Muralee Krishna, J.

1. The respondents in W.P.(C)No.45757 of 2025 filed this intra-court appeal under Section 5(i) of the Kerala High Court Act, 1958, challenging the judgment dated 13.01.2026 passed by the learned Single Judge in that writ petition.

2. Going by the averments in W.P.(C)No.45757 of 2025, the respondent had availed a housing loan of Rs. 12,00,000/- and SIB décor loan of Rs.2.37 lakhs from the Kallara Branch of South Indian Bank, Kottayam District, with loan account number as 0210652000001294 by signing a mortgage deed for the purpose of construction of their house. The 1st appellant is the Branch Manager of Kallara Branch, South Indian Bank, Kottayam District and the 2nd appellant is the Senior Manager of the South Indian Bank, Regional office, Kottayam. The respondent regularly paid the loan amount on a daily repayment scheme. Due to the treatment of his mother for an unstable mental condition, he was unable to repay the loan amount in regular basis, and hence the bank had initiated recovery proceedings against the mortgaged property. The respondent thereafter approached the bank by submitting a representation on 21.11.2025 seeking extension of time for the repayment of the loan amount within a period of one year. On 28.11.2025, the bank issued Ext.P1 auction notice to the respondent stating that the sale proceedings will be initiated against the mortgaged property and the auction will be conducted on 14.01.2026. The proceedings initiated against the respondent are illegal and unsustainable. The nonpayment of the monthly loan instalments is due to certain financial stringencies beyond their control. So, they deserve sympathetic consideration and need some time to repay the amount due to the bank. If a sufficient instalment facility is granted for the overdue amount, the respondent can clear the loan. With these pleadings, the respondent filed the writ petition seeking the following reliefs:

                “I) To pass an order setting aside Ext.P1 notice and all its further proceedings in the interest of justice. II) Direct the respondent bank to extend the time for repayment of the overdue amount or to permit the petitioner to pay the overdue amount in equal monthly instalments along with the regular monthly instalments and thereby permit them to regularise the loan accounts”.

3. On 18.12.2025, when the writ petition came up for consideration, the learned Single Judge directed the respondent-petitioner to remit an amount of Rs.4,00,000/- in the loan account.

4. On 13.01.2026, the learned Single Judge passed the impugned judgment. Paragraphs 2 to 5 of that judgment read thus:

                “2. During the hearing, the petitioner confined the relief to an opportunity to repay the overdue amount and to obtain regularisation of the loan accounts.

                3. It was submitted on behalf of the respondent Bank that the petitioner had committed default in repayment of the loan and that the total overdue amount as on today is Rs.6,77,004/- (Rupees Six Lakh Seventy Seven Thousand Four only). It was further submitted that though recovery proceedings have been initiated, as a matter of indulgence, the respondent Bank is willing to accept repayment of the overdue amount and regularise the loan accounts.

                4. There was an interim order dated 18.12.2025 directing the petitioner to remit an amount of Rs.4,00,000/-, which has already been complied with. This is recorded.

                5. Taking into consideration the facts and circumstances of the case and the submissions of the learned counsels on both sides, I deem it appropriate to dispose of this writ petition with the following directions:-

                (i) The petitioner shall remit the balance overdue amount of Rs.6,77,004/- (Rupees Six Lakh Seventy Seven Thousand Four only), along with any accrued interest, costs and charges, on or before 15.03.2026. If the amount is not remitted, the respondent is at liberty to proceed in accordance with law.

                (ii) Petitioner shall continue to pay the regular EMIs /instalments along with the amount directed above.

                (iii) All coercive proceedings shall be kept in abeyance to enable the petitioner to repay the entire amount directed above”.

5. Being aggrieved by the aforesaid judgment of the learned Single Judge, the appellants filed the present writ appeal.

6. Heard the learned counsel for the appellants and the learned counsel for the respondent.

7. The learned counsel for the appellants would submit that the appellants have not conceded for repayment of the overdue amount and regularisation of the loan account as observed by the learned Single Judge in the impugned judgment. The request of the appellants was for payment of the entire loan amount and not the overdue amount alone. In fact, the appellants took a stand before the learned Single Judge that the writ petition itself is not maintainable since the appellant Bank has initiated proceedings under the SARFAESI Act against the secured asset.

8. On the other hand, the learned counsel for the respondent would submit that the appellants have conceded to accept the repayment of the overdue amount before the learned Single Judge. As per the direction in the interim order dated 18.12.2025, the respondent has remitted an amount of Rs.4,00,000/- in the loan account, and it was accepted by the appellants. Therefore, the appellants cannot approbate and reprobate.

9. As far as interference by exercising the jurisdiction under Article 226 of the Constitution of India in the recovery proceedings initiated by the Bank under the provisions of the SARFAESI Act are concerned, in Authorized Officer, State Bank of Travancore and Another v. Mathew K.C. [2018 (1) 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].

10. 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 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 Art.226 of the Constitution, a person must exhaust the remedies available under the relevant statute”

11. 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, particularly when an alternative statutory remedy is available.

12. 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.

13. Apart from that, we notice that in paragraph 9 of the judgment in S. Shobha v. Muthoot Finance Limited [2025 SCC OnLine SC 177], the Apex Court held thus;

                “We may sum up thus:

                (1) For issuing writ against a legal entity, it would have to be an Instrumentality or agency of a State or should have been entrusted with such functions as are Governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence Governmental.

                (2) A writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State Government; (ii) Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function.

                (3) Although a non-banking finance company like the Muthoot Finance Ltd. with which we are concerned is duty bound to follow and abide by the guidelines provided by the Reserve Bank of India for smooth conduct of its affairs in carrying on its business, yet those are of regulatory measures to keep a check and provide guideline and not a participatory dominance or control over the affairs of the company.

                (4) 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.

                (5) Normally, mandamus is issued to a public body or authority to compel it to perform some public duty cast upon it by some statute or statutory rule. In exceptional cases a writ of mandamus or a writ in the nature of mandamus may issue to a private body, but only where a public duty is cast upon such private body by a statute or statutory rule and only to compel such body to perform its public duty.

                (6) Merely because a statue or a rule having the force of a statute requires a company or some other body to do a particular thing, it does not possess the attribute of a statutory body.

                (7) If a private body is discharging a public function and the denial of any rights is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial but, nevertheless, there must be the public law element in such action.

                (8) According to Halsbury's Laws of England, 3rd Ed. Vol.30, p.682, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform, and which perform the duties and carries out its transactions for the benefit of the public and not for private profit". There cannot be any general definition of public authority or public action. The facts of each case decide the point.”

                (underline supplied)

14. According to the appellants, their Bank is a private company carrying on banking business as a scheduled bank, and it cannot be subjected to the writ jurisdiction of this Court under Article 226 of the Constitution of India.

15. Though the learned counsel for the respondent contends that the appellants conceded for regularising the loan account by paying the overdue amount and the impugned judgment of the learned Single Judge also shows the same, the said concedement, if any, will not give jurisdiction to the learned Single Judge to entertain the writ petition as done in the present case, unless The exceptional circumstances are made out as held in Mathew K.C. [2018 (1) KHC 786] and also it is made out that a public duty is cast upon the appellants by a statute or statutory rule as held in S. Shobha [2025 SCC OnLine SC 177].

16. Having considered the pleadings and materials on record and the submissions made at the Bar, we find no ground to hold that the respondent has made out the exceptional circumstances, as held in Mathew K.C. [2018 (1) KHC 786] and S. Shobha [2025 SCC OnLine SC 177].

17. The concept of approbate and reprobate, which is somewhat similar to that of the doctrine of election, is better explained by the Apex Court in Gosain v. Yashpal Dhir [(1992) 4 SCC 683] wherein the Apex Court held thus:

                “10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". (See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., 1921 (2) KB 608, at p. 612, Scrutton, L.J.). According to Halsbury's Laws of England, 4th Edn., Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside" (para 1508)”.

18. The question of approbate and reprobate comes into picture only when the bank accepted one part of the judgment that is beneficial and disowned the burdensome part. But in the instant case, the appellants contend that they have not conceded to passing a judgment in respect of the overdue amount alone and on the other hand, their concession was towards the payment of the entire amount by the respondent. Moreover, as found above, the concession of the appellants will not give jurisdiction to the court in a non-maintainable writ petition. Therefore, the impugned judgment of the learned Single Judge is liable to be set aside.

                In the result, the writ appeal is allowed by setting aside the impugned judgment dated 13.01.2026 passed by the learned Single Judge in W.P.(C)No.45757 of 2025, and the writ petition stands dismissed.