Kerala High Court
The Authorized Officer vs Haseena Nazar @ Haseena on 17 February, 2026
Author: Anil K. Narendran
Bench: Anil K. Narendran
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 17TH DAY OF FEBRUARY 2026 / 28TH MAGHA, 1947
WA NO. 321 OF 2026
AGAINST THE JUDGMENT DATED 12.01.2026 IN WP(C) NO.48653 OF 2025
OF THE HIGH COURT OF KERALA
APPELLANT/1ST RESPONDENT:
THE AUTHORIZED OFFICER
THE SOUTH INDIAN BANK LTD,1ST FLOOR, PLATINUM JUBILEE
BUILDING, CIVIL LINE ROAD, NEAR CHILDREN'S PARK,
AYYANTHOLE, THRISSUR, PIN - 680003
BY ADV SHRI.RENIL ANTO KANDAMKULATHY
RESPONDENT/PETITIONER IN WPC:
HASEENA NAZAR @ HASEENA
AGED 49 YEARS
W/O NAZAR P.V, RESIDING AT PALLIKKARA VALAPPIL HOUSE,
THIRUMITTACODE -II, PERINGODE, ITTONAM, CHATHANNOOR
P.O, PALAKKAD, PIN - 679535
OTHER PRESENT:
SRI. ARUN KUMAR P.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
17.02.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
The 1st respondent in W.P.(C)No.48653 of 2025 has filed
this writ appeal, invoking the provisions under Section 5(i) of the
Kerala High Court Act, 1958, challenging the judgment dated
12.01.2026 of the learned Single Judge in that writ petition,
which was one filed by the respondent herein-petitioner, invoking
the writ jurisdiction of this Court under Article 226 of the
Constitution of India, seeking a writ of mandamus commanding
the respondent Bank to grant her 15 installments to pay the
defaulted dues and to pay balance equated monthly installments
as and when it falls due, thereby regularising the loan account;
and a writ of certiorari to quash Ext.P1 possession notice dated
18.12.2025 issued by the 1st respondent Authorised Officer of
the South Indian Bank Ltd.
2. By the judgment dated 12.01.2026, the learned
Single Judge disposed of W.P.(C)No.48653 of 2025. Paragraphs 2
and 3 of that judgment read thus;
“2. The learned Standing Counsel for the respondent Bank
on instructions submits that the overdue amount in the
home loan comes to Rs.1,50,000/-. The Bank has no
objection in regularizing the home loan account.
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3. Having heard the learned counsel on both sides, and
taking note of the fact that the Bank is proposing to take
physical possession of the property and since the Bank has
no objection in regularizing the loan account, I deem it
appropriate to dispose of this writ petition with the
following directions:
a) The petitioner shall remit the overdue amount of
Rs.1,50,000/- (Rupees one lakh fifty thousand
only) in the home loan, together with any accrued
interest, cost and allied charges, in four equated
monthly installments, starting from 15.02.2026
and the subsequent installments shall be paid on
or before 15th of every succeeding months.
b) The petitioner shall continue to pay the regular
EMIs/installments along with the installments as
directed above.
c) In the event of default of any one installment, the
respondent Bank shall be entitled to proceed in
accordance with law.
d) All coercive proceedings shall be kept in abeyance
to enable the petitioner to repay the entire
amount as directed above.
e) As far as the car loan is concerned, the
respondents are free to proceed with OS
No.15/2026 pending before the Munsiff Court,
Wadakkanchery.
3. Challenging the judgment dated 12.01.2026 of the
learned Single Judge in W.P.(C)No.48653 of 2025, the appellant-
1st respondent is before this Court in this writ appeal.
4. We heard arguments of the learned counsel for the
appellant-1st respondent and also the learned counsel for the
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respondent-petitioner.
5. The issue that requires consideration in this writ
appeal is as to whether the impugned judgment dated
12.01.2026 of the learned Single Judge in W.P.(C)No.48653 of
2025 can be sustained in law.
