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2021 (9) TMI 1155
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....992- Supreme Court 2 judges) C.12. Ambalal Sarabhai (2001- Supreme Court 2 judges) C.13. HP State Electricity (2013- Supreme Court 2 judges) C.14. Videocon International (2015- Supreme Court 2 judges) C.15. SEBI v. Classic Credit (2018- Supreme Court 2 judges) C.16. Swapna Mohanty (2018- Supreme Court 2 judges) C.17. Om Prakash Agarwal (2018- Supreme Court 2 judges) C.18. Delhi High Court Bar Association (1993- Delhi HC-DB) C.19. Mahendra Jain (2008- Bombay HC-DB) C.20. Vallabhaneni (2004- Andhra Pradesh HC- 5 judges) C.21. Gobardhan Lal Soneja (1991-Patna HC-FB) C.22. Y.B. Ramesh (2010-Karnataka HC-SJ) C.23. Conclusion on the position of law D. Legislative Scheme of the jurisdictional provisions E. Legislative intendment underlying Section 107 of the Act of 2019 F. Summation A Background 1. On being enacted by Parliament, the Consumer Protection Act 20191 was published in the Gazette of India on 9 August 20192. By S.O. 2351(E) : dated 15 July 2020, the material provisions of the Act of 2019 were notified to come into force on 20 July 2020. By S.O. 2421(E)....
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.....27 square metres which was being developed by the Respondent at Jaypee Greens, Noida. The total consideration was fixed at Rs. 56.45 lacs and possession was intended to be conveyed within a period of 42 months from the execution of the agreement of the provisional allotment letter. The Appellants have stated that between December 2011 till date, they have paid an amount of Rs. 53.84 lacs out of the total consideration of Rs. 56.45 lacs. 5. On 13 June 2017 and 27 April 2020, the Appellant sought a refund of the consideration together with interest at 18 per cent. On 18 June 2020, the Appellants instituted a consumer complaint before the NCDRC for refund with interest. The consumer complaint has been dismissed by an order dated 30 July 2020 for want of pecuniary jurisdiction. A single member Bench of the NCDRC held that following the enforcement of the Act of 2019 on 20 July 2020, the limits of its pecuniary jurisdiction stands enhanced from rupees one crore to rupees ten crores and the complaint instituted by the Appellants is consequently not maintainable. The Appellants instituted a petition seeking a review of the order. The review petition was dismissed on 5 October 2020 leadi....
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....ose to a considerable extent under the said Act, the disposal of cases has been fast due to various constraints. Several shortcomings have been noticed while administering the various provisions of the said Act. 2. Consumer markets for goods and services have undergone drastic transformation since the enactment of the Consumer Protection Act in 1986. The modern market place contains a plethora of products and services. The emergence of global supply chains, rise in international trade and the rapid development of e-commerce have led to new delivery systems for goods and services and have provided new options and opportunities for consumers. Equally, this has rendered the consumer vulnerable to new forms of unfair trade and unethical business practices. Misleading advertisements, tele-marketing, multi-level marketing, direct selling and e-commerce pose new challenges to consumer protection and will require appropriate and swift executive interventions to prevent consumer detriment. Therefore, it has become inevitable to amend the Act to address the myriad and constantly emerging vulnerabilities of the consumers. In view of this, it is proposed to repeal and reenact the Act. 3. A....
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.... complaints where the value of goods and services paid as consideration exceeds rupees one crore but does not exceed rupees ten crores. Section 53 provides for the establishment of the NCDRC. Section 58(1)(a) contains the pecuniary limits of the jurisdiction of the NCDRC, which in the case of original complaints is where the value of goods and services paid as consideration exceeds rupees ten crores. 11. Section 107 contains the repeal and savings provision, which is in the following terms: 107. Repeal and savings- (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 in Sub-section (2) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 with regard to the effect of repeal. In terms of Sub-section (1) of Section 107, the Act of 1986 stands repealed. Sub-section (2) is prefaced wit....
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....ovision in Section 107(3) of the Act of 2019. The question of examining the existence of vested rights arises only where there is a doubt over a savings provision or when Section 6 has not been made specifically applicable. In such cases, the Court has to scrutinize whether a vested right had arisen under the repealed statute, in which event the pending proceedings would be saved. However, where Section 6 is applicable, it covers a wider field so as to save not only vested rights but all rights covered by Clauses (a) to (e) of Section 6. B. The next limb of the submissions is that substantial changes have been made in the provisions for appeal contained in the Act of 2019. For instance, the second proviso to Section 19 of the Act of 1986 required an aggrieved person to either deposit 50 per cent of the amount awarded by the SCDRC or Rs. 25,000, whichever is less. However, in the Act of 2019, the second proviso to Section 51(1) stipulates that an appeal shall not be entertained by the NCDRC unless the Appellant has deposited 50 per cent of the amount required under the order of the SCDRC. This provision substantially affects the vested right of a litigant and is not merely procedur....
