ELECTION OF REMEDIES

ELECTION OF REMEDIES
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With increasing complexity of commercial transactions, transnational businesses and preference of businesses towards fast dispute resolution it has become extremely crucial to have a clear strategy for approaching a dispute. Often a party is confused as to what recourse it should resort to, which can give the best possible result in an expeditious and cost effective manner. In such cases doctrine of election of remedies comes into play.

The Doctrine of Election of Remedies is an act and art of choosing between two or more co-existing, but inconsistent remedies allowed by law on the same set of facts. This doctrine has its genesis in the principle of estoppel, with an underlying purpose to prevent parallel proceedings in the court of law. It is apparent from the abovementioned brief description, that certain well- recognized conditions must exist before the election becomes operative. The presence of “elements of election” is an essential precondition for enforcement of the doctrine –

  1. Two or more remedies are available under law.

  2. The remedies should not be concurrent or cumulative. Thus, upon existence of several remedies for a single cause of action, pursuit of one necessarily involves or implies the negation of other.

The doctrine first came up for discussion before the Supreme Court in A.P. State Financial Corporation vs. M/s GAR re-rolling Corporation[1] which held that the doctrine would not apply to the cases where the ambit and scope of two remedies are essentially different. In National Insurance Company Ltd. vs. Mastan & Ors.[2], Supreme Court held that choosing of the remedies is statutorily incorporated in Section 167 of Motor Vehicles Act, 1988 and in situations “where either of the two alternative Tribunals are open to a litigant, each having jurisdiction over the matter in dispute, and he resorts for his remedy in one such Tribunal in preference to other, he is precluded as against his opponent, from any subsequent resources to the latter.”

However, in L.R. vs. P Savithramma[3], the Supreme Court has had a contrary view and held that there could not be any estoppel against a statute and hence concurrent statutory remedies could be pursued.

EXCEPTIONS TO THE DOCTRINE

  1. The doctrine does not apply where the available remedies are concurrent, cumulative and consistent. Thus, taking the test of inconsistency of remedies, the courts have taken the view that remedy is not inconsistent where it merely seeks further relief, or is of such character as to indicate that the adoption of one is not an intentional relinquishment of others. In M/S Emar MGF Land Ltd. vs. Aftab Singh[4], Supreme Court held that, the remedy under the Consumer Protection Act, 1986 is confined to the complaint filed by consumer for defects and deficiency caused by service provider. The existence of an arbitration clause was not a ground to restrain the consumer fora from proceeding with the consumer complaint.

  2. The doctrine does not apply in cases where the law expressly allows recourse to additional remedies and is not restricted to the remedy available under any particular enactment. The Supreme Court in Irego Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors.[5], held that Section 88 of RERA (Real Estate Regulation and Development) Act, does not bar the applicability of other laws and that it must be read in addition to and not in derogation of the provision of any other law. Hence, the remedies provided under the RERA Act and Consumer Protection Act are in addition to and not in derogation to each other.

  3. Therefore, with the advent of newer laws and increasingly varied nature of disputes, the courts are beginning to lend importance to this branch of equity of jurisprudence. However, in doing so, the Court must strike a right balance between independence of the parties to choose appropriate grievance redressed fora and larger public policy in order to avoid parallel/ multiple proceedings.

Authors:

Prasad Dhande, Partner, Link Legal

Kaamini J Suhaas, Associate, Link Legal

[1] (1994) 2 SCC 674

[2] (2006) 2 SCC 641

[3] Appeal (Civil) 5477 of 2004

[4] 2017 SCC OnLine NCDRC 1614

[5] 2021 SCC OnLine SC 14

Disclaimer: The contents of this article are for general information and discussion only and is not intended for any solicitation of work. This article should not be relied upon as a legal advice or opinion.

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