ECGC LIMITED versus MOKUL SHRIRAM EPC JV

[2022] 2 S.C.R. 155

ECGC LIMITED

MOKUL SHRIRAM EPC JV

(I.A. No. 99210 of 2021)

(Civil Appeal No. 1842 of 2021)

FEBRUARY 15, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Consumer Protection Act: Applicability of 1986 and 2019 Act– In the instant case, Complainant was awarded contract by theGovernment of Iraq – Grievance of the complainant was that thepayment for invoices issued for the work done under the contractwas suspended – Thus, relief was sought before the NationalCommission by filing complaint under the Consumer ProtectionAct, 1986 which was allowed – In the instant appeal, the questionfor consideration is whether the appeal would be governed underthe 1986 or 2019 Act – Held: s.67 of 2019 Act states that no appealshall be entertained unless the person has deposited 50 percent ofthe amount required to be paid – Whereas under the 1986 Act, unless50 percent of the amount or 50 thousand, whichever is less, isdeposited, appeal is not entertained – Repeal of enactment doesnot affect any right acquired or accrued under the enactment sorepealed or affect any legal proceeding in respect of such right –When lis commences, all rights get crystallized and no clog upon alikely appeal can be put unless the law make express or impliedimplication – Hence, onerous condition of 50 percent of the amountawarded shall not be applicable to complaints filed prior to thecommencement of the 2019 Act – General Clauses Act, 1897 – s.6.

Garikapati Veeraya v. N. Subbiah Choudhry & Ors.AIR 1957 SC 540 : [1957] SCR 488 – followed.

Hoosein Kasam Dada (India) Ltd. v. State of MadhyaPradesh & Ors. AIR 1953 SC 221 : [1953] SCR 987 –relied on.

Nogendra Nath Bose v. Mon Mohan Singha Roy & Ors.AIR 1931 Cal. 100; State of Bombay v. M/s. SupremeGeneral Films Exchange Ltd. & Anr. AIR 1960 SC 980: [1960] SCR 640; Vitthalbhai Naranbhai Patel v.Commissioner of Sales Tax, M.P., Nagpur AIR 1967SC 344; M/s. Hardeodas Jagannath v. The State ofAssam & Ors. AIR 1970 SC 724 : [1969] SCR 261; K.Raveendranathan Nair & Anr. v. Commissioner ofIncome Tax & Ors. (2017) 9 SCC 355 : [2017]11 SCR 389; Anant Mills Co. Ltd. v. State of Gujarat &Ors. (1975) 2 SCC 175 : [1975] 3 SCR 220; GujaratAgro Industries Co. Ltd. v. Municipal Corporation ofthe City of Ahmedabad & Ors. (1999) 4 SCC 468 :[1999] 2 SCR 895; Ramesh Singh & Anr. v. Cinta Devi& Ors. (1996) 3 SCC 142 : [1996] 2 SCR 1036; M/sGurcharan Singh Baldev Singh Yashwant Singh & Ors.(1992) 1 SCC 428 : [1991] 2 Suppl. SCR 305;Thirumalai Chemicals Limited v. Union of India & Ors.(2011) 6 SCC 739 : [2011] 4 SCR 838; NewtechPromoters and Developers Pvt. Ltd. v. State of UP &Ors 2021 SCC On Line SC 1044; Tecnimont Pvt. Ltd.v. State of Punjab & Ors. 2019 SCC On Line SC 1228;Sri Satya Nand Jha v. Union of India & Ors. 2016 SCCOnLine Jhar 23 M/s. Indian Oil Corporation v. OrissaSales Tax Tribunal, CTC & Ors. 2009 SCC OnLineOri 353; Manohar Infrastructure and ConstructionsPrivate Limited v. Sanjeev Kumar Sharma & Ors. CivilAppeal No. 7098 of 2021 with Ors. decided on7.12.2021; Neena Aneja & Anr. v. Jai PrakashAssociates Ltd. 2021 SCC OnLine SC 225; New IndiaAssurance Co. Ltd. v. Smt. Shanti Misra (1975) 2 SCC840 [1976] 2 SCR 266; Videocon International Limitedv. Securities and Exchange Board of India (2015) 4SCC 33 : [2015] 3 SCR 1; Maria Cristina De SouzaSodder & Ors. v. Amria Zurana Pereira Pinto & Ors.(1979) 1 SCC 92; Harihar Polyfibres v. RegionalDirector, ESI Corporation (1984) 4 SCC 324 : [1985]1 SCR 712; Spring Meadows Hospital & Anr. v. HarjolAhluwalia & Anr. (1998) 4 SCC 39 : [1998] 2 SCR

428; Kishore Lal v. Chairman, Employees’ StateInsurance Corpn. (2007) 4 SCC 579 : [2007]6 SCR 139; K.H. Nazar v. Mathew K. Jacob & Ors.(2020) 14 SCC 126 : [2019] 14 SCR 928; 29 M/s.Dream Castle & Anr. v. Union of India & Ors. W.P. No.13431 of 2015 etc. decided on 18.4.2016 – referred

Case Law Reference

CIVIL APPELLATE JURISDICTION: I.A. No.99210 of 2021in Civil Appeal No. 1842 of 2021.

