TaxTMI 
TaxTMI 
2021 (9) TMI 1155
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....Supreme Court 3 judges) C.10. Ramesh Kumar Soni (2013- Supreme Court 2 judges) C.11. Dhadi Sahu (1992- 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 Protec....
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....ayment of an advance of Rs. 3.50 lacs on 25 November 2011 by the Appellants, the Respondent provisionally allotted a residential unit in a real-estate project described as KRESCENT Homes admeasuring a super built area of 114.27 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 t....
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....better protection of the interests of consumers and for the purpose of making provision for establishment of consumer protection councils and other authorities for the settlement of consumer disputes, etc. Although, the working of the consumer dispute redressal agencies has served the purpose 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....
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.... Commission in terms of Section 34 is to entertain complaints where the value of goods and services paid as consideration does not exceed one crore rupees. Section 42 provides for the establishment of a SCDRC in each State. The pecuniary limits of the original jurisdiction of the SCDRC Under Section 47(1)(a) is to entertain original 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 t....
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....ision for its retrospective operation. A. Elaborating on the first limb of submissions, learned Counsel urged that in several decisions of this Court, Section 6 of the General Clauses Act was applied by the Court in order to save existing proceedings. In the present case, the law makers have specifically incorporated the applicability of Section 6 of the General Clauses Act, by making a provision 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 ....
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....in Southfield Paints and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd.16 which construed Amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were enhanced with effect from 15 March 2003. Relying on the earlier decision in Premier Automobiles Ltd. v. Dr. Manoj Ramachandran17, the NCDRC held that the amendments enhancing the pecuniary jurisdiction were prospective in nature. 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 ....
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....on 107(2) of the Act of 2019 covers concluded transactions while Section 107(3) preserves the application of Section 6 of the General Clauses Act. Section 6 is prefaced with the words "unless a different intention appears". Clause (c) of Section 6 is substantive in nature while Clause (e) applies to pending proceedings. The precedents of this Court would indicate that Section 6(e) has been interpreted as extending to substantive proceedings, but a pure matter of procedure is excluded. A change 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 takin....
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....ior Counsel is that where a law provides for a change in forum, this is treated as a matter of procedure and not of substance. The Act of 2019 is not a legislation merely enhancing the limits of the pecuniary jurisdiction by an amendment to the Act of 1986. On the contrary, the Act of 2019 is a completely new law, which abolished the hierarchy of tribunals under the erstwhile Act of 1986 and created a new adjudicatory hierarchy. As a matter of interpretation, the Act of 2019 clearly indicates an intention to the contrary as a result of which pending proceedings 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 p....
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....ew has sometimes been taken that what is saved is a substantive right acquired under the repealed enactment and that the paragraph cannot be invoked in cases where the substantive right is not taken away by the repealing Act but the mere forum for, or the method of enforcing it is changed. On the other hand, the Court noted, it has been maintained that a right to obtain a relief in a suit pending at the time when the repealing enactment comes into operation is itself in the nature of a substantive right. Of the three grounds which had weighed with the High Court in affirming 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....
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....ain the appeal. On this basis, it was argued the decision of the District Court was a nullity. This Court rejected the contention that the decree was a nullity, holding that an objection to the pecuniary jurisdiction shall not be entertained by an Appellate Court unless there has been a consequent failure of justice. Dealing with the argument that a prejudice had been caused 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 first appeal before the High Court, this Court held: 11. It is next contended 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 subst....
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....r Section 11 of the Suits Valuation Act. The jurisdiction that is conferred on appellate courts under that Section is an equitable one, to be exercised when there has been an erroneous assumption of jurisdiction by a subordinate court as a result of overvaluation or under valuation and a consequential failure of justice. It is neither possible nor even desirable to define such a jurisdiction closely, or confine it within stated bounds. It can only be predicated of it that it is in the nature of a revisional jurisdiction to be exercised with caution and for the ends of justice, whenever the facts and situations call 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 Constit....
