Kerala High Court
M/S. Grids Engineers And Contractors vs Union Bank Of India on 4 March, 2026
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 4TH DAY OF MARCH 2026 / 13TH PHALGUNA, 1947
ICR (WP(C)) NO. 31 OF 2025
PETITIONER/S:
1 M/S. GRIDS ENGINEERS AND CONTRACTORS,
MMC/IX/456/A7, ATHIRA COMPLEX, MUDAVOOR P.O.,
MUVATTUPUZHA, ERNAKULAM, REPRESENTED BY ITS MANAGING
PARTNER SHINE V. RAJ. PIN-686669
2 SHINE V. RAJ
AGED 46 YEARS
S/O. V.A. RAJAN, MANAGING PARTNER, M/S. GRIDS ENGINEERS
AND CONTRACTORS, MMC/IX/456/A7, ATHIRA COMPLEX, MUDAVOOR
P.O., MUVATTUPUZHA, ERNAKULAM RESIDING AT
VARAMBATHUKUDIYIL HOUSE, VELLOORKUNNAM P.O., MUDAVOOR,
MUVATTUPUZHA, ERNAKULAM, PIN-686669
BY ADVS.
SHRI.E.B.THAJUDDEEN
SHRI.ARTHUR B. GEORGE
SRI.P.A.MOHAMMED ASLAM
SHRI.RAMSHAD K.R.
SHRI.MUHAMMED RISWAN K.A.
SHRI.MIDHUN MOHAN
SHRI.FIDIL V. JOHN
SRI.KIRAN NARAYANAN
SRI.P.SANJAY
RESPONDENT/S:
1 UNION BANK OF INDIA,
REGIONAL OFFICE KOTTAYAM, 3RD FLOOR, AMALA TOWERS,
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606
ADICHIRA JUNCTION, KOTTAYAM, REPRESENTED BY ITS CHIEF
MANAGER AND AUTHORIZED OFFICER, PIN-686630
2 THE BRANCH MANAGER
UNION BANK OF INDIA (E-ANDHRA BANK), THODUPUZHA BRANCH,
1ST FLOOR, VELLARINGAT TOWERS, BY PASS JUNCTION,
THODUPUZHA, IDUKKI DISTRICT, PIN-685584
BY ADVS.
SHRI.ASP.KURUP
SRI.SADCHITH.P.KURUP
SRI.C.P.ANIL RAJ
SHRI.SIVA SURESH
SMT.B.SREEDEVI
SMT.ATHIRA VIJAYAN
SRI. RAJA KANNAN, AMICUS CURIAE
THIS INTRA COURT REFERENCE (WRIT PETITION (CIVIL)) HAVING BEEN
FINALLY HEARD ON 26.02.2026, ALONG WITH WA.2362/2025, THE COURT ON
04.03.2026 DELIVERED THE FOLLOWING:
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 4TH DAY OF MARCH 2026 / 13TH PHALGUNA, 1947
WA NO. 2362 OF 2025
AGAINST THE ORDER DATED IN WP(C) NO.26067 OF 2025 OF HIGH
COURT OF KERALA
APPELLANT/S:
1 UNION BANK OF INDIA,
REGIONAL OFFICE KOTTAYAM, 3RD FLOOR, AMALA TOWERS,
ADICHIRA JUNCTION, KOTTAYAM, REPRESENTED BY ITS CHIEF
MANAGER AND AUTHORIZED OFFICER, PIN - 686630
2 THE BRANCH MANAGER,
UNION BANK OF INDIA (E-ANDHRA BANK), THODUPUZHA BRANCH,
1ST FLOOR, VELLARINGAT TOWERS, BY PASS JUNCTION,
THODUPUZHA, IDUKKI DISTRICT, PIN - 685584
BY ADVS.
SHRI.ASP.KURUP
SRI.SADCHITH.P.KURUP
SHRI.SIVA SURESH
SMT.B.SREEDEVI
SMT.ATHIRA VIJAYAN
RESPONDENT/S:
1 M/S. GRIDS ENGINEERS AND CONTRACTORS,
MMC/IX/456/A7, ATHIRA COMPLEX, MUDAVOOR P.O.,
MUVATTUPUZHA, ERNAKULAM, REPRESENTED BY ITS MANAGING
PARTNER SHINE V. RAJ., PIN - 686669
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606
2 SHINE V. RAJ,
AGED 46 YEARS
S/O. V.A. RAJAN, MANAGING PARTNER, M/S. GRIDS ENGINEERS
AND CONTRACTORS, MMC/IX/456/A7, ATHIRA COMPLEX, MUDAVOOR
P.O., MUVATTUPUZHA, ERNAKULAM RESIDING AT
VARAMBATHUKUDIYIL HOUSE, VELLOORKUNNAM P.O., MUDAVOOR,
MUVATTUPUZHA, ERNAKULAM, PIN - 686669
BY ADVS.
SRI. E.B.THAJUDDEEN
SRI. P.SANJAY
SRI. RAJA KANNAN, AMICUS CURIAE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2026, ALONG
WITH ICR (WP(C)).31/2025, THE COURT ON 04.03.2026, DELIVERED THE
FOLLOWING:
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606
"C.R"
JUDGMENT
Dated this the 4th day of March, 2026
Soumen Sen, C.J.
The order of reference is arising out of a writ petition filed by
M/s. GRIDS Engineering and Contractors and another, inter alia,
challenging the notice issued by the Bank under Section 14 of the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002. The writ appeal has
been preferred against the order of reference.
2. The writ appeal, the reference and the writ petition were
initially heard on 16 February 2026 when Mr. Joseph Jose,
learned counsel representing Mr. E.B. Thajuddeen, learned
counsel for the Petitioners in ICR [W.P(C)] No.31 of 2025, Mr. Raja
Kannan, learned Amicus Curiae and Mr. Siva Suresh, learned
Standing Counsel for the Bank, made their respective
submissions.
3. Before we commenced hearing of the matters on 16
February 2026, the learned counsel for the petitioners and the
ICR[WP(C)].31/25 & WA.2362/25
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Bank have jointly submitted that during the pendency of the
proceedings, the parties have arrived at a settlement. The learned
counsel for the Bank has submitted that the loan account has
already been closed.
4. On the basis of the said submission made on that date, we
could have dropped the reference and the writ appeal by
recording the said submission. However, we felt it necessary to
give our views with regard to the merits of the order of reference,
as the appeal arising from the order of reference has now become
infructuous, in view of the settlement arrived at between the
parties. However, after the hearing was concluded and the draft
judgment was prepared, it appeared that the Amicus Curiae
appointed by the order dated 10 November 2025 did not file his
law notes and it was felt necessary to consider his views. In view
thereof, a fresh order was passed on 19 February 2026 which
reads as follows:
“ORDER
These matters were listed on 16.02.2026.
However, it appears that Mr. Raja Kannan, learned
Amicus Curiae has not filed any law notes on the
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606issue involved in the reference. Although we dictated
an order on that day, upon finalising the draft, we
felt that the views of the Amicus Curiae are required.
2. Hence, the matters shall not be shown as
disposed of on 16.02.2026 and shall instead be
listed on 26.02.2026 for further hearing. All the
parties are directed to file their law notes in the
meanwhile.”
***
5. When all the matters came up on 26 February 2026, a
different set of advocates appeared and it was submitted that the
settlement was obtained by coercion and an application has been
filed today for amendment of the writ petition, but, due to defect,
the said application was not listed. Although we expressed our
displeasure, we passed the following order:
“ORDER
Mr. P. Sanjay, the learned counsel appears and
submits that he has been instructed to represent
the writ petitioner in these proceedings and that
he has been newly engaged after the matter was
last heard by this Bench. It is submitted that one
interlocutory application has been filed along
with the Vakalatnama seeking amendment of the
writ petition.
2. However, we definitely recollect that the
hearing of the writ petition was also concluded on
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606the earlier occasion on the basis of the
submissions made by the learned counsel for the
writ petitioner as well as the Bank that a
settlement had been arrived at between the
parties and the writ petitioner had paid the entire
amount. Upon receipt of the said amount, the
Bank closed the loan account. The learned
counsel for the Bank has, in fact, filed documents
showing the closure of the loan account and as
such, this writ petition has become infructuous.
3. The learned counsel for the writ petitioner,
however, submits that he was not aware of such
submissions being made on behalf of the writ
petitioner. We feel that the writ petitioner ought
to have disclosed such facts to his advocate to
save him from any embarrassment in these
proceedings. In fact, for all practical purposes,
hearing was concluded and an order was
prepared; however, it could not be pronounced as
it appeared that the Amicus Curiae did not file
written notes of submissions. The matters were
listed on 19 February 2026 only for the purpose
of considering the submission of the learned
Amicus with regard to the reference and not for
rehearing of the writ petition or the appeal.
4. The learned counsel for the Bank, on the
earlier occasions and even today, has conceded
that the writ appeal is not maintainable as it
arises out of an order of reference. The Amicus
Curiae has also expressed the same opinion
while explaining his stand with regard to Section
5 of the Kerala High Court Act.
