Kerala High Court Refers Question On Maintainability Of Intra-Court Appeals Against Interim Orders To Larger Bench

The Kerala High Court has referred to a Larger Bench the scope of an intra-court appeal under Section 5 of the Kerala High Court Act, particularly against interim orders of a Single Judge.

Justice Mohammed Nias C.P. passed the reference order while hearing writ petition filed by M/s Grids Engineers and Contractors and its managing partner, challenging an order of the Additional Chief Judicial Magistrate, Ernakulam, under Section 14 of the SARFAESI Act.

The dispute stems from proceedings initiated by Union Bank of India against the petitioners to recover outstanding dues. While the petitioners contended that the amounts claimed by the bank remained unadjudicated before the Debt Recovery Tribunal and that the magistrate's order was without jurisdiction, the bank pursued parallel remedies, leading to a series of interim orders being passed and later set aside in writ appeals.

The Division Bench, in W.A. No. 2076 of 2025, recently set aside an interim stay granted by the Single Judge, holding that maintainability was not adequately addressed. Justice Nias, however, expressed concern that such directions effectively compelled a Single Judge to revisit interim findings until aligned with the appellate court's expectations, undermining judicial comity.

Justice Nias reiterated that Article 226 confers plenary powers that cannot be curtailed by ordinary legislation, and that the existence of an alternate remedy does not bar a writ petition.

“The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself, like the bar to interference by Courts mentioned in the Constitution. Article 226, being part of the basic structure, cannot be diluted or ousted by ordinary legislation. Any attempt to curtail this jurisdiction, absent a constitutional mandate, amounts to a distortion of the constitutional scheme. The doctrine of self-imposed restraint may guide the exercise of discretion, but it cannot be converted into a fetter upon the power itself. To do so would, in effect, amount to judicial abdication of constitutional authority. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs, which turns on entertainability and not maintainability.” the court observed.

Citing precedents, including Godrej Sara Lee Ltd. v. Excise & Taxation Officer (2023 SCC Online SC 95), K.S. Das v. State of Kerala (1992 SSC Online Ker 530), and the Supreme Court's ruling in Shabna Abdulla v. Union of India [(2024) 6 SCC 221], the Court emphasized directions issued by the division bench in writ appeal, mounts to virtually directing the Single Judge to give additional justifications.

“It is rudimentary that the writ petition could not have been dismissed as not maintainable; and therefore, the back-to-back directions to consider the maintainability amount to virtually directing the single judge to decide until the result is acceptable to the Division Bench. The said direction is destructive of judicial comity and contrary to the very structure of intra-court appeals. The Division Bench, therefore, has traveled far beyond the legitimate bounds of intra-court appellate scrutiny, totally contrary to the Larger Bench decision of this Court and against the Division Bench judgments that directly dealt with the very same issue.” the Court remarked.

Justice Nias, thus directed the matter to be placed before Chief Justice for constitution of Larger bench.

“The directions issued by the Division Bench in W.A. No. 2076 of 2025 are clearly against binding judgments of this Court, including the Larger Bench. Since this issue has arisen repeatedly, I feel that the scope of an intra-court appeal under Section 5, in particular against interim orders of a Single Judge, calls for consideration by a Larger Bench.” the bench noted.

Accordingly, the Registry has been directed to place the matter before the Chief Justice for appropriate orders on the constitution of a Larger Bench.

Case Title: M/S Grids Engineers and Contractors and Another v Union Bank of India and Another

Case No: WP(C) 26067/ 2025

Counsel for Petitioners: Thajuddeen E B, Arthur B George, P A Mohammed Aslam, Ramshad K R, Muhammed Riswan K A, Midhun Mohan, Fidil V JOhn, Kiran Narayanan

Counsel for Respondents: A S P Kurup, Sadchith P Kurup, C P Anil Raj, Siva Suresh, B Sreedevi, Athira Vijayan

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