6. The learned counsel for the appellant-1st respondent
would submit that, as pointed out in paragraph 6 of the
statement of facts of the memorandum of writ appeal, South
Indian Bank Ltd., through its Authorised Officer, instituted
O.S.No.15 of 2026 before the Munsiff Court, Wadakkancherry for
realisation of the dues in the car loan availed by the respondent-
petitioner. C.S.No.4 of 2026 is instituted before the Commercial
Court, Thrissur, for recovery of the dues in the term loan availed
by the respondent-petitioner. Initiation of those proceedings
necessitated due to the persistent and wilful default committed
by the respondent-petitioner in remitting the monthly
installments, despite repeated demands and opportunities
granted by the Bank. The learned counsel for the appellant
would submit that the Authorised Officer of the Bank, in exercise
of the powers conferred under Section 13(4) of the Securitisation
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and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (SARFAESI Act), issued Ext.P1
possession notice dated 18.12.2025 and took symbolic
possession of the secured assets. The total liability as on
17.12.2025 was Rs.17,84,397.41 along with further interest,
penal interest and cost. As stated in paragraph 9 of the
statement of facts of the memorandum of writ appeal, the above
facts were specifically mentioned before the learned Single
Judge, based on the instructions received from the Bank.
Contrary to the above stand taken by the Bank, the learned
Single Judge disposed of the writ petition by the impugned
judgment dated 12.01.2026, stating that the Bank has no
objection in regularising the loan account. Such an indulgence
shown to a chronic defaulter when parallel civil proceedings were
pending before the competent civil court, in addition to the
proceedings initiated by the Authorised Officer under the
provisions of the SARFAESI Act, by the issuance of Ext.P1
possession notice, is highly unwarranted. The learned Single
Judge ought to have dismissed the writ petition as not
maintainable under Article 226 of the Constitution of India, in
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view of the alternative remedy available under Section 17 of the
SARFAESI Act before the Debts Recovery Tribunal. Further, South
Indian Bank Ltd., being a private company carrying on banking
business as a Scheduled Bank, no writ petition under Article 226
of the Constitution of India is maintainable, in view of the law
laid down by the Apex Court in Phoenix ARC (P) Ltd. v.
Vishwa Bharati Vidya Mandir [(2022) 5 SCC 345] and
Sobha S. v. Muthoot Finance Limited [2025 (2) KHC 229].
7. On the other hand, the learned counsel for the
respondent-petitioner would contend that no interference is
warranted in the impugned judgment dated 12.01.2026 of the
learned Single Judge in W.P.(C)No.48653 of 2025, since by that
judgment the learned Single Judge has only granted a
reasonable time of 4 months to pay the overdue amount, along
with the regular monthly installments. Before the learned Single
Judge, there was no strong opposition from the side of the
appellant-1st respondent in granting installment facility to pay
the overdue amount in monthly installments. The learned
counsel would submit that on the maintainability of a writ
petition under Article 226 of the Constitution of India against a
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private company carrying on banking business as a Scheduled
Bank the law is as laid down by the Apex Court in the decisions
relied on by the appellant-1st respondent.
8. In United Bank of India v. Satyawati Tondon
[(2010) 8 SCC 110], a Two-Judge Bench of the Apex Court
held that if the 1st respondent guarantor had any tangible
grievance against the notice issued under Section 13(4) of the
SARFAESI Act or the action taken under Section 14, then he
could have availed remedy by filing an application under Section
17(1) before the Debts Recovery Tribunal. The expression ‘any
person’ used in Section 17(1) is of wide import. It takes within
its fold, not only the borrower but also the guarantor or any
other person who may be affected by the action taken under
Section 13(4) or Section 14. Both, the Tribunal and the Appellate
Tribunal are empowered to pass interim orders under Sections
17 and 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.
9. In Satyawati Tondon [(2010) 8 SCC 110], on the
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facts of the case at hand, the Apex Court noted that 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.
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 the remedy under Article 226 of
the Constitution, a person must exhaust the remedies available
under the relevant statute.