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....ealing with the provisions of Section 6 of the UP General Clauses Act 1897 (which is pari materia to the corresponding provisions of the General Clauses Act), the Court held: 7...The question is whether a different intention appears in either the Abolition Act or the Amending Act 16 of 1953, for otherwise the old proceeding could continue before the Munsif. There is nothing in the Abolition Act which takes away the right of suit in respect of a pending action. If there be any doubt, it is removed when we consider that the U.P. Agriculturist Relief Act was repealed retrospectively from July 1, 1952 only and it is not, therefore, possible to give the repeal further retrospectivity so 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 k....
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....rd being had to the provisions of Section 6 of the U.P. General Clauses Act in the first instance and more so in view of the provisions of Section 23 of the amending Act, 1956 which came before the proceedings between the parties had finally terminated. The appeal must, therefore, fail. It will be dismissed with costs. (emphasis supplied) 20. The Constitution Bench relied on the absence of a provision for transfer of pending actions under the repealing legislation to save the proceedings at the old forum. The Constitution Bench observed that provisions of transfer of pending cases are commonly found in such legislations. It is pertinent to mention that the subsequent repealing legislation materially altered 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 m....
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....ing Act did not contain a savings Clause Under Section 8 of the Bengal General Clauses Act 1899. Despite the absence of a savings clause, the Court held that the deletion of Section 29 did not have the effect of altering the law applicable to the claim in the litigation and there was nothing in the amending Act to indicate a contrary intention. At this stage, it may be necessary to note that the second issue involved was the right of the thika tenant as defined by the Act to the notice provided under the deed of lease. On this aspect, the decision in Manujendra Dutt (supra) has been overruled in the seven judge Bench decision in V. Dhanapal Chettiar v. Yesodai Ammal (1979) 4 SCC 214. It is pertinent to mention that the decision in Manujendra 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 ....
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....ly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred. To that extent there was no difficulty in giving the answer in a simple way... (emphasis supplied) Dealing with the bar of limitation Under Section 110A(3), this Court held that it could be said that strictly speaking the bar would not operate in relation to an application for compensation arising out of an accident which had occurred prior to the constitution of the Tribunal. However, in directing the institution of claims before the Tribunal, this Court held: 10. Apropos the bar of limitation provided in Section 110-A(3), one can say, on the basis of the authorities aforesaid that strictly speaking, the bar does 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 ti....
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....ed by the Senior Civil Judge. Since the suit was of a value exceeding Rs. 10 lacs an appeal lay directly to the High Court which Under Section 2(f) meant the Judicial Commissioner's Court. Justice V.D. Tulzapurkar, speaking for the two judge Bench held: 5. On the question as to where the appeal could be lodged we are clearly of the view that the forum was governed by the provisions of the Goa, Daman and Diu (Extension of Code of Civil Procedure, 1908 and Arbitration Act, 1940) Act, 1965 (Central Act 30 of 1965) read with the provisions of the Goa, Daman and Diu civil court Act, 1965 (Goa Act 16 of 1965) both of which came into force simultaneously on June 15, 1966 and the appeal was required to be filed in the Judicial Commissioner's Court. Under the Central Act 30 of 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....
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....n appeal may be instituted, continued or enforced as if this Act (meaning the repealing Act) had not been passed. But this provision merely saves the remedy or legal proceeding in respect of such vested right which it is open to the litigant to adopt notwithstanding the repeal but this provision has nothing to do with the forum where the remedy or legal proceeding has to be pursued. If the repealing Act provides 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. We may point out that such a view of Section 6(e) of the General Clauses Act, 1897 has been taken by the Rajasthan High Court in the case of Purshotam Singh v. Narain Singh and State of Rajasthan [AIR 1955 Raj 203]. It is thus 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 litigan....
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....e principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows: (i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural 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 liabilitie....
