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the contract also was withdrawn by the Government of Basra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

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