The High Court of Kerala dismissed a writ appeal filed by borrowers challenging an order directing their bank to accept repayment of defaulted dues in installments. The Court declined to interfere, citing the Supreme Court's settled view that writ jurisdiction lies against bank recovery proceedings only after exhausting statutory remedies.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944
WA NO. 1971 OF 2022
AGAINST JUDGMENT DATED 17.11.2022 IN WP(C) No. 34770/2022
OF HIGH COURT OF KERALA
PETITIONERS/PETITIONERS IN W.P.(C.) NO. 34770/2022:
1 ANIL KUMAR S AGED 49 YEARS S/O. SASEENDRAN T.C. TC 58/2021, GEETHU BHAVAN, KOLIYOOR, VENGANOOR, EDAKKODE, THIRUVANANTHAPURAM, PIN – 695 523
2 SHEEJA. S.S AGED 43 YEARS W/O. ANILKUMAR S T.C 4/384, RADHA KRISHNA BHAVAN, PANAGODE, VENGANOOR P.O, THIRUVANANTHAPURAM, PIN – 695 523
BY ADV. M.R.SARIN
RESPONDENT/RESPONDENT IN W.P.(C.) NO. 34770/2022:
AUTHORISED OFFICER THE AXIS BANK. LTD, NIHAL COMPLEX, 2ND FLOOR, KARAMANA P.O, THIRUVANANTHAPURAM, PIN – 695002
BY ADV. MADHU RADHAKRISHNAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
22.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 1971/2022
2
JUDGMENT
S. Manikumar, C.J.
Before the writ court, in W.P.(C) No.34770/2022,
petitioners/appellants have sought for a writ of mandamus or any other appropriate writ, order or direction, directing the respondent Bank to grant 50 equal monthly instalments for repayment of entire defaulted arrears due to them from the petitioners.
under:-
2.1 The petitioners have availed a loan for
Rs.1,37,00,000/- and also Rs.24,99,999/-, as credit facilities, from the respondent - Axis Bank Ltd., Thiruvananthapuram, in the year 2019. The petitioners had mortgaged their properties comprising of 20 cents, with a building, situated in Kanjiramkulam Village, Trivandrum District, which belonged to the petitioners, to the respondent, as security, for the above loan transactions.
2.2 As per the loan transactions, the petitioners have to pay monthly instalments. They had paid the instalments regularly, but due to the financial crisis, the petitioners could not able to pay the balance instalment regularly.
W.A. No. 1971/2022
3
2.3 It is submitted that the respondent had issued demand notices under Section 13[2] of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 directing the petitioners to pay an amount of Rs. 1,56,473,45.00, otherwise, the properties belonging to petitioners will be taken possession by the respondent.
2.4 It is further submitted that though the petitioners approached respondent to grant time to settle the entire defaulted arrears amount in 50 instalments, all fell on deaf ears. Hence, the writ petition is filed.
“6. Accordingly, there will be a direction to the respondent bank to accept repayment of the entire overdue amount of Rs.10,25,754/- (Rupees Ten lakhs twenty five thousand seven hundred fifty four only) along with bank charges from the petitioners and regularise the loan account of the petitioners on the following conditions:
W.A. No. 1971/2022
4
The writ petition is disposed of as above.
assailed the correctness of the judgment on various grounds, we are not inclined to interfere with the same, as the Hon'ble Supreme Court, on more than one occasion, held that writ against the recovery proceedings initiated by the banks, is not maintainable.
decisions:
W.A. No. 1971/2022
5
further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, 2002, availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, object and purpose of the legislation, Hon'ble Apex Court observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available. Relevant portion reads as under:
“43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. 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 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 remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.
55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.”
( ii) In ICICI Bank Ltd. v. Umakanta Mohapatra and
Others [2018 (13) SCALE 724] , the Hon'ble Supreme Court reaffirmed the legal position that High Court has no jurisdiction
W.A. No. 1971/2022
6
to entertain writ petitions under Article 226 of the Constitution of India, relating to matters coming under the purview of SARFAESI Act, 2002, where a statutory remedy is available by filing an application under Section 17 of the said Act."
“32. The order of the Tribunal dated 1st August, 2019 was an appealable order under Section 18 of the SARFAESI Act, 2002 and in the ordinary course of business, the borrowers/person aggrieved was supposed to avail the statutory remedy of appeal which the law provides under Section 18 of the SARFAESI Act, 2002 in the absence of efficacious alternative remedy being availed, there was no reasonable justification tendered by the respondent borrowers in approaching the High Court and filing writ application assailing order of the Tribunal dated 1st August, 2019 under its jurisdiction under Article 226 of the Constitution without exhausting the statutory right of appeal available at its command.
W.A. No. 1971/2022
7
“43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. 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 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 remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.
W.A. No. 1971/2022
8
appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance.”
the light of the above discussion, and the decisions referred to
above, appellants have not made out a case for interference.
Accordingly, the writ appeal is dismissed.
Sd/-
S. MANIKUMAR CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
DCS/23.12.2022
2 issues framed by the court
Whether the writ appeal challenging the lower court order directing the bank to accept EMI installments warrants interference.
Whether the appellants are entitled to indulgence given the settled law against writ jurisdiction in bank recovery matters under SARFAESI Act.
Colour shows how this judgement treated each authority
United Bank of India v. Satyawati Tondon and OthersExplained¶51
United Bank of India v. Satyawati Tondon and Others [(2010) 8 SCC 110] · Who else cites this
ICICI Bank Ltd. v. Umakanta Mohapatra and OthersRelied on¶55
ICICI Bank Ltd. v. Umakanta Mohapatra and Others [2018 (13) SCALE 724]
Phoenix ARC Private Limited v. Vishwa Bharati Vidya Mandir & Ors.Referred¶59
Phoenix ARC Private Limited v. Vishwa Bharati Vidya Mandir & Ors. [(2022) 5 SCC 345] · Who else cites this
Varimadugu Obi Reddy v. B. Sreenivasulu and OthersExplained¶60
Varimadugu Obi Reddy v. B. Sreenivasulu and Others MANU/SC/1495/2022
Anil Kumar S
Sheeja. S.S
Authorised Officer The Axis Bank. Ltd
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