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....case where an FIR was registered under the provisions of Sections 408, 420, 467, 468 and 471 of the Indian Penal Code. On the date of the registration of the case, the offences were triable by the Magistrate of the First Class in terms of the First Schedule of the Code of Criminal Procedure. As a result of Madhya Pradesh Act 2 of 2008, the First Schedule to the Code of Criminal Procedure was amended. As a consequence, offences Under Sections 467, 468 and 471 were triable by a Court of Sessions instead of a JMFC. Consequent to the amendment, the JMFC committed the case to the Sessions Court. A reference was made to the High Court on whether the amendment would apply retrospectively and whether cases pending before the JMFC and committed to the Sessions Court should be tried de novo by the Sessions Judge or should be remanded back to the Magistrate for further trial. A Full Bench of 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....
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....t and the view of this Court. However, the principle of change of forum being procedural, generally retrospective and applicable to pending proceedings was upheld. C.11 Dhadi Sahu (1992 Supreme Court 2 judges) 29. Now, in this backdrop, it becomes necessary to consider the 1992 decision of a two judge Bench of this Court in Commissioner of Income Tax, Orissa v. Dhadi Sahu28 and several decisions which adverted to it. This was a case where the Assessee had preferred appeals to the Income Tax Appellate Tribunal. The Tribunal allowed the appeals and set aside the penalties holding that in view of the amendment made to Section 274(2) of the Income Tax Act 1961 with effect from 1 April 1971, the Inspecting Assistant Commissioner29 lost his jurisdiction. The power of the Income Tax Officer to impose a penalty Under Section 271 was subject to Section 274. As a result of the amending Act which came into 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....
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.... the court on reference abate". Therefore, the decision of the two judge Bench in Dhadi Sahu (supra) held that a litigant had a crystallized right to a forum when proceedings have been initiated and are pending. Such a right vested, in the view of the Court, is distinct from a pure procedure to be followed before the forum concerned. In taking this view, the two judge Bench in Dhadi Sahu (supra) did not consider a three judge bench decision in New India Assurance (supra) as well as a previous co-ordinate Bench decision in Maria Cristina (supra), which relied on common law jurisprudence and Section 6 of the General Clauses Act to hold that a change in forum is purely a procedural matter which operates retrospectively in the absence of a contrary legislative mandate. The latter principle has since been followed in the decisions in Hitendra Vishnu Thakur (supra); Sudhir G. Angur (supra); Ranbir Yadav v. State of Bihar (1995) 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....
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....ilege or obligation that has been acquired or accrued Under Section 6(c) of the Act. It is pertinent to mention that the landlord under the amended act would have lost his right to evict the tenant on the ground of sub-letting since the Rent Control Act ceased to be applicable to premises where the monthly rent exceeded Rs. 3500. Further, pursuant to the amendment, not only was his right of action before the Rent Controller terminated but also the landlord was relegated to common law remedies. The amendment substantially affected the right of action of the landlord and did not merely change the forum. It was in this context, that this Court held that a right had accrued to the landlord to continue the eviction proceeding under the unamended Rent Control Act. 33. The Court observed that there are two sets of cases, one where Section 6 of the General Clauses Act is applicable and the other where it is not applicable. In cases where Section 6 is not 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 i....
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....tion 185 contained a repeal and savings provision. Justice Dipak Misra (as the learned chief Justice then was) speaking for a two judge Bench held that "a right of appeal as well as forum is a vested right" unless it is taken away by the legislature either by express provision or by necessary intention. The Court held: 25. At this stage, we may state with profit that it is a well-settled proposition of law that enactments dealing with substantive rights are primarily prospective unless they are expressly or by necessary intention or implication given retrospectivity. The aforesaid principle has full play when vested rights are affected. In the absence of any unequivocal expose, the piece of legislation must exposit adequate intendment of legislature to make the provision retrospective. As has been stated in various authorities referred to hereinabove, 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. 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 ....
