ECGC LIMITED VS MOKUL SHRIRAM EPC JV

ECGC LIMITED VS MOKUL SHRIRAM EPC JV - Supreme Court Case 2022 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. NO. 99210 OF 2021

IN

CIVIL APPEAL NO. 1842 OF 2021

ECGC LIMITED .....APPELLANT(S)

VERSUS

MOKUL SHRIRAM EPC JV .....RESPONDENT(S)

O R D E R

HEMANT GUPTA, J.

1. The present appeal is directed against an order passed by the

National Consumer Dispute Redressal Commission1

 whereby the

appellant herein was directed to pay a sum of Rs. 265.01 Crores

along with interest @ 10% p.a. from 19.9.2016 within a period of

three months. In case of failure to deposit the said amount, the

awarded amount would carry compensation in the form of simple

interest @ 12% p.a. The appellant has filed an application (IA No.

99210 of 2021) ex abundanti cautela to entertain the appeal as per

the provisions of the Consumer Protection Act, 19862

. It is the said

application which is being decided by the present order.

2. The complainant was awarded a contract for construction of rain

water drainage, heavy sewerage and municipal road system by the

Government of Basra, Iraq. The complainant obtained two specific

1 National Commission

2 For short, the ‘1986 Act’

1

contracts (Letter of Credit Comprehensive Risks Policies) by paying

a sum of ₹10,38,03,912/- as premium to the appellant. The

grievance of the complainant was that the payment for invoices

issued for the work done under the contract was suspended. Later,

the contract also was withdrawn by the Government of Basra

owing to some internal conflict. The appellant herein rejected the

insurance claim of the complainant and thus relief was sought

before the National Commission by filing a complaint under Section

21(a)(i) of the 1986 Act. The said complaint was allowed on

27.1.2021.

3. The question now being examined here is as to whether the

present appeal would be governed under the Consumer Protection

Act, 20193

 or under the erstwhile 1986 Act.

4. In terms of Section 67 of the 2019 Act, no appeal against the order

of National Commission shall be entertained by the Supreme Court

unless the person has deposited fifty per cent of the amount

required to be paid. Whereas, under the 1986 Act, by virtue of a

proviso inserted vide Central Act 62 of 2002 w.e.f. 15.3.2003, the

condition was that no appeal shall be entertained by the Supreme

Court unless the person who is required to pay the amount

deposits fifty per cent of the amount or fifty thousand, whichever is

less. The two provisions read thus:

1986 Act 2019 Act

23. xx 67. xx

3 For short, the ‘2019 Act’

2

Provided further that no appeal by a

person who is required to pay any

amount in terms of an order of the

National Commission shall be

entertained by the Supreme Court

unless that person has deposited in

the prescribed manner fifty per cent

of that amount or rupees fifty

thousand, whichever is less.

Provided further that no appeal

by a person who is required to

pay any amount in terms of an

order of the National Commission

shall be entertained by the

Supreme Court unless that

person has deposited fifty per

cent of that amount in the

manner as may be prescribed.

5. Learned Attorney General appearing for the appellant submitted

that the appeal has been preferred under Section 23 of the 1986

Act and not under the 2019 Act which came into force from

20.7.2020. It was stated that the condition of deposit of 50% of the

amount is more onerous than what was provided under the 1986

Act. Therefore, keeping in view the principle that the law which is

applicable at the time of initiation of the lis would be applicable,

the provisions of 1986 Act would govern the present appeal and

not the provisions of 2019 Act. The appellant has deposited

₹50,000/- vide demand draft in terms of second proviso to Section

23 of the 1986 Act while exercising its right of appeal under the

1986 Act. Hence, the present appeal be heard on merits.

6. The learned Attorney General inter alia argued that Section 107 of

2019 Act and Section 6 of the General Clauses Act, 18974

unequivocally operate against any question of retrospectivity. SubSection (2) of Section 107 of 2019 Act does not change the legal

position as mentioned under Section 6 of the General Clauses Act.

