time to pay the
amount directed to be paid in Ext.P1 judgment. The said
interlocutory application was dismissed. Thereafter, 2nd respondent
bank initiated proceedings to possess the residential building
owned by the petitioner and an Advocate Commissioner was
appointed by the order of the Chief Judicial Magistrate Court,
Malappuram in C.M.P.No.1632 of 2020. Pursuant to the said order,
the Advocate Commissioner issued Ext.P2 notice, whereby the
petitioner was informed that the Advocate Commissioner will be
inspecting the property on 05.02.2024 for taking possession.
4. After the issuance of Ext.P2 notice, the petitioner again
approached this Court in W.P.(C)No.4854 of 2024, challenging the
said notice. That writ petition was disposed of by Ext.P3 judgment
W.A.No.1500 of 2025
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dated 07.02.2024 in W.P.(C)No.4854 of 2024. Paragraphs 3, 4 and
also the last paragraph of that judgment read thus;
“3. Standing Counsel entered appearance on behalf of the
respondents and resisted the writ petition. On behalf of the
respondents, it is pointed out that this is second round
litigation. As per Ext.P3 judgment, this Court had granted
opportunity to the petitioner to remit the overdue amount in
15 equated monthly instalments. The petitioner did not stick
to the time schedule. Thereafter, the petitioner is seeking
extension of time for payment. By now, the overdue liability
of the petitioner itself is more than ₹24 lakhs and the
outstanding amount is ₹39,39,747/- as on date.
4. I have heard the learned counsel for the petitioner and
the learned Standing Counsel representing the respondents.
In the facts of the case, the writ petition is disposed of
directing that if the petitioner pays an amount of ₹12 lakhs
within a period of three weeks from today and approaches
the respondents for any arrangement/One Time Settlement,
the respondents shall consider the same in accordance with
law. If the petitioner pays the amount as directed above,
coercive proceedings against the petitioner shall stand
deferred for a period of three weeks. It is made clear that if
the petitioner is not making any such proposal acceptable to
the Bank, then the respondents will be entitled to proceed
against the petitioner in accordance with law.”
5. After Ext.P3 judgment dated 07.02.2024 in
W.P.(C)No.4854 of 2024, physical possession of the building was
taken by the 2nd respondent Bank. Challenging Ext.P3 judgment,
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the petitioner filed W.A.No.569 of 2024. The same ended in
dismissal by Ext.P4 judgment dated 31.05.2024. Paragraphs 2, 3
and also the last paragraph of that judgment read thus;
“2. The learned Counsel appearing for the appellant would
submit that the appellant is unable to pay the said amount at
a stretch and therefore, the amount may be reduced.
3. The submission made by the learned Counsel for the
appellant was opposed by the learned Counsel appearing for
the respondent bank. However, he would submit that, if the
judgment impugned in this appeal is complied with and if any
representation is made for One Time Settlement, the bank
would certainly consider the same.
In view of the above, we are not inclined to interfere with the
impugned judgment and the writ appeal is dismissed
accordingly. Needless to say that, the petitioner is given the
liberty to approach the Debt Recovery Tribunal with regard to
the grievances raised in this appeal.”
6. It is after Ext.P4 judgment dated 31.05.2024 in
W.A.No.569 of 2024 of the Division Bench, whereby liberty was
given to the petitioner to approach the Debt Recovery Tribunal with
regard to the grievances raised in the writ appeal, that the
petitioner filed Ext.P5 representation dated 03.06.2025 before the
1st respondent Joint Registrar of Co-operative Societies seeking an
order directing the 2nd respondent Bank to permit him to clear the
dues availing the benefit of OTS scheme. After submitting such a
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representation, the petitioner again invoked the writ jurisdiction of
this Court under Article 226 of the Constitution of India, seeking
the aforesaid reliefs. Considering the facts and circumstances of
the case, the learned Single Judge declined interference and
dismissed W.P.(C)No.21913 of 2025, by the judgment dated
17.06.2025. Paragraphs 2 to 5 of that judgment read thus;
“2. The learned Counsel for the respondent bank submits that
there were two writ petitions filed earlier by the petitioner. It
is seen from Ext.P1 judgment dated 20.10.2022 in
W.P.(C)No.31703 of 2022 that the petitioner was given an
instalment facility. Thereafter, the petitioner again filed
W.P.(C)No.4854 of 2024, which was disposed of by judgment
dated 07.02.2024, relegating the petitioner to approach the
bank seeking a one-time settlement.
