Financial institutions must follow statutory procedures when dealing with MSME classification and recovery; non-compliance can render actions invalid, emphasizing the need for judicial adherence to established protocols.

JUDGMENT :

ANIL K. NARENDRAN, J.

1. The appellant, a Micro, Small and Medium Enterprise (MSME) issued with Ext.P1 Udyam Certificate dated 24.03.2021 by the Ministry of Micro, Small and Medium Enterprises, Government of India, filed W.P.(C)No.46770 of 2025, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking the following reliefs:

“a) To declare that the notification dated 29.05.2015, in unmistakable terms, declares that the MSME-borrower has no obligation to make an application for resolution of stress and, on the contrary, that banks and financial institutions are duty-bound to identify incipient stress based on the illustrative signs indicated in Annexure-I to the RBI Circular dated 17.03.2016; and further, that in any case where the bank has failed to identify incipient stress, it is duty-bound to classify the account as SMA-1 if the default is more than 31 days and as SMA-2 if the default is more than 61 days, and thereafter shall constitute a Committee and make a reference to that Committee for resolution of stress; and further, that the Committee is empowered to permit recovery in terms of Para 5(3)(iv) if the resolution of stress is not feasible;

b) In furtherance of prayer (a) above, to declare that the judgments of the Supreme Court in Pro Knits v. Canara Bank, (2024) 10 SCC 292 and Shree Shree Swami Samarth Construction v. The Board of Directors of NKGSB Co-op Bank, 2025 SCC OnLine SC 1566 were rendered per incuriam and sub silentio and will not bind the courts and tribunals in this country under Article 141 of the Constitution, inasmuch as- (i) in Pro Knits, the Court had, contrary to the letter and spirit of the notification, observed that if the MSME had allowed its account to be classified as NPA and for recovery action to be initiated, having failed to bring to the notice of the bank that it is an MSME supported by identifiable and verifiable documents, it cannot be allowed to “thwart” the SARFAESI action at a later stage and (ii) in Shree Shree Swami Samarth, the Court observed that if the MSME had not even replied to the notice under Section 13 (2) and claimed protection as an MSME supported by an affidavit, the recovery action cannot thereafter be challenged - which, to repeat, are contrary to the very letter as well as the spirit of the notification and have created a scenario where the said judgments have been instrumental in denying the benefit of the notification to MSMEs across the country.

c) To declare that the entire proceedings initiated by the Respondent against the Petitioners under Sections 13 (2), 13(4) and 14 of the SARFAESI Act, are unconstitutional, illegal and void, being in violation of Paragraph 5(4)(iii) of the notification dated 29.5.2015 under the MSMED Act and without jurisdiction for more than one reason;

d) To issue a writ in the nature of certiorari or any other appropriate writ, order or direction, calling for the entire record