The court established that a tribunal must resolve maintainability issues before addressing case merits, and judicial review is permissible even when alternative remedies exist if gross jurisdictional errors occur.

1. The present dispute arises out of a final order passed by the Debts Recovery Tribunal in connection with an application filed by the opposite party-bank under Section 19 (1) of the Recovery of Debts Due to Banks and Financial Institutions Act (now “ Recovery of Debts and Bankruptcy Act”), 1993.

2. The present petitioners/borrowers filed an application challenging the maintainability of the said proceeding on the ground that unless the application under Section 17(1) of the SARFAESI Act, 2002 , which was pending at that juncture, was finally disposed of, the bank could not initiate a proceeding under Section 19 (1) of the 1993 Act.

3. By an order dated January 8, 2024, the learned Tribunal categorically recorded that it heard learned counsel for both the parties on the IA (the maintainability application) as well as the OA [the substantive application under Section 19 (1) of the 1993 Act] and the matter was to be listed on the next day for passing final order on the IA as well as the OA.

4. However, while passing the final order on February 26, 2024, which is impugned herein, the learned Tribunal, without spending a single line or adverting to the objection as to the maintainability at all, as raised in the IA, went on to decide the OA on merits.

5. Learned counsel for the petitioners argues that the said judgment and order dated February 26, 2024 was not only in violation of the Tribunal’s own order dated January 8, 2024 but was also patently without jurisdiction, since it is well-settled that if an objection as to the maintainability in law is raised in any proceeding, it is the cardinal duty of the Tribunal or the Court to decide such issue first before moving on to adjudicate the main matter on merits.

6. Learned counsel places reliance on a judgment of Godrej Sara Lee Ltd. vs. Excise and Taxation Officer- cum-Assessing Authority and Ors. reported at 2023 SCC OnLine SC 95 in support of the proposition that even if there is an available equally efficacious alternative remedy, it is a question of the High Court imposing a self-imposed restriction if it does not want to entertain such challenge, but not a question of maintainability of a challenge under a Constitutional provision.

7. As such, it is argued that in view of the palpable jurisdictional error committed by the Tribunal, the petitioner may not be relegated to the alternative remedy of appeal under Section 18 of the SARFAESI Act, 2002 .

8. Learned counsel appearing for the opposite party bank contends that the Supreme Court, in the recent judgment of Varimadugu Obi Reddy vs. B. Sreenivasulu and Ors. , has held that ordinarily, any order passed by the Tribunal is amenable to an appeal under Section 18 of the SARFAESI Act, 2002 and the High Court shall not exercise its powers under Article 226 of the Constitution.

9. Accordingly, in view of availability of an equally efficacious alternative remedy, the High Court ought not to interfere in exercise of its jurisdiction under Article 226/ 227 of the Constitution of India with the impugned order of the Tribunal.

10. Upon a careful consideration of the submissions of learned Counsel for both the parties, this court is of the opinion that even taking into consideration the judgment cited by learned counsel for the bank, the ratio laid down therein is that in ordinary circumstances, in view of the availability of an alternative remedy of appeal, there shall not be interference by this court under its Constitutional review jurisdiction. The cited report, however, does not stipulate an absolute bar to the exercise of the power of judicial review by High Courts.

11. However, it is a well-settled proposition of law that there is a qualitative difference in interference where there is an implicit bar in the Code of Civil Procedure as opposed to bar under other statutes under other Acts insofar as interference under Articles 226 and 227 of the Constitution is concerned. Whereas in the former case, the bar is construed to be near-abs