Anil K. Narendran, J.

1. The appellant-petitioner filed W.P.(C)No.48356 of 2025, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking the following reliefs;

                  “i. To call for the records in connection with Exhibit P8 application, Exhibit P12 stay application and Exhibit P13 order and stay all further proceedings in Exhibit P13 order, granting reasonable time to the petitioner to challenge the same before the learned Debt Recovery Appellate Tribunal.

                  ii. To direct the learned Advocate Commissioner to grant reasonable time to the petitioner to avail the appellate legal remedy under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and not to proceed further in the matter of taking physical possession of the properties of the petitioner, as per the proceedings in MC No.853 of 2025 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam.”

2. The proceedings initiated against the appellant- petitioner, under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) is in respect of a term loan for Rs.4.60 Crores availed by him along with respondents 3 to 7, from the 1st respondent Hero Fincorp Ltd., which is a non- banking financial company (NBFC), for a term of 180 months, for the expansion of their business. A copy of the loan sanction letter dated 12.10.2015 is marked as Ext.P1. On account of the default committed by the petitioner and respondents 3 to 7 in effecting repayment of the loan amount, the account was classified as a non-performing asset (NPA) and proceedings were initiated under the provisions of the SARFAESI Act, by issuing Ext.P4 notice dated 29.04.2024 under Section 13(2) of the said Act. Seeking assistance of the court to take physical possession of the secured asset, the 1st respondent NBFC filed M.C.No.964 of 2024, under Section 14 of the SARFAESI Act before the Additional Chief Judicial Magistrate, Ernakulam, and the Advocate Commissioner appointed in that proceedings issued Ext.P5 notice dated 01.01.2025.

3. The appellant-petitioner had earlier approached this Court in W.P.(C)No.2057 of 2025 and the said writ petition was disposed of by Ext.P6 judgment dated 17.01.2025, in view of the judgment dated 17.01.2025 in W.P.(C)No.1945 of 2025, leaving open all the questions agitated. By the judgment dated 17.01.2025, the learned Single Judge disposed of W.P.(C)No.1945 of 2025 filed by Nellimattathil Agencies and four others, including the appellant-petitioner, by directing that if they remit an amount of Rs.10 Lakhs on or before 31.01.2025 and makes appropriate proposal for settlement of loan account, the 1st respondent Hero Fincorp Limited shall consider the same and take appropriate decision. In the said judgment it was made clear that if they remit Rs.10 Lakhs as directed above, coercive proceedings shall stand deferred till the 1st respondent NBFC takes a decision in the matter. Challenging Ext.P6 judgment dated 17.01.2025 in W.P.(C)No.2057 of 2025, the appellant- petitioner filed W.A.No.337 of 2025, which was disposed of by Ext.P7 judgment dated 18.02.2025. Paragraphs 2 and 3 of that judgment read thus;

                  “2. Against the action taken under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act (SARFAESI Act), the Appellant/Writ Petitioner approached this Court despite the settled position of law that the Debts Recovery Tribunal is the proper Forum.

                  3. The mandate of the Hon'ble Supreme Court in various decisions regarding non-interference in writ jurisdiction against actions initiated under the SARFAESI Act is clear. The learned Single Judge has extended indulgence. No further indulgence will be permissible. The appeal is accordingly disposed of.”

4. On 27.01.2026, when W.P.(C)No.48356 of 2025 came up for admission, the learned Single Judge disposed of the same in the admission stage itself. Paragraphs 4 to 6 and also the last paragraph of the judgment dated 27.01.2026 in W.P.(C)No. 48356 of 2025 read thus;

                  “4. Having regard to the facts and circumstances of the case and the submissions made on either side, this Court is of the view that the petitioner can be granted a limited opportunity to comply with the conditions stipulated hereinbelow.

                  5. Accordingly, the petitioner shall remit an amount of ₹25,00,000/- (Rupees Twenty-Five Lakhs only) on or before 06.02.2026. Upon such remittance being made, the Debts Recovery Appellate Tribunal shall take up Ext.P16 application seeking waiver of pre-deposit and pass appropriate orders thereon within a period of two weeks thereafter.

                  6. On deposit of the aforesaid amount of ₹25,00,000/- within the time stipulated, all coercive proceedings against the petitioner shall remain stayed for a period of three weeks.”

5. Feeling aggrieved by the judgment dated 27.01.2026 of the learned Single Judge in W.P.(C)No.48356 of 2025, the appellant-petitioner is before this Court in this writ appeal, invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958.

6. Heard arguments of the learned counsel for the appellant-petitioner and the learned counsel for respondents 1 and 2.

7. The learned counsel for the appellant-petitioner would contend that the direction of the learned Single Judge whereby the appellant-petitioner is required to deposit Rs.25 Lakhs as a pre-deposit for considering Ext.P16 application for waiver of pre- deposit filed in Ext.P15 appeal filed before the Debts Recovery Appellate Tribunal, Chennai, which is an appeal filed under Section 19 of the SARFAESI Act, against Ext.P13 order dated 11.12.2025 of the Debs Recovery Tribunal-I, Ernakulam in I.A.No.4368 of 2025 in S.A.No.564 of 2025, is highly illegal, and arbitrary and as such the same is liable to be interfered with in this intra-court appeal.

