The Supreme Court has held that the stipulated condition to pre-deposit 50% of the amount awarded to appeal before it against an NCDRC Order, wouldn’t have restrospective effect.
Note: 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, 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 Bench comprising of Justice Hemant Gupta and Justice V. Ramasubramanian observed that the afforsaid will not be applicable to the complaints filed prior to the commencement of the Consumer Protection Act, 2019.
In present appeal before the bench has been filed assailing an NCDRC Order in a Consumer Complaint filed before the 2019 Act came into force. The NCDRC allowed the complaint IN 2021 whereas the 2019 Act came into force in 2020.
The question thus, for the Court to settle was whether the appeal before it would be governed under the Consumer Protection Act, 2019 or under the erstwhile 1986 Act?
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.
He further argued that Section 107 of 2019 Act and Section 6 of the General Clauses Act, 1897 unequivocally operate against any question of retrospectivity. Sub- Section (2) of Section 107 of 2019 Act does not change the legal position as mentioned under Section 6 of the General Clauses Act.
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 subsection (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, he 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. He 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.
Referrence was made to Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh & Ors, 1953 Latest Caselaw 11 SC, State of Bombay Vs. Supreme General Films Exchange Ltd., 1960 Latest Caselaw 87 SC, Vitthalbhai Bakorbhai & Ors Vs. The Executive Engineer, Capital Project & ANR, 1996 Latest Caselaw 203 SC, Hardeodas Jagannath Vs. State of Assam & Ors , 1968 Latest Caselaw 236 SC
In view of the above, the Court concluded:
“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.”
Inter-alia, for further clarification, the Court commented on few precedents and what they suggest:
1. In a judgment reported as K. Raveendranathan Nair & Anr. v. Commissioner of Income Tax & Ors. 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.
2. In Anant Mills Co. Ltd. Vs. State of Gujarat & Ors, 1975 Latest Caselaw 9 SC a four-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 The Gujarat Agro Industries Co. Ltd. Vs. Municipal Corporation of City of Ahmedabad & Ors, 1999 Latest Caselaw 166 SC the judgment in Anant Mills was followed.
3. Ramesh Singh & Anr. v. Cinta Devi & Ors. 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 Gurcharan Singh Baldev Singh Vs. Yashwant Singh & Ors, 1991 Latest Caselaw 296 SC 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.
4. Reliance on Thirumalai Chemicals Limited Vs. Union of India & Ors. , 2011 Latest Caselaw 360 SC 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.
5. M/s. Newtech Promoters and Developers Pvt. Ltd. Vs. State of Uttar Pradesh, 2021 Latest Caselaw 560 SC will nolt be applicable 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 M/S. TECNIMONT PVT. LTD. (FORMERLY KNOWN AS TECNIMONT ICB PVT. LTD) vs. STATE OF PUNJAB, 2019 Latest Caselaw 846 SC is also in respect of right of appeal on pre-deposit which was enacted originally in the Punjab Value Added Tax Act
Allowing the appeal, the Court held 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.
Source: latestlaws.com
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