High Court of KeralaSingle Judge2024-01-30Writ petition dismissed.

Rajan P.S. v. The South Indian Bank Limited

Case / Petition Number:W.P.(C) No.30515/2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2024-01-30
Court Decision / Holding: W.P.(C) No.30515/2023 dismissed; the court held that writ petition is not maintainable against SARFAESI proceedings and that the petitioner has an efficacious remedy under the SARFAESI Act.
Final Disposition: Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

Rajan P.S.

Respondents

The South Indian Bank Limited
M/S. LAILAK GOLD
MR. ANIL KUMAR P.D.
MR. AJEESH P
MRS. USHA P.R.

Legal Representation & Advocates

Counsels for Petitioners

• Shashank Devan Dileep Chandran
• K.M. Aneesh
• K. Santhosh Kumar (KaliyAnam)
• Adarsh Kumar

Counsels for Respondents

• G. Keerthivas

Case Synopsis & Summary

Rajan P.S., guarantor for two loans availed by the 2nd respondent partnership firm, files a writ petition challenging SARFAESI proceedings initiated by The South Indian Bank against his 25 cents of residential land. The partnership firm had borrowed ₹1.40 crore and ₹28 lakh; the property mortgaged by the petitioner as collateral includes land jointly owned by the partners and the petitioner’s own residence. The petitioner contends equity requires the bank to proceed against the jointly owned security that has market value sufficient to wipe out the debt, rather than enforcing against his personal residential property. The Bank resists, arguing the petitioner as guarantor is liable and that SARFAESI proceedings against his property are valid; moreover, an efficacious remedy exists under the SARFAESI framework, so a writ petition is not maintainable. The Court recalls settled jurisprudence that there is no writ jurisdiction to interfere with SARFAESI proceedings and cites United Bank of India v. Satyawati Tondon, and Authorized Officer, State Bank of Travancore v. Mathew KC, reinforcing the rule. It also incorporates subsequent Kerala decisions (Anilkumar v. SBI) and a Supreme Court decision (South Indian Bank Ltd v. Naveen Mathew Philip) to emphasize that Article 226 relief is contemplated only in extraordinary circumstances where statutory redress is lacking. In light of these authorities, and noting an effective remedy before the statutory Tribunal, the petition is dismissed. The decision aligns with prior pronouncements of this Court (e.g., Jayakrishnan A. v. Union Bank of India).

Provisions of Law Cited

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act)Article 226 of the Constitution of IndiaSection 13(2) of the SARFAESI Act

Legal Doctrines & Maxims

No writ lies against SARFAESI proceedings
Efficacious alternate remedy under SARFAESI Act
Article 226 powers to be exercised in extraordinary circumstances
Statutory redress under the SARFAESI regime precedes discretionary interference by the Constitution bench

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that since the other security property is jointly owned by the partnership and has adequate market value, the bank should recover the debt from that property rather than the petitioner’s 25 cents of residential land; equity demands restraint against proceedings against the petitioner’s property.

Contentions of Respondents

The Bank argues that as guarantor, the petitioner is liable and SARFAESI proceedings against his property are permissible; moreover, the petitioner has an effective remedy under the SARFAESI Act and writ jurisdiction is not available.

Cited Precedents (7)