From the Judgment and Order dated 27.01.2021 of the NationalConsumer Disputes Redressal Commission, New Delhi in ConsumerComplaint No.2778 of 2018.

AK. K. Venugopal, AG, Rajshekhar Rao, Sr. Adv., Naval Sharma,Saket Satapathy, Rohan Batra, Ms. Sonali Malik, Chinmayee Prasad,Harsh Vardhan Arora, Dhruv Sethi, Advs. for the Appellant.

Nidesh Gupta, Sr. Adv., Devesh Tripathi, Faraz Anees,Mukeshwarnath Dubey, Ms. Janpreet Kaur, Ms. Vriti Gujral, MadhavBGupta, Ms. Payal Swarup, Ms. Pooja Sharma, Ms. Meera Hasan,Praveen Swarup, Advs. for the Respondent.

The Order of the Court was passed by

HEMANT GUPTA, J.

1. The present appeal is directed against an order passed by theCNational Consumer Dispute Redressal Commission[1] whereby theappellant herein was directed to pay sum of Rs. 265.01 Crores alongwith interest @ 10% p.a. from 19.9.2016 within period of three months.In case of failure to deposit the said amount, the awarded amount wouldcarry compensation in the form of simple interest @ 12% p.a. TheDappellant has filed an application (IA No. 99210 of 2021) ex abundanticautela to entertain the appeal as per the provisions of the ConsumerProtection Act, 1986[2]. It is the said application which is being decided bythe present order.

2. The complainant was awarded contract for construction ofrain water drainage, heavy sewerage and municipal road system by theEGovernment of Basra, Iraq. The complainant obtained two specificcontracts (Letter of Credit Comprehensive Risks Policies) by paying asum of 10,38,03,912/- as premium to the appellant. The grievance ofthe complainant was that the payment for invoices issued for the workdone under the contract was suspended. Later, the contract also wasFwithdrawn by the Government of Basra owing to some internal conflict.The appellant herein rejected the insurance claim of the complainantand thus relief was sought before the National Commission by filing acomplaint under Section 21(a)(i) of the 1986 Act. The said complaintwas allowed on 27.1.2021.G3. The question now being examined here is as to whether thepresent appeal would be governed under the Consumer Protection Act,2019[3] or under the erstwhile 1986 Act.

1 National Commission

2 For short, the ‘1986 Act’

H3 For short, the ‘2019 Act’

4. In terms of Section 67 of the 2019 Act, no appeal against theorder of National Commission shall be entertained by the Supreme Courtunless the person has deposited fifty per cent of the amount required tobe paid. Whereas, under the 1986 Act, by virtue of proviso insertedvide Central Act 62 of 2002 w.e.f. 15.3.2003, the condition was that noappeal shall be entertained by the Supreme Court unless the person whois required to pay the amount deposits fifty per cent of the amount orfifty thousand, whichever is less. The two provisions read thus:

5. Learned Attorney General appearing for the appellant submittedthat the appeal has been preferred under Section 23 of the 1986 Act andnot under the 2019 Act which came into force from 20.7.2020. It wasstated that the condition of deposit of 50% of the amount is more onerousthan what was provided under the 1986 Act. Therefore, keeping in viewthe principle that the law which is applicable at the time of initiation ofthe lis would be applicable, the provisions of 1986 Act would govern thepresent appeal and not the provisions of 2019 Act. The appellant hasdeposited 50,000/- vide demand draft in terms of second proviso toSection 23 of the 1986 Act while exercising its right of appeal under the1986 Act. Hence, the present appeal be heard on merits.6. The learned Attorney General inter alia argued that Section107 of 2019 Act and Section 6 of the General Clauses Act, 1897[4]unequivocally operate against any question of retrospectivity. Sub-Section(2) of Section 107 of 2019 Act does not change the legal position asmentioned under Section 6 of the General Clauses Act. To appreciatethe argument, Section 6 of the General Clauses Act and Section 107 ofthe 2019 Act are reproduced hereunder:

