Procedural Interim Orders Not Appealable Under Section 5 Of Kerala High Court Act: Kerala High Court

A Division Bench comprising Justice Anil K. Narendran and Justice Muralee Krishna S. delivered the judgment in a writ appeal filed by Cholamandalam Investment and Finance Company Ltd.

The dispute arose from a writ petition filed by a borrower challenging the repossession and sale of a financed vehicle by the Non-Banking Financial Company (NBFC). The appellant in the present appeal, who are the respondents in the original writ, questioned the maintainability of the writ petition before the Single Judge.

Instead of deciding maintainability, the Single Judge directed a responsible officer of the company to file a counter affidavit explaining the circumstances of the vehicle's seizure and sale. The NBFC challenged that order in the present appeal.

The Court considered whether an intra-court appeal under Section 5(i) of the Kerala High Court Act is maintainable against an interim order directing a party to file a counter affidavit, when the Single Judge has not adjudicated any substantive issue or determined the rights of the parties.

The Court declined to examine the separate question of whether a writ petition is maintainable against a Non-Banking Financial Company (NBFC), an issue pending before the Single Judge.

Relying on the Full Bench decision in K.S. Das v. State of Kerala [1992 (2) KLT 358], the Court noted that an 'order' under Section 5(i) of the Kerala High Court Act includes orders passed by the High Court in miscellaneous petitions filed in the writ petitions provided the orders are to be in force pending the writ petition.

“An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause substantial prejudice to the parties.” Court noted.

Reliance was also placed on M/s. Grids Engineers and Contractors v. Union Bank of India [2026 (2) KHC SN 25], which has held that interlocutory orders may be appealable under Section 5(i), but only where they substantially affect the rights or liabilities of the parties or cause serious prejudice.

The Court noted that in the present case, the Single Judge had neither ruled on the maintainability objection nor decided any substantive issue. The impugned order simply required the NBFC to place additional facts on record through a counter affidavit. The Bench also noted that the application seeking a preliminary decision on maintainability remained pending before the Single Judge and that the appellants had not shown that the procedural direction prejudiced their right to proceed under the pre-sale notice.

The court noted that the impugned order was merely procedure in nature and did not affect any substantive rights or liabilities of the respondent.

“By the impugned order, the learned Single Judge directed a responsible officer of the 1st respondent NBFC to file a counter affidavit in the writ petition, disclosing the details stated in paragraph 3 of that order, without deciding the question of maintainability of the writ petition or any substantive rights of the parties. The impugned order issued by the learned Single Judge, which is merely procedural in nature, is not an appealable order against which an intra-court appeal can be maintained under clause (i) of Section 5 of the Kerala High Court Act.” the Court noted.

The writ appeal was dismissed as not maintainable, while expressly leaving open all rival contentions on the maintainability of the underlying writ petition for consideration by the Single Judge.

Case Title: Cholamandalam Investment and Finance Company Limited and Anr. v Azhar K M

Case No: WA 1233/ 2026

Citation: 2026 LiveLaw (Ker) 373

Counsel for Appellant: Binoy Vasudevan

Counsel for Respondent: A Ahzar

Click Here To Read/ Download Judgment