To appreciate the argument, Section 6 of the General Clauses Act

and Section 107 of the 2019 Act are reproduced hereunder:

4 For short, the ‘General Clauses Act’

3

“Section 6 of the General Clauses Act

6. Effect of Repeal. - Where this Act, or any Central Act or

Regulation made after the commencement of this Act,

repeals any enactment hitherto made or hereafter to be

made, then, unless a different intention appears, the repeal

shall not—

(a) revive anything not in force or existing at the time at

which the repeal takes effect; or

(b) affect the previous operation of any enactment so

repealed or any thing duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired,

accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in

respect of any offence committed against any enactment so

repealed; or

(e) affect any investigation, legal proceeding or remedy in

respect of any such right, privilege, obligation, liability,

penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may

be instituted, continued or enforced, and any such penalty,

forfeiture or punishment may be imposed as if the repealing

Act or Regulation had not been passed.

xx xx xx

Section 107 of the 2019 Act

107. (1) The Consumer Protection Act, 1986 is hereby

repealed.

(2) Notwithstanding such repeal, anything done or any

action taken or purported to have been done or taken under

the Act hereby repealed shall, in so far as it is not

inconsistent with the provisions of this Act, be deemed to

have been done or taken under the corresponding provisions

of this Act.

(3) The mention of particular matters in sub-section (2) shall

not be held to prejudice or affect the general application of

section 6 of the General Clauses Act, 1897 with regard to

the effect of repeal.”

4

7. Sub-section (2) of Section 107 of the 2019 Act protects the actions

taken under the 1986 Act insofar as such actions are not

inconsistent with the provisions of 2019 Act. Such actions shall be

deemed to have been undertaken as per the corresponding

provisions of 2019 Act. Sub-section (3) contemplates that the

particular matters in sub-section (2) shall not prejudice or affect the

general application of Section 6 of the General Clauses Act with

regard to the effect of repeal. Referring to clause (c) of Section 6 of

the General Clauses Act, it was argued that unless a different

intention appears, the repeal shall not affect any right, privilege,

obligation or liability acquired, accrued or incurred under any

enactment so repealed. Further, Clause (e) stipulates that the

repeal shall not affect any investigation, legal proceeding or

remedy in respect of any such right, privilege, obligation, liability,

penalty, forfeiture or punishment which may be imposed as if the

repealing Act or the Regulation has not been passed. It was thus

argued that the repeal of enactment does not affect any right

acquired or accrued under the enactment so repealed or affect any

legal proceeding in respect of such a right. Such effect was to be

construed only when a different intention appears from the

repealing statute. It was thus argued that the right to file an

appeal under the 1986 Act has accrued in favour of the appellant in

terms of Section 6(c) of the General Clauses Act and that no

different intention is discernable from the repealing Act.

5

8. To support the above arguments, the learned Attorney General has

relied upon Division Bench judgment of the Calcutta High Court

reported as Nogendra Nath Bose v. Mon Mohan Singha Roy &

Ors.

5

 which was approved by this Court in a judgment reported as

Hoosein Kasam Dada (India) Ltd. v. State of Madhya

Pradesh & Ors.

6

. In Hoosein Kasam Dada, Hon’ble Mr. Justice

S.R. Das speaking for the Bench with Hon’ble Mr. Justice M.C.

Mahajan was examining a matter consequent to the amendment

on 25.11.1949 by the Central Provinces and Berar Sales Tax

(Second Amendment) Act (Act 57 of 1949) amending the Central

Provinces and Berar Sales Tax Act, 1947. The proviso to Section

22(1) of the 1947 Act prior to the amendment as enacted provided

that no appeal against an order of assessment shall be entertained

unless it was satisfied that such amount of tax or penalty or both

as the appellant may admit to be due from him has been paid. The

amending act contemplated that no appeal shall be entertained

unless an appeal is accompanied by a satisfactory proof of the

payment of the tax, with penalty, if any, in respect of which the

appeal has been preferred. Therefore, there was change in the

condition of preferring an appeal from the amount admitted to be

due by the assessee than the payment of the tax and penalty of in

respect of which an appeal has been preferred.

