Kerala High Court
Authorised Officer vs Joemon Jose on 11 August, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
WA NO. 1949 OF 2025 1 2025:KER:61919
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 11TH DAY OF AUGUST 2025 / 20TH SRAVANA, 1947
WA NO. 1949 OF 2025
AGAINST THE JUDGMENT DATED 25.07.2025 IN WP(C) NO.27100 OF
2025 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENT NOS.1 & 2 IN W.P.(C):
1 AUTHORISED OFFICER
SARFAESI ACT, THE SOUTH INDIAN BANK LTD. HEAD OFFICE,
THRISSUR, PIN - 680001.
2 CHIEF MANAGER
THE SOUTH INDIAN BANK LTD. THRISSUR MAIN BRANCH
MUNICIPAL OFFICE ROAD, THRISSUR DISTRICT, PIN -
680001.
BY ADVS.
SHRI.B.J.JOHN PRAKASH
SHRI.P.PRAMEL
SHRI.SOORAJ M.S.
SMT.VARSHA VIJAYAKUMAR NAIR
SHRI.MANU BABY
SMT.RAJASREE K.
RESPONDENTS/PETITIONER IN W.P.(C):
JOEMON JOSE,
AGED 51 YEARS,
S/O JOSE, PANTHALOOKARAN HOUSE, ST.ANTONY'S STREET,
KURIACHIRA P.O, THRISSUR, PIN - 680006.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA NO. 1949 OF 2025 2 2025:KER:61919
JUDGMENT
Muralee Krishna S., J.
Respondents 1 and 2 in W.P.(C)No.27100 of 2025 filed this
writ appeal under Section 5(i) of the Kerala High Court Act, 1958,
challenging the judgment dated 25.07.2025 passed by the learned
Single Judge in that writ petition.
2. The respondent, who is the proprietor of a poultry
farm, availed altogether five loans from South Indian Bank Ltd.,
Thrissur Main Branch, for the purpose of his poultry farm and also
for other businesses conducted by his family members. Though a
portion of the loans were repaid, according to the respondent, as
on the date of filing of the writ petition, an amount of Rs.5.66
Crores was the total liability outstanding in those five loan
accounts. Since the repayment was defaulted, the Bank converted
the loans into a Non Performing Asset (‘NPA’ in short) and initiated
proceedings under the Provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (‘SARFAESI Act‘ for short). Thereafter, Ext.P1
Possession Notice dated 06.08.2024 and Ext.P2 notice under
Section 13(8) of the SARFAESI Act dated 27.08.2024 were issued
WA NO. 1949 OF 2025 3 2025:KER:61919
by the 1st appellant to the respondent. On receipt of Exts.P1 and
P2, the respondent and his family members offered One-Time
Settlement (‘OTS’ in short) of the loans, by Exts.P3 and P4 letters
dated 28.03.2025 and 11.07.2025, respectively. In Ext.P4, the
respondent offered to close the entire liability by paying a sum of
Rs.3 Crores as OTS, of which 10% can be paid immediately.
Meanwhile, the respondent received Ext.P5 notice dated
08.11.2024 from an Advocate Commissioner appointed by the
Chief Judicial Magistrate Court, Thrissur, in Crl.M.P.No.10656 of
2024. On receipt of Ext.P5 notice, the respondent again submitted
Ext.P6 representation dated 18.07.2025 to the appellants,
reiterating the offer for OTS. Thereafter, the respondent
approached this Court with the writ petition filed under Article 226
of the Constitution of India seeking the following reliefs:
“i. Issue writ in the nature of the Mandamus commanding
respondents 1 and 2 to consider Ext P3, P4 and P6 representation
and permit the petitioner and his family members to settle the
amount due to the 2nd respondent as a One-time settlement as
requested in Ext P3, P4 and P7.
ii. In the alternative issue writ in the nature of mandamus
commanding respondents to regularise the loans by paying the
interest portion of the amount and make the said loans
operational within such time as may be fixed by this Hon’ble
WA NO. 1949 OF 2025 4 2025:KER:61919Court.
iii. issue writ in the nature of mandamus commanding
respondents to permit the petitioner to pay off the amount due
to the 1st respondent as mentioned in Ext P7 within 6 months.”
3. On 25.07.2025, the learned Single Judge disposed of
the writ petition by the impugned judgment. Paragraphs 2 to 4
and the last paragraph of that judgment read thus:
“2. The learned counsel for the petitioner would submit that the
petitioner may be permitted to clear the liability in instalments.