4 For short, the ‘General Clauses Act’

A“Section 6 of the General Clauses Act

6. Effect of Repeal. - Where this Act, or any Central Act orRegulation made after the commencement of this Act, repealsany enactment hitherto made or hereafter to be made, then, unlessa different intention appears, the repeal shall not—

(a) revive anything not in force or existing at the time at which therepeal takes effect; or

(b) affect the previous operation of any enactment so repealed orany thing duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accruedor incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respectof any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respectof any such right, privilege, obligation, liability, penalty, forfeitureor punishment as aforesaid;

and any such investigation, legal proceeding or remedy may beinstituted, continued or enforced, and any such penalty, forfeitureor punishment may be imposed as if the repealing Act or Regulationhad not been passed.

xxxx

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 takenor purported to have been done or taken under the Act herebyrepealed shall, in so far as it is not inconsistent with the provisionsof this Act, be deemed to have been done or taken under thecorresponding provisions of this Act.

(3) The mention of particular matters in sub-section (2) shall notbe held to prejudice or affect the general application of section 6of the General Clauses Act, 1897 with regard to the effect ofrepeal.”

7. Sub-section (2) of Section 107 of the 2019 Act protects theHactions taken under the 1986 Act insofar as such actions are not

inconsistent with the provisions of 2019 Act. Such actions shall be deemedto have been undertaken as per the corresponding provisions of 2019Act. Sub-section (3) contemplates that the particular matters in sub-section (2) shall not prejudice or affect the general application of Section6 of the General Clauses Act with regard to the effect of repeal. Referringto clause (c) of Section 6 of the General Clauses Act, it was argued thatunless different intention appears, the repeal shall not affect any right,privilege, obligation or liability acquired, accrued or incurred under anyenactment so repealed. Further, Clause (e) stipulates that the repealshall not affect any investigation, legal proceeding or remedy in respectof any such right, privilege, obligation, liability, penalty, forfeiture orpunishment which may be imposed as if the repealing Act or theRegulation has not been passed. It was thus argued that the repeal ofenactment does not affect any right acquired or accrued under theenactment so repealed or affect any legal proceeding in respect of sucha right. Such effect was to be construed only when different intentionappears from the repealing statute. It was thus argued that the right tofile an appeal under the 1986 Act has accrued in favour of the appellantin terms of Section 6(c) of the General Clauses Act and that no differentintention is discernable from the repealing Act.8. To support the above arguments, the learned Attorney Generalhas relied upon Division Bench judgment of the Calcutta High Courtreported as Nogendra Nath Bose v. Mon Mohan Singha Roy & Ors.[5]which was approved by this Court in judgment reported as HooseinKasam Dada (India) Ltd. v. State of Madhya Pradesh & Ors.[6]. InHoosein Kasam Dada, Hon’ble Mr. Justice S.R. Das speaking for theBench with Hon’ble Mr. Justice M.C. Mahajan was examining matterconsequent to the amendment on 25.11.1949 by the Central Provincesand Berar Sales Tax (Second Amendment) Act (Act 57 of 1949)amending the Central Provinces and Berar Sales Tax Act, 1947. Theproviso to Section 22(1) of the 1947 Act prior to the amendment asenacted provided that no appeal against an order of assessment shall beentertained unless it was satisfied that such amount of tax or penalty orboth as the appellant may admit to be due from him has been paid.The amending act contemplated that no appeal shall be entertained unlessan appeal is accompanied by satisfactory proof of the payment of the

5 AIR 1931 Cal. 100

6 AIR 1953 SC 221

Atax, with penalty, if any, in respect of which the appeal has beenpreferred. Therefore, there was change in the condition of preferringan appeal from the amount admitted to be due by the assessee than thepayment of the tax and penalty of in respect of which an appeal hasbeen preferred.

B9. It may be relevant to mention that the Court also noticed theargument of the learned counsel for the State that until actual assessmentis made, there can be no lis and therefore, no right of appeal can accruebefore that date. The Court observed that when assessee files return,the lis may not immediately arise. The authority may assess the returnunder Section 11 of the 1947 Act, but if the authority is not satisfied as toCthe correctness of the return and call for evidence, controversy arises.In the aforesaid case, the sales tax return was filed on 28.11.1947 and anotice by the Assistant Commissioner of Sales Tax was issued on25.1.1949 i.e. prior to the amendment. This Court held as under:

“8. The above decisions quite firmly establish and our decisionsDin Janardan Reddy v. State [(1950) SCR 941] and in GanpatRai v. Agarwal Chamber of Commerce Ltd. [(1952) SCJ 564]uphold the principle that right of appeal is not merely matter ofprocedure. It is matter of substantive right. This right of appealfrom the decision of an inferior tribunal to superior tribunalEbecomes vested in party when proceedings are first initiated in,and before decision is given by, the inferior court. In the languageof Jenkins, C.J. in Nana bin Aba v. Shaik bin Andu to disturban existing right of appeal is not mere alteration in procedure.Such vested right cannot be taken away except by expressenactment or necessary intendment. An intention to interfere withFor to impair or imperil such vested right cannot be presumedunless such intention be clearly manifested by express words ornecessary implication.