9. It may be relevant to mention that the Court also noticed the

5 AIR 1931 Cal. 100

6 AIR 1953 SC 221

6

argument of the learned counsel for the State that until actual

assessment is made, there can be no lis and therefore, no right of

appeal can accrue before that date. The Court observed that when

assessee files a return, the lis may not immediately arise. The

authority may assess the return under Section 11 of the 1947 Act,

but if the authority is not satisfied as to the correctness of the

return and call for evidence, a controversy arises. In the aforesaid

case, the sales tax return was filed on 28.11.1947 and a notice by

the Assistant Commissioner of Sales Tax was issued on 25.1.1949

i.e. prior to the amendment. This Court held as under:

“8. The above decisions quite firmly establish and our

decisions in Janardan Reddy v. State [(1950) SCR 941] and

in Ganpat Rai v. Agarwal Chamber of Commerce Ltd. [(1952)

SCJ 564] uphold the principle that a right of appeal is not

merely a matter of procedure. It is a matter of substantive

right. This right of appeal from the decision of an inferior

tribunal to a superior tribunal becomes vested in a party

when proceedings are first initiated in, and before a decision

is given by, the inferior court. In the language of Jenkins, C.J.

in Nana bin Aba v. Shaik bin Andu to disturb an existing right

of appeal is not a mere alteration in procedure. Such a

vested right cannot be taken away except by express

enactment or necessary intendment. An intention to

interfere with or to impair or imperil such a vested right

cannot be presumed unless such intention be clearly

manifested by express words or necessary implication.

9. …. In our view the above observation is apposite and

applies to the case before us. The true implication of the

above observation as of the decisions in the other cases

referred to above is that the pre-existing right of appeal is

not destroyed by the amendment if the amendment is not

made retrospective by express words or necessary

intendment. The fact that the pre-existing right of appeal

continues to exist must, in its turn, necessarily imply that

the old law which created that right of appeal must also exist

to support the continuation of that right. As the old law

continues to exist for the purpose of supporting the preexisting right of appeal that old law must govern the

exercise and enforcement of that right of appeal and there

7

can then be no question of the amended provision

preventing the exercise of that right. The argument that the

authority has no option or jurisdiction to admit the appeal

unless it be accompanied by the deposit of the assessed tax

as required by the amended proviso to Section 22(1) of the

Act overlooks the fact of existence of the old law for the

purpose of supporting the pre-existing right and really

amounts to begging the question. The new proviso is wholly

inapplicable in such a situation and the jurisdiction of the

authority has to be exercised under the old law which so

continues to exist. The argument of Sri Ganapathy Aiyer on

this point, therefore, cannot be accepted.

10. Finally, Sri Ganapathy Aiyer faintly urges that until

actual assessment there can be no “lis” and, therefore, no

right of appeal can accrue before that event. There are two

answers to this plea. Whenever there is a proposition by one

party and an opposition to that proposition by another a “lis”

arises. It may be conceded, though not deciding it, that

when the assessee files his return a “lis” may not

immediately arise, for under Section 11(1) the authority may

accept the return as correct and complete. But if the

authority is not satisfied as to the correctness of the return

and calls for evidence, surely a controversy arises involving

a proposition by the assessee and an opposition by the

State. The circumstance that the authority who raises the

dispute is himself the Judge can make no difference, for the

authority raises the dispute in the interest of the State and

in so acting only represents the State. It will appear from the

dates given above that in this case the “lis” in the sense

explained above arose before the date of amendment of the

section. Further, even if the “lis” is to be taken as arising

only on the date of assessment, there was a possibility of

such a “lis” arising as soon as proceedings started with the

filing of the return or, at any rate, when the authority called

for evidence and started the hearing and the right of appeal

must be taken to have been in existence even on those

dates. For the purposes of the accrual of the right of appeal

the critical and relevant date is the date of initiation of the

proceedings and not the decision itself.”

10. Subsequently, the Constitution Bench in a judgment reported as

Garikapati Veeraya v. N. Subbiah Choudhry & Ors.

7 approved

the judgment in Hoosein Kasam Dada, though the issue was in

7 AIR 1957 SC 540

8

respect of right of appeal to the Federal Court under the

Government of India Act, 1935. The argument was that the

appellant had a right to file an appeal as the suit, out of which the

proceedings arose before this Court, was filed on 22.4.1949.

Hence, he had acquired a vested right to appeal to the Federal

Court which has since been replaced by the Supreme Court. It was

the said argument which was accepted by the Constitution Bench

when the following principles were delineated:

“23. From the decisions cited above the following principles

clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and

second appeal are really but steps in a series of proceedings

all connected by an intrinsic unity and are to be regarded as

one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but

is a substantive right.