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2026:KER:19606
5. In view of the fact that the interlocutory
application has been filed seeking amendment of
the writ petition and considering the order dated
10 November 2025 granting liberty to the writ
petitioner to approach the learned Single Judge
for appropriate reliefs in the pending writ petition,
W.P.(C) No.26067 of 2025 is detagged.
6. The written notes of arguments filed by
the learned Amicus Curiae are taken on record.
7. The Bank shall file the necessary
documents showing closure of the account upon
the writ petitioner paying the settled amount in
the course of the day.
***
6. The certificate/letter issued by the Bank on 11 November
2025 was taken on record. The said letter reads as follows:
“Union Bank
ASSET RECOVERY BRANCH, ERNAKULAM,
Ravipuram, M.G. Road, Ernakulam, Kerala State,
PIN – 682 035
Email: [email protected]
————————————————————————-
Ref. No. ARB/2025-26/484 Date: 11.11.2025Without Prejudice
M/S. Grids Engineers and Contractors,
MMC/IX/456A7
ATHIRA COMPLEX,
MUDAVOOR P.O.,
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606MUVATTUPUZHA, ERNAKULAM-686669.
Sir/Madam,
Sub: Closure of your loan account – M/s. Grids
Engineers and Contractors.
(1) 121730100032440
On receipt of the entire amount dues in the above-
mentioned loan account, the said loan had been
closed on 21.10.2022. This letter is being issued on
the specific request of the borrower.
For UNION BANK OF INDIA
Sd/-
Branch Manager.”
***
7. In order to appreciate the order of reference, it is
necessary to state certain background facts.
8. M/s. GRIDS Engineering and Contractors has filed
W.P.(C) No.26067 of 2025 challenging Exhibit-P16 order passed
by the Additional Chief Judicial Magistrate Court, Ernakulam
(Special Court for the Trial of Criminal Cases against sitting
and former M.P.s/M.L.A.s of the State) dated 21.06.2025 in
C.M.P. No. 2430 of 2025 in M.C. No.797 of 2022 under Section
14 of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act‘)
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606
as without jurisdiction. When the said writ petition came up
for admission on 18 July 2025, the following interim order
was passed:
“The respondent Bank is directed to file a counter
meeting the allegations in the writ petition. There will
be an interim stay as prayed for, for a period of one
month. Post on 18.08.2025.”
***
9. The said interim order has the effect of disallowing the
Bank to take possession of the secured asset. The said order is
apparently an unreasoned order. An appeal was filed before a
Division Bench of this Court being W.A. No.1802 of 2025 by the
Union Bank of India, the secured creditor, having security
interest over the property in question. When the writ appeal came
up for consideration on 23.07.2025, the following interim order
was passed:
“The learned counsel for the appellants would
point out that the 1st respondent had earlier approached
this Court in W.P.(C)No.18030 of 2024, feeling aggrieved
by the recovery proceedings initiated under the
provisions of the Securitisation And Reconstruction of
Financial Assets and Enforcement of Security Interest
Act, 2002. (‘SARFAESI’ Act for short). That writ petition
was disposed of by Ext.P11 judgment dated
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:1960624.06.2024, subject to the modification in Ext.P12 order
dated 18.03.2025 in R.P.No.157 of 2025. The 1 st
respondent, who has not chosen to comply with the
directions contained in the said judgment/order, has
chosen to file another writ petition, i.e., W.P.(C)No.26067
of 2025 in respect of the very same Securitisation
proceedings, in which the learned Single Judge granted
interim order dated 18.07.2025.
2. The learned counsel would point out the
decision of the Apex Court in Ramakrishna Medical
College Hospital & Research Centre v. State of Madhya
Pradesh and Others [2024 SCC OnLine SC 3194] and
LIC Housing Finance Ltd. v. Nagson and Company
[2025 KHC OnLine 7406].
3. The learned counsel for respondents 1 and 2
seeks an adjournment.
List on 25.07.2025.”
***
10. Before the Division Bench, the learned counsel for the Bank
has raised the question of maintainability of the writ petition on
the ground of existence of efficacious alternative remedy and
propriety of passing such an ex parte interim order in a
proceeding initiated by a secured creditor under Section 13 of the
SARFAESI Act relying upon the decision of the Hon’ble Supreme
Court in LIC Housing Finance Ltd. v. Nagson and Company1
1 2025 KHC OnLine 7406
ICR[WP(C)].31/25 & WA.2362/25
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and United Bank of India v. Satyawati Tondon 2. The Hon’ble
Division Bench set aside the interim order dated 18 July 2025
solely on the ground that “it is not supported by reasons. Such an
order cannot be sustained in view of the law laid down by the
Apex Court in the decisions referred to supra.“, meaning thereby,
the decision of the Hon’ble Supreme Court in LIC Housing
Finance Ltd. v. Nagson and Company (supra) and United
Bank of India v. Satyawati Tondon (supra). The operative
portion of the judgment delivered by the Division Bench on 11
August 2025 is as under:
“In the result, this writ appeal is disposed of, by
setting aside the interim order dated 18.07.2025 of
the learned Single Judge in W.P.(C)No.26067 of 2025
on the sole ground that it is not supported by
reasons. Such an order cannot be sustained in view
of the law laid down by the Apex Court in the
decisions referred to supra. It is made clear that this
judgment will not stand in the way of the learned
Single Judge considering the interim relief sought for
in W.P.(C)No.26067 of 2025 afresh, after considering
the legal and factual contentions raised by both
sides, including the question of maintainability. So as
to enable the respondents-petitioners to bring up the
writ petition before the learned Single Judge, status
quo as on today, in respect of the secured assets,
2 (2010) 8 SCC 110
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shall be maintained for a period of two days.”
(emphasis supplied)
***
11. When the writ petition came up for hearing on 18 August
2025, following the aforesaid judgment, an interim order was
passed as under:
“The pleadings in the writ petition show that the
figure stated by the bank as due from the petitioners,
when disposing of W.P(C) No. 18034/2024 on
24.06.2024, was Rs. 85 lakhs. The said figure was
sought to be varied at the instance of the bank by filing
an R.P., after the writ petitioners had allegedly paid the
entire amount mentioned earlier. Orders were passed
in R.P. 157/2025 on 18.03.2025, wherein the bank
raised a contention that as of 20.05.2024, the
outstanding amount would be Rs. 1,29,03,944/-. Even
then, the petitioners had objected to the figure
suggested by the bank. The judgment in R.P. No. 157 of
2025 dated 18.03.2025 reads as follows;
“The Standing Counsel submits that what was
submitted by the Standing Counsel is incorrect
and the actual amount is Rs.1,29,03,944/-.
Since it is an error on the part of the Counsel, I
am of the view that the said amount can be
corrected. But it is made clear that this will not
be treated as an amount admitted by the
petitioners or computed by this Court. The
actual amount will be as adjudicated by the
appropriate Tribunal. The Review Petition is,
therefore, allowed to the extent of substituting
the figure Rs.1,10,00,000/- appearing in
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606paragraph 7 of the judgment as
Rs.1,29,03,944/-. The figure Rs.85,00,000/-
shown in paragraph 11(i) shall also stand
substituted as Rs.1,04,03,944/-.”
2. It is submitted by both sides that the matter is
pending consideration before the tribunal, and the
amount, if any, due from the petitioners or payable by
the bank in the counterclaim, has not been quantified.
3. That apart, the petitioners contends that the first
application preferred by the bank under S.14 of the
SARFAESI Act was dismissed, and later the same was
allowed without citing any reason.
4. The judgments cited on behalf of the bank are of no
help to them in a case where the amount payable by
the petitioners have not yet been decided by the
Tribunal, as directed by this Court. In the nature of the
disputes raised in this writ petition, the statutory
actions of the bank can certainly be called in question
in a writ petition under Article 226 of the Constitution of
India, and no judgment forecloses that. The argument/
understanding that a writ petition is not maintainable
is certainly flawed.
5. Given the above, I am inclined to entertain this writ
petition. The parties are directed to complete the
pleadings. Meanwhile, there will be an interim stay as
prayed for, pending the writ petition.
Post on 18.09.2025.”
***
12. This interim order was also challenged by the Bank by
preferring an appeal being W.A. No.2076 of 2025 in which the
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interim order was set aside, inter alia, holding that the order did
not take into consideration the issue of maintainability in its
proper perspective and also without discussing the judgments
relied upon by the Bank inasmuch as the said order does not
state the reason for not accepting the principles laid down in the
said decisions of the Hon’ble Supreme Court and in what manner
the said judgments would not be applicable to the facts and
circumstances of the case. For proper and better appreciation of
the order of reference, it is necessary to refer to the following
paragraphs of the order dated 9 September 2025 passed by the
Division Bench:
“9. Law is well settled regarding the jurisdiction of
the High Court to interfere with the proceedings
initiated by the Bank under the provisions of the
Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002,
(‘SARFAESI Act‘ in short) in a writ petition filed under
Article 226 of the Constitution of India.