3. It is submitted by the petitioner that the petitioner did not
make the payment directed in Ext.P3 judgment, which
directed the petitioner to remit an amount of Rs.12 lakhs and
then to approach the bank claiming OTS facility. The petitioner
had also filed W.A.No.569 of 2024, which was also dismissed,
confirming Ext.P3 judgment.
4. The learned Counsel for the respondent bank submits that
the possession of the secured asset was taken on 25.03.2024.
This is recorded.
5. In view of the above, I am not inclined to consider the
prayers sought for in this writ petition, and the same is
dismissed, without prejudice to the right of the petitioner to
avail of the alternate, statutory remedy against the measures
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taken by the secured creditor, if so advised.”
7. Feeling aggrieved, the appellant-writ petitioner is
before this Court in this writ appeal.
8. Heard the learned counsel for the appellant-writ
petitioner and also the learned Senior Government Pleader for the
1st respondent.
9. In South Indian Bank Ltd. v. Naveen Mathew
Philip [2023 SCC online (SC) 435], 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
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reasons assigned. Such a writ is not expected to be issued to
remedy all violations. When a Tribunal is constituted, it is expected
to go into the issues of fact and law, including a statutory violation.
A question as to whether such a violation would be over a
mandatory prescription as against a discretionary one is primarily
within the domain of the Tribunal. The issues governing waiver,
acquiescence and estoppel are also primarily within the domain of
the Tribunal. The object and reasons behind the SARFAESI Act are
very clear as observed in Mardia Chemicals Ltd. v. Union of
India [(2004) 4 SCC 311]. While it facilitates a faster and
smoother mode of recovery sans any interference from the court,
it does provide a fair 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.
10. In Naveen Mathew Philip [2023 SCC OnLine (SC)
435] the Apex Court noticed that, in matters under the SARFAESI
Act, approaching the High Court for the consideration of an offer
W.A.No.1500 of 2025
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by the borrower is also frowned upon by the Apex Court. A writ
of mandamus is a prerogative writ. The court cannot exercise the
said power in the absence of any legal right. More circumspection
is required in a financial transaction, particularly when one of the
parties would not come within the purview of Article 12 of
the Constitution of India. When a statute prescribes a particular
mode, an attempt to circumvent that mode shall not be
encouraged by a writ court. A litigant cannot avoid the non-
compliance of approaching the Tribunal, which requires the
prescription of fees, and use the constitutional remedy as an
alternative. In paragraph 17 of the decision, the Apex Court
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
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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.
11. During the course of arguments, the learned counsel
for the appellant would make available for the perusal of this Court
a copy of the communication dated 17.06.2025 of the 1 st
respondent Joint Registrar of Co-operative Societies, based on
Ext.P5 representation dated 03.06.2025 made by appellant before
the 1st respondent Joint Registrar of Co-operative Societies.
12. The legal issue is well settled by decisions of the Apex
Court referred to supra on the interference of this Court, in
exercise of the extraordinary jurisdiction under Article 226 of the
Constitution of India, in proceedings initiated under the SARFAESI
Act. The learned Single Judge, in impugned judgment dated
17.06.2025, declined interference for the reasons stated therein.
In Ext.P4 judgment dated 31.05.2024 in W.A.No.569 of 2024, the
Division Bench, while declining interference, relegated the
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appellant to avail the statutory remedy provided before the Debt
Recovery Tribunal. It is thereafter that the appellant-writ petitioner
has chosen to invoke the writ jurisdiction of this Court again with
an intention to stall the recovery proceedings.
13. After arguing for some time, the learned counsel for the
appellant-petitioner seeks permission to withdraw this writ appeal
since the appellant is in receipt of a communication
No.ARGTIR/1013/2025(U)(1) dated 17.06.2025 of the 1st
respondent Joint Registrar of Co-operative Societies.
In such circumstances, this writ appeal is dismissed as
withdrawn, based on the aforesaid submission made by the
learned counsel for the appellant-petitioner; however, without
expressing anything on the legality of the aforesaid communication
dated 17.06.2025 issued by the 1st respondent Joint Registrar of
Co-operative Societies.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MIN
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