(iii) The institution of the suit carries with it the implication

that all rights of appeal then in force are preserved to the

parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to

enter the superior court accrues to the litigant and exists as

on and from the date the lis commences and although it

may be actually exercised when the adverse judgment is

pronounced such right is to be governed by the law

prevailing at the date of the institution of the suit or

proceeding and not by the law that prevails at the date of its

decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a

subsequent enactment, if it so provides expressly or by

necessary intendment and not otherwise.

24. In the case before us the suit was instituted on April 22,

1949, and on the principle established by the decisions

referred to above the right of appeal vested in the parties

thereto at that date and is to be governed by the law as it

prevailed on that date, that is to say, on that date the

9

parties acquired the right, if unsuccessful, to go up in appeal

from the sub-court to the High Court and from the High

Court to the Federal Court under the Federal Court

(Enlargement of Jurisdiction) Act, 1947 read with clause 39

of the Letters Patent and Sections 109 and 110 of the Code

of Civil Procedure provided the conditions thereof were

satisfied. The question for our consideration is whether that

right has been taken away expressly or by necessary

intendment by any subsequent enactment. The respondents

to the application maintain that it has been so taken away

by the provisions of our Constitution.”

11. In a three-Judge Bench judgment reported as State of Bombay v.

M/s. Supreme General Films Exchange Ltd. & Anr.

8

, the

argument which arose for consideration was that the court fees

payable on the memorandum of appeal would be as on the date of

filing of the suit and not as per the amendment in the Court Fees

Act, 1870 by Bombay Act 12 of 1954. The court fee on the

memorandum of appeal was thus held to be payable as was

applicable prior to the amendment of the Act. This Court held as

under:

“12. It is thus clear that in a long line of decisions approved

by this Court and at least in one given by this Court, it has

been held that an impairment of the right of appeal by

putting a new restriction thereon or imposing a more

onerous condition is not a matter of procedure only; it

impairs or imperils a substantive right and an enactment

which does so is not retrospective unless it says so expressly

or by necessary intendment.”

12. The Constitution Bench in Vitthalbhai Naranbhai Patel v.

8 AIR 1960 SC 980

10

Commissioner of Sales Tax, M.P., Nagpur

9

 was considering a

matter where the date on which sales tax returns were filed was

not disclosed. In the absence of the date of filing of the return, this

Court held as under:

“9. The decision in Hoosein Kasam Dada’s case, 1953 SCR

987: (AIR 1953 SC 221), proceeded on the ground that when

a lis commences, all rights get crystallised and no clog upon

a likely appeal can be put, unless the law was made

retrospective, expressly or by clear implication. From the

record of this case, we cannot say when the lis commenced,

and unless it can be proved conclusively that it was before

the amendment of the law, the rule in Hoosein Kasam

Dada’s case, 1953 SCR 987: (AIR 1953 SC 221), cannot

apply. There is no averment that right of appeal had vested,

and has been wrongly taken away.”

13. In another Constitution Bench judgment of this Court reported as

M/s. Hardeodas Jagannath v. The State of Assam & Ors.

10

,

none of the previous judgments were referred to and thus, it prima

facie appears to have taken a somewhat different view than what

was held in the earlier Constitution Bench judgments. But if

examined closely, the said judgment is not taking any contrary

view and is in line with the earlier judgments of this Court. The

issue was about an amendment dated 1.4.1958 in the Assam Sales

Tax Act, 1947 requiring deposit of assessed tax and penalty as

condition of filing of appeal. The assessee had filed half yearly

returns for periods ending on 30.9.1956, 31.3.1957 and 30.9.1957

respectively. The premises of the assessee were searched on

6.3.1959 and the account books etc. were seized. A notice for

reassessment was issued on 4.4.1959 under Section 19A of the

9 AIR 1967 SC 344

10 AIR 1970 SC 724

11

Assam Sales Tax Act, 1947. It was in this background, this Court

held as under:

“9. It was contended that the amendment came into force

with effect from April 1, 1958 and it cannot be given

retrospective effect so as to apply to assessment periods

ending on September 30, 1956, March 31, 1957 and

September 30, 1957. We are unable to accept this argument

as correct because the assessments for these three periods

were completed after the amending Act came into force i.e.,

after April 1, 1958. The appeals against the assessments

were also filed after the amendment. It is therefore not

correct to say that the amending Act has been given a

retrospective effect and the Assistant Commissioner of Taxes

was therefore right in asking the appellant to comply with

the provisions of the amended Section 30 of the Act before

dealing with the appeals.”