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....he principal Act as amended by the said Ordinance, shall be deemed to have been done or taken under the principal Act, as amended by this Act. 37. The judgment of the High Court was assailed, citing the decisions in Hitendra Vishnu Thakur (supra) and Maria Cristina (supra) amongst others, and it was urged that the amendment by which the appellate forum was changed from the High Court to the Supreme Court must be treated as merely procedural. On the other hand, the Respondent relied on the decision in Dhadi Sahu (supra) and Ambalal Sarabhai (supra). Justice J.S. Khehar (as the learned Chief Justice then was) examined whether the amendment "envisaged a mere change of forum"33. 38. In this context, this Court noted that while under the un-amended Section 15Z, an appeal lay before the High Court "on any question of fact or law arising out of such order" the amendment had curtailed and restricted the right of appeal since the appeal to this Court would now lie "on any question of law arising out 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 n....
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....ences, all rights and obligations of the parties get crystallised on that date, and the mandate of Section 6 of the General Clauses Act, simply ensures, that pending proceedings under the unamended provision remain unaffected.... As regards the decisions inter alia in Hitendra Vishnu Thakur (supra) and Maria Cristina (supra), this Court held that the principle that the forum is a procedural matter and that an amendment which alters the forum would apply retrospectively cannot be doubted but "the same is not an absolute rule". On this aspect, the Bench relied upon the decision in Dhadi Sahu (supra) in support of the principle that an amendment of a forum would not necessarily be an issue of procedure. 45. Having concluded in the manner expressed in the foregoing paragraphs, it is not necessary for us to examine the main contention, advanced at the hands of the learned Counsel for the Appellant, namely, that the amendment to Section 15-Z of the SEBI Act, contemplates a mere change of forum of the second appellate remedy. 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....
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....appeals as had been filed by the Board, prior to 29-10-2002, would have to be accepted as vested, and must be adjudicated accordingly. (emphasis supplied) The conclusion of this Court was held to be in accordance with the mandate of Section 6 of the General Clauses Act. The appeals which had been filed by SEBI before the High Court were therefore held to be maintainable. C.15 SEBI v. Classic Credit (2018- Supreme Court 2 judges) 39. We have already noticed the earlier decision of Justice J.S. Khehar in Videocon International (supra). Subsequent to the aforesaid decision, in Securities and Exchange of Board of India v. Classic Credit Limited (2018) 13 SCC 1, a two judge bench of this Court, speaking through Justice Khehar, considered a claim for transfer of pending proceedings under the SEBI Act 1992. At the time when the complaints were filed Under Section 26(2), the Accused was required to be tried by a Metropolitan Magistrate (or a JMFC). Section 24(1) as it existed prior to the amendment read as follows: 24. Offences.--(1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any person contravenes or attempts to cont....
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....e specified in this behalf by the High Court concerned. 41. SEBI argued before this Court that a change of the forum for trial was a matter of mere procedure and would therefore be retrospective, there being no express or implied intent either in the 2002 and 2014 Amendments that the amendments were intended to be of prospective effect. Justice J.S. Khehar speaking for the two judge Bench of this Court adverted to the decisions inter alia in New India Assurance (supra), Ramesh Kumar Soni (supra) and Hitendra Vishnu Thakur (supra), and observed in that context: 49...In our considered view, the legal position expounded by this Court in a large number of judgments including New India Insurance Co. Ltd. v. Shanti Misra [New India Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840]; SEBI v. Ajay Agarwal [SEBI v. Ajay Agarwal, (2010) 3 SCC 765 : (2010) 2 SCC (Cri) 491] and Ramesh Kumar Soni v. State of M.P. [Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC 696 : (2014) 4 SCC (Cri) 340], is clear and unambiguous, namely, that procedural amendments are presumed to be retrospective in nature, unless the amending statute expressly or impliedly provides otherwise. And also, tha....
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.... by necessary implication, the transfer of proceedings to the forum introduced by the amendment, the forum as it exceeded prior to the amendment would continue to have jurisdiction: 55. In the latter situation referred to (and debated) in the preceding paragraph, where the remedy had been availed of prior to the amendment, even according to the learned Counsel for the private parties, unless the amending provision by express words, or by necessary implication, mandates the transfer of proceedings to the "forum" introduced by the amendment the "forum" postulated by the unamended provision, would continue to have the jurisdiction to adjudicate upon pending matters (matters filed before amendment). In view of the above, we are of the considered view, that no vested right can be claimed with reference to "forum", where the court concerned, had not taken cognizance and commenced trial proceedings, in consonance with the unamended provision. Where, however, proceedings had already commenced before the amendment, a change in the forum of the trial would not affect pending actions unless a contrary intent is shown. This Court then scrutinized whether the amendments which were m....