9. …. In our view the above observation is apposite and applies tothe case before us. The true implication of the above observationas of the decisions in the other cases referred to above is that thepre-existing right of appeal is not destroyed by the amendment ifthe amendment is not made retrospective by express words ornecessary intendment. The fact that the pre-existing right of appealcontinues to exist must, in its turn, necessarily imply that the oldlaw which created that right of appeal must also exist to support

the continuation of that right. As the old law continues to exist forthe purpose of supporting the pre-existing right of appeal that oldlaw must govern the exercise and enforcement of that right ofappeal and there can then be no question of the amended provisionpreventing the exercise of that right. The argument that theauthority has no option or jurisdiction to admit the appeal unless itbe accompanied by the deposit of the assessed tax as required bythe amended proviso to Section 22(1) of the Act overlooks thefact of existence of the old law for the purpose of supporting thepre-existing right and really amounts to begging the question. Thenew proviso is wholly inapplicable in such situation and thejurisdiction of the authority has to be exercised under the old lawwhich so continues to exist. The argument of Sri Ganapathy Aiyeron this point, therefore, cannot be accepted.

10. Finally, Sri Ganapathy Aiyer faintly urges that until actualassessment there can be no “lis” and, therefore, no right of appealcan accrue before that event. There are two answers to this plea.Whenever there is proposition by one party and an opposition tothat proposition by another “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) theauthority may accept the return as correct and complete. But ifthe authority is not satisfied as to the correctness of the returnand calls for evidence, surely controversy arises involving aproposition by the assessee and an opposition by the State. Thecircumstance that the authority who raises the dispute is himselfthe Judge can make no difference, for the authority raises thedispute in the interest of the State and in so acting only representsthe State. It will appear from the dates given above that in thiscase the “lis” in the sense explained above arose before the dateof amendment of the section. Further, even if the “lis” is to betaken as arising only on the date of assessment, there was apossibility of such “lis” arising as soon as proceedings startedwith the filing of the return or, at any rate, when the authoritycalled for evidence and started the hearing and the right of appealmust be taken to have been in existence even on those dates. Forthe purposes of the accrual of the right of appeal the critical andrelevant date is the date of initiation of the proceedings and notthe decision itself.”

A10. Subsequently, the Constitution Bench in judgment reportedas Garikapati Veeraya v. N. Subbiah Choudhry & Ors.[7]approvedthe judgment in Hoosein Kasam Dada, though the issue was in respectof right of appeal to the Federal Court under the Government of IndiaAct, 1935. The argument was that the appellant had right to file anappeal as the suit, out of which the proceedings arose before this Court,Bwas filed on 22.4.1949. Hence, he had acquired vested right to appealto the Federal Court which has since been replaced by the SupremeCourt. It was the said argument which was accepted by the ConstitutionBench when the following principles were delineated:

“23. From the decisions cited above the following principles clearlyCemerge:

(i) That the legal pursuit of remedy, suit, appeal and secondappeal are really but steps in series of proceedings all connectedby an intrinsic unity and are to be regarded as one legal proceeding.

D(ii) The right of appeal is not mere matter of procedure but is asubstantive right.

(iii) The institution of the suit carries with it the implication that allrights of appeal then in force are preserved to the parties theretotill the rest of the career of the suit.

E(iv) The right of appeal is vested right and such right to enterthe superior court accrues to the litigant and exists as on and fromthe date the lis commences and although it may be actuallyexercised when the adverse judgment is pronounced such right isto be governed by the law prevailing at the date of the institutionFof the suit or proceeding and not by the law that prevails at thedate 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 asubsequent enactment, if it so provides expressly or by necessaryintendment and not otherwise.

G24. In the case before us the suit was instituted on April 22, 1949,and on the principle established by the decisions referred to abovethe right of appeal vested in the parties thereto at that date and isto be governed by the law as it prevailed on that date, that is tosay, on that date the parties acquired the right, if unsuccessful, to

go up in appeal from the sub-court to the High Court and from theHigh Court to the Federal Court under the Federal Court(Enlargement of Jurisdiction) Act, 1947 read with clause 39 ofthe Letters Patent and Sections 109 and 110 of the Code of CivilProcedure provided the conditions thereof were satisfied. Thequestion for our consideration is whether that right has been takenaway expressly or by necessary intendment by any subsequentenactment. The respondents to the application maintain that it hasbeen so taken away by the provisions of our Constitution.”