14. Since the returns were filed prior to the amendment but the notice

for reassessment was issued after the Amending Act came into

force, therefore, in view of the Hoosein Kasam Dada, the

provisions of the Amending Act alone would be applicable and that

is what has been held by this Court.

15. In a judgment reported as K. Raveendranathan Nair & Anr. v.

Commissioner of Income Tax & Ors.

11

, it has been held that the

relevant date for paying the court fee would be when the

proceedings were initiated in the lowest court and not when the

appeal was preferred before the High Court in view of the

amendment in the Kerala Court Fees and Suits Valuation Act, 1959.

16. In Anant Mills Co. Ltd. v. State of Gujarat & Ors.

12

, a four11 (2017) 9 SCC 355

12 (1975) 2 SCC 175

12

Judge Bench of this Court held that since the authority entertaining

appeal has a jurisdiction to dispense with the compliance of

requirement to deposit the amount of property tax, it is not

onerous as discretion was vested with the appellate court. In

another judgment reported as Gujarat Agro Industries Co. Ltd.

v. Municipal Corporation of the City of Ahmedabad & Ors.

13

,

the judgment in Anant Mills was followed.

17. This Court in a judgment reported as Ramesh Singh & Anr. v.

Cinta Devi & Ors.

14

 held that an appeal under the Motor Vehicles

Act, 1988 contemplating deposit of twenty-five thousand rupees or

fifty per cent of the amount whichever is less will not be applicable

to the claim applications filed under Motor Vehicles Act, 1939.

Similar is the view of another Bench of this Court in a judgment

reported as M/s Gurcharan Singh Baldev Singh v. Yashwant

Singh & Ors.

15

 wherein the right of appeal conferred under the

Motor Vehicles Act, 1939 could not be said to be taken away after

repeal of such Act by the Motor Vehicles Act, 1988.

18. Mr. Nidhesh Gupta, learned senior counsel appearing for the

respondent submitted that the amendment is procedural in nature

and thus always retrospective. Reliance was placed upon

Thirumalai Chemicals Limited v. Union of India & Ors.

16

. It

was averred that procedure includes the manner and form of filing

13 (1999) 4 SCC 468

14 (1996) 3 SCC 142

15 (1992) 1 SCC 428

16 (2011) 6 SCC 739

13

of appeal, pre-deposit and limitation. The right of appeal is a

statutory right which can be taken away by express provision of

law, therefore, the conditions on which an appeal would lie is also

within the legislative competence.

19. We find that the reliance on Thirumalai Chemicals Limited may

not be correct as this Court held that Section 49 of FEMA does not

seek to withdraw or take away the vested right of appeal in cases

where proceedings were initiated prior to repeal of FERA on

01.06.2000 or after. The said judgment in fact held that liberal

provision of condonation of delay as provided in the new Act would

be applicable. It was held as under:

 “28. Above discussion will clearly demonstrate that Section

49 of FEMA does not seek to withdraw or take away the

vested right of appeal in cases where proceedings were

initiated prior to repeal of FERA on 01.06.2000 or after. On a

combined reading of Section 49 of FEMA and Section 6 of

General Clauses Act, it is clear that the procedure prescribed

by FEMA only would be applicable in respect of an appeal filed

under FEMA though cause of action arose under FERA. In fact,

the time limit prescribed under FERA was taken away under

the proviso to sub-section (2) of Section 19 and the Tribunal

has been conferred with wide powers to condone delay if the

appeal is not filed within forty-five days prescribed, provided

sufficient cause is shown. Therefore, the findings rendered by

the Tribunal as well as the High Court that the Tribunal does

not have jurisdiction to condone the delay beyond the date

prescribed under FERA is not a correct understanding of the

law on the subject.