10. In Union of India v. Satyawati Tondon and
Others [(2010) 8 SCC 110], the Apex Court held thus:
24. There is another reason why the impugned
order should be set aside. If respondent No. 1
had any tangible grievance against the notice
issued under S.13(4) or action taken under S.14,
then she could have availed remedy by filing an
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606application under S.17(1). The expression ‘any
person’ used in S.17(1) is of wide import. It takes
within its fold, not only the borrower but also
guarantor or any other person who may be
affected by the action taken under S.13(4) or
S.14. Both, the Tribunal and the Appellate
Tribunal are empowered to pass interim orders
under S.17 and S.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. 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 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, 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”.
11. In Authorized Officer, State Bank of
Travancore and Another v. Mathew K.C. [2018 (1)
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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 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 with in 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
ICR[WP(C)].31/25 & WA.2362/25
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2026:KER:19606Court 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 Art.226 of the
Constitution, a person must exhaust the
remedies available under the relevant statute”.
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 of India, 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. From the materials on record, we notice that the
appellants have filed a detailed counter affidavit dated
30.07.2025 in the writ petition, producing therewith
Ext. R1A document. The maintainability of the writ
petition itself is challenged in that counter-affidavit. It is
also evident from the judgment dated 11.08.2025 in
Writ Appeal No.1802 of 2025 passed by this Court that
the interim order dated 18.07.2025 passed by the
learned Single Judge was set aside by this Court on
the sole ground that it is not supported by reasons.
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2026:KER:19606
Even then, while going through the impugned order
dated 18.08.2025 passed by the learned Single Judge,
we find no sufficient reasoning therein to say that the
learned Single Judge has taken into consideration the
issue of maintainability raised by the appellants in its
proper perspective. Though in paragraph 4 of that
order, it is stated that the judgments cited on behalf of
the Bank are of no help to them in a case where the
amount payable by the respondents/petitioners has
not yet been decided by the Tribunal, the details of the
judgments held by the Court as not applicable are
nowhere stated in that order. Moreover, why the writ
petition is maintainable and on which ground stated in
Mathew K.C. [2018 (1) KHC 786] and the subsequent
pronouncement of the Apex Court, the present writ
petition will fall, are also not discernible from the
impugned order. In such circumstances, we have no
hesitation to hold that the impugned order dated
18.08.2025 passed by the learned Single Judge is
liable to be set aside.
In the result, the writ appeal is allowed by setting
aside the impugned order dated 18.08.2025 in W.P.
(C)No.26067 of 2025. We are sure that before passing
any further interim orders, the learned Single Judge
will surely consider the legal and factual contentions
raised by the parties to the lis regarding the
maintainability of the writ petition itself. In order to
enable the respondents to bring up the writ petition
before the learned Single Judge, status quo as on
today, in respect of the secured assets shall be
maintained for a period of two days.”
***
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13. Instead of deciding the writ petition on merits, the learned
Single Judge appears to have assumed the appellate jurisdiction
over the judgment passed by the Hon’ble Division Bench as the
learned Single Judge in the order of reference wanted to justify its
exercise of jurisdiction under Article 226 of the Constitution of
India by referring to the decisions of the Hon’ble Supreme Court
in M/s. Godrej Sara Lee Ltd. v. Excise and Taxation Officer-
cum-Assessing Authority and Others3. The learned Single
Judge, in fact, has questioned the propriety of the Division Bench
in entertaining the writ appeal as, according to the learned Single
Judge, under Section 5 of the Kerala High Court Act, 1958, the
said order being interlocutory in nature, is not appealable.
14. In the order of reference, the learned Single Judge has
referred to the Division Bench judgment in the case of The
Inspector General of Police v. M.V. Raghavan & Others4
relying upon the authoritative interpretation of the Larger Bench
of five Judges in K.S. Das v. State of Kerala5 that clarified the
scope and implications of Section 5 of the Kerala High Court Act.
3 AIR 2023 SC 781
4 2007 SCC OnLine Ker 163
5 1992 SCC OnLine Ker 530
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Subsequent decisions of the Hon’ble Division Benches, namely
P.T. Thomas v. Bijo Thomas6, Arakkanattil Oommen Iype v.
Rajamma Joseph7, Mohammad Ali P. Board of Directors 8 have
also been referred to, in order to demonstrate that the said appeal
could not have been entertained by the Division Bench. The views
of the Chief Justice M.S.Menon in Neelakanta Kartha v.
Registrar, Kerala Agrl.University9 were also referred to show
that His Lordship held that the learned Judge having dealt with
the matter under Article 226 and taken a view which is certainly
plausible, it would not be proper to interfere with such finding.
15. In the similar way, reference has been made to the
observation of the Chief Justice Gopalan Nambiar in
Rajalekshmi Motor Service, Kozhikode v. Govt. Of Kerala
and others10 to show that the power under Article 226 of the
Constitution is not trammelled by the procedural niceties of
English law and the Court in appropriate circumstances can even
mould the remedy.
6 2021 SCC OnLine Ker 16455
7 Judgment in W.A No.1034/2022 dated 10.08.2022
8 Judgment in W.A. No.149/2022 dated 07.02.2022
9 1977 SCC OnLine Ker 36
10 1959 SCC OnLine Ker 118
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16. The reference court was also of the view that the aforesaid
judgments have been overlooked by the Division Bench by
passing orders in W.A.No.2076 of 2025, whereby the learned
Single Judge was asked to give additional justifications. The
learned Single Judge was of the view that the Court having found
that the writ petition is to be entertained for the reasons set out
in the order and if the Division Bench was not convinced of the
same, it could not have exercised the power under Section 5 of
the Kerala High Court Act, based on the principles laid down in
the judgments mentioned above, including the decision of the
Larger Bench.
17. The learned Single Judge in the order of reference has
criticised the judgment of the Hon’ble Division Bench in observing
that it is rudimentary that the writ petition could not have been
dismissed as not maintainable and the back-to-back directions as
to the maintainability virtually is in the form of a direction upon
the learned Single Judge to decide until the result is acceptable to
the Division Bench. The Division Bench has travelled far beyond
the legitimate bounds of intra-court appellate scrutiny, totally
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contrary to the Larger Bench decision of this Court and against
the Division Bench judgments that directly dealt with the very
same issue.
18. The reference court has referred to the decision of the
Hon’ble Supreme Court in Shabna Abdulla v. Union of India
and Others11 that has reminded the age old dictum that the
learned Single Judges and Benches of the High Courts cannot
refuse to follow and accept the verdict and law laid down by the
Co-ordinate and even Larger Benches by citing minor difference
in the facts as a ground for doing so.
19. In such factual background, the learned Single Judge in the
order of reference has observed that the scope of an intra-court
appeal under Section 5 of the Kerala High Court Act, 1958, in
particular against the interim orders passed by the learned Single
Judge, calls for consideration by a Larger Bench of this Court.
20. When this matter was placed before Mr. Justice Nitin
Jamdar, the former Chief Justice of this Court, the matter was
directed to be placed before the Division Bench presided by
11 AIR 2024 SC 4087
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Mr. Justice Muhamed Mustaque to decide whether the matter is
to be heard by a Division Bench or a Larger Bench. The writ
appeal was directed to be heard along with ICR [W.P.(C)] No. 31
of 2025. Accordingly, W.A. No. 2362 of 2025 was posted along
with ICR [W.P. (C)] No. 31 of 2025 and W.P.(C) No. 26067 of 2025.
21. The Hon’ble Division Bench in its order dated 10 November
2025 observed that the issues raised in the reference have
serious ramifications on the practice and procedure being
followed by this Court and considering the nature of the issues
involved, appointed Mr. Raja Kannan, learned counsel of this
Court, as Amicus Curiae. The said order made it clear that
nothing would prevent the writ petitioners from approaching the
learned Single Judge for appropriate reliefs. The said order also
made it clear that what is pending before this Court is a legal
question and not a question with regard to the rights and
obligations of the parties raised in the writ petition. However, the
matter was not referred to a Larger Bench. The matter has now
come up for final consideration.
22. The Bank has filed a writ appeal against the order of
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reference which, in our view, is clearly not maintainable. It is for
the reference court to decide as to whether the reference should
be answered or declined. The Appellant Bank does not have any
say in this regard. Hence, the Writ Appeal, at the instance of the
Bank has to be dismissed. Moreover, the Bank has closed the
loan account on 11 November 2025, on receipt of the entire
outstanding amount due in respect of the loan account and the
borrower/writ petitioner was duly informed of the said fact.
23. As observed earlier, the parties have settled their disputes in
the meantime and the efficacy of the interim order has now
become inconsequential although an attempt has now been made
to revive the said issue. However, we feel it appropriate to observe
that by the order of reference, the learned Single Judge has
questioned the propriety of an order passed by an Hon’ble
Division Bench which is against judicial discipline and decorum.
In fact, the very same judgment on which reliance is placed,
namely, Shabna Abdulla (supra), has cautioned against judicial
indiscipline and reiterated that “breach of discipline have grave
impact on the credibility of judicial institution and encourages
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chance litigation”.
24. The principle laid down by Salmond in the famous treatise
on jurisprudence is very pertinent. In paragraph 28, page 158 of
the treatise, the learned Author opined as under:
“The general rule is that a Court is bound by the
decisions of all Courts higher than itself. A High
Court Judge cannot question a decision of the Court
of Appeal, nor can the Court of Appeal refuse to
follow judgments of the House of Lords.”