11. In three-Judge Bench judgment reported as State of Bombayv. M/s. Supreme General Films Exchange Ltd. & Anr.[8], the argumentwhich arose for consideration was that the court fees payable on thememorandum of appeal would be as on the date of filing of the suit andnot as per the amendment in the Court Fees Act, 1870 by Bombay Act12 of 1954. The court fee on the memorandum of appeal was thus heldto be payable as was applicable prior to the amendment of the Act. ThisCourt held as under:

“12. It is thus clear that in long line of decisions approved by thisCourt and at least in one given by this Court, it has been held thatan impairment of the right of appeal by putting new restrictionthereon or imposing more onerous condition is not matter ofprocedure only; it impairs or imperils substantive right and anenactment which does so is not retrospective unless it says soexpressly or by necessary intendment.”

12. The Constitution Bench in Vitthalbhai Naranbhai Patel v.Commissioner of Sales Tax, M.P., Nagpur[9] was considering matterwhere 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 liscommences, all rights get crystallised and no clog upon likelyappeal 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 beproved conclusively that it was before the amendment of the law,

8 AIR 1960 SC 980

9 AIR 1967 SC 344

166SUPREME COURT REPORTS

Athe rule in Hoosein Kasam Dada’s case, 1953 SCR 987: (AIR1953 SC 221), cannot apply. There is no averment that right ofappeal had vested, and has been wrongly taken away.”

13. In another Constitution Bench judgment of this Court reportedas M/s. Hardeodas Jagannath v. The State of Assam & Ors.[10],Bnone of the previous judgments were referred to and thus, it primafacie appears to have taken somewhat different view than what washeld in the earlier Constitution Bench judgments. But if examined closely,the said judgment is not taking any contrary view and is in line with theearlier judgments of this Court. The issue was about an amendmentdated 1.4.1958 in the Assam Sales Tax Act, 1947 requiring deposit ofCassessed tax and penalty as condition of filing of appeal. The assesseehad filed half yearly returns for periods ending on 30.9.1956, 31.3.1957and 30.9.1957 respectively. The premises of the assessee weresearched on 6.3.1959 and the account books etc. were seized. noticefor reassessment was issued on 4.4.1959 under Section 19A of theDAssam Sales Tax Act, 1947. It was in this background, this Court heldas under:

“9. It was contended that the amendment came into force witheffect from April 1, 1958 and it cannot be given retrospectiveeffect so as to apply to assessment periods ending on SeptemberE30, 1956, March 31, 1957 and September 30, 1957. We are unableto accept this argument as correct because the assessments forthese three periods were completed after the amending Act cameinto force i.e., after April 1, 1958. The appeals against theassessments were also filed after the amendment. It is thereforenot correct to say that the amending Act has been given aFretrospective effect and the Assistant Commissioner of Taxeswas therefore right in asking the appellant to comply with theprovisions of the amended Section 30 of the Act before dealingwith the appeals.”

14. Since the returns were filed prior to the amendment but theGnotice for reassessment was issued after the Amending Act came intoforce, therefore, in view of the Hoosein Kasam Dada, the provisionsof the Amending Act alone would be applicable and that is what hasbeen held by this Court.

15. In judgment reported as K. Raveendranathan Nair & Anr.v. Commissioner of Income Tax & Ors.[11], it has been held that therelevant date for paying the court fee would be when the proceedingswere initiated in the lowest court and not when the appeal was preferredbefore the High Court in view of the amendment in the Kerala CourtFees and Suits Valuation Act, 1959.

16. In Anant Mills Co. Ltd. v. State of Gujarat & Ors.[12], four-Judge Bench of this Court held that since the authority entertaining appealhas jurisdiction to dispense with the compliance of requirement to depositthe amount of property tax, it is not onerous as discretion was vestedwith the appellate court. In another judgment reported as Gujarat AgroIndustries Co. Ltd. v. Municipal Corporation of the City ofAhmedabad & Ors.[13], the judgment in Anant Mills was followed.

17. This Court in judgment reported as Ramesh Singh & Anr.v. Cinta Devi & Ors.[14] held that an appeal under the Motor VehiclesAct, 1988 contemplating deposit of twenty-five thousand rupees or fiftyper cent of the amount whichever is less will not be applicable to theclaim applications filed under Motor Vehicles Act, 1939. Similar is theview of another Bench of this Court in judgment reported as M/sGurcharan Singh Baldev Singh v. Yashwant Singh & Ors.[15] whereinthe right of appeal conferred under the Motor Vehicles Act, 1939 couldnot be said to be taken away after repeal of such Act by the MotorVehicles Act, 1988.18. Mr. Nidhesh Gupta, learned senior counsel appearing for therespondent submitted that the amendment is procedural in nature andthus always retrospective. Reliance was placed upon ThirumalaiChemicals Limited v. Union of India & Ors.[16]. It was averred thatprocedure includes the manner and form of filing of appeal, pre-depositand limitation. The right of appeal is statutory right which can be takenaway by express provision of law, therefore, the conditions on which anappeal would lie is also within the legislative competence.

11 (2017) 9 SCC 355

12 (1975) 2 SCC 175

13 (1999) 4 SCC 468

14 (1996) 3 SCC 142

15 (1992) 1 SCC 428

16 (2011) 6 SCC 739

A19. We find that the reliance on Thirumalai Chemicals Limitedmay not be correct asthis Court held that Section 49 of FEMA does notseek to withdraw or take away the vested right of appeal in cases whereproceedings were initiated prior to repeal of FERA on 01.06.2000 orafter. The said judgment in fact held that liberal provision of condonationof delay as provided in the new Act would be applicable. It was held asBunder:

“28. Above discussion will clearly demonstrate that Section 49 ofFEMA does not seek to withdraw or take away the vested rightof appeal in cases where proceedings were initiated prior to repealof FERA on 01.06.2000 or after. On combined reading of SectionC49 of FEMA and Section 6 of General Clauses Act, it is clear thatthe procedure prescribed by FEMA only would be applicable inrespect of an appeal filed under FEMA though cause of actionarose under FERA. In fact, the time limit prescribed under FERAwas taken away under the proviso to sub-section (2) of SectionD19 and the Tribunal has been conferred with wide powers tocondone delay if the appeal is not filed within forty-five daysprescribed, provided sufficient cause is shown. Therefore, thefindings rendered by the Tribunal as well as the High Court thatthe Tribunal does not have jurisdiction to condone the delay beyondthe date prescribed under FERA is not correct understanding ofEthe law on the subject.

29. We, therefore, hold that the Appellate Tribunal can entertainthe appeal after the prescribed period of 45 days if it is satisfied,that there was sufficient cause for not filing the appeal within thesaid period. We are therefore inclined to set aside the orders passedFby the Tribunal and the High Court and remit the matter back tothe Tribunal for fresh consideration in accordance with law onthe basis of the findings recorded by us…”

20. Mr. Gupta also referred to the three-Judge Bench judgmentof this Court reported as Newtech Promoters and Developers Pvt.GLtd. v. State of UP & Ors.[17] wherein pre-deposit was required to bemade while filing an appeal under the Real Estate (Regulation andDevelopment) Act, 2016. The said judgment is not applicable as whileframing the statute, Section 43(5) contemplating pre-deposit was part of

H17 2021 SCC On Line SC 1044

the initially enacted provision. Similarly, another judgment reported asTecnimont Pvt. Ltd. v. State of Punjab & Ors.[18] is also in respect ofright of appeal on pre-deposit which was enacted originally in the PunjabValue Added Tax Act.

21. The learned counsel for the respondent has also relied uponDivision 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 OilCorporation was in fact considering the reverse proposition whereincondition of pre-deposit of 50% of the deposited amount of tax wasdeleted. The writ petition was filed by the assessee to challenge thenotice issued by the State to deposit 50% of the deposited amount afterthe amendment. The Division Bench held as under:“24. The Apex Court time & again held that right of appeal is asubstantive right, but how the appeal is to be decided is matterof procedure. The rules of procedure are intended to advancejustice & not to defeat it. “Procedural law is intended to facilitate& not to obstruct the course of substantive justice.” (vide HooseinKasam Dada (India) Ltd. v. State of M.P., AIR 1953 SC221; Garikapati Veeraya v. N. Subbiah Choudhry; AIR 1957SC 540; M/s. Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC91 : AIR 1978 SC 484; Harcharan v. State of Haryana, (1982)3 SCC 408 : AIR 1983 SC 43; & Shiv Shakti Coop. HousingSociety, Nagpur v. Swaraj Developers, (2003) 6 SCC 659 : AIR2003 SC 2434).

25. In the instant case, as the provision of the pre-deposit conditionfor entertaining the appeal has been deleted prior to entertainingthe appeal being procedural matter, the amendment would applyretrospectively. The instant case is squarely covered by theJudgment of the Hon’ble Supreme Court in Lakshmi RattanEngineering Works Ltd. (supra).”