10. In South Indian Bank Ltd. v. Naveen Mathew
Philip [(2023) 17 SCC 311], in the context of the challenge
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made against the notices issued under Section 13(4) of the
SARFAESI Act, the Apex Court reiterated the settled position of
law on the interference of the High Court invoking Article 226 of
the Constitution of India in commercial matters, where an
effective and efficacious alternative forum has been constituted
through a statute. In the said decision, the Apex Court took
judicial notice of the fact that certain High Courts continue to
interfere in such matters, leading to a regular supply of cases
before the Apex Court. The Apex Court reiterated that a writ of
certiorari is to be issued over a decision when the court finds
that the process does not conform to the law or the statute. In
other words, courts are not expected to substitute themselves
with the decision-making authority while finding fault with the
process along with the reasons assigned. Such a writ is not
expected to be issued to remedy all violations. When a Tribunal
is constituted, it is expected to go into the issues of fact and law,
including a statutory violation. A question as to whether such a
violation would be over a mandatory prescription as against a
discretionary one is primarily within the domain of the Tribunal.
The issues governing waiver, acquiescence and estoppel are also
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primarily within the domain of the Tribunal. The object and
reasons behind the SARFAESI Act are very clear as observed in
Mardia Chemicals Ltd. v. Union of India [(2004) 4 SCC
311]. While it facilitates a faster and smoother mode of recovery
sans any interference from the court, it does provide a fair
mechanism in the form of the Tribunal being manned by a legally
trained mind. The Tribunal is clothed with a wide range of powers
to set aside an illegal order, and thereafter, grant consequential
reliefs, including repossession and payment of compensation and
costs. Section 17(1) of the SARFAESI Act gives an expansive
meaning to the expression ‘any person’, who could approach the
Tribunal.
11. In Naveen Mathew Philip [(2023) 17 SCC 311],
the Apex Court noticed that, in matters under the SARFAESI Act,
approaching the High Court for the consideration of an offer by
the borrower is also frowned upon by the Apex Court. A writ of
mandamus is a prerogative writ. The court cannot exercise the
said power in the absence of any legal right. More
circumspection is required in a financial transaction, particularly
when one of the parties would not come within the purview of
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Article 12 of the Constitution of India. When a statute prescribes
a particular mode, an attempt to circumvent that mode shall not
be encouraged by a writ court. A litigant cannot avoid the non-
compliance of approaching the Tribunal, which requires the
prescription of fees, and use the constitutional remedy as an
alternative. In paragraph 17 of the decision, the Apex Court
reiterated the position of law regarding the interference of the
High Courts in matters pertaining to the SARFAESI Act by
quoting its earlier decisions in Federal Bank Ltd. v. Sagar
Thomas [(2003) 10 SCC 733], United Bank of India v.
Satyawati Tondon [(2010) 8 SCC 110], State Bank of
Travancore v. Mathew K.C. [(2018) 3 SCC 85], Phoenix
ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir [(2022) 5
SCC 345] and Varimadugu Obi Reddy v. B. Sreenivasulu
[(2023) 2 SCC 168] wherein the said practice has been
deprecated while requesting the High Courts not to entertain
such cases. In paragraph 18 of the said decision, the Apex Court
observed that the powers conferred under Article 226 of the
Constitution of India are rather wide, but are required to be
exercised only in extraordinary circumstances in matters
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pertaining to proceedings and adjudicatory scheme qua a
statute, more so in commercial matters involving a lender and a
borrower, when the legislature has provided for a specific
mechanism for appropriate redressal.
12. Section 14 of the SARFAESI Act deals with the powers
of the Chief Metropolitan Magistrate or the District Magistrate to
assist a secured creditor in taking possession of a secured asset.