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.... The legislature must be considered to be aware of this precedent. D. Finally, it was urged that the Act of 2019 came into force on July 2020 while the complaint in the present case was instituted before the NCDRC on 18 June 2020. The dismissal of the complaint for want of pecuniary jurisdiction is in contravention of the administrative notice dated 17 July 2020 of the NCDRC. The administrative directions were complied with by other Benches of the NCDRC which have admitted a number of complaints instituted under the Consumer Protection Act 1986. E. In sum and substance, therefore, it has been urged that: (i) Section 107 of the Act of 2019 read with Section 6 of the General Clauses Act saves pending legal proceedings; hence the complaint which was filed before the enforcement of the new legislation should be allowed to proceed before the NCDRC under the Act of 1986; (ii) The relevant date is the date of the institution of the complaint and not the date when the matter is heard or decided; (iii) The new legislation affects substantive rights of appeal to the NCDRC by making a deposit of 50 per cent of the decretal amount mandatory; (iv) In the absence of an express provisio....
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....hange of forum, like matters of evidence and civil procedure is a pure matter of procedure. Section 6(e) would hence not be applicable where a new legislation results in a change of forum; (v) Where a law takes away a right of action or appeal, it is treated as a substantive alteration and does not apply to pending actions. A mere change in forum is to be distinguished from a substantive alteration. The Act of 2019 is a law which repeals the earlier legislation and created a new hierarchy of courts and it must, consequentially, be treated as retroactive; (vi) The right of appeal is a substantive right which accrues at the date of the institution of a proceeding. An amendment taking away this right imposes a substantive alteration and is therefore construed to be prospective. This principle does not apply where there is only a change of forum; (vii) The Act of 2019 does not abrogate existing rights. On the contrary, it preserves and provides for an additional right of appeal where, as a result of the legislation, a complaint which could earlier be filed before the NCDRC has to be filed before the SCDRC. A complaint before the SCDRC would have to be instituted before the Distri....
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....gs will not continue before the forums which existed under the Act of 1986. In other words, the limits of pecuniary jurisdiction which have been defined under the Act of 2019 will apply to all pending actions and a transfer of existing cases would be required in those cases where the jurisdiction to entertain the complaint lies within the pecuniary limits of the newly established forum. In support of his submissions, Mr. Venugopal relied on a line of precedent which would be discussed while analyzing the rival contentions. 14. The rival submissions are now considered. C Position of law on change of forum: An analysis of precedent C.1 Venugopala Reddiar (1943- Federal Court 3 judges) 15. The discussion on the law begins with the decision of the Federal Court in Venugopala Reddiar v. Krishnaswami Reddiar, alias Raja Chidambara Reddiar AIR 1943 FC 24 which considered the validity of a pending proceeding when the court had lost territorial jurisdiction. Before 1937, when Burma was a part of British India, it was permissible Under Section 17 of the Code of Civil Procedure to include immovable property situated in Burma as a part of the subject matter of a suit. The principal Respond....
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....the jurisdiction of the Trial Court, the Federal Court rested its decision on the principle contained in the ruling of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving case not available : (1905) AC 369 which held that a right to appeal is a substantive right whose amendment would generally be prospective: As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the Appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is: was the appeal to His Majesty in Council a right vested in the Appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to Their Lordships that the question does not admit of doubt. To deprive a suitor in a....
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....ded that even treating the matter as governed by Section 11 of the Suits Valuation Act, there was prejudice to the Appellants, in that by reason of the undervaluation, their appeal was heard by a court of inferior jurisdiction, while they were entitled to a hearing by the High Court on the facts. It was argued that the right of appeal was a valuable one, and that deprivation of the right of the Appellants to appeal to the High Court on facts must therefore be held, without more, to constitute prejudice. This argument proceeds on a misconception. The right of appeal is no doubt a substantive right, and its deprivation is a serious prejudice; but the Appellants have not been deprived of the right of appeal against the judgment of the Subordinate Court. The law does provide an appeal against that judgment to the District Court, and the Plaintiffs have exercised that right. Indeed, the undervaluation has enlarged the Appellants' right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued, by reason of the undervaluation they obtained right to two appeals, one to the District Court and another to the ....