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....th the provisions of Section 24B of the Orissa Education Act 1969. The State Education Tribunal obtained jurisdiction to decide appeals in respect of colleges only from the date on which they were admitted to grant-in-aid. The appeal was filed in August 2002 before the College was admitted to grant-in-aid in February 2004 and the issue examined was whether the Director of Higher Education had competence to hear the appeal after the college was admitted to grant-in-aid. Justice L Nageswara Rao speaking for the two judge Bench held that the Director continued to have jurisdiction to decide the appeal which was filed before him prior to the admission of the college to grant-in-aid "as there is no provision in the Orissa Education Act providing for a change-over of all proceedings to the Tribunal".35 In arriving at this conclusion, the two judge Bench relied on the judgment in Dhadi Sahu (supra). C.17 Om Prakash Agarwal (2018- Supreme Court 2 judges) 46. In Om Prakash Agarwal v. Vishan Dayal Rajpoot (2019) 14 SCC 526, a two judge Bench of this Court considered the provisions of the UP Civil Laws (Amendment) Act 2015 under which, with effect from 7 December 2015, Sections 9 and 21....
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....rupees while those above would be taken cognizance of by the Additional District Judge. The Court held: 54...When a small cause suit not exceeding value of Rs. 1 lakh is cognizable by the Court of Small Causes, obviously, no other court can take cognizance. The Additional District Judge to whom small causes suit in question was transferred since its valuation was more than of Rs. 25,000 was not competent to take cognizance of the suit after the U.P. Civil Laws (Amendment) Act, 2015 w.e.f. 7-12-2015, when the suit in question became cognizable by the Small Cause Court i.e. the Court of Civil Judge, Senior Division. C.18 Delhi High Court Bar Association (1993- Delhi HC-DB) 48. We will now advert to a few High Court decisions which have come to varying conclusions due to the ambiguity introduced in the position of law by Dhadi Sahu (supra) vis-à-vis Maria Cristina (supra) and New India Assurance (supra) by creating an exception to the Rule that a change of forum is purely a procedural matter. In Delhi High Court Bar Association v. Court of Delhi ILR (1994) 1 Del 271, the original jurisdiction of the High Court was increased from Rs. 1 lakh to Rs. 5 lakhs. The App....
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....2 Punjab 103 (FB), had also said that such a vested right of appeal to a particular forum could be taken away by a later statute if the intention of the legislature was clearly manifested in the later Act. (emphasis supplied) C.19 Mahendra Jain (2008- Bombay HC-DB) 49. In Mahendra Panmal Duggad Jain v. Bhararilal Panmal Duggad Jain (2008) 4 Mah LJ 803, a controversy arose before the Bombay High Court where an amendment was made to Section 26 of the Bombay Civil Court Act, 1869, which increased the pecuniary jurisdiction of the District Court from Rs. 50,000 to Rs. 2 lakhs. Consequently, the Registrar of the Bombay High Court transferred an appeal which was pending when the amendment came into force to the District Court. The applicants applied to the District Court for re-transferring the appeal to the High Court contending that the appeals filed and entertained by the High Court prior to the amendment coming into force on 13 January 1999 were not liable to be transferred to the District Court. Their application was rejected and the applicants filed an application of re-transfer of the appeal before the High Court. The High Court placed reliance on Section 7(b) of th....
