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.
ECGC LIMITED …..Vs. MOKUL SHRIRAM EPC JV
[Civil Appeal No. 1842 OF 2021]
Comparison of 1986 and 2019 Act done in the judgment.
Section 67 of the latest act provides that to challenge an order by the National Commission at the Supreme Court, the person required to pay the award amount shall deposit 50 % of the award amount. However, under the 1986 Act, Section 25 provides that for an appeal to be entertained by the Court the person is required to pay the amount deposits 50 % of the amount or Rupees Fifty Thousand, whichever is less.
The Appellant argued that given the principle that the law which is applicable at the time of initiation of the lis would be applicable, the provisions of the 1986 Act would govern the present appeal and not the provisions of the 2019 Act. It was also stated that the deposit of 50% of the amount is more onerous than what was provided under the 1986 Act. The appellant deposited ₹50,000/- following the 1986 Act and the same led to the present appeal under the 1986 Act.
The respondents relied on Neena Aneja & Anr. v. Jai Prakash Associates Ltd. and various other judgments such as Harihar Polyfibres v. Regional Director, ESI Corporation [(1984) 4 SCC 324], Spring Meadows Hospital v. Harjol Ahluwalia [(1998) 4 SCC 39], Kishore Lal v. Chairman, Employees’ State Insurance Corp. [(2007) 4 SCC 579] and K.H. Nazar v. Mathew K. Jacob & Ors. [(2020) 14 SCC 126] to argue that the consumer protection legislation is beneficial, therefore, the interpretation that benefits the consumer should be preferred.
The Supreme Court on February 15, 2022 was hearing an application ex abundanti cautela to entertain the appeal as per the provisions of the Consumer Protection Act, 1986. It was held that the onerous condition of payment of 50% of the amount awarded to file an appeal against the National Consumer Disputes Redressal Commission (“NCDRC”) order, as provided under the Consumer Protection Act, 1986 (“1986 Act”) will not apply to the complaints filed before the commencement of the Consumer Protection Act, 2019 (Hereinafter “2019 Act”). The present appeal is the result of a case filed before NCDRC under the 1986 Act before the 2019 Act came into force on 20.7.2020. The complaint was accepted by the Commission on 27.1.2021. The question of law was, thus, whether the present appeal would be governed under the 2019 Act or the 1986 Act. The difference between the two acts for filing an appeal against the order of NCDRC at the Supreme Court was the main concern.
The bench cited various judgements to support the conclusion, here are a few:
- Garikapati Veeraya v. N. Subbiah Choudhry & Ors, AIR 1957 SC 540
The case concerns an SLP instituted in 1949 and valued at Rs. 11,400. The application was dismissed on the ground that the value of the property was only Rs. 11,400 and did not come up to the amount of Rs. 20,000 as provided under the latest regime. Applicant contended that he had a vested right of appeal to the Federal Court under the law as it then stood and that Court having been substituted by the Supreme Court, he was as of right entitled to appeal to that Court under Art. 135 of the Constitution. The bench found the contention well-grounded and noted that the right vested with the appellant was from the day of the institution of suit and hence the SLP should be allowed.
- Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, M.P., Nagpur, AIR 1967 SC 344
The case concerns the Central Provinces and Berar Sales Tax Act, 1947, as to when lis commences. The date of filing sale tax return was not available and hence the court noted that the on facts it could not be concluded when the lis commenced, therefore, principles laid down in the case of Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh could not be applied.
- M/s. Hardeodas Jagannath v. The State of Assam & Ors, AIR 1970 SC 724
The case pertains to an amendment dated 1 April 1958 in the Assam Sales Tax Act, 1947 requiring deposit of assessed tax and penalty as a condition of filing of the appeal. The half-yearly returns were filed by the asses for periods ending on the following dates: 30 September 1956, 31 March 1957 and 30 September 1957. His premise was searched on 6 March 1959. On 4 April 1959, a notice for reassessment was issued under Section 19A of the Assam Sales Tax Act, 1947. It was contended that the amendment came into force with effect from 1 April 1958 and it cannot be given retrospective effect to apply to assessment periods ending before it. The court rejected this argument stating that the appeals against the assessments were filed after the amendment. Thus, the latest act would be applicable.
The court rejected this argument stating that the present dispute is not of any ambiguity and the concern is not to interpret the statute in a certain way. The present appeal is 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.
The Court also relied on M/s. Dream Castle v. Union of India. The case concerns Section 35F of the Central Excise Act, 1944 which provides for mandatory pre-deposit of 7.5% of tax demand. Appellants filed a writ petition seeking a declaration that the amendment act requiring the deposit would not apply to the proceedings initiated before the amendment came to force. The court observed 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. The court concluded 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 shown that the amended condition is more onerous than the unamended condition.
The court in this case majorly relied on Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh & Ors. In this case, the SC had held that the pre-existing right of appeal could not be destroyed by the amendment unless the amendment was made retrospective by express words or necessary intendment. Further, the old law which had created that right of appeal should also exist to support the continuation of that right. Therefore, the related new provision would wholly be inapplicable in such a situation and the jurisdiction of the authority would be exercised under the old law which had continued to exist.
A similar observation was made in State of Bombay v. M/s. Supreme General Films Exchange Ltd., concerning payment of court fees on the memorandum of appeal. It was held that the fees were payable as per the prior Act which was in force on the date of filing of the suit rather than the Amendment Act.
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.
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