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....for it. Whether there has been prejudice or not is, accordingly, a matter to be determined on the facts of each case. (emphasis supplied) 17. Therefore, this Court made a clear distinction between amendments impacting a substantive right of appeal and amendments which merely alter the forum where such an appeal could be urged. The latter could not be construed as having caused a prejudice as it was not substantive in nature. C.3 Garikapati (1957- Supreme Court Constitution Bench) 18. In Garikapati (supra), Chief Justice S.R. Das speaking for the Constitution Bench, formulated the legal principles which govern this area of interpretative jurisprudence. The decision in Garikapati (supra) is the locus classicus on subject of the substantive right of appeal vis-à-vis pending proceedings. The five principles which were enunciated in paragraph 23 of the decision are extracted below: 23....: (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive r....
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....o as to affect a suit pending from before that date. The jurisdiction of the Assistant Collector was itself created from July 1, 1952 and there is no provision in the Abolition Act that pending cases were to stand transferred to the Assistant Collector for disposal. Such provisions are commonly found in a statute which takes away the jurisdiction of one court and confers it on another. From these two circumstances it is to be inferred that if there is at all any expression of intention, it is to keep Section 6 of the General Clauses Act applicable to pending litigation. The doubt, if any be left, is further removed if we consider a later amending Act, namely, amending Act 18 of 1956. By that Act Schedule II, which created the jurisdiction of the Assistant Collector in suits for ejectment of asamis was replaced by another Schedule. The entry relating to suits for ejectment of asamis, however, remained the same. But Section 23 of the amending Act of 1956 created a special saving which reads as follows: 23. Saving.--(i) Any amendment made by this Act shall not effect the validity, invalidity, effect or consequence of anything already done or suffered, or any right, title obligation ....
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.... the position of the parties. The mortgagee Appellants were resisting their ejectment from the suit land by the Respondent mortgagor in a suit for redemption of mortgage on the ground that they have become asamis or sirdars under the repealing legislation and their ejectment can only take place in accordance with the provisions of the new Act. Hence, the effect of the repeal was not a mere change in forum. Further, a subsequent amendment to the repealing legislation made it clear that the pending proceedings would be concluded at the earlier forum where they had been instituted and under the repealed legislation. C.5 Manujendra Dutt (1966 Supreme Court- 2 judges) 21. In Manujendra Dutt v. Purnedu Prosad Roy Chowdhury20, a two judge Bench of this Court consisting of Chief Justice K. Subba Rao and Justice J.M. Shelat dealt inter alia with the jurisdiction of the Controller under the Calcutta Thika Tenancy Act 1949, after the deletion of Section 29 by Amending Act 6 of 1953, in respect of proceedings pending before him on that date. The High Court had taken the view that in spite of the deletion of Section 29, the jurisdiction of the Controller in respect of matters pending before h....
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....dra Dutt (supra), was concerned with the provisions of the repealing Act that impacted a substantive right of litigants which was affected by virtue of the repeal and a resulting change in forum. This Court's position, in interpreting Section 6 of the General Clauses Act, 1897 was clearly in favour of saving all substantive rights, including vested rights, that were acquired or accrued prior to the repeal. Under the unamended Act, the suit was transferred to the Controller Under Section 29, which was deleted by the Amending Act. In this context the Court held that on account of Section 8 of the Bengal General Clauses Act, the deletion would not affect the transfer of the suit or anything duly done Under Section 29 (paragraph 5). This Court's decision hence may not be relevant in interpreting Section 6(e) of the General Clauses Act, rather it is useful for interpretating Section 6(b) of the General Clauses Act which protects "anything duly done or suffered" under the repealed enactment. C.6 New India Assurance (1975- Supreme Court 3 judges) 23. The first decision of this Court that interpreted a mere change in forum, that did not impact any other substantive or vested righ....
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....s not operate in relation to an application for compensation arising out of an accident which occurred prior to the constitution of the claims tribunal. But since in such a case there is a change of forum, unlike the fact of the said cases, the reasonable view to take would be that such an application can be filed within a reasonable time of the constitution of the tribunal, which ordinarily and generally, would be the time of limitation mentioned in Sub-section (3). If the application could not be made within that time from the date of the constitution of the tribunal, in a given case, the further time taken in the making of the application may be held to be the reasonable time on the facts of that case for the making of the application or the delay made after the expiry of the period of limitation provided in Sub-section (3) from the date of the constitution of the tribunal can be condoned under the proviso to that Sub-section. In any view of the matter, in our opinion, the jurisdiction of the civil court is ousted as soon as the claims tribunal is constituted and the filing of the application before the tribunal is the only remedy available to the claimant. On the facts of this ....
