Raising the Bar of alternate remedy

The doctrine of "alternate remedy" was originally conceived as a rule of self-imposed restraint by the High Courts to ensure that specialized tribunals are not bypassed. However, in recent years, this procedural hurdle has often been weaponized in a manner that defeats the very essence of justice – speedy redressal. A particularly troubling trend has emerged where High Courts admit Writ Petitions, keep them pending for nearly a decade, and then, at the final hearing stage, remand the matter to the alternate lower forums on the grounds of an available alternate remedy. This practice represents a sheer waste of judicial time and ignores the immense psychological and financial strain placed upon the litigant.

The Litigant’s Odyssey: A Case of Judicial Shuttling

The case of Abhishek P. Tibrewala v. Union of India serves as a stark illustration of this procedural quagmire. The dispute, which originated from an auction in 2008, saw the petitioner file Securitisation Application (SA) before the DRT, which was rejected for lack of jurisdiction in 2008. Even after a successful appeal to the Debt Recovery Appellate Tribunal (DRAT) in 2010 which resulted in a remand, the DRT again rejected the application in 2012, directing the petitioner to a "competent forum". When the petitioner approached the High Court via Article 226 in 2013, the matter was admitted and remained pending for years. When the matter came up for final hearing in the year 2022, the High Court disposed of the petition by remanding it back to the DRT, this after the DRT itself had previously disclaimed jurisdiction. To do so is to force a litigant into a perpetual cycle of litigation.

Manifest Error in Relegating Undisputed Facts

The Supreme Court has explicitly criticized this approach. In Mohd. Shariq v. Punjab National Bank, the Court noted that when the factual matrix of a case is not in dispute, there is no justification for relegating a petitioner to an alternate remedial mechanism after years of litigation. The Court held that by not exercising its power under Article 226 and instead permitting the parties to have a "second innings" regarding a settled dispute, the High Court commits a manifest error. Such judicial indecision keeps issues alive needlessly, causing "great injustice" to those seeking a final resolution.

Discretion vs. Compulsion: The Rule of Restraint

It is a well-settled proposition that the rule of exhaustion of an alternative remedy is a rule of discretion and not one of compulsion. While the High Court should ordinarily insist that a person exhaust statutory remedies before invoking Article 226, this rule should be applied with pragmatism. As noted in the written arguments for Tibrewala, once a High Court has entertained and admitted a Writ Petition and heard it on its merits, it is neither just nor proper to dismiss it a decade later solely on the grounds of an alternative remedy. The availability of an alternative remedy does not oust the jurisdiction of the High Court; it is merely a factor to be considered at the threshold.

The Economic and Human Cost

The SARFAESI Act was enacted to ensure the "speedy recovery" of public dues. However, when the judiciary itself contributes to delays by remanding matters years later, the "expeditious and effective" nature of these remedies becomes a farce. While the Supreme Court has clarified in Agarwal Tracom that measures like EMD forfeiture fall under Section 13(4) and are thus challengeable before the DRT, this legal clarity should not be used as an excuse to vacate long-pending Writ Petitions without a decision on the merits.

Conclusion

Forcing a litigant who has already spent years in the High Court to return to the DRT is a failure of judicial empathy. The "bar" of alternate remedy should not be raised so high that it becomes a wall preventing access to the Court's extraordinary jurisdiction. If the High Court has already invested years of judicial time in a matter, it is its constitutional duty to resolve the dispute rather than restart the clock on a litigant’s misery.

Jacob Kadantot

Advocate