3. It was submitted on behalf of the respondent Bank that the
petitioner committed default in repayment of the loan and the
outstanding amount as on 25.07.2025 is Rs.5,11,52,686/-
(Rupees five crores eleven lakhs fifty two thousand six hundred
and eighty six only). It was further submitted that though
proceedings for recovery have been initiated, as a matter of
indulgence, the respondent Bank is willing to accept repayment of
the outstanding amount in limited instalments. This is recorded.
4. In view of the above, I am of the view that the petitioner can
be granted an opportunity to repay the outstanding amount on
the following conditions:
(i) The petitioner shall pay a sum of Rs.5,11,52,686/- (Rupees
five crores eleven lakhs fifty two thousand six hundred and eighty
six only) with accrued interest, costs and charges, if any, in 15
equal monthly instalments starting from 15.08.2025 and
subsequent instalments shall be paid on or before 15 th of the
succeeding months.
(ii) In the event of default of any one instalment, the respondent
Bank shall be entitled to proceed in accordance with the law;
(iii) All coercive proceedings shall be kept in abeyance to enable
the petitioner to repay the entire amount as directed above.
WA NO. 1949 OF 2025 5 2025:KER:61919
The writ petition is disposed of as above.”
4. Challenging the aforesaid judgment of the learned
Single Judge, the appellants/respondents preferred the present
writ appeal.
5. Heard the learned counsel for the appellants and the
learned counsel for the respondent.
6. The only point that arises for consideration in this writ
appeal is as to whether any interference is needed to the
impugned judgment of the learned Single Judge, whereby an
instalment facility was granted to the respondent to clear the loan
accounts in respect of which, the proceedings under the provisions
of the SARFAESI Act were initiated by the appellants?
7. The learned counsel for the appellants would submit
that the appellants objected the reliefs sought in the writ petition
based on various judgments of the Apex Court to the effect that
the interference of the Court in the matters of SARFAESI
proceedings by exercising jurisdiction under Article 226 of the
Constitution of India is very limited. Similarly, the appellants
contended before the learned Single Judge that a writ of
mandamus cannot be issued under Article 226 of the Constitution
WA NO. 1949 OF 2025 6 2025:KER:61919of India, directing the Bank to positively grant the benefit of OTS
to a borrower. At the time of hearing the writ appeal, the learned
Counsel relied on the judgment of the Apex Court in The Bijnor
Urban Cooperative Bank Limited, Bijnor and Ors. v. Meenal
Agarwal and Ors. [(2023) 2 SCC 805] in support of his
arguments.
8. On the other hand, the learned counsel for the
respondent would submit that the appellants have conceded for
granting instalments to the respondent to clear the outstanding
loan amount and hence, the filing of the writ appeal by the
appellants against the impugned judgment is an abuse of process
of law.
9. During the course of arguments, we noticed that the
learned Single Judge granted an instalment facility to the
respondent, recording that the appellants are also willing to accept
the repayment of the outstanding amount in limited instalments.
To the query about the same, the learned counsel for the
appellants submitted that even the prayer of the respondent was
to grant instalments to clear the loans in six months. Therefore,
the granting of 15 equal monthly instalments by the learned Single
WA NO. 1949 OF 2025 7 2025:KER:61919
Judge is against the concession of the appellants by way of
conceding to accept the repayments of the outstanding amount in
limited instalments.
10. From the materials on record, it is evident that the
loans availed by the respondent from the Bank are now converted
into NPA due to default in the repayment of the same. The Bank
has already initiated proceedings under the provisions of the
SARFAESI Act, and an Advocate Commissioner was also appointed
by the competent court in a petition filed under Section 14 of the
SARFAESI Act by the appellants. It is trite that, except in
exceptional circumstances, a writ petition under Article 226 of the
Constitution of India against the proceedings initiated under the
SARFAESI Act is maintainable.
11. In Authorized Officer, State Bank of Travancore
and Another v. Mathew K.C. [2018 (1) KHC 786], the Apex
Court held that the High Court under Article 226 of the
Constitution of India can entertain a writ petition only under
exceptional circumstances and that it is a self-imposed restraint
by the High Court. The four exceptional circumstances such as,
where the statutory authority has not acted in accordance with the
WA NO. 1949 OF 2025 8 2025:KER:61919
provisions of the enactment in question, or in defiance of the
fundamental principles of judicial procedure, or has resorted to
invoke the provisions which are repealed, or when an order has
been passed in total violation of the principles of natural justice,
were re iterated in paragraph 6 of the said judgment by relying on
the judgment of the Apex Court in Commissioner of Income
Tax and Others v. Chhabil Dass Agarwal [(2014) 1 SCC
603].