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.... 1965 with effect from June 15, 1966 the provisions of the Indian Code of Civil Procedure were extended to the Union Territories of Goa, Daman and Diu and the corresponding provisions of the Portuguese Code were repealed while under the Goa Act 16 of 1965 the instant suit which was pending before the Comarca Court at Margao was continued and decreed by corresponding Court of the Senior Civil Judge, who ultimately decreed it on March 8, 1968. Under the Indian Code of Civil Procedure read with Section 22 of the Goa Act since the property involved in the suit was of the value exceeding Rs. 10,000 the appeal clearly lay to the Judicial Commissioner's Court. The contention that since the right of appeal had been conferred by Portuguese Code, the forum where it could be lodged was also governed by the Portuguese Code cannot be accepted. It is no doubt well-settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by n....
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....s clear that under the repealing enactment (Act 30 of 1965) read with Goa Enactment (Act 16 of 1965) the appeal lay to the Judicial Commissioner's Court and the same was accordingly filed in the proper Court. (emphasis supplied) 25. The decision in Maria Cristina (supra) makes a distinction between a right of appeal, which is a substantive right that is vested in a litigant on the commencement of the lis in the court of first instance and the forum where an appeal can be lodged which "is indubitably a procedural matter". Hence, in the view of the Court, the appeal would have to be lodged in a forum provided by the repealing Act though the right had arisen under the repealed Act. These observations of the Court must be read together with the subsequent observation that if the repealing act provides a new forum where the remedy or the legal proceeding in respect of such vested right can be pursued after the repeal, the forum must be as provided in the repealing Act. The decisions in New India Assurance (supra) and Maria Cristina (supra) further the interpretation that a change in forum is indubitably in the realm of procedural law that applies retrospectively, unless the statu....
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....rocedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. (emphasis supplied) C.9 Sudhir G. Angur (2005- Supreme Court 3 judges) 27. In Sudhir G. Angur v. M. Sanjeev26, a three judge Bench of this Court considered the impact of a change in procedural law to pending proceedings before a particular forum. In this case, the Mysore Code was repealed in 2003 and the Code of Civil Procedure, 1908 was to apply. This Court held that the relevant court was under a duty to take notice of the change in law relating to forum and apply it to a pending proceeding. In doing so, Justice S.N. Variava approved the following exposition of law of the Bombay High Court in Shiv Bhagwan Moti Ram Saroji v. Onkarmal Ishar Das (1952) 54 Bom LR 330: 11. In our view, Mr. G.L. Sanghi is also right in submitt....
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.... the Madhya Pradesh High Court held that cases pending before the JMFC on 22 February 2008 were unaffected by the amendment and were triable by the JMFC since the amending Act did not contain a clear indication that such cases would be made over to the Court of Sessions. Justice T.S. Thakur (as the learned Chief Justice then was) speaking for the two judge Bench observed that the Madhya Pradesh Amendment had shifted the forum of trial from the Court of the Magistrate of the First Class to the Court of Sessions. The issue was whether the amendment to the forum was prospective or would govern cases that were pending on the date of the amendment. This Court noted that: 9. Having said so, we may now examine the issue from a slightly different angle. The question whether any law relating to forum of trial is procedural or substantive in nature has been the subject-matter of several pronouncements of this Court in the past. We may refer to some of these decisions, no matter briefly. After adverting to the decisions in New India Assurance (supra), Hitendra Vishnu Thakur (supra) and Sudhir G. Angur (supra), the Court observed: 14. The amendment to the Code of Criminal Procedure in the....
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....force on 1 April 1971, the amount of income allegedly concealed had to exceed twenty-five thousand rupees. The effect of this amendment was that the Assistant Commissioner did not have jurisdiction over the Assessee as the concealed amount was lesser than the minimum amount prescribed by the subsequent amendment. Justice Yogeshwar Dayal speaking for the two judge Bench premised the judgment on "the general principle of law" that a change of forum does not affect pending actions unless a contrary intent is shown: 18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them. This Court held that the amending Act did not make any provision that references validly pending before IAC shall be returned without passing any final order if the amount of income in respect of which particulars have been conceal....