13. In Indian Bank v. D. Visalakshi [(2019) 20 SCC
47], a Two-Judge Bench of the Apex Court considered the
question as to whether ‘the Chief Judicial Magistrate’ is
competent to deal with the request of the secured creditor to
take possession of the secured asset under Section 14 of the
SARFAESI Act as can be done by the Chief Metropolitan
Magistrate in metropolitan areas and the District Magistrate in
non-metropolitan areas. The Apex Court noted that the Chief
Judicial Magistrate is equated with the Chief Metropolitan
Magistrate for the purposes referred to in the Criminal Procedure
Code, 1973, and those expressions are used interchangeably,
being synonymous with each other. Approving the view taken by
this Court in Muhammed Ashraf v. Union of India [2008 (3)
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KHC 935] and Radhakrishnan V.N. v. State of Kerala [2008
(4) KHC 989], by the Karnataka High Court in Kaveri
Marketing v. Saraswathi Cooperative Bank Ltd. [2013 SCC
OnLine Kar 18], by the Allahabad High Court in Abhishek
Mishra v. State of U.P. [AIR 2016 All 210] and by the High
Court of Andhra Pradesh in T.R. Jewellery v. State Bank of
India [AIR 2016 Hyd 125], the Apex Court held that the Chief
Judicial Magistrate is equally competent to deal with the
application moved by the secured creditor under Section 14 of
the SARFAESI Act.
14. In view of the law laid down by the Apex Court in
Satyawati Tondon [(2010) 8 SCC 110] and reiterated in
Naveen Mathew Philip [(2023) 17 SCC 311], if the
respondent-petitioner has any grievance against the proceedings
initiated by the secured creditor under Section 14 of the
SARFAESI Act, she could have availed the statutory remedy by
filing an application under Section 17 of the said Act before the
Debts Recovery Tribunal.
15. When the remedy available to an aggrieved person
under Section 17 of the SARFAESI Act is both expeditious and
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effective, as held by the Apex Court in Satyawati Tondon
[(2010) 8 SCC 110], the borrower, the guarantor or any other
person who may be affected by the action taken by the secured
creditor under Section 13(4) or Section 14 of the SARFAESI Act
have to approach the Debts Recovery Tribunal availing the
statutory remedy provided under Section 17 of the said Act,
instead of invoking the writ jurisdiction of this Court under Article
226 of the Constitution of India.
16. In Authorised Officer, State Bank of Travancore
v. Mathew K.C. [2018 (1) KLT 784], the Apex Court held that
no writ petition would lie against the proceedings under the
SARFAESI Act, in view of the statutory remedy available under
the said Act.
17. In Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya
Mandir [(2022) 5 SCC 345] the Apex Court was dealing with a
case in which Phoenix ARC (P) Ltd. (for brevity ‘ARC’), which is a
private financial institution, proposed to take action under the
SARFAESI Act to recover the borrowed amount as a secured
creditor. The Apex Court held that ARC as such cannot be said to
be performing public functions which are normally expected to
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be performed by State authorities. During the course of a
commercial transaction and under the contract, the bank/ARC
lends money to the borrowers and the said activity of the
bank/ARC cannot be said to be as performing a public function,
which is normally expected to be performed by the State
authorities. 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,
he has to avail the remedy under the SARFESI Act, and no writ
petition would lie and/or is maintainable and/or entertainable.
18. In Sobha S. v. Muthoot Finance Limited [2025
(2) KHC 229], the Apex Court considered the question of
maintainability of writ petitions under Article 226 of the
Constitution of India against a private non-banking financial
company and also a private company carrying on banking
business as a Scheduled Bank. In the said case, the Apex Court
held that a private company carrying on banking business as a
Scheduled Bank cannot be termed as a company carrying on any
public function or public duty. Merely because a Statute or a rule
having the force of a statute requires a company or some other
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body to do a particular thing, it does not possess the attribute of
a statutory body.
19. Viewed in the light of the law laid down in the
decisions referred to supra, conclusion is irresistible that if the
respondent-petitioner is feeling aggrieved by the measures taken
by South Indian Bank Ltd., which is a private company carrying
on banking business as Scheduled Bank, under the provisions of
the SARFAESI Act, her remedy lies before the Debts Recovery
Tribunal in an application filed under Section 17 of the Act and
not in a writ petition under Article 226 of the Constitution of
India.
In the result, this writ appeal is allowed by setting aside the
judgment dated 12.01.2026 of the learned Single Judge in
W.P.(C)No.48653 of 2025; however, without prejudice to the
right of the respondent-petitioner to approach the Debts
Recovery Tribunal with a proper application.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
AV
