The High Court ruled that parties must reveal all material facts in writ petitions and that statutory remedies available under the SARFAESI Act must be pursued before invoking writ jurisdiction.

JUDGMENT

Anil K. Narendran, J.

The respondent in W.P.(C)No.46954 of 2025, which is a Non-Banking Financial Company (NBFC), has filed this writ appeal invoking the provisions under Section 5 (i) of the Kerala High Court Act, 1958 , challenging the interim order dated 22.01.2026 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 the following reliefs;

“(i) Call for the records leading to Exhibit P1 notice;

(ii) Issue a writ of mandamus or other appropriate writ or order directing the respondent to allow the petitioner to pay the arrears of loan amounts in 20 equal monthly installments and to keep all further proceedings pursuant to Exhibit P1 in abeyance till then;

(iii) Issue a writ of mandamus or other appropriate writ or order directing the respondent to regularise the loan account of the petitioner on payment of the arrears of loan amount.”

2. The document marked as Ext.P1 is a notice dated 15.10.2025 issued by the Advocate Commissioner appointed by the Chief Judicial Magistrate, Kollam in M.C.No.1310 of 2025 vide order dated 02.09.2025, in a proceedings initiated by the appellant-secured creditor under the provisions of Section 14 of the Securitisation and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002 (SARFAESI Act), seeking assistance of the court to take possession of the secured asset having an extent of 04.35 Ares of land comprised in Re.Sy.No.193/14 in Block No.21 (Old Sy.No.5504) of Nedumpana Village in Kollam Taluk, with a building bearing No.NP 14/18, 14/19 and 14/20.

3. Going by the averments in the writ petition, the petitioner, along with her husband Navas Kamarudheen, availed a loan for Rs.61,00,000/- from the respondent NBFC offering as security the aforesaid property along with the building situated therein, which is owned by her husband. On account of the default committed by the borrowers in effecting repayments, the respondent NBFC initiated proceedings under the SARFAESI Act, after classifying the loan account as a Non-Performing Asset (NPA). In the writ petition, it is averred that as on 14.12.2025, the overdue amount is approximately Rs.15,10,392/-, including EMI, penal interest and other charges.

4. In W.P.(C)No.46954 of 2025, which is one filed on15.12.2025, it is stated that the petitioner’s husband filed W.P.(C)No.40836 of 2025 challenging the very same notice dated 15.10.2025 and in the said writ petition, the learned Single Judge passed Ext.P2 interim order dated 31.10.2025, granting stay of all further proceedings subject to payment of Rs.4,00,000/-, i.e., Rs.2,00,000/- within a period of ten days and a further sum of Rs.2,00,000/- within twenty days. Unfortunately, Rs.1,00,000/- could be paid due to financial stringency.

5. On 21.01.2026, the respondent NBFC filed a counter affidavit dated 21.01.2026 in W.P.(C)No.46954 of 2025 raising the question of maintainability of the writ petition placing reliance on the decisions of the Apex Court.

6. On 22.01.2026, when W.P.(C)No.46954 of 2025 came up for consideration, the learned Single Judge passed the following order;

“The learned standing counsel takes notice for the respondent and seeks time to file a statement showing the amount due and the amount already remitted in respect of the loan. For deciding the maintainability of the writ petition, to consider the prayers seeking instalment facility and whether the bank is willing to regularise the account and since the possession is to be taken, the coercive steps against the petitioner shall be deferred f