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....5) 4 SCC 392; Kamlesh Kumar v. State of Jharkhand (2013) 15 SCC 460 and Ramesh Kumar Soni (supra). C.12 Ambalal Sarabhai (2001- Supreme Court 2 judges) 31. Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.30 is a two judge Bench decision which considered the impact of an amendment to the Delhi Rent Control Act made with effect from 1 December 1988 which excluded the jurisdiction of the Rent Controller with respect to tenancies fetching a monthly rent exceeding 3500 rupees. The Rent Controller had been moved by the landlord who sought a decree of eviction on the ground of subletting, but prior to the amendment. The tenant contended that the Civil Court alone had jurisdiction after the amendment. In this backdrop, Justice A.P. Misra speaking for the two judge Bench adverted to the provisions of Section 6 of the General Clauses Act and observed: 26. As a general rule, in view of Section 6, the repeal of a statute, which is not retrospective in operation, does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words, such repeal does not affect the pending cases which would continue to be concluded as ....
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....t applicable, the Court would have to scrutinize and determine whether a vested right had accrued to a person under a repealed statute in which event pending proceedings would have to be saved. However, where Section 6 is applicable, it is not merely a vested right but all those covered by Clauses (a) to (e) of Section 6 which are saved and, in such cases, the pending proceedings would be continued as if the statute had not been repealed. In the context of Section 6(c) of the General Clauses Act, the Court observed that the expression "any right accrued" is wide enough to include the landlord's rights to evict a tenant in a proceeding was pending when the repealing legislation came into force. Pending proceedings before the Rent Controller would, therefore, continue to be proceeded with as if the repealed act was still in force. It is pertinent to mention that the decision in Ambalal Sarabhai (supra) only saved pending proceedings that were coupled with a vested right (in the event of non-applicability of Section 6 of the General Clauses Act) or with any rights that had accrued Under Section 6(c)-(e) of General Clauses Act. C.13 HP State Electricity (2013- Supreme Court 2 judg....
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....slature by an express provision in the statute by necessary intention. 26...No doubt right to appeal can be divested but this requires either a direct legislative mandate or sufficient proof or reason to show and hold that the said right to appeal stands withdrawn and the pending proceedings stand transferred to different or new appellate forum. Creation of a different or a new appellate forum by itself is not sufficient to accept the argument/contention of an implied transfer. Something more substantial or affirmative is required which is not perceptible from the scheme of the 2003 Act. (emphasis supplied) 35. Hence, the conclusion of the High Court that it had jurisdiction to hear the appeal was held to be "absolutely flawless" by observing that "a right of appeal as well as forum is a vested right unless the said right is taken away by the legislature by an express provision in the statute by necessary intention". C.14 Videocon International (2015- Supreme Court 2 judges) 36. A two judge Bench of this Court in Videocon International Limited v. Securities and Exchange Board of India32 dealt with the Appellate provisions contained in the Security and Exchange Board of India....
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.... of such order". Consequently, this Court noted: 41.... Accordingly, by the amendment, the earlier appellate package stands reduced, because under the amended Section 15-Z, it is not open to an Appellant, to agitate an appeal on facts. That being the position, it is not possible for us to accept the contention advanced at the hands of the learned Counsel for the Appellant, that the amendment to Section 15-Z of the SEBI Act, envisages only an amendment of the forum, where the second appeal would lie. In our considered view, the amendment to Section 15-Z of the SEBI Act, having reduced the appellate package, adversely affected the vested appellate right of the litigant concerned.... While noting that this position would be subject to an amendment providing to the contrary, this Court held that Section 32 which provided the repeal and savings Clause did not indicate a contrary intent. Hence, the appellate remedy which was available prior to the amendment of Section 15Z would, in the view of this Court continue to be available despite the amendment. Moreover, this Court held that neither the date of filing the appeal nor its hearing was of any relevance since the right to an appella....
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....dy. Despite the aforesaid, we consider it just and appropriate, in the facts and circumstances of the present case, to delve on the above subject as well. In dealing with the submission advanced at the hands of the learned Counsel for the Appellant, on the subject of forum, we will fictionally presume, that the amendment to Section 15-Z by the Securities and Exchange Board of India (Amendment) Act, 2002 had no effect on the second appellate remedy made available to the parties, and further that, the above amendment merely alters the forum of the second appeal, from the High Court (under the unamended provision), to the Supreme Court (consequent upon the amendment). On the above assumption, the learned Counsel for the Appellant had placed reliance on the decisions rendered by this Court in Maria Cristina De Souza Sodder [Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto, (1979) 1 SCC 92], Hitendra Vishnu Thakur [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] and Thirumalai Chemicals Ltd. [Thirumalai Chemicals Ltd. v. Union of India, (2011) 6 SCC 739 : (2011) 3 SCC (Civ) 458] cases to contend, that the law relating to forum being pr....