29. We, therefore, hold that the Appellate Tribunal can

entertain the appeal after the prescribed period of 45 days if it

is satisfied, that there was sufficient cause for not filing the

appeal within the said period. We are therefore inclined to set

aside the orders passed by the Tribunal and the High Court

and remit the matter back to the Tribunal for fresh

consideration in accordance with law on the basis of the

14

findings recorded by us…”

20. Mr. Gupta also referred to the three-Judge Bench judgment of this

Court reported as Newtech Promoters and Developers Pvt.

Ltd. v. State of UP & Ors.

17

 wherein pre-deposit was required to

be made while filing an appeal under the Real Estate (Regulation

and Development) Act, 2016. The said judgment is not applicable

as while framing the statute, Section 43(5) contemplating predeposit was part of the initially enacted provision. Similarly,

another judgment reported as Tecnimont Pvt. Ltd. v. State of

Punjab & Ors.

18

 is also in respect of right of appeal on pre-deposit

which was enacted originally in the Punjab Value Added Tax Act.

21. The learned counsel for the respondent has also relied upon

Division Bench judgments in Sri Satya Nand Jha v. Union of

India & Ors.

19

 and M/s. Indian Oil Corporation v. Orissa Sales

Tax Tribunal, CTC & Ors.

20

. It is to be noted that the Orissa High

Court in Indian Oil Corporation was in fact considering the

reverse proposition wherein condition of pre-deposit of 50% of the

deposited amount of tax was deleted. The writ petition was filed

by the assessee to challenge the notice issued by the State to

deposit 50% of the deposited amount after the amendment. The

Division Bench held as under:

“24. The Apex Court time & again held that right of appeal is

17 2021 SCC On Line SC 1044

18 2019 SCC On Line SC 1228

19 2016 SCC OnLine Jhar 2323

20 2009 SCC OnLine Ori 353

15

a substantive right, but how the appeal is to be decided is a

matter of procedure. The rules of procedure are intended to

advance justice & not to defeat it. “Procedural law is

intended to facilitate & not to obstruct the course of

substantive justice.” (vide Hoosein Kasam Dada (India)

Ltd. v. State of M.P., AIR 1953 SC 221; Garikapati

Veeraya v. N. Subbiah Choudhry; AIR 1957 SC 540; M/s.

Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91 : AIR 1978

SC 484; Harcharan v. State of Haryana, (1982) 3 SCC 408 :

AIR 1983 SC 43; & Shiv Shakti Coop. Housing Society,

Nagpur v. Swaraj Developers, (2003) 6 SCC 659 : AIR 2003

SC 2434).

25. In the instant case, as the provision of the pre-deposit

condition for entertaining the appeal has been deleted prior

to entertaining the appeal being a procedural matter, the

amendment would apply retrospectively. The instant case is

squarely covered by the Judgment of the Hon'ble Supreme

Court in Lakshmi Rattan Engineering Works Ltd. (supra).”

22. The High Court of Jharkhand in Sri Satya Nand Jha was dealing

with the amendment in Section 35 of the Central Excise Act, 1944

by Section 105 of the Finance Act, 2014 prescribing that 7.5% or

10% of the duty demand or penalty levied is to be deposited. In

the said case, the pre-amended provision was that if the appellate

authority on being satisfied that the deposit of the duty demanded

or penalty levied would cause undue hardship, then the condition

of pre-deposit could be dispensed with. But subsequent to the

amendment, 7% of the duty assessed and 10% of the penalty

levied was made mandatory to be deposited. It may be noticed

that the second proviso clarified that the provisions of the

amended Section 35 shall not be applied to the stay applications

and appeals pending before any appellate authority prior to the

commencement of the Finance Act, 2014. Therefore, the issue

16

arising in the said case was of legality and validity of the predeposit and not the retrospectivity of the said provision.

23. Mr. Gupta has relied upon the judgment of this Court in Manohar

Infrastructure and Constructions Private Limited v. Sanjeev

Kumar Sharma & Ors.

21

in which the dispute was that the NCDRC

had granted stay subject to deposit of the entire decretal amount.

No argument was raised or decided for retrospectivity of Section 51

of the 2019 Act but the question raised was whether the NCDRC

could direct such deposit of the entire decretal amount pending

appeal though the statute prescribes pre-deposit of 50% of the

amount in dispute.

24. It was contended that the consumer protection legislation is a

beneficial legislation, therefore, the interpretation which benefits

the consumer should be preferred as held by this Court in Neena

Aneja & Anr. v. Jai Prakash Associates Ltd.