12. This position was reiterated by the Apex Court in South
Indian Bank Ltd. (M/s.) v. Naveen Mathew Philip [2023 (4)
KLT 29] and after discussing the various judgments on the point
as well as the circumstances in which the High Court can interfere
within matters pertaining to the SARFAESI Act, held as under:
“Unfortunately, the High Court overlooked the settled law that the
High Court will ordinarily not entertain a petition under Art.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. In our view, 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
WA NO. 1949 OF 2025 9 2025:KER:61919comprehensive 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 remedy under
Art.226 of the Constitution, a person must exhaust the remedies
available under the relevant statute”. (Underline supplied)
13. In PHR Invent Educational Society v. UCO Bank
[2024 (3) KHC SN 3] the Apex Court held that it is more than a
settled legal position of law that in matters arising out of RDB Act
and SARFAESI Act, the High Court should not entertain a petition
under Art.226 of the Constitution particularly when an alternative
statutory remedy is available.
14. A learned Single Judge of this Court in Jasmin K. v.
State Bank of India [2024 (3) KHC 266] reiterated the
position of law laid down by the Apex Court in the aforementioned
judgments.
15. In LIC Housing Finance Ltd. v. Nagson and
Company [2025 KHC OnLine 7406], the Apex Court noticed
that despite the said Court in a series of judgments – United
Bank of India v. Satyawati Tondon [(2010) 8 SCC 110] being
one among them – having cautioned the High Courts to exercise
writ jurisdiction judiciously while entertaining challenges to the
WA NO. 1949 OF 2025 10 2025:KER:61919
actions by secured creditors under Section 13 of the SARFAESI
Act, 2002 to enforce their security interest in view of the scheme,
purpose and object of the enactment, some of the High Courts
look the other way and grant interim relief on the mere asking.
The Apex Court still come across cases where, without just and
sufficient reason being recorded, proceedings taken by secured
creditors have been interdicted by the High Courts, with or without
imposition of conditions, amounting to great disservice of
institutional credibility.
16. In the instant case, apart from seeking a writ of
mandamus commanding the appellants to permit the respondent
to pay off the amount in instalments, the respondent is also
seeking a writ of mandamus commanding the appellants to
consider his request for OTS.
17. The Apex Court in Meenal Agarwal [(2023) 2 SCC
805], while dealing with a question of whether such a direction
can be given to the Bank by exercising the jurisdiction under
Article 226 of the Constitution of India, held thus:
“5.2 Therefore, as per the guidelines issued, the grant of benefit
of OTS Scheme cannot be prayed as a matter of right and the
same is subject to fulfilling the eligibility criteria mentioned in the
WA NO. 1949 OF 2025 11 2025:KER:61919scheme. The defaulters who are ineligible under the OTS Scheme
are mentioned in clause 2, reproduced hereinabove. A wilful
defaulter in repayment of loan and a person who has not paid
even a single installment after taking the loan and will not be able
to pay the loan will be considered in the category of “defaulter”
and shall not be eligible for grant of benefit under the OTS
Scheme. Similarly, a person whose account is declared as “NPA”
shall also not be eligible. As per the guidelines, the Bank is
required to constitute a Settlement Advisory Committee for the
purpose of examining the applications received and thereafter the
said Committee has to take a decision after considering whether
a defaulter is entitled to the benefit of OTS or not after considering
the eligibility as per the OTS Scheme. While making
recommendations, the Settlement Advisory Committee has to
consider whether efforts have been made to recover the loan
amount and the possibility of recovery has been minimized,
meaning thereby if there is possibility of recovery of the amount,
either by initiating appropriate proceedings or by auctioning the
property mortgaged and / or the properties given as a security
either by the borrower and / or by guarantor, the application
submitted by the borrower for grant of benefit under the OTS
Scheme can be rejected.”
18. This position was reiterated by a Division Bench of this
Court in Idukki District Police Co-operative Society Ltd. No.
1-490 v. Rasheed A. K. [2025 (4) KHC 44].
19. When the learned counsel for the respondent again
reiterated that it is with the consent of the appellants the learned
Single Judge disposed of the writ petition directing the respondent
WA NO. 1949 OF 2025 12 2025:KER:61919
to clear the loan in installments, the learned counsel for the
appellants would submit that the conceding was only for six
monthly installments as prayed in the writ petition and therefore,
there is error apparent on the face of the record in the judgment.
The learned counsel would further submit that in such
circumstances, the appellants intend to move before the learned
Single Judge with a review petition.
In view of the aforesaid submission of the learned counsel
for the appellants, the writ appeal stands dismissed, without
prejudice to the aforesaid right of the appellants, if they are
otherwise entitled.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
DSV
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