Case Name	Citation	Treatment	Explanation
United Bank of India v. Satyawati Tondon and others	[(2010) 8 SCC 110]	Positive	No writ petition lies against SARFAESI proceedings per the Supreme Court precedent cited.
Authorized Officer, State Bank of Travancore v. Mathew K.C.	2018 (1) KLT 784	Positive	Reiterates non-maintainability of writ petitions against SARFAESI proceedings.
Satyawati Tondon (supra)	[(2010) 8 SCC 110]	Positive	Foundational authority establishing the non-interference principle in SARFAESI matters.
Anilkumar v. State Bank of India	2020 (2) KLT 756	Positive	Court-facilitated precedent aligning with non-interference and effective remedy under SARFAESI.
South Indian Bank Limited v. Naveen Mathew Philip	2023 (4) KLT 29	Positive	Supreme Court ruling on limited exercise of Article 226 where statutory remedies exist.
Jayakrishnan A. v. Union Bank of India and others	W.P.(C) No.30803/2023	Positive	This Court’s stance that writ petitions challenging SARFAESI proceedings are not maintainable where a statutory remedy exists.
S ANILKUMAR v. THE CATHOLIC SYRIAN BANK LIMITED & ANR.	2013(3) KLJ 43	Mentioned Only	Exhibit P5; cited in appendix, not the core ratio of this decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945** **WP(C) NO. 30515 OF 2023** ## **PETITIONER:** **RAJAN P.S, AGED 60 YEARS S/O. SREEDHARAN, PATTAZHIYIL HOUSE, ENNAKKARAKALLI, MOOTHEDAM P.O., EDAKKARA, MALAPPURAM, KERALA, PIN – 679331** **BY ADVS. SHASHANK DEVAN DILEEP CHANDRAN K.M.ANEESH K.SANTHOSH KUMAR (KALIYANAM) ADARSH KUMAR** ## **RESPONDENTS:** **1 THE SOUTH INDIAN BANK LIMITED, REGIONAL OFFICE, KOZHIKODE, 1 ST FLOOR, HAPPY TOWERS, VAIKOM MOHAMMED BASHEER ROAD, MANANCHIRA, KOZHIKODE, KERALA, PIN - 673001, REPRESENTED BY ITS AUTHORIZED OFFICER** **2 M/S. LAILAK GOLD, REPRESENTED BY ITS MANAGING PARTNER, DOOR NO. EP VI/1033, MAIN ROAD, EDAKKARA, MALAPPURAM, KERALA, PIN – 679331** W.P.(C) No.30515/2023 : 2 : - **3 MR. ANIL KUMAR P.D., PUTHUPARAMBIL HOUSE, KARAPPURAM P.O., EDAKKARA, MALAPPURAM, KERALA, PIN – 679331** - **4 MR. AJEESH P, PUTHUPARAMBIL HOUSE, PANDIKKADU PO, VETTIKATTIRI, MALAPPURAM, KERALA, PIN- 676521** - **5 MRS. USHA P.R, PATTAZHIYIL HOUSE, ENNAKKARAKALLI, MOOTHEDAM PO. , EDAKKARA, MALAPPURAM, KERALA, PIN – 679331** ## **BY ADV G.KEERTHIVAS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.30515/2023 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.30515 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 30[th] day of January, 2024_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who stood as a guarantor for two loans availed by the 2[nd] respondent-Partnership Firm, has filed this writ petition seeking to direct the 1[st] respondentBank to restrain from initiating any further proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against the 25 Cents of residential property mortgaged by the petitioner. 2. The petitioner, who is living with his family in 25 Cents of land with residential building, stood as guarantor for two loans of ₹1,40,00,000/- and ₹28,00,000/- availed by the 2[nd] respondent-Partnership Firm. The petitioner’s 25 Cents of land was given as collateral security along with another W.P.(C) No.30515/2023 : 4 : property jointly owned by the Partners. The loan repayment failed and the Bank invoked proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The Bank is proceeding against the property of the petitioner. 3. In short, the argument of the petitioner is that since the other property mortgaged as security is a property jointly owned by the Partners whose partnership took the loan, and since the market value of that property is sufficient to wipe off the loan liability and since the petitioner is residing in the 25 Cents residential property, the Bank has to proceed against the other property for recovery of loan on equity principle. 4. The Bank resisted the writ petition on various grounds including on the issue of maintainability of the writ petition. Alternate remedy is available to the petitioner and hence the writ petition is not maintainable, contended the 1[st] respondent. W.P.(C) No.30515/2023 : 5 : 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the 1[st] respondent. 6. The Bank is proceeding against the property of the petitioner, who has mortgaged his property as security for the financial advances availed by the 2[nd] respondent. The argument is that on the grounds of equity, the Bank should proceed against the property of the borrower. 7. The petitioner is challenging the steps taken by the Bank under 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 W.P.(C) No.30515/2023 : 6 : 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. 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. W.P.(C) No.30515/2023 : 7 : 12. In Jayakrishnan A. v. Union Bank of India and others (W.P.(C) No.30803/2023), 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 not maintainable and it is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/29.01.2024 W.P.(C) No.30515/2023 : 8 : ## **APPENDIX OF WP(C) 30515/2023** ## **PETITIONER'S EXHIBITS** |**Exhibit P1**|**TRUE COPY OF THE PARTNERSHIP DEED OF**| |---|---| ||**RE-CONSTITUTED**<br>**PARTNERSHIP**<br>**DATED**| ||**09/08/2021**| |**Exhibit P2**|**TRUE COPY OF THE DEMAND NOTICE DATED**| ||**07-06-2023 ISSUED UNDER SECTION 13(2)**| ||**OF THE SARFAESI ACT**| |**Exhibit P3**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**14-08-2023 ISSUED BY THE PETITIONER TO**| ||**THE BRANCH MANAGER OF THE 1ST**| ||**RESPONDENT**| |**Exhibit P4**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**19-08-2023 ISSUED BY THE 1ST**| ||**RESPONDENT TO THE PETITIONER**| |**Exhibit P5**|**A TRUE COPY OF THE JUDGMENT PASSED BY**| ||**THIS HON'BLE COURT IN S ANILKUMAR V.**| ||**THE CATHOLIC SYRIAN BANK LIMITED &**| ||**ANR. [ 2013(3) KLJ 43]**|