22

.

25. It is to be noted that in Neena Aneja, this Court held that right to

forum is not an accrued right. Section 6(e) of the General Clauses

Act protects the pending legal proceeding for enforcement of the

accrued right from the effect of repeal; it does not mean the legal

proceeding at a particular forum was saved from the effect of

repeal. This Court found that there was no express intention in the

repealing enactment that all pending cases would stand

transferred to the fora created under 2019 Act. This Court held as

21 Civil Appeal No. 7098 of 2021 with Ors. decided on 7.12.2021

22 2021 SCC OnLine SC 225

17

under:

“78. Having stated the above position, we need to

harmonize it with the principle that the right to a forum is

not an accrued right, as discussed in Part C of this

judgement. Simply put, while Section 6(e) of the General

Clauses Act protects the pending legal proceedings for the

enforcement of an accrued right from the effect of a repeal,

this does not mean that the legal proceedings at a particular

forum are saved from the effects from the repeal. The

question whether the pending legal proceedings are

required to be transferred to the newly created forum by

virtue of the repeal would still persist. As discussed, this

Court in New India Assurance (supra) and Maria

Christina (supra) has held that forum is a matter pertaining

to procedural law and therefore the litigant has to pursue

the legal proceedings at the forum created by the repealing

act, unless a contrary intention appears. This principle would

also apply to pending proceedings, as observed in Ramesh

Kumar Soni (supra), Hitendra Kumar Thakur (supra)

and Sudhir G Angur (supra). In this backdrop, what is

relevant to ascertain is whether a contrary intent to the

general rule of retrospectivity has been expressed under the

Act of 2019 to continue the proceedings at the older forum.

79. Now, in considering the expression of intent in the

repealing enactment in the present case, it is apparent that

there is no express language indicating that all pending

cases would stand transferred to the fora created by the Act

of 2019 by applying its newly prescribed pecuniary limits. In

deducing whether there is a contrary intent, the legislative

scheme and procedural history may provide a relevant

insight into the intention of the legislature.

xx xx xx

84. … The legislature cannot be attributed to be remiss in

not explicitly providing for transfer of pending cases

according to the new pecuniary limits set up for

the fora established by the new law, were that to be its

intention. The omission, when contextualized against the

statutory scheme, portends a contrary intention to protect

pending proceedings through Section 107(2) of the Act of

2019. This intention appears likely, particularly in light of

previous decisions of the NCDRC which had interpreted

amendments that enhanced pecuniary jurisdiction, with

prospective effect. The NCDRC, in Southfield Paints and

Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd.,

18

Consumer Case No. 286 of 2000 (NCDRC) construed

amending Act 62 of 2002 by which the pecuniary limits of

jurisdiction were enhanced with effect from 15 March 2003

as prospective by relying on its earlier decision in Premier

Automobiles Ltd. v. Dr. Manoj Ramachandran, Revision

Petitions Nos. 400 to 402 of 1993, where the NCDRC held

that the amendments enhancing the pecuniary jurisdiction

are prospective in nature [albeit on a reliance of the

principle in Dhadi Sahu (supra)]. Parliament would be

conscious of this governing principle and yet chose not to

alter it in its application to the consumer fora.”

26. Having said so, this Court held that serious hardship would be

caused to the consumers if the cases already instituted before

National Consumer Disputes Redressal Commission were required

to be transferred to the State Consumer Disputes Redressal Forum.

Thereafter, the proceedings instituted before the commencement

of 2019 Act would continue before the fora corresponding to the

provisions under the 1986 Act.

27. Reliance was also placed upon judgment of this Court reported as

New India Assurance Co. Ltd. v. Smt. Shanti Misra

23

 wherein

the change in forum was said to be covered under procedural law.

In the said referred judgment, there was change of forum of filing

of a claim application under the Motor Vehicle Act, 1939 from that

of a civil suit. It was held that change of forum would apply

retrospectively. It was held that claimant have a vested right of

action and not of forum. Such is not the question posed before us

in the present appeal.

28. The change of forum and period of limitation have been held to be

23 (1975) 2 SCC 840

19

procedural law even in the judgments reported in Videocon

International Limited v. Securities and Exchange Board of

India

24

, and Maria Cristina De Souza Sodder & Ors. v. Amria

Zurana Pereira Pinto & Ors.