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

18 2019 SCC On Line SC 1228

19 2016 SCC OnLine Jhar 2323

20 2009 SCC OnLine Ori 353

A10% of the duty demand or penalty levied is to be deposited. In the saidcase, the pre-amended provision was that if the appellate authority onbeing satisfied that the deposit of the duty demanded or penalty leviedwould cause undue hardship, then the condition of pre-deposit could bedispensed with. But subsequent to the amendment, 7% of the dutyassessed and 10% of the penalty levied was made mandatory to beBdeposited. It may be noticed that the second proviso clarified that theprovisions of the amended Section 35 shall not be applied to the stayapplications and appeals pending before any appellate authority prior tothe commencement of the Finance Act, 2014. Therefore, the issue arisingin the said case was of legality and validity of the pre-deposit and not theCretrospectivity of the said provision.

23. Mr. Gupta has relied upon the judgment of this Court inManohar Infrastructure and Constructions Private Limited v.Sanjeev Kumar Sharma & Ors.[21 ]in which the dispute was that theNCDRC had granted stay subject to deposit of the entire decretalDamount. No argument was raised or decided for retrospectivity ofSection 51 of the 2019 Act but the question raised was whether theNCDRC could direct such deposit of the entire decretal amount pendingappeal though the statute prescribes pre-deposit of 50% of the amountin dispute.

E24. It was contended that the consumer protection legislation is abeneficial legislation, therefore, the interpretation which benefits theconsumer 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 rightFto forum is not an accrued right. Section 6(e) of the General ClausesAct protects the pending legal proceeding for enforcement of the accruedright from the effect of repeal; it does not mean the legal proceeding ata particular forum was saved from the effect of repeal. This Court foundthat there was no express intention in the repealing enactment that allpending cases would stand transferred to the fora created under 2019GAct. This Court held as under:

“78. Having stated the above position, we need to harmonize itwith the principle that the right to forum is not an accrued

21 Civil Appeal No. 7098 of 2021 with Ors. decided on 7.12.2021H22 2021 SCC OnLine SC 225

right, as discussed in Part of this judgement. Simply put, whileSection 6(e) of the General Clauses Act protects the pendinglegal proceedings for the enforcement of an accrued right fromthe effect of repeal, this does not mean that the legalproceedings at particular forum are saved from the effectsfrom the repeal. The question whether the pending legalproceedings are required to be transferred to the newly createdforum by virtue of the repeal would still persist. As discussed,this Court in New India Assurance (supra) and MariaChristina (supra) has held that forum is matter pertaining toprocedural law and therefore the litigant has to pursue the legalproceedings at the forum created by the repealing act, unless acontrary intention appears. This principle would also apply topending proceedings, as observed in Ramesh KumarSoni (supra), Hitendra Kumar Thakur (supra) and Sudhir GAngur (supra). In this backdrop, what is relevant to ascertain iswhether contrary intent to the general rule of retrospectivityhas been expressed under the Act of 2019 to continue theproceedings at the older forum.

79. Now, in considering the expression of intent in the repealingenactment in the present case, it is apparent that there is no expresslanguage indicating that all pending cases would stand transferredto the fora created by the Act of 2019 by applying its newlyprescribed pecuniary limits. In deducing whether there is contraryintent, the legislative scheme and procedural history may providea relevant insight into the intention of the legislature.

84. … The legislature cannot be attributed to be remiss in notexplicitly providing for transfer of pending cases according to thenew pecuniary limits set up for the fora established by the newlaw, were that to be its intention. The omission, when contextualizedagainst the statutory scheme, portends contrary intention toprotect pending proceedings through Section 107(2) of the Act of2019. This intention appears likely, particularly in light of previousdecisions of the NCDRC which had interpreted amendments thatenhanced pecuniary jurisdiction, with prospective effect. TheNCDRC, in Southfield Paints and Chemicals Pvt. Ltd. v. NewIndia Assurance Co. Ltd., Consumer Case No. 286 of 2000

A(NCDRC) construed amending Act 62 of 2002 by which thepecuniary limits of jurisdiction were enhanced with effect from15 March 2003 as prospective by relying on its earlier decisionin Premier Automobiles Ltd. v. Dr. Manoj Ramachandran,Revision Petitions Nos. 400 to 402 of 1993, where the NCDRCheld that the amendments enhancing the pecuniary jurisdictionBare prospective in nature [albeit on reliance of the principlein Dhadi Sahu (supra)]. Parliament would be conscious of thisgoverning principle and yet chose not to alter it in its application tothe consumer fora.”

26. Having said so, this Court held that serious hardship would beCcaused to the consumers if the cases already instituted before NationalConsumer Disputes Redressal Commission were required to betransferred to the State Consumer Disputes Redressal Forum. Thereafter,the proceedings instituted before the commencement of 2019 Act wouldcontinue before the fora corresponding to the provisions under the 1986

DAct.