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....--(1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any person contravenes or attempts to contravene or abets the contravention of the provisions of this Act or of any Rules or Regulations made thereunder, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. (2) If any person fails to pay the penalty imposed by the adjudicating officer or fails to comply with any of his directions or orders, he shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees or with both. 40. After the amendment Section 24(1) envisaged a punishment for a term of imprisonment which may extend to ten years or with fine which may extend to rupees 25 crores. As a result of the amendment of Section 26(2) it came to be stipulated that no court inferior to that of a Court of Sessions shall try any offence punishable under the Act. After the 2002 amendment all pending cases before the Metropolitan Magistrate or JMFC were committed to the Court....
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....be retrospective in nature, unless the amending statute expressly or impliedly provides otherwise. And also, that generally change of "forum" of trial is procedural, and normally following the above proposition, it is presumed to be retrospective in nature unless the amending statute provides otherwise. This determination emerges from the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087]; Ranbir Yadav v. State of Bihar [Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392 : 1995 SCC (Cri) 728] and Kamlesh Kumar v. State of Jharkhand [Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460 : (2014) 6 SCC (Cri) 489], as well as, a number of further judgments noted above. 42. The above observations indicate the clear view of this Court that: (i) In the absence of a contrary intent express or implied, procedural amendments are presumed to be retrospective; (ii) A change in the forum of a trial is a procedural matter; and (iii) Since a change of forum is procedural, a statute which brings about the change is presumed to be retrospective in the absence of a contrary intent. ....
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....wn. This Court then scrutinized whether the amendments which were made in 2002 and 2014 expressed a contrary intent. The Court held that Section 26, as amended in 2002, left no room for doubt that the erstwhile forum ceases to have adjudicating authority and the newly created forum-the Court of Sessions would deal with all pending matters as well. As a result, the 2002 Amendment "diverted jurisdiction" from the Metropolitan Magistrates and JMFCs to try offences under the SEBI Act after the amendment became operational. Similarly, the 2014 Amendment grouped all offences together by providing that they would be tried by a Special Court whether committed prior to or after the amendment; no segregation being permissible. By the 2014 amendment, the function of taking cognizance had been vested with the Special Courts. This Court held that all pending matters where cognizance had been taken and proceedings had commenced before the Court of Sessions would not be affected. In conclusion, this Court observed: 79. In view of the consideration recorded hereinabove, we are of the view, that the "forum" for trial earlier vested in the Court of Metropolitan Magistrate (or Judicial Magistrate o....
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....ith effect from 7 December 2015, Sections 9 and 21 of the Bengal, Agra and Assam Civil Courts Act 1887 and Section 15 of the Provincial Small Cause Courts Act 1887 were amended. By the amendment, the limit of the pecuniary jurisdiction of the Small Cause Courts was increased from rupees twenty-five thousand to rupees one lakh. Although, the pecuniary jurisdiction was enhanced to rupees one lakh, the suit which was pending before the Additional District Judge continued to proceed without objection by the parties. A decree for eviction and for arrears of rent was passed. In the revision before the High Court, one of the grounds raised was that in view of the UP Civil Laws (Amendment) Act 2015, the Court of the Additional District Judge ceased to have jurisdiction to try a suit between a lessor and lessee of a value of upto one lakh from 1 December 2015 and the assumption of jurisdiction was invalid. Accepting the submission, the High Court allowed the revision and remanded the suit for a fresh decision before the Small Cause Courts. The suit which was instituted Under Section 15(2) by the lessor for eviction of the lessee was filed initially before the Small Cause Court, Firozabad si....
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....om Rs. 1 lakh to Rs. 5 lakhs. The Appellants in that case sought to question the transfer of proceedings from the High Court to the lower court. The High Court noted that the Amending Act's object was to reduce the burden on the High Court and speedy disposal of cases. The High Court held that change of forum is a procedural matter and not a vested right. A Division Bench of the High Court speaking through Justice D.P. Wadhwa noted the ambiguity created by Dhadi Sahu (supra) and applied the principle in New India Assurance (supra) and Maria Cristina (supra) to direct transfer of pending proceedings as a change of forum owing to amendments to the pecuniary jurisdiction is a change in procedural law that is usually retrospective: 29. In New India Insurance Co. Ltd. v. Smt. Shanti Misra ( (1975) 2 SCC 840 : AIR 1976 S.C. 237) the Supreme Court did express the opinion that change of forum is a change of procedural law and not a substantive law. In Maria Cristina De Souza Sodder v. Amria Zurana Percira Pinto, (1979) 1 SCC 92, the court held that right of appeal though was a substantive right and got vested in the litigant no sooner the lis was commenced in the court of the first i....
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.... Section 7(b) of the Bombay General Clauses Act to hold that the amendment would not affect the proceedings initiated before the High Court. The High Court held that unless a clear legislative intent can be discerned, the absence of a savings Clause would not warrant transfer of cases to a new forum. Although, the High Court noted that the right to forum is in the realm of procedural law and would not entitle a litigant who has instituted suit in a trial court before the amending act came into force to insist that their appeal may also be heard and decided by the forum prescribed under the unamended provisions. Justice R.C. Chavan observed: 19...In view of the provisions of Section 7(b) of the Bombay General Clauses Act the repeal of part of Section 26 of Bombay Civil Courts Act, relating to the reference to the sum of Rs. Fifty Thousand, would not affect the proceedings which had already commenced or had been initiated in the High Court. We may, however, add that right to forum being in the realm of adjectives or procedural law would not entitle the suitor who had filed suit in the trial Court before Amending Act came into force to insist that even his appeal may be heard and de....
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....Supreme Court in the New India Assurance Co. Ltd. (supra) considered the effect of Section 110A of the Motor Vehicles Act, 1939 by which Claims Tribunals were constituted for filing claims arising out of motor vehicle accidents: The question was whether with regard to the claims for compensation arising out of an accident which took place after introduction of Section 110A, a suit will lie or a claim therefor shall have to be filed before the Claims Tribunal. It was held by the Supreme Court that by Section 110A there was no change in law, but merely change of forum i.e. the change of adjectival or procedural law and not substantive law. It was observed. "It is well established proposition that such change of law operates retrospectively and the person has to go to new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action, but not a vested right of forum". It may be noticed that the language of Section 19 is not such as to interpret it that the Munsif and Additional Munsif were given jurisdiction to hear suits of higher value which were filed after the amendment of that section. For this reason also, it must....
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....view of the pronouncement of law by the Hon'ble Supreme Court, the Petitioner is not entitled for any relief. Further, even if it is held that the Civil Judge (Junior Division) has no pecuniary jurisdiction to entertain the suit, at the most, the Court can return the plaint to the Plaintiff to present before the appropriate Court. In view of the amendment to the Civil Courts Act, the Civil Judge (Junior Division), Magadi is the Competent Court to try the suit and hence, I.A. No. 1 filed by the Petitioner cannot be entertained. C.23 Conclusion on the position of law 53. In considering the myriad precedents that have interpreted the impact of a change in forum on pending proceedings and retrospectivity-a clear position of law has emerged: a change in forum lies in the realm of procedure. Accordingly, in compliance with the tenets of statutory interpretation applicable to procedural law, amendments on matters of procedure are retrospective, unless a contrary intention emerges from the statute. This position emerges from the decisions in New India Assurance (supra), Maria Cristina (supra), Hitendra Kumar Thakur (supra), Ramesh Kumar Soni (supra) and Sudhir G. Angur (supra). More ....
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.... a vested right. The dictum that a change of forum is a procedural matter is not altered by the decision of this Court in Ambalal Sarabhai (supra) which sought to differentiate between vested rights and accrued rights, the latter being protected Under Section 6(c) of the General Clauses Act, the proceedings in relation to which are protected Under Section 6(e). 55. Now, it is in this backdrop, that we have to analyze the impact of the Act of 2019 upon pending cases which were filed before the fora constituted under the Act of 1986. D Legislative Scheme of the jurisdictional provisions 56. Some of the salient aspects of the Act of 2019 insofar as they pertain to the jurisdictional provisions need to be visited. The pecuniary limits of the original jurisdiction of the District Commission Under Section 34(1) is to entertain complaints where the value of the goods or services paid as consideration does not exceed a crore of rupees. 57. An appeal lies to the SCDRC from an order of the District Commission Under Section 41. The second proviso to Section 41 stipulates that an appeal shall not be entertained of a person who is required to pay any amount under the order of the District C....