***
25. The only exception to the doctrine of binding precedent is
where the decision is passed sub silentio [see Municipal
Corporation of Delhi v. Gurnam Kaur 12] or per incuriam [see
Shanti Conductors (P) Ltd. (M/s.) and Another v. Assam State
Electricity Board and Others13, at paragraph 47].
26. The issue relating to binding precedent as raised in the
reference can be answered with reference to a few decisions
where the law has been succinctly enunciated. The Constitution
Bench of the Hon’ble Supreme Court authoritatively settled this
position in Pradip Chandra Parija v. Pramod Chandra
12 (1989) 1 SCC 101
13 (2016) 15 SCC 13
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Patnaik14 by holding that if a Co-ordinate Bench doubts the
correctness of an earlier decision, the only permissible course is
reference to a Larger Bench. Judicial indiscipline at the highest
level inevitably percolates downward and destabilises the entire
justice delivery system. Subsequently, in Central Board of
Dawoodi Bohra Community v. State of Maharashtra15,
another Constitutional Bench of the Hon’ble Supreme Court laid
down three clear propositions:
(a) The decision by a Bench of larger strength of the
Supreme Court is binding only on any subsequent
bench of lesser or coequal strength.
(b) A Bench of lesser strength cannot disagree with a
Larger Bench. In case of doubt, all that the Bench
of a lesser quorum can do is to invite the attention
of the Chief Justice and request that the matter be
placed for hearing before a Bench of a larger
quorum than the Bench whose decision has come
up for consideration.
(c) A Bench of equal strength cannot overrule another
Co-ordinate Bench. But, it will be open for a
Bench of coequal strength to express an opinion
doubting the correctness of the view taken by the
earlier Bench of coequal strength. In that case, the
matter may be placed for hearing before a Bench
14 AIR 2002 SC 296
15 AIR 2005 SC 752
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consisting of a quorum larger than the one which
pronounced the decision laying down the law, the
correctness of which is doubted.
***
27. This was further cemented by yet another Larger Bench of
the Hon’ble Supreme Court in Property Owners Association v.
State of Maharashtra16.
28. In M/s. IVECO Magirus Brandschutztechnik GMBH v.
Nirmal Kishore Bhartiya17, it was observed as follows:
“What applies to the Judges of the High Courts faced
with decisions of this Court where a cleavage of
opinion is discernible, and particularly when the
High Courts are technically bound by both decisions,
equally applies to Hon’ble Judges of this Court. It
would be inappropriate for a Bench, comprised of 2
(two) Judges of this Court, to hold which line of
decisions lays down the correct law. In such a
scenario, when there are decisions of this Court not
expressing views in sync with each other, the first
course to be adopted is to ascertain which is the
decision that has been rendered by a larger Bench.
Obviously, inter se decisions of this Court, a decision
of a Constitution Bench would be binding on the
Benches of lesser strength. None of the decisions that
we have considered is rendered by a Constitution
Bench. However, a sole judgment rendered by a
Bench of 4 (four) Hon’ble Judges and 3 (three)
decisions rendered by the Benches comprised of 3
16 2024 SCC OnLine SC 3122
17 (2024) 2 SCC 86
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(three) Hon’ble Judges are there, which call for
deference. Ordinarily, the decision of a larger Bench
has to be preferred unless of course a Bench of lesser
strength doubts an earlier view, formulates the point
for answer and refers the matter for further
consideration by a larger Bench in accordance with
law. If, however, the decisions taking divergent
views are rendered by Benches of coequal strength,
the next course to be adopted is to attempt to
reconcile the views that appear to be divergent and to
explain those contrary decisions by assuming, to the
extent possible, that they applied to different facts.
The other course available is to look at whether the
previous decision has been noticed, considered and
explained in the subsequent decision; if not, the
earlier decision continues to remain binding whereas
if the answer is in the affirmative, the subsequent
decision becomes the binding decision. We add a
caveat that if the subsequent Bench, instead of
deciding the matter before it finally upon
consideration of the decision of the earlier Bench,
formulates the point of difference and makes a
reference for a decision by a larger Bench, it is the
former decision that continues to govern the field so
long the larger Bench does not decide the reference.”
(emphasis supplied)
***
29. The doctrine of precedent, thus, is not a matter of
convenience or choice but a binding discipline that preserves the
structural integrity of the judicial system. It ensures that law
develops in an orderly, coherent and hierarchical manner.
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30. In this regard, we refer to the decision of this Court in
Kannappan v. RTO, Ernakulam18, relied upon by the learned
counsel for the Bank. In Kannappan (supra), the issue of
reference arose when a Single Judge refused to following a
binding Division Bench ruling in Velayudhan Nadar v. State of
Kerala19. Instead of applying the established precedent, the
Single Judge reiterated his own previously overruled views and
referred the matter to a Larger Bench. The Division Bench
clarified the legal positions regarding references in paragraphs 2,
3 and 4 of the said decision, which are as follows:
“2. There can be no “hesitation” for a single Judge to
follow a Division Bench ruling binding on the single
Bench for, he is bound in law to follow the Division
Bench decision. The fact that the views of the
learned Judge did not find acceptance at the bands
of the Division Bench does not mean that whenever
the identical question is raised before the learned
Judge, the matter has to be again referred to a
Division Bench till the views of the single Judge are
endorsed by a Division or Full Bench. Brought op in
the highest traditions of judicial discipline, this court
cannot at any time swerve from the path of judicial
decorum and propriety. We shall content ourselves
by a quotation from the decision of the Supreme
18 1988 (1) KLT 902
19 1986 KLT 633
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2026:KER:19606Court in Asstt. Collector, C. E., Chandran Nagar v.
Dunlop India Ltd. (AIR 1985 SC 330) thus:-
“We desire to add and as was said in Cassel
and Co. Ltd. v. Broome. 1972 AC 1027 we
hope it will never be necessary for us to say
so again that ‘in the hierarchical system of
Courts” which exists in our country, ‘it is
necessary for each lower tier’, including the
High Court, ‘to accept loyally the decisions of
the higher tiers’. “It is inevitable in a
hierarchical system of Courts that there are
decisions of the Supreme Appellate tribunal
which do not attract the unanimous approval
of all members of the judiciary……But the
judicial system only works if someone is
allowed to have the last word and that last
word, once spoken, is loyally accepted”. (See
observations of Lord Hailsham and Lord
Diplock in Broome v. Cassell.) The better
wisdom of the court below must yield to the
higher wisdom of the court above. That is the
strength of the hierarchical judicial system”.
3. Reiterating the same principle, in a very recent
ruling of the Supreme Court in Shyamarju v. U. V.
Bhat (AIR 1987 SC 2323) came down very heavily
on a Division Bench which did not follow the Full
Bench decision of the same court.
4. Under S.3 of the Kerala High Court Act. a single
Judge may adjourn a case for being heard and
determined by a Bench of two Judges. But a single
Judge has no power to refer a case to a Full Bench
for, that power is expressly reserved to a Bench of
two Judges under S.4 of the Act. The reference now
made by the learned single Judge has to be
construed as a reference under S.3 to a Division
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Bench, even if the learned Judge intended by the
use of the expression ‘larger Bench’, that it should
be referred to a Full Bench.”
***
31. The aforesaid decision has conclusively addressed the issue
of the power of the learned Single Judge to refer a case to the Full
Bench. A Single Judge of the High Court is ordinarily bound to
accept as correct the judgments rendered by Courts of co-
ordinate jurisdiction, as well as those of the Division Benches
and Full Benches of this Court. The reason for the rule which
makes a precedent binding lies in the decision to secure
uniformity and certainty in the law. All that is required in the
instant case is that, the reference having arisen out of the order
of the Division Bench interfering with the discretion exercised by
the learned Single Judge, the order of the Division Bench needs
to be respected, as judicial discipline and propriety demand that
the learned Single Judge is bound by the decision of the Division
Bench; and similarly, a Bench of two learned Judges should
follow the decision of a Bench of three learned Judges, and in
case of a difference of opinion between two Benches of equal
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strength, the proper course would be to refer the matter to a
Bench of higher strength by setting out the reasons as to why it
could not agree with the earlier judgment.
32. In the instant case, as observed earlier, the parameters laid
down in K.S.Das (supra) do not permit the Single Judge to make
a reference to a Division Bench or a Larger Bench. A Full Bench
of this Court in Marykutty Joseph v. State of Kerala20, has
considered the circumstances under which a case can be referred
to a Larger Bench by the Single Judge. It was observed therein
that a reference is warranted only when;
“(i) The correctness of an earlier Division Bench
decision is doubted;
(ii) Conflicting views are expressed by two Division
Benches; and
(iii) The state of law has become uncertain.”
The above dictum was laid down after adverting to Babu
Premarajan v. Superintendent of Police21 and Cochin
Malabar Estates & Industries v. State of Kerala22.
