JUDGEMENT SUMMARY:
ECGC Limited vs Mokul Shriram EPC JV
DATE OF JUDGEMENT:
15th February 2022
JUDGES:
V Ramasubramanian, J.
H Gupta, J.
PARTIES:
ECGC limited (Appellant)
Mokul Shriram EPC JV (Respondent)
SUBJECT
The Right to appeal is a matter of procedure as well as 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, even before the decision is given by the inferior court. In Consumer Protection Act 2019, the conditions to appeal which was present in the erstwhile Act of 1986 is amended. The SC held that the condition to pre-deposit 50% of the amount to challenge NCDRC Order is not applicable to complaints filed before the enforcement of the 2019 Act.
AN OVERVIEW
1.The complainant who was awarded a contract for construction had the following grievances for which he had sought relief before National Consumer Dispute Redressal Commission (NCDRC):
a.The payment for invoices issued for the work done under the contract was suspended.
b.The contract was, later, withdrawn owing to some internal conflict.
c.The insurance claim of the complainant was rejected by the appellant.
2.The NCDRC had allowed the complaint and ordered the Appellant to pay a sum of Rs. 265.01 Crores along with interest @ 10% p.a. within three months failing which, he had to compensate by paying simple interest of 12% p.a.
3.The complaint was filled before the NCDRC under the Consumer Protection Act 1986 (1986 Act). The complaint was allowed by NCDRC in 2021 when the Consumer Protection Act 2019 (2019Act) had already come into force.
4.Section 67 of 2019 Act had provided that appeal against the order of NCDRC would not be entertained by the SC unless the Appellant had deposited 50% of the amount required to be paid. On the other hand, 1986 Act had provided that the Appellant was required to pay either 50% of the amount to be paid or fifty cent of that amount in the thousand, whichever was less for the appeal to be entertained by the SC.
IMPORTANT PROVISIONS
Consumer Protection Act 2019
Section 107-Outlines the repeal of Consumer Protection Act 1986
General Clause Act 1897
Section 6- Outlines the effect of repeal of Act or Regulation.
ISSUES
The issue raised before the SC were as follows:
- Whether the prior to the actual assessment, there could be no lis and the right to appeal could not be accrued?
- Whether the appeal would be governed under the 1986 Act or 2019 Act?
ANALYSIS OF THE JUDGMENT
1.The lis arose when one party had a proposition and opposition to it existed. It could be conceded that when the assessee had filed return, the lis might not arise if the authority had accepted the return as correct and complete. In the present case, the lis had arisen before the amendment.
2.When the authority was not satisfied regarding the correctness of the return and called for evidence, the controversy arose- where the proposition was given by the assessee and the opposition was represented by the State. It was possible for alis to arise as soon as proceedings had started with the filing of the return. The right of appeal could be accrued since the day of initiation of the proceedings.
3.Section 107 (2) of 2019 Act had provided protection to the actions that were taken under 1986 Act unless the actions were not inconsistent with the provisions of 2019 Act. Further such actions would be deemed to be undertaken in correspondence with the 2019 Act. Section 107 (3) of the 2019 Act provided that the actions in sub-section (2) would not affect the general application of Section 6 of the General Clause Act.
4.Sub-section (c) and (e) of Section 6 of the General Clause Act are read together provided the following:
a.Unless a different intention had surfaced, the right, privilege, obligation or liability would not be affected by the repeal.
b.The investigation, legal proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment would remain unaffected.
5.In Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh & Ors., 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.
6.In State of Bombay v. M/s. Supreme General Films Exchange Ltd. & Anr., for 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 M/s. Hardeodas Jagannath v. The State of Assam & Ors., it was held that the return wasfiled prior to the amendment but the notice for reassessment which was issued after the Amending Act had come into force would be adjudicated according to the provisions of the Amending Act.
CONCLUSION
The SC had held that impairing the right of appeal by putting a new restriction or imposing a more onerous condition would not only be a matter of procedure but also would imperil a substantive right. An enactment which impaired the right to appeal would not be retrospective unless it provides for such impairment expressly or by necessary intendment. It was, therefore, held that the proceedings which were instituted before the commencement of 2019 Act would continue before the fora corresponding to the provisions under the 1986 Act. The appeal was allowed by the Apex Court.
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