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....he appeal has been presented before the date of the amended Act coming into force and the appeals were pending as on the said date, the amendment would not have any effect on such pending appeals. The judgment of the High Court was premised on the principle that when the right to appeal and forum are inextricable, they both become substantive rights and travel together. The Special Bench of the High Court observed: 96. .... if the forum is changed and the right of the appeal in the forum are so inextricable that they cannot be separated by clear cut measure. It has to be that the right of appeal as well as the forum are both substantive rights and therefore, they only apply to the cases in future and not applied to the pending cases. C.21 Gobardhan Lal Soneja (1991- Patna HC-FB) 51. In Gobardhan Lal Soneja v. Binod Kumar Sinha (1991) 2 PLJR 783, the Patna High Court relied on the decision in New India Assurance to hold that the transfer of pending proceedings from the Sub-Judge to the Munsif after pecuniary jurisdiction is altered by an amendment, is a valid exercise of power and there is no vested right to a forum. The Full Bench of the High Court observed: ....
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....t in submitting that it is the law on the date of trial of the suit which is to be applied. In support of this submission, Mr. Sanghi relied upon the judgment in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass AIR 1952 Bom. 365, wherein it has been held that no party has a vested right to a particular proceeding or to a particular forum. It has been held that it is well-settled that all procedural laws are retrospective unless the Legislature expressly states to the contrary. It has been held that the procedural laws in force must be applied at the date when the suit or proceeding comes on for trial or disposal. It has been held that a Court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. It has been held that if a Court has jurisdiction to try the suit, when it comes on for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted. We are in complete agreement with these observations. As stated above, the Mysore Act now stands repelled. It could not be denied that now the Court has jurisdiction to en....
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....ngs have been initiated. Thereafter, a line of decisions followed Dhadi Sahu (supra), to hold that a litigant has a crystallized right to a forum once proceedings have been initiated. A litigant's vested right (including the right to an appeal) prior to the amendment or repeal are undoubtedly saved, in addition to substantive rights envisaged Under Section 6 of the General Clauses Act. This protection does not extend to pure matters of procedure. Repeals or amendments that effect changes in forum would ordinarily affect pending proceedings, unless a contrary intention appears from the repealing or amending statute. 54. It is relevant to note in this context that the decision in Ambalal Sarabhai (supra) saved proceedings in relation to a benefit which although not vested, accrued to the landlord to evict the tenant by virtue of a proviso to a Section which accorded protection to the tenant from ejectment. This Court reasoned that since the right of the landlord flows from a Section which protects the tenant, it cannot be enlarged into a vested right. However, Ambalal Sarabhai (supra) did not enunciate an absolute proposition that the right to institute proceedings at a partic....
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....entertain complaints where the value of the goods or services paid as consideration exceeds rupees ten crores and complaints against unfair contracts of a similar value. The NCDRC is vested with an appellate jurisdiction Under Section 51, a revisional jurisdiction Under Section 58(1)(b) and a review jurisdiction Under Section 60. An appeal against an order of the NCDRC passed in the exercise of its original jurisdiction lies to this Court Under Section 67. The second proviso of Section 67 requires a pre-deposit of 50 per cent of the amount ordered by the NCDRC. 61. Under the earlier Act of 1986, the pecuniary limit of the jurisdiction of (i) the District Commission was up to rupees 20 lacs Under Section 11(1); (ii) the SCDRC between rupees twenty lacs and rupees one crores Under Section 17(1); and (iii) the NCDRC above rupees one crore Under Section 21. The requirement of pre-deposit for filing an appeal before the SCDRC against an order of the District Commission was 50 per cent of the amount or twenty-five thousand rupees, whichever is less (Section 15). A similar pre deposit was required for appeals to the NCDRC against orders of the SCDRC (second proviso to Section 19). An a....
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...., the right which has accrued on the date of the institution of the consumer complaint under the Act of 1986 (the repealing law) is preserved; and second, the enforcement of the right through the instrument of a legal proceeding or remedy will not be affected by the repeal. 64. Having stated the above position, we need to harmonize it with the principle that the right to a forum is not an accrued right, as discussed in Part C of this judgment. Simply put, while Section 6(e) of the General Clauses Act protects the pending legal proceedings for the enforcement of an accrued right from the effect of a repeal, this does not mean that the legal proceedings at a particular forum are saved from the effects from the repeal. The question whether the pending legal proceedings are required to be transferred to the newly created forum by virtue of the repeal would still persist. As discussed, this Court in New India Assurance (supra) 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 app....