20 2006 (4) KLT 447
21 2000 (3) KLT 177
22 2002 (1) KLT 588
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33. None of the situations contemplated in the aforesaid
decisions arise in the instant case for which a reference to the
Division Bench is necessary, and it is not for the learned Single
Judge to decide otherwise, considering the long line of decisions
of the Hon’ble Supreme Court with regard to the exercise of
jurisdiction by the writ court in a SARFAESI matter. The
circumstances under which such discretion should be exercised
have been spelt out in those decisions and we have also indicated
the relevant circumstances in the order of reference for invoking
the writ jurisdiction. However, discretion that is well reasoned
normally is not interfered with by a Division Bench at an interim
stage, on the well-accepted principle that if the view expressed by
the learned Single Judge is a possible and plausible view and
merely because another view is possible on the same set of facts,
the Division Bench may not interfere with such a discretionary
order unless it is manifest from the record that it is ex facie and
manifestly perverse or contrary to the well-established and
settled principles of law.
34. Curiously, the writ petitioners are not aggrieved by either of
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the orders passed by the Hon’ble Division Bench whereby the
Hon’ble Division Bench has repeatedly reminded the learned
Single Judge with regard to the caution required to be exercised
under Article 226 of the Constitution of India challenging the
action taken by the secured creditors for enforcement of its
security interest under the SARFAESI Act.
35. Admittedly, the first order was without any reason. Insofar
as the second order is concerned, it appears that the Hon’ble
Division Bench, in its wisdom, has found that although
judgments of the Hon’ble Supreme Court regarding the self-
imposed limitations imposed by the Constitution Courts were
relied upon by the Bank, there has been no meaningful
discussion on the non-application of the principles laid down in
the said judgments to the facts of the case.
36. The Hon’ble Division Bench seems to have not accepted the
observations and findings of the learned Single Judge in
paragraph 4 of the order dated 18 August 2025 as sufficient
consideration of the judgments cited on behalf of the Bank with
regard to non-entertainability of the writ petition.
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37. A brief discussion of the judgments relied upon by the Bank,
and their relevance and applicability to the facts of the case, was
all that were required in terms of the order of the Hon’ble Division
Bench dated 9 September 2025, whereby the matter was
remanded for fresh consideration. Even it is assumed for the sake
of argument that the Hon’ble Division Bench may have passed an
order which, in the estimation of the learned Single Judge, would
be contrary to any decision of a Co-ordinate Bench or a Full
Bench, it was not proper for the learned Single Judge to ignore
the direction of the Hon’ble Division Bench and to take up the
issue of the writ petitioners to question the propriety of the
said order.
38. Moreover, we find that the judgments relied upon in the
order of reference do not decide conclusively that if a point of
maintainability of a writ petition is raised, which essentially is a
question of discretion to be applied by the writ court in view of
the existence of an efficacious alternative remedy and is decided
against the respondent, the affected party who had raised an
objection to entertain the writ petition due to existence of an
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alternative remedy even if it is an interim order, would be
precluded from preferring an intra-court appeal raising the plea of
discretion being applied by the learned Single Judge in
entertaining the writ petitions. The order may be interlocutory or
final. Whenever such a plea of alternative remedy is raised, the
Court has to prima facie decide the said issue and give reason
which could be brief for not accepting such objection at the
admission stage.
39. In this context, reference needs to be made to the evolving
contours of Section 5 of the Kerala High Court Act, 1958, which
confers appellate power on a Bench of two Judges. The said
section reads as follows:
“5. Appeal from judgment or order of Single
Judge.- An appeal shall lie to a Bench of two
Judges from, —
(i) a judgment or order of a Single Judge in the
exercise of original jurisdiction; or
(ii) a judgment of a Single Judge in the exercise of
appellate jurisdiction in respect of a decree or order
made in the exercise of original jurisdiction by
Subordinate Court.”
***
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The said provision, through its two limbs, reflects the instances
under which an appeal lie before the Bench of two Judges.
40. The two limbs of Section 5 are, (i) a judgment or order of a
Single Judge in the exercise of original jurisdiction: or (ii) a
judgment of a Single Judge in the exercise of appellate
jurisdiction in respect of a decree or order made in the exercise of
original jurisdiction by the Subordinate Court.
41. The learned Single Judge has proceeded on the basis that
the order passed on 18 August 2025 (which was set aside by the
Division Bench by judgment dated 9 September 2025 in W.A.
No.2076/2025) was in the nature of an interim order, as it did
not finally adjudicate the lis between the parties. Before we
express our view, we may refer to the written submissions made
by Mr. Raja Kannan, the learned Amicus Curiae, with regard to
the criteria laid down by the Full Bench of this Court in K.S.
Das (supra).
42. The learned Amicus Curiae has contended that the Full
Bench in K.S. Das (supra) has interpreted, inter alia, the word
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‘order’ as appearing in Section 5(1) of the Kerala High Court Act
and rejected the point that the term ‘order’ must be construed
literally. The Full Bench also rejected the proposition that ‘order’
must receive a vide construction, akin to Article 136 of the
Constitution of India.
43. The Full Bench, at paragraph 43 of the decision in K.S. Das
(supra), held that an ‘order’ obviously cannot include mere
procedural orders or adjournment, admission of writ … etc.,
which do not seriously affect the rights of the parties. The Full
Bench, at paragraph 50, held that the word ‘order’ does not,
however, mean any order whatsoever passed pending the writ
petition, but only such ‘orders’ which affect or touch upon the
substantial rights and liabilities of parties pending the writ
petition, and is not restricted necessarily to ‘final orders’. The Full
Bench, at paragraph 54, held that the decisions of the High Court
disposing of the main writ petitions finally, whether by way of
issuing writs, directions or order cannot be treated as ‘orders’,
but as ‘judgment’, as it finally disposes the writ petition on
merits. At paragraph 66, it was further held by the Full Bench
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that the nature of the ‘order’ appealable belongs to the category of
‘intermediate orders’ referred to by the Supreme Court in Madhu
Limaye v. State of Maharashtra23.
44. Regarding the scope and nature of the appellate powers
vested under Section 5 of the Kerala High Court Act, the learned
Amicus Curiae has submitted that the decision of the Full Bench
in K.S. Das (supra), provides the guiding light. The Full Bench, at
paragraph 66, held that it is not necessary for the Division Bench
in every case, to admit the appeal or have to modify the impugned
order or set it aside the same. Discretionary orders though
normally are not to be interfered with by the Division Bench, but
if the said orders are without jurisdiction, contrary to law, or are
perverse, and they also cause serious prejudice to the parties in
such a manner that it might be difficult to restore the status quo
ante or grant adequate compensation. The appellate powers of the
Bench of two Judges as envisaged under Section 5(1) of the
Kerala High Court Act, as against the ‘intermediate’/discretionary
orders of the Single Judge, can be exercised only on the
23 (1977) 4 SCC 551
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satisfaction of the instances specified by the Full Bench in K.S.
Das (supra).
45. The decision of the Full Bench in K.S. Das (supra) to which
reference was made in the order of reference (supra) with regard
to the interpretation of Section 5 of the Kerala High Court Act, in
our view, does not support the order of reference, as the
conclusions of the judgment delivered by the Chief Justice would
unmistakably show that it is the nature of the order that matters,
and if it appears that the said order substantially affects or
touches upon the substantial rights or liabilities of the parties,
and are matters of moment and cause substantial prejudice to
the parties, the said order even it is ad-interim or interim in
nature, would be appealable. The conclusions are as follows:
“Conclusion: (1) The word ‘order’ in S.5(i) of the
Kerala High Court Act, 1958 includes, apart from
other orders, orders passed by the High Court in
Miscellaneous Petitions filed in the Writ Petitions
provided the orders are to be in force pending the
Writ Petition. An appeal would lie against such
orders only if the orders substantially affect or touch
upon the substantial rights or liabilities of the
parties or are matters of moment and cause
Substantial prejudice to the parties. The nature of
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2026:KER:19606the ‘order’ appealable belongs to the category of
‘intermediate orders’ referred to by the Supreme
Court in Madhu Limaye‘s case, AIR 1978 SC 47. The
word ‘order’ is not confined to ‘final order’ which
disposes of the Writ Petition. The ‘orders’ should not.
however, be ad-interim orders in force pending the
Miscellaneous Petition or orders merely of a
procedural nature.
(2) But this does not mean that the Division Bench
hearing the appeal against such ‘orders’ will have to
admit the appeal or have to modify the impugned
order or set it aside the same in every case. There is
difference between the question whether an appeal
lies to a Division Bench and as to the scope of
interference. Normally, discretionary orders are not
interfered with unless the impugned orders are
without jurisdiction, contrary to law, or are perverse,
and they also cause serious prejudice to the parties
in such a manner that it might be difficult to restore
the status quo ante or grant adequate compensation.
The idea is to provide an internal remedy in such
cases without compelling the parties to go all the
way to the Supreme Court under Art.136 of the
Constitution of India or increase the burden of that
court unnecessarily.
(3) It will, however, be incumbent upon the appellant
to serve the counsel who has appeared before the
Single Judge for the opposite party (unless of course
the counsel’s authority has been revoked or he is
dead) and when such appeals against orders come
up in appeal for admission before the Division
Bench, it will be open to the Bench to treat such
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service as mentioned above as sufficient service on
the parties (unless the court, in the circumstances of
the case, thinks otherwise) and to dispose of the
appeal either at the stage of admission or soon
thereafter, after considering the facts of the case or
subsequent events. This would generally obviate
admission of the Writ Appeals, issue of notice and
the passing of interim orders pending Writ Appeals.”
(emphasis supplied)
***
46. Justice Varghese Kalliath, in his concurring judgment in
K.S. Das (supra), while accepting the conclusions of the learned
Chief Justice, observed as follows:
“To sum up, I agree with the conclusions of the
learned Chief Justice and hold that an appeal is
maintainable against an interlocutory order,
provided it is a final order on the miscellaneous
petitions in the sense that it is not an ad interim
order if the order substantially affects or touches
upon substantial rights and liabilities of the parties
or are matters of moment or matters which would
cause real legal prejudice to the parties, even though
the parent original proceedings is alive. The nature
of the order appealable can be classified in the
category of “intermediate orders”, within that frame
in which the Supreme Court has used that term in
Madhu Limaye‘s case (AIR 1978 SC 47). It is not
necessary that to attract S.5(i) to maintain an appeal
that the order should have the label of a final order
ICR[WP(C)].31/25 & WA.2362/25
-:45:-
2026:KER:19606in the sense that it disposes of the original
proceedings under Art.226 of the Constitution.”******
47. The prophetic words of Benjamin N. Cardozo, Associate
Justice of the United States Supreme Court during 1932-38, that
“adherence to precedent should be the rule and not the exception”,
have been reiterated by a Full Bench of this Court in Peter v.
Sara24 wherein Justice Kurian Joseph, one of the Hon’ble Judges
constituting the Bench before His Lordship’s elevation to the
Supreme Court, observed as follows:
“It is the linchpin of justice system. It is intended to
secure uniformity and certainty on legal positions,
based on the principle of judicial comity, otherwise it
brings law as well as the system to disrepute, if not
the Court. Thus ordinarily, a court of coordinate
jurisdiction is expected to follow the decision of a
coequal Bench. Refusal is only exception and to be
exercised in exceptional circumstances, not merely
because a different view is possible, but because the
view expressed by the court of coordinate
jurisdiction is not merely wrong, but so clearly and
seriously wrong that it cannot logically exist or when
it is productive of public hardships or inconvenience,
as observed by the Supreme Court in M.
Chhagganlal (P) Ltd. and Others v. Municipal24 2006 (4) KLT 219 (F.B.)
ICR[WP(C)].31/25 & WA.2362/25
-:46:-
2026:KER:19606Corporation of Greater Bombay and Others25.”
***
48. The Full Bench, after reviewing the judicial decisions on the
power of the learned Single Judge to refer to a Larger Bench, held
as follows:
“Under Section 3 of the Kerala High Court Act, held
that, a single Judge may adjourn a case for being
heard and determined by a Bench of two Judges.
But Single Judge has no power to refer a case to
the Full Bench and that power is expressly
reserved to a Bench of two Judges under Section 4
of the Kerala High Court Act…..”.
***
A Single Judge cannot refer a matter to a Full Bench. It
was also observed that, merely because a learned Single
Judge/Division Bench entertains another view or merely because
another view is possible, the judgment shall not be distinguished.
If the situation is so compelling, a reference for reasons and
coining the question to be decided in reference can be made. A
Bench of smaller strength cannot bypass the Bench of larger
strength and make a reference to a Bench of still larger strength.
The said decision emphasised, apart from the lack of power of a
learned Single Judge to make a reference, the requirement of
25 AIR 1974 SC 2009
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-:47:-
2026:KER:19606
judicial comity and the limits to the power of a Single Judge to
make such a reference.
49. The learned counsel for the Bank has relied upon the
following decisions relating to the same principle:
In Shah Faesal (supra), it was held that a smaller Bench
may only refer a matter to a larger Bench if it is shown that a
subsequent decision of the Supreme Court has already cast doubt
on the earlier Bench’s ruling. Even then, the matter must be
referred to a Bench of co-ordinate strength to the one being
doubted, which may then refer it further to a larger Bench.
Regarding the power of the Chief Justice, it was observed that the
ultimate power to constitute a larger Bench to resolve such
conflicts or doubts rests with the Chief Justice. This appears to
be the majority view.
26 2019 (1) KLT Online 2004 (Patna) (FB)
27 2019 (3) KLT 328
28 2020 (2) KLT Online 1105 (SC
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-:48:-
2026:KER:19606
50. The substantial prejudice, as perceived by the Bank, was in
forestalling the passing of an order under Section 14 of the
SARFAESI Act, 2002, initially ex parte and, subsequently, after
affording the Bank an opportunity to object to the continuation of
the proceedings before the learned Single Judge on the ground
that an efficacious alternative remedy is available under the
SARFAESI Act, 2002. The Hon’ble Supreme Court in State Bank
of India v. Mathew K.C.29 has clearly observed that the
SARFAESI Act, 2002, is a complete code by itself.
51. In this regard, it may be appropriate to refer to a few of the
decisions of the Hon’ble Supreme Court with regard to the
exercise of power under Article 226 of the Constitution vis-a-vis
the SARFAESI Act, 2002.
52. In the case of Authorized Officer, State Bank of Travan-
core and Another v. Mathew K.C.30, it was observed by the
Hon’ble Supreme Court as follows:
“SARFAESI Act is a complete code by itself,
providing for expeditious recovery of dues arising out29 (2018) 3 SCC 85
30 2018 (1) KHC 786
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-:49:-
2026:KER:19606of loans granted by financial institutions, the remedy
of appeal by the aggrieved under Section 17 before
the Debts Recovery Tribunal, followed by a right to
appeal before the Appellate Tribunal under Section
18. The High Court ought not to have entertained the
writ petition in view of the adequate alternate
statutory remedies available to the respondent. The
interim order was passed on the very first date,
without an opportunity for the appellant to file a
reply. Reliance was placed on United Bank of India v.
Satyawati Tondon [United Bank of India v. Satyawati
Tondon, (2010) 8 SCC 110: (2010) 3 SCC (Civ) 260]
and Sri Siddeshwara Coop. Bank Ltd. v. Ikbal [Sri
Siddeshwara Coop. Bank Ltd. v. Ikbal, (2013) 10 SCC
83: (2013) 4 SCC (Civ) 638]. The writ petition ought to
have been dismissed at the threshold on the ground
of maintainability. The Division Bench erred in
declining to interfere with the same.”
*** (emphasis supplied)
53. In United Bank of India v. Satyawati Tondon (supra), it
was observed and held by the Apex Court that the remedies
available to an aggrieved person against the action taken under
Section 13(4) or Section 14 of the SARFAESI Act, by way of appeal
under Section 17, can be said to be both expeditious and
effective. On maintainability of or entertainability of a writ
petition under Article 226 of the Constitution of India, in a case
where the effective remedy is available to the aggrieved person,
ICR[WP(C)].31/25 & WA.2362/25
-:50:-
2026:KER:19606it is observed in the said decision in paragraphs 43 to 46 and 55
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.
44. While expressing the aforesaid view, we are
conscious that the powers conferred upon the High
Court under Article 226 of the Constitution to issue to
any person or authority, including in appropriate
cases, any Government, directions, orders or writs
including the five prerogative writs for the
enforcement of any of the rights conferred by Part III
or for any other purpose are very wide and there is
ICR[WP(C)].31/25 & WA.2362/25
-:51:-
2026:KER:19606no express limitation on exercise of that power but, at
the same time, we cannot be oblivious of the rules of
self-imposed restraint evolved by this Court, which
every High Court is bound to keep in view while
exercising power under Article 226 of the
Constitution.
45. It is true that the rule of exhaustion of
alternative remedy is a rule of discretion and not one
of compulsion, but it is difficult to fathom any reason
why the High Court should entertain a petition filed
under Article 226 of the Constitution and pass
interim order ignoring the fact that the petitioner can
avail effective alternative remedy by filing
application, appeal, revision, etc. and the particular
legislation contains a detailed mechanism for
redressal of his grievance.
46. It must be remembered that stay of an action
initiated by the State and/or its agencies/
instrumentalities for recovery of taxes, cess, fees, etc.
seriously impedes execution of projects of public
importance and disables them from discharging their
constitutional and legal obligations towards the
citizens. In cases relating to recovery of the dues of
banks, financial institutions and secured creditors,
stay granted by the High Court would have a serious
adverse impact on the financial health of such
bodies/institutions, which (sic will) ultimately prove
detrimental to the economy of the nation. Therefore,
the High Court should be extremely careful and
circumspect in exercising its discretion to grant stay
in such matters. Of course, if the petitioner is able to
show that its case falls within any of the exceptions
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-:52:-
2026:KER:19606carved out in Baburam Prakash Chandra
Maheshwari v. Antarim Zila Parishad [Baburam
Prakash Chandra Maheshwari v. Antarim Zila
Parishad, AIR 1969 SC 556], Whirlpool Corpn. v.
Registrar of Trade Marks [Whirlpool Corpn. v.
Registrar of Trade Marks, (1998) 8 SCC 1] and
Harbanslal Sahnia v. Indian Oil Corpn. Ltd.
[Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2
SCC 107] and some other judgments, then the High
Court may, after considering all the relevant
parameters and public interest, pass an appropriate
interim order.
xx xxx xxxxx
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.”
*** (emphasis supplied)
54. The said principle was reiterated by the Hon’ble Supreme
Court in Celir LLP v. Bafna Motors (Mumbai) Private Limited
and Others31, at paragraph 97. Celir LLP (supra) is a clear
31 (2024) 2 SCC 1
ICR[WP(C)].31/25 & WA.2362/25
-:53:-
2026:KER:19606statement of law that the High Courts should not entertain a
petition under Article 226 of the Constitution if an effective
remedy is available to the aggrieved person under the provisions
of the SARFAESI Act, 2002. The Hon’ble Supreme Court in
Satyawati Tondon (supra) has made the following observations:
“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.”
***
55. In City and Industrial Development Corpn. v. Dosu
Aardeshir Bhiwandiwala32, it was observed by the Apex Court
that the Court while exercising its jurisdiction under Article 226
is duty-bound to consider whether the petitioner has any
alternative or effective remedy for the resolution of the dispute.
56. Similarly in the case of CIT v. Chhabil Dass Agarwal33, the
Hon’ble Supreme Court held as follows:
32 (2009) 1 SCC 168
33 (2014) 1 SCC 603
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-:54:-
2026:KER:19606“15. Thus, while it can be said that this Court has
recognised some exceptions to the rule of alternative
remedy i.e. where the statutory authority has not acted
in accordance with the 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, the proposition laid down in Thansingh Nathmal
case [AIR 1964 SC 1419], Titaghur Paper Mills case
[Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2
SCC 433: 1983 SCC (Tax) 131] and other similar
judgments that the High Court will not entertain a
petition under Article 226 of the Constitution if an
effective alternative remedy is available to the aggrieved
person or the statute under which the action complained
of has been taken itself contains a mechanism for
redressal of grievance still holds the field. Therefore,
when a statutory forum is created by law for redressal
of grievances, a writ petition should not be entertained
ignoring the statutory dispensation.”
***
57. It is in the aforesaid background the necessity for the Court
exercising jurisdiction under Article 226 of the Constitution of
India to exercise its wide discretionary power in relation to
matters arising out of the SARFAESI Act is to be assessed. What
the earlier Division Bench seems to have reminded the learned
Single Judge of was the very narrow compass within which this
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-:55:-
2026:KER:19606
power can be exercised when a writ petition is to be entertained
against an action initiated under the SARFAESI Act.
58. The aforesaid direction of the Hon’ble Division Bench does
not appear to have been a dictate to the learned Single Judge to
decide the writ petition against the writ petitioner, but to apply
the aforesaid principles to the facts and circumstances of the case
to find out whether the writ jurisdiction can be invoked or
whether the parties should be left to the statutory remedies,
which are found to be efficacious, where the disputes can be
properly adjudicated. However, having said this, we also feel it
necessary to say a few words with regard to the scope of Article
226 of the Constitution of India.
59. The scope and nature of powers exercised by District Magis-
trate/Chief Metropolitan Magistrate under Section 14 of the SAR-
FAESI Act, 2002 have been considered by the Hon’ble Supreme
Court in the following decisions:
34 (2013) 9 SCC 620
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-:56:-
2026:KER:19606
(ii) Authorised Officer, Indian Bank v. D.
Visalakshi and Another35; and
***
60. It was observed in Balkrishna Rama Tarle (supra) that a
party aggrieved can be relegated to raise objections in a
proceeding under Section 17 of the SARFAESI Act, 2002. In
Authorised Officer, India Bank (supra), in paragraph 37, it was
observed as follows:
“37. Notably, the powers and functions of CMM and
CJM are equivalent and similar, in relation to
matters specified in CrPC. These expressions (CMM
and CJM) are interchangeable and synonymous to
each other. Moreover, Section 14 of the 2002 Act
does not explicitly exclude CJM from dealing with
the request of the secured creditor made thereunder.
The power to be exercised under Section 14 of the
2002 Act by the authority concerned is, by its very
nature, non-judicial or State’s coercive power.
Furthermore, the borrower or the persons claiming
through borrower or for that matter likely to be
affected by the proposed action being in possession
of the subject property, have statutory remedy under
Section 17 of the 2002 Act and/or judicial review
35 (2019) 20 SCC 47
36 (2023) 1 SCC 662
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-:57:-
2026:KER:19606under Article 226 of the Constitution of India. In that
sense, no prejudice is likely to be caused to the
borrower/lessee; nor is it possible to suggest that
they are rendered remediless in law. At the same
time, the secured creditor who invokes the process
under Section 14 of the 2002 Act does not get any
advantage much less added advantage. Taking
totality of all these aspects, there is nothing wrong
in giving expansive meaning to the expression
“CMM”, as inclusive of CJM concerning non-
metropolitan area, who is otherwise competent to
discharge administrative as well as judicial
functions as delineated in CrPC on the same terms
as CMM. That interpretation would make the
provision more meaningful. Such interpretation does
not militate against the legislative intent nor it would
be a case of allowing an unworthy person or author-
ity to undertake inquiry which is limited to matters
specified in Section 14 of the 2002 Act.”
***
61. The exercise of jurisdiction under Article 226 of the
Constitution would depend on the facts of the case. If the
Magistrate has not complied with the provisions of Section 14 of
the SARFAESI Act, 2002 and passed an order without any
affidavit filed by the Authorised Officer and it appears from record
that such coercive measure was taken notwithstanding
repayment of the loan amount, a writ petition can be entertained.
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-:58:-
2026:KER:19606
62. When such an order is challenged in exercise of the powers
under Article 226 of the Constitution, the remedies available are
limited but significant. Notwithstanding the availability of a
remedy under Section 17 of the SARFAESI Act, 2002 the writ
jurisdiction under Article 226 may be invoked in the following
exceptional circumstances:
(i) Lack of Jurisdiction:
An order passed under Section 14 of the SARFAESI
Act would be amenable to interference under Article
226 of the Constitution where the same suffers
from a jurisdictional error. If the District Magistrate
or Chief Metropolitan Magistrate entertains the
application of the secured creditor without the
affidavit mandated under the amended Section
14(1), or proceeds to pass orders without satisfying
himself regarding the compliance of the statutory
pre-conditions contemplated under Section 13(2)
and 13(4) of the Act, the action would be without
jurisdiction. Likewise, if the Magistrate travels
beyond the limited ministerial role assigned under
Section 14 and adjudicates disputed questions or
grants relief not contemplated by the statute, such
exercise would be ultra vires the Act. In such
circumstances, the writ of certiorari would lie to
quash the impugned order, as the defect goes to the
root of jurisdiction and renders the proceedings non
est in the eye of law. The Hon’ble Supreme Court in
Harshad Govardhan Sondagar v. International
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-:59:-
2026:KER:19606Assets Reconstruction Co. Ltd.37 clarified the
scope of inquiry under Section 14 and emphasized
that the Magistrate must ensure compliance with
statutory pre-conditions before granting assistance
for possession. Similarly, in NKGSB Co-operative
Bank Ltd. v. Subir Chakravarty38, it was
reiterated that the satisfaction under Section 14
must be based on the particulars required by law.
(ii) Fraud or Mala Fide Action:
Interference under Article 226 of the Constitution
would also be warranted where the action of the
secured creditor is vitiated by fraud, mis-
representation or mala fides. If an order under
Section 14 of the SARFAESI Act is obtained by
suppressing material facts, making false statements
in the statutory affidavit, or by misleading the
Magistrate regarding compliance with the
mandatory requirements of the Act, the very
foundation of the order would stand vitiated. It is
trite law that fraud vitiates all solemn acts. In A.V.
Papayya Sastry v. Government of A.P39, the
Hon’ble Supreme Court held that any order
obtained by playing fraud on the court is a nullity
in the eye of law.
(iii) Violation of Natural Justice:
Though proceedings under Section 14 of the
SARFAESI Act are essentially ex parte in character
and the Magistrate performs a limited ministerial37 (2014) 6 SCC 1
38 (2022) 10 SCC 286
39 (2020) 15 SCC 209
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-:60:-
2026:KER:19606function, the exercise of such power must
nevertheless conform to the mandatory statutory
safeguards engrafted in the provision. If the
Magistrate grants assistance for taking possession
without ensuring compliance with the conditions
precedent under Sections 13(2) and 13(4), or
without satisfying himself on the affidavit mandated
by the proviso to Section 14(1), the order may stand
vitiated for non-observance of statutory safeguards,
which are themselves facets of natural justice.
Further, where it is demonstrated that the secured
creditor has suppressed material facts or misled the
authority, resulting in denial of a fair and lawful
consideration, the High Court may exercise
jurisdiction under Article 226 to prevent manifest
injustice. However, it is equally well settled, as held
in Satyawati Tondon (supra) and reiterated in
Phoenix ARC Pvt. Ltd. (supra), at paragraph 18,
that if proceedings are initiated under the
SARFAESI Act and/or any proposed action is to be
taken and the borrower is aggrieved by any of the
actions of the private bank/bank/ARC, borrower
has to avail the remedy under the SARFAESI Act
and no writ petition would lie and/or is
maintainable and/or entertainable.”
***
63. The order passed by the learned Single Judge in the writ
petition must pass muster the tests laid down by the Hon’ble
Supreme Court and the Division Bench required the learned
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-:61:-
2026:KER:19606
Single Judge to reconsider the entertainability of the writ petition
in the light of the principles laid down by the Apex Court.
64. Writ remedy is an extraordinary remedy. Where it prima
facie appears to the Court that the order is patently without
jurisdiction or passed in violation of the principles of natural
justice and the forum before which a litigant can approach for
redressal of its grievances is not functional, it would be a travesty
of justice if the Constitutional Court does not come to the aid of
a litigant.
65. In PHR Invent Educational Society v. UCO Bank 40, the
Hon’ble Supreme Court has carved out certain exceptions when a
petition under Article 226 of the Constitution of India could be
entertained in spite of availability of an alternative remedy. The
exceptions are:
“(i) where the statutory authority has not acted in
accordance with the provisions of the enactment
in question;
(ii) it has acted in defiance of the fundamental
principles of judicial procedure;
40 (2024) 6 SCC 579
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2026:KER:19606
(iii) it has resorted to invoke the provisions which
are repealed; and
(iv) when an order has been passed in total
violation of the principles of natural justice.”
***
66. It is elementary that an alternative remedy is a plea which
does not affect the jurisdiction of a Constitutional Court in
exercising its power under Article 226 of the Constitution of India.
It is a matter of choice for the Constitutional Court not to exercise
its discretionary high prerogative power if there is an efficacious
alternative remedy available under the Statute.
67. In Jamshed Hormusji Wadia v. Board of Trustees, Port
of Mumbai & Another41, the Hon’ble Supreme Court has held
that, “…. legislations are temporary, if not seasonal; the
Constitution is permanent and all time law”.
68. In Godrej Sara Lee Ltd. v. The Excise and Taxation
Officer-cum-Assessing Authority and Others (supra) the scope
of Article 226 of the Constitution vis-a-vis alternate remedy was
lucidly explained by the Hon’ble Supreme Court as under:
41 (2004) 3 SCC 214
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-:63:-
2026:KER:19606“4. Before answering the questions, we feel the urge
to say a few words on the exercise of writ powers
conferred by Article 226 of the Constitution having
come across certain orders passed by the high
courts holding writ petitions as “not maintainable”
merely because the alternative remedy provided by
the relevant statutes has not been pursued by the
parties desirous of invocation of the writ jurisdiction.
The power to issue prerogative writs Under Article
226 is plenary in nature. Any limitation on the
exercise of such power must be traceable in the
Constitution itself. Profitable reference in this regard
may be made to Article 329 and ordainments of
other similarly worded articles in the Constitution.
Article 226 does not, in terms, impose any limitation
or restraint on the exercise of power to issue writs.
While it is true that exercise of writ powers despite
availability of a remedy under the very statute
which has been invoked and has given rise to the
action impugned in the writ petition ought not to be
made in a routine manner, yet, the mere fact that
the Petitioner before the high court, in a given case,
has not pursued the alternative remedy available to
him/it cannot mechanically be construed as a
ground for its dismissal. It is axiomatic that the high
courts (bearing in mind the facts of each particular
case) have a discretion whether to entertain a writ
petition or not. One of the self-imposed restrictions
on the exercise of power Under Article 226 that has
evolved through judicial precedents is that the high
courts should normally not entertain a writ petition,
where an effective and efficacious alternative
remedy is available. At the same time, it must be
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-:64:-
2026:KER:19606remembered that mere availability of an alternative
remedy of appeal or revision, which the party
invoking the jurisdiction of the high court Under
Article 226 has not pursued, would not oust the
jurisdiction of the high court and render a writ
petition “not maintainable”. In a long line of
decisions, this Court has made it clear that
availability of an alternative remedy does not
operate as an absolute bar to the “maintainability”
of a writ petition and that the rule, which requires a
party to pursue the alternative remedy provided by
a statute, is a Rule of policy, convenience and
discretion rather than a Rule of law. Though
elementary, it needs to be restated that
“entertainability” and “maintainability” of a writ
petition are distinct concepts. The fine but real
distinction between the two ought not to be lost sight
of. The objection as to “maintainability” goes to the
root of the matter and if such objection were found to
be of substance, the courts would be rendered
incapable of even receiving the lis for adjudication.
On the other hand, the question of “entertainability”
is entirely within the realm of discretion of the high
courts, writ remedy being discretionary. A writ
petition despite being maintainable may not be
entertained by a high court for very many reasons or
relief could even be refused to the Petitioner, despite
setting up a sound legal point, if grant of the claimed
relief would not further public interest. Hence,
dismissal of a writ petition by a high court on the
ground that the Petitioner has not availed the
alternative remedy without, however, examining
whether an exceptional case has been made out for
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-:65:-
2026:KER:19606
such entertainment would not be proper.
5. A little after the dawn of the Constitution, a
Constitution Bench of this Court in its decision
reported in 1958 SCR 595 (State of Uttar Pradesh v.
Mohd. Nooh) had the occasion to observe as follows:
“10. In the next place it must be borne in mind that
there is no rule, with regard to certiorari as there is
with mandamus, that it will lie only where there is
no other equally effective remedy. It is well
established that, provided the requisite grounds
exist, certiorari will lie although a right of appeal has
been conferred by statute, (Halsbury’s Laws of
England, 3rd Edn., Vol. 11, p. 130 and the cases
cited there). The fact that the aggrieved party has
another and adequate remedy may be taken into
consideration by the superior court in arriving at a
conclusion as to whether it should, in exercise of its
discretion, issue a writ of certiorari to quash the
proceedings and decisions of inferior courts subor –
dinate to it and ordinarily the superior court will
decline to interfere until the aggrieved party has
exhausted his other statutory remedies, if any. But
this Rule requiring the exhaustion of statutory
remedies before the writ will be granted is a Rule of
policy, convenience and discretion rather than a
Rule of law and instances are numerous where a
writ of certiorari has been issued in spite of the fact
that the aggrieved party had other adequate legal
remedies. ***”
6. At the end of the last century, this Court in
paragraph 15 of the its decision reported in (1998) 8
SCC 1 (Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai and Ors. carved out the exceptions
on the existence whereof a Writ Court would be
justified in entertaining a writ petition despite the
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-:66:-
2026:KER:19606
party approaching it not having availed the
alternative remedy provided by the statute. The
same read as under:
(i) where the writ petition seeks enforcement of any
of the fundamental rights;
(ii) where there is violation of principles of natural
justice;
(iii) where the order or the proceedings are wholly
without jurisdiction; or
(iv) where the vires of an Act is challenged.
7. Not too long ago, this Court in its decision
reported in (2022) 16 SCC 447 (Assistant
Commissioner of State Tax v. M/s. Commercial Steel
Limited) has reiterated the same principles in
paragraph 11.
8. ……………where the controversy is a purely legal
one and it does not involve disputed questions of
fact but only questions of law, then it should be
decided by the high court instead of dismissing the
writ petition on the ground of an alternative remedy
being available.”
*** (emphasis supplied)
69. Very often, the Court may, at the initial stage, admit a writ
petition and grant interim relief without deciding the question as
to whether the existence of an alternative remedy would be a bar
to the writ petition, as more often than not, an interim order is
passed ex parte, giving no chance to the respondent to raise the
issue of maintainability in the sense of entertainability of the writ
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2026:KER:19606
petition in view of the existence of an alternative remedy or for
any other reasons. The writ court, notwithstanding the existence
of an alternative remedy, may even decide the writ petition on
merits and dismiss it if it comes to a finding that there is
suppression of material facts or that it is not a fit case for
exercising such an extraordinary power.
70. If, however, the plea of alternative remedy is not pleaded in
the affidavit and the writ petition is decided on merits, it would
not be open for the affected party, in an appeal, to raise the plea
of efficacious alternative remedy. It would operate as an estoppel,
waiver and acquiescence. Moreover, the alternative remedy has to
be “efficacious”.
71. The reference to the decision in M/s. Godrej Sara Lee Ltd.
clarifies the distinction between the maintainability and
entertainability of a writ petition, terms which are often used
interchangeably.
72. In view of the aforesaid, we find that an intra-court appeal is
maintainable under Section 5 of the Kerala High Court Act, 1958,
inter alia, against an ex parte ad interim order or any order which
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has clearly affected the right of a party to pursue its statutory
remedy. The nature of the order giving rise to the reference
conforms to the standard laid down by the Full Bench in
K.S.Das (supra).
73. The discussions on the limitations that a writ court is
required to exercise, especially in relation to SARFAESI matters,
and on the general scope of Article 226 of the Constitution of
India, are only for the proper understanding of the nature of the
order giving rise to the reference.
74. The reference is not entertained, as it is found to be
incompetent for the reasons recorded above.
75. The writ appeal for the reasons already recorded stands
dismissed. However, there should be no order as to costs.
Sd/-
SOUMEN SEN,
CHIEF JUSTICE
Sd/-
SYAM KUMAR V. M.,
JUDGE
krj/-