8. On the other hand, the learned counsel for respondents 1 and 2 would contend that the appellant-petitioner is not legally entitled for waiver of statutory pre-deposit to be made before the appellate Tribunal, as contended in this writ appeal. The learned counsel would point out that the reliefs sought for in W.P.(C)No.48356 of 2025 are beyond the scope of the writ jurisdiction under Article 226 of the Constitution of India.

9. One of the reliefs sought for in W.P.(C)No.48356 of 2025, is an order directing the Advocate Commissioner appointed by the Additional Chief Judicial Magistrate, Ernakulam, to grant reasonable time to the appellant-petitioner to avail the appellate remedy under Section 18 of the SARFAESI Act, and not to proceed further in the matter of taking physical possession of the secured assets, as per the proceedings in M.C.No.853 of 2025 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam. Another relief sought for is an order of stay of all further proceedings in Ext.P13 order dated 11.12.2025 of the Debts Recovery Tribunal-1, Ernakulam, in I.A.No.4368 of 2025 in S.A.No.564 of 2025, granting reasonable time to the petitioner to challenge the said order before the Debts Recovery Appellate Tribunal.

10. Hero Fincorp Ltd. is a non-banking financial company (NBFC). The legal issue as to whether a writ petition would lie against a private financial institution like an NBFC is no more res integra 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].

11. In Phoenix ARC (P) Ltd. [(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 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.

12. 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 decision, the Apex Court was dealing with a case in which the question raised was whether the Division Bench of the High Court was right in taking the view that Muthoot Finance Ltd., a non-banking financial institution registered under the Companies Act, 1956, is not a ‘State’ within the meaning of Article 12 of the Constitution of India. Before the Apex Court, it was contended that, although Muthoot Finance Ltd. may not be strictly falling within the ambit of ‘State’, yet being a non-banking financial institution is governed by the rules and regulations framed by the Reserve Bank of India and if statutory rules and regulations framed by Reserve Bank of India are breached by a non-banking financial institution, then as a statutory authority such financial institution is amenable to writ jurisdiction. The Apex Court found that the position of law is otherwise. Applying the test, as per the decision in LIC of India v. Escorts Ltd. [AIR 1986 SC 1370], the Apex Court held that Muthoot Finance Ltd., which is a non- banking financial institution, cannot be called a public body. It has no duty towards the public. Its duty is towards its account holders, which may include borrowers having availed of the loan facility. It has no power to take any action or pass any orders affecting the rights of the members of the public. The binding nature of its orders and actions is confined to its account holders and borrowers and to its employees. Its functions are also not akin to governmental functions. A body, public or private, should not be categorised as ‘amenable’ or ‘not amenable’ to writ jurisdiction. The most important and vital consideration should be the ‘function’ test as regards the maintainability of a writ application. If a public duty or public function is involved, any body, public or private, concerned or connection with that duty or function, and limited to that, would be subject to judicial scrutiny under the extraordinary writ jurisdiction of Article 226 of the Constitution of India. Although a non-banking finance company like Muthoot Finance Ltd. 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. Paragraph 9 of the decision, the Apex Court held as follows;

                  ‘9. We may sum up thus;

                  (1) For issuing a 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 Statute 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 a 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 performs 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)

13. During the course of a commercial transaction and under the contract, Hero Fincorp Ltd., which is a non-banking financial company (NBFC), lend money to the borrowers like the appellant-petitioner. In view of the law laid down by the Apex Court in Phoenix ARC (P) Ltd. [(2022) 5 SCC 345] and Sobha S. [2025 (2) KHC 229], the said activity of the NBFC 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 by the said NBFC under the provisions of the SARFAESI Act and the borrower or the guarantor or any other person is affected by the action taken by the NBFC, he has to avail the statutory remedy provided under Section 17 of the SARFESI Act, and no writ petition would lie, maintainable or entertainable under Article 226 of the Constitution of India.

14. The law laid down in the aforesaid decisions was followed by this Court in M/s. Thiruvonam Industries v. Hero Fincorp Ltd. [2025 (6) KLT 37], on the question of maintainability of a writ petition under Article 226 of the Constitution of India against Hero Fincorp Ltd., which is a NBFC.

15. In Union Bank of India v. M/s. Suwique Traders [2025 (4) KHC SN 30], a Division Bench of this Court in which both of us are parties, held that the Debts Recovery Appellate Tribunal cannot grant complete waiver of pre-deposit, which is beyond the scope of the provisions contained in the second and third provisos to Section 18(1) of the SARFAESI Act. In an appeal filed under Section 18, which is accompanied by an application for waiver of pre-deposit, the appellant has to deposit with the appellate Tribunal 25% of the debt referred to in the second proviso to Section 18(1). In the said decision, this Court has stated in categorical terms that the appellate Tribunal cannot entertain, i.e., give judicial consideration of an appeal filed under Section 18 and the interlocutory application filed under the third proviso to Section 18(1) for waiver of pre-deposit unless the appellant has deposited with the appellate Tribunal 25% of the debt referred to in the second proviso to Section 18(1). By way of writ of mandamus under Article 226 of the Constitution of India or in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, the High Court cannot direct the Debts Recovery Appellate Tribunal to act contrary to the statutory mandate of Section 18(1) of the SARFAESI Act and the law laid down in the decision referred to supra.

                  In such circumstances, we find absolutely no merits in the contentions raised by the appellant-petitioner in this writ appeal. The writ appeal fails and the same is accordingly dismissed.