27. Reliance was also placed upon judgment of this Court reportedas New India Assurance Co. Ltd. v. Smt. Shanti Misra[23] wherein thechange in forum was said to be covered under procedural law. In the saidreferred judgment, there was change of forum of filing of claim applicationunder the Motor Vehicle Act, 1939 from that of civil suit. It was held thatEchange of forum would apply retrospectively. It was held that claimanthave vested right of action and not of forum. Such is not the questionposed before us in the present appeal.28. The change of forum and period of limitation have been heldto be procedural law even in the judgments reported in VideoconFInternational Limited v. Securities and Exchange Board of India[24],and Maria Cristina De Souza Sodder & Ors. v. Amria ZuranaPereira Pinto & Ors.[25].

29. Mr. Gupta has also relied upon Harihar Polyfibres v.Regional Director, ESI Corporation[26], Spring Meadows Hospital &GAnr. v. Harjol Ahluwalia & Anr.[27], Kishore Lal v. Chairman,

23 (1975) 2 SCC 84024 (2015) 4 SCC 3325 (1979) 1 SCC 9226 (1984) 4 SCC 324H27 (1998) 4 SCC 39

Employees’ State Insurance Corpn.[28] and K.H. Nazar v. Mathew K.Jacob & Ors.[29] to contend that in respect of beneficial legislations, theinterpretation which support the intention of law should be accepted.

30. In Harihar Polyfibres, this Court was examining the scopeof expression wages in the Employees’ State Insurance Act, 1948. Itwas held that the Act in question was beneficial legislation and thusany ambiguous expression was bound to receive beneficial construction.The present dispute is not of any ambiguity, therefore principles laiddown in this case are not applicable.

31. In Spring Meadows Hospital, this Court held that the definitionclause of Section 2(1)(d)(ii) of the 1986 Act is wide enough to includenot only the person who hires the services but also the beneficiary ofsuch services. Thus, both the parents of the child as well as the childwould be consumer under the 1986 Act to claim compensation under theAct. In Kishore Lal, this court held that the definition of ‘consumer’ inthe 1986 Act is apparently wide enough and encompasses within its foldnot only the goods but also the services, bought or hired for consideration.In K.H. Nazar, the question was, whether rocky land which was usedfor quarrying purposes can be treated as “commercial site”, thus exemptfrom the purview of the Kerala Land Reforms Act, 1963. We are notconcerned with interpretation to be given to clause in the statute as inthe judgments referred to by the respondents but only with the effect ofsubstitution of provision than earlier provisions.

32. The Division Bench of the Madras High Court in M/s. DreamCastle & Anr. v. Union of India & Ors.[30] dealing with amended Section35 of the Central Excise Act by Finance Act No. 2 of 2014 held thatwhen the unamended condition gave only chance or hope for an assesseeto get total waiver at the discretion of the Appellate Authority, thesame cannot be equated to vested right or stated to be retrospective,unless it is definitely shown that the amended condition is more onerousthan the unamended condition. It was held as under:

“54. Therefore, it is well settled that the right of appeal is creatureof statute and the legislature is well within its competence to imposeconditions for the exercise of such right subject only to the

28 (2007) 4 SCC 579

29 (2020) 14 SCC 126

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

Arestriction that the conditions so imposed are not so onerous as toamount to unreasonable restrictions rendering the right almostillusory.

xxxx

59. Therefore, if one condition that was already available in theBstatute for the exercise of right of appeal, is merely replaced byanother condition, the same cannot be said to be retrospective,unless it is definitely shown that the amended condition is moreonerous than the unamended condition. When the unamendedcondition gave only chance or hope for an assessee to get aCtotal waiver at the discretion of the Appellate Authority, the samecannot be equated to vested right. mere chance of convincingthe Appellate Authority to exercise the discretion for the grant ofa total waiver is no vested right. The amendment, in our consideredview, did not take away right vested, but merely made chancedivested. What has now gone, is not the right, but the chance orDhope. Therefore, the first contention of the learned Senior counselfor the petitioner is liable to be rejected.”33. There is another line of judgments taking view that right ofappeal is creation of statute and the legislature is competent to determinethe conditions on which an appeal would lie. These are not the cases ofEamending or repeal of statute, therefore, such judgments are notapplicable to the questions arising in the present application.

34. In view of the binding precedents of the Constitution Benchjudgments referred to above, we hold that onerous condition of paymentof 50% of the amount awarded will not be applicable to the complaintsFfiled prior to the commencement of the 2019 Act. Therefore, the I.A. isallowed.

Devika Gujral

Application allowed.