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....tion 19) was not circumscribed by the requirement that it must raise a substantial question of law. In Section 51(2) of the Act of 2019, an appeal to the NCDRC lies on a substantial question of law. E Legislative intendment underlying Section 107 of the Act of 2019 62. Section 107(1) of the Act of 2019 repeals the Act of 1986. In State of Rajasthan v. Mangilal Pindwal (1996) 5 SCC 60, this Court accepted the principle that the effect of a repeal, in the absence of a savings Clause or a general savings statute, is that "a statute is obliterated" subject to the exception that it exists in respect of transactions past and closed. Section 107(2) has saved "the previous operation" of any repealed enactment or "anything duly done or suffered thereunder to the extent that it is not inconsistent with the provisions of the new legislation". Finally, Section 107(3) indicates that the mention of particular matters in Sub-section (2) will not prejudice or affect the general application of Section 6 of the General Clauses Act. 63. Section 6 of the General Clauses Act provides governing principles with regard to the impact of the repeal of a central statute or Regulation. These governing prin....
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....a), 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. 65. 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. 66. The Act of 2019, as indicated by its long title, is enacted to provide "for protection of the interests of consumers". The Statement of Objects and Reasons took note of the tardy disposal of cases under the erstwhile legislation. Thus, the necessity of inducing speed in disposal was to protect the rights and interests of consumers. The Act of 2019 has taken note of the evolution of consumer markets by the proliferation of products and services in light of global s....
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....he jurisdiction exercisable by the NCDRC have been enhanced and the complaint filed by the Appellant which was validly instituted under the erstwhile law should be transferred to the SCDRC. Such a course of action will result in thousands of cases being transferred across the country, from the NCDRC to the SCDRCs and from the SCDRCs to the District Commission. 69. Data drawn from annual reports of the Union Ministry of Consumer Affairs indicates pendency from financial year 2015-16 to financial year 2019-20: Report for FY 2015-16 (figures as on 31.12.2015)37 Report for FY 2016-17 (figures as on 31.12.2016)38 Report for FY 2017-18 (figures as on 29.01.2018)39 Report for FY 2018-19 (figures as on 31.03.2019)40 Report for FY 2019-20 (figures as on 31.10.2019)41 The above data indicates that as on 31 October 2019, 21,216 cases were pending before the NCDRC and 1,25,156 cases were pending before the SCDRC. Many of these cases would have to be transferred if the view which the developer propounds is upheld. This will seriously dislocate the interests of consumers in a manner which defeats the object of the legislation, which is to protect and promote their welfare. Clear word....
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....to adjudicate upon or proceed to consider on merits. In Nusli Neville (supra), while considering the provisions of Section 9A of the Code of Civil Procedure as inserted by a Maharashtra Amendment, a two judge Bench followed the exposition in Hindusthan Commercial Bank (supra). Undoubtedly, the expression "entertain" has been construed in the context of Section 9A of the Code of Civil Procedure, as amended in Maharashtra, by a three judge Bench of this Court in Nusli Wadia (supra) to mean "to adjudicate upon or to proceed to consider on merits". Sections 34, 47 and 58 similarly indicate that the respective consumer fora can entertain complaints within the pecuniary limits of their jurisdiction. These provisions will undoubtedly apply to complaints which were instituted after the Act of 2019 came into force. However, the mere use of the word "entertain" in defining jurisdiction is not sufficient to counteract the overwhelming legislative intention to ensure consumer welfare and deliberately not provide for a provision for transfer of pending proceedings in the Act of 2019 or Under Section 106 of the Act of 2019 which is a power to remove difficulties for a period of two years after t....
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.... a district. (2) Each District Commission shall consist of-- (a) a President; and (b) not less than two and not more than such number of members as may be prescribed, in consultation with the Central Government. 1231. Transitional provision: Any person appointed as President or, as the case may be, a member of the District Commission immediately before the commencement of this Act shall hold office as such as President or, as the case may be, as member till the completion of his term for which he has been appointed. 1345. Transitional provision: Any person appointed as President or, as the case may be, a member of the State Commission immediately before the commencement of this Act shall hold office as such, as President or member, as the case may be, till the completion of his term. 1456. Transitional provision: The President and every other member appointed immediately before the commencement of Section 177 of the Finance Act, 2017 shall continue to be governed by the provisions of the Consumer Protection Act, 1986 and the Rules made thereunder as if this Act had not come into force. 15"Garikapati"; 1957 SCR 488 16Consumer Case No. 286 of 2000 (NCDRC) 17Revision....