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....ke a fresh round of legal representation before the SCDRC incurring expense and engendering uncertainty in obtaining access to justice. Likewise, where complaints have been instituted before the SCDRC, a transfer of proceedings would require consumers to obtain legal representation before the District Commission if cases were to be transferred. Such a course of action would have a detrimental impact on the rights of consumers. Many consumers may not have the wherewithal or the resources to undertake a fresh burden of finding legal counsel to represent them in the new forum to which their cases would stand transferred. 68. It would be difficult to attribute to Parliament, whose purpose in enacting the Act of 2019 was to protect and support consumers with an intent that would lead to financial hardship, uncertainty and expense in the conduct of consumer litigation. Ironically, the objection which has been raised in the present case to the continued exercise of jurisdiction by the NCDRC in regard to the consumer complaint filed by the Appellant is by the developer who is the Respondent herein. It is a developer who opposed the continuation of the proceedings before the NCDRC on the....
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....the NCDRC which had interpreted amendments that enhanced pecuniary jurisdiction, with prospective effect. The NCDRC, in Southfield Paints and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd.16 construed amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were enhanced with effect from 15 March 2003 as prospective by relying on its earlier decision in Premier Automobiles Ltd. v. Dr Manoj Ramachandran17, where the NCDRC held that the amendments enhancing the pecuniary jurisdiction are prospective in nature [albeit on a reliance of the principle in Dhadi Sahu (supra)]. Parliament would be conscious of this governing principle and yet chose not to alter it in its application to the consumer fora. 70. It is accepted, that in defining the jurisdiction of the District Commission, Section 34 of the Act of 2019 entrusts the jurisdiction to "entertain" complaints. A similar provision is contained in Section 47 and Section 58 in regard to the SCDRC and NCDRC. The expression "entertain" has been considered in a two judge Bench decision of this Court in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead) Through Legal Representatives42, in the context of the provisions ....
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.... by the fora corresponding to those designated under the Act of 1986 as explained above and not be transferred in terms of the new pecuniary limits established under the Act of 2019; and (iv) The Respondent shall bear the costs of the Appellant quantified at Rupees Two lakhs which shall be payable within four weeks. 72. The appeals are allowed in the above terms. 73. Pending application(s), if any, stand disposed of. 1"Act of 2019" 2The Act was published in the Gazette of India Extraordinary, Part II, Section 1, No. 54 dated 9 August 2019 3Consumer Case No. 566 of 2020 (NCDRC) 4"NCDRC" 5"Act of 1986" 6"General Clauses Act" 7The pecuniary limits were enhanced from rupees one lac to rupees five lacs by Act 50 of 1983 with effect from 18 June 1993. The limits were enhanced from rupees five lacs to rupees twenty lacs by Act 62 of 2002 with effect from 15 March 2003. 8"SCDRC" 9By Act 62 of 2002, these limits had been enhanced from the previous limits of rupees five lacs - rupees 20 lacs 10"District Commission" 1128. (1) The State Government shall, by notification, establish ....
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....unamended Section 15Z of the SEBI Act remained unaffected by the amendment of the said provision; and on the basis of the above assumption, the learned Counsel's submission, that the present controversy relates to an amendment which envisaged a mere change of forum. Insofar as the instant aspect of the matter is concerned, it would be pertinent to mention, that a right of appeal can be availed of only when it is expressly conferred. When such a right is conferred, its parameters are also laid down. A right of appeal may be absolute i.e. without any limitations. Or, it may be a limited right. The above position is understandable, from a perusal of the unamended and amended Section 15-Z of the SEBI Act. Under the unamended Section 15-Z, the appellate remedy to the High Court, against an order passed by the Securities Appellate Tribunal, was circumscribed by the words "... on any question of fact or law arising out of such order". The amended Section 15-Z, while altering the appellate forum from the High Court to the Supreme Court, curtailed and restricted the scope of the appeal, against an order passed by the Securities Appellate Tribunal, by expressing that the remedy could be ....