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TMI Blog2022 (2) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... ts (Letter of Credit Comprehensive Risks Policies) by paying a sum of Rs. 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 Later, the contract also was withdrawn by the Government of Basra owing to some internal conflict.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, 2019 [For short, the '2019 Act'] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment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 (1) The Consumer Protection Act, 1986 is hereby repealed.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such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 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 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. and Anr. AIR 1960 SC 980, the argument which arose for consideration was that the court fees payable on the memora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereira Pinto and Ors. (1979) 1 SCC 92. 29. Mr. Gupta has also relied upon Harihar Polyfibres v. Regional Director, ESI Corporation (1984) 4 SCC 324, Spring Meadows Hospital and Anr. v. Harjol Ahluwalia and Anr. (1998) 4 SCC 39, Kishore Lal v. Chairman, Employees' State Insurance Corporation (2007) 4 SCC 579 and K.H. Nazar v. Mathew K. Jacob and Ors. (2020) 14 SCC 126 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 well as the child would be consumer under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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