25

.

29. Mr. Gupta has also relied upon Harihar Polyfibres v. Regional

Director, ESI Corporation

26

, Spring Meadows Hospital & Anr.

v. Harjol Ahluwalia & Anr.

27

, Kishore Lal v. Chairman,

Employees’ State Insurance Corpn.

28

 and K.H. Nazar v.

Mathew K. Jacob & Ors.

29

 to contend that in respect of beneficial

legislations, the interpretation which support the intention of law

should be accepted.

30. In Harihar Polyfibres, this Court was examining the scope of

expression wages in the Employees’ State Insurance Act, 1948. It

was held that the Act in question was a beneficial legislation and

thus any ambiguous expression was bound to receive a beneficial

construction. The present dispute is not of any ambiguity, therefore

principles laid down in this case are not applicable.

31. In Spring Meadows Hospital, this Court held that the definition

clause of Section 2(1)(d)(ii) of the 1986 Act is wide enough to

include not only the person who hires the services but also the

beneficiary of such services. Thus, both the parents of the child as

24 (2015) 4 SCC 33

25 (1979) 1 SCC 92

26 (1984) 4 SCC 324

27 (1998) 4 SCC 39

28 (2007) 4 SCC 579

29 (2020) 14 SCC 126

20

well as the child would be consumer under the 1986 Act to claim

compensation under the Act. In Kishore Lal, this court held that

the definition of 'consumer' in the 1986 Act is apparently wide

enough and encompasses within its fold not only the goods but

also the services, bought or hired for consideration. In K.H. Nazar,

the question was, whether a rocky land which was used for

quarrying purposes can be treated as a “commercial site”, thus

exempt from the purview of the Kerala Land Reforms Act, 1963. We

are not concerned with interpretation to be given to a clause in the

statute as in the judgments referred to by the respondents but only

with the effect of substitution of a provision than earlier provisions.

32. The Division Bench of the Madras High Court in M/s. Dream

Castle & Anr. v. Union of India & Ors.

30

 dealing with amended

Section 35 of the Central Excise Act by Finance Act No. 2 of 2014

held that when the unamended condition gave only a chance or

hope for an assessee to get a total waiver at the discretion of the

Appellate Authority, the same cannot be equated to a vested right

or stated to be retrospective, unless it is definitely shown that the

amended condition is more onerous than the unamended

condition. It was held as under:

“54. Therefore, it is well settled that the right of appeal is a

creature of statute and the legislature is well within its

competence to impose conditions for the exercise of such a

right subject only to the restriction that the conditions so

imposed are not so onerous as to amount to unreasonable

restrictions rendering the right almost illusory.

xx xx xx

30 W.P. No. 13431 of 2015 etc. decided on 18.4.2016

21

59. Therefore, if one condition that was already available in

the statute for the exercise of a right of appeal, is merely

replaced by another condition, the same cannot be said to

be retrospective, unless it is definitely shown that the

amended condition is more onerous than the unamended

condition. When the unamended condition gave only a

chance or hope for an assessee to get a total waiver at the

discretion of the Appellate Authority, the same cannot be

equated to a vested right. A mere chance of convincing the

Appellate Authority to exercise the discretion for the grant of

a total waiver is no vested right. The amendment, in our

considered view, did not take away a right vested, but

merely made a chance divested. What has now gone, is not

the right, but the chance or hope. Therefore, the first

contention of the learned Senior counsel for the petitioner is

liable to be rejected.”

33. There is another line of judgments taking a view that right of

appeal is a creation of statute and the legislature is competent to

determine the conditions on which an appeal would lie. These are

not the cases of amending or repeal of a statute, therefore, such

judgments are not applicable to the questions arising in the

present application.

34. In view of the binding precedents of the Constitution Bench

judgments referred to above, we hold that onerous condition of

payment of 50% of the amount awarded will not be applicable to

the complaints filed prior to the commencement of the 2019 Act.

Therefore, the I.A. is allowed.

.............................................J.

(HEMANT GUPTA)

.............................................J.

(V. RAMASUBRAMANIAN)

NEW DELHI;

FEBRUARY 15, 2022.

22

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले