Sec.19 of Consumer Act - Whether the National Consumer Forum can grant stay orders at appeal stage - much more conditional Stay orders - Apex court held that It is not the case of any of the appellants that the Consumer Forum including State and National Commissions has no power to pass interim order of stay. If the National Commission after hearing the appeal of the parties in its discretion wants to stay the amount awarded, it is open to the National Commission to pass an appropriate interim order including conditional order of stay. Entertainment of an appeal and stay of proceeding pursuant to order impugned in the appeal stands at different footings, at two different stages. One (pre-deposit) has no nexus with merit of the appeal and the other (grant of stay) depends on prima facie case; balance of convenience and irreparable loss of party seeking such stay. In view of the finding recorded above, the interference with the impugned order dated 15th May, 2012 passed by the National Commission is not called for.=
A number of complaints u/s 17(1) of the Consumer Protection Act, 1986
(hereinafter referred to as the, ‘Act’) were filed by different persons
before the Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad
(hereinafter referred to as the, ‘State Commission’) against the appellants
- opposite parties.
4. The State Commission by order dated 30th January, 2012 allowed the
applications in part and directed the appellants-opposite parties to pay
certain amount with interest in favour of the complainants.
5. Against the aforesaid orders, the appellants preferred separate
appeals u/s 19 of the Act before the National Commission being First Appeal
Nos.91-104 of 2012. In all these appeals separate interlocutory
applications for stay were filed by the appellants. The National Commission
by impugned common order dated 15th May, 2012 passed conditional interim
order which reads as under:
“Heard.
Issue notice on main appeal as well as on stay applications to
the respondents, returnable on 22.11.2012.
In the meanwhile, operation of the impugned order shall remain
stayed, till next date, subject to appellants depositing 50% of the awarded
amount (principal amount), within three months from today, with the State
Commission.
On deposit of the amount, State Commission shall put the same
in fixed deposit in a Nationalized Bank, initially for one year.
Dasti.” =
This Court in State of Haryana v. Maruti Udyog Ltd. and others,
(2000) 7 SCC 348, while dealing with case of waiver of “pre-deposit” in an
appeal under first proviso to Section 39(5) of the Haryana General Sales
Tax Act held:
“7…………….There cannot be any dispute that right of appeal is the creature of
the statute and has to be exercised within the limits and according to the
procedure provided by law. It is filed for invoking the powers of a
superior court to redress the error of the court below, if any. No right of
appeal can be conferred except by express words. An appeal, for its
maintainability, must have a clear authority of law. Sub-section (5) of
Section 39 of the Act vests a discretion in the appellate authority to
entertain the appeal if it is filed within sixty days and the amount of tax
assessed along with penalty and interest, if any, recoverable from the
persons has been paid. The aforesaid restriction is subject to the proviso
conferring discretion upon the appellate authority to dispense with the
deposit of the amount only on proof of the fact that the appellant was
unable to pay the amount. Before deciding the appeal, the appellate
authority affords an opportunity to the party concerned to either pay the
amount or make out a case for the stay in terms of proviso to sub-section
(5) of Section 39 of the Act. Once the conditions specified under sub-
section (5) of Section 39 are complied with, the appeal is born for being
disposed of on merits after hearing both the sides.”
11. The second proviso to Section 19 of the Act mandates pre-deposit for
consideration of an appeal before the National Commission. It requires 50%
of the amount in terms of an order of the State Commission or 35,000/-
whichever is less for entertainment of an appeal by the National
Commission. Unless the appellant has deposited the pre-deposit amount, the
appeal cannot be entertained by the National Commission. A pre-deposit
condition to deposit 50% of the amount in terms of the order of the State
Commission or Rs.35,000/- being condition precedent for entertaining
appeal, it has no nexus with the order of stay, as such an order may or may
not be passed by the National Commission. Condition of pre-deposit is
there to avoid frivolous appeals.
12. It is not the case of any of the appellants that the Consumer Forum
including State and National Commissions has no power to pass interim order
of stay. If the National Commission after hearing the appeal of the parties
in its discretion wants to stay the amount awarded, it is open to the
National Commission to pass an appropriate interim order including
conditional order of stay. Entertainment of an appeal and stay of
proceeding pursuant to order impugned in the appeal stands at different
footings, at two different stages. One (pre-deposit) has no nexus with
merit of the appeal and the other (grant of stay) depends on prima facie
case; balance of convenience and irreparable loss of party seeking such
stay.
13. In view of the finding recorded above, the interference with the
impugned order dated 15th May, 2012 passed by the National Commission is
not called for. In absence of any merit, the appeals are accordingly
dismissed. No costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9052 OF 2014
(arising out of SLP (C) No.21668 of 2012)
M/s Shreenath Corp. & Ors. … APPELLANT
VERSUS
Consumer Education & Research
Society & ORS. … RESPONDENTS
WITH
Civil Appeal No. 9053 /2014 (@ SLP(C) NO.22442 of 2012)
Civil Appeal No. 9054/2014 (@ SLP(C) NO. 22452 of 2012)
Civil Appeal No. 9055/2014 (@ SLP(C) NO. 22511 of 2012)
Civil Appeal No. 9056/2014 (@ SLP(C) NO. 23047 of 2012)
Civil Appeal No. 9057/2014 (@ SLP(C) NO. 25741 of 2012)
Civil Appeal No. 9058/2014 (@ SLP(C) NO. 26119 of 2012)
Civil Appeal No. 9059/2014 (@ SLP(C) NO. 26683 of 2012)
Civil Appeal No. 9060/2014 (@ SLP(C) NO. 26687 of 2012)
Civil Appeal No. 9061/2014 (@ SLP(C) NO. 26699 of 2012)
Civil Appeal No. 9062/2014 (@ SLP(C) NO. 27433 of 2012)
Civil Appeal No. 9064/2014 (@ SLP(C) NO. 27434 of 2012)
Civil Appeal No. 9065/2014 (@ SLP(C) NO. 27435 of 2012)
Civil Appeal No. 9066/2014 (@ SLP(C) NO. 27436 of 2012)
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
Leave granted.
2. These appeals are directed against common interim order dated 15th
May, 2012 passed by the National Consumer Disputes Redressal Commission,
New Delhi (hereinafter referred to as the, ‘National Commission’) in
interlocutory applications for stay in First Appeals preferred by the
appellants.
3. The factual matrix of the case is as follows:-
A number of complaints u/s 17(1) of the Consumer Protection Act, 1986
(hereinafter referred to as the, ‘Act’) were filed by different persons
before the Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad
(hereinafter referred to as the, ‘State Commission’) against the appellants
- opposite parties.
4. The State Commission by order dated 30th January, 2012 allowed the
applications in part and directed the appellants-opposite parties to pay
certain amount with interest in favour of the complainants.
5. Against the aforesaid orders, the appellants preferred separate
appeals u/s 19 of the Act before the National Commission being First Appeal
Nos.91-104 of 2012. In all these appeals separate interlocutory
applications for stay were filed by the appellants. The National Commission
by impugned common order dated 15th May, 2012 passed conditional interim
order which reads as under:
“Heard.
Issue notice on main appeal as well as on stay applications to
the respondents, returnable on 22.11.2012.
In the meanwhile, operation of the impugned order shall remain
stayed, till next date, subject to appellants depositing 50% of the awarded
amount (principal amount), within three months from today, with the State
Commission.
On deposit of the amount, State Commission shall put the same
in fixed deposit in a Nationalized Bank, initially for one year.
Dasti.”
6. Learned counsel for the appellant contended that the impugned interim
order dated 15th May, 2012 passed by the National Commission is contrary to
the provisions of Section 19 of the Act. It was further contended that
deposit of specific amount has been prescribed under the second proviso to
Section 19 of the Act, and, therefore, the National Commission cannot pass
an order asking the appellant before it to deposit an amount more than 50%
of the amount awarded by the State Commission or Rs.35,000/- whichever is
less. In support of such contention learned counsel for the appellant
relied upon judgment of Delhi High Court in Dr.(Mrs.) K. Kathuria v.
National Consumer Disputes Redressal Forum, AIR 2007 Delhi 135.
7. On the other hand, according to counsel for the respondents, the
impugned order is a conditional order of stay and is not passed under
second proviso to Section 19 of the Act.
8. After giving our careful consideration to the facts and circumstances
of the case and submissions made by learned counsel for the parties, we
find ourselves entirely in agreement with the submission made on behalf of
the respondents.
9. Section 19 of the Consumer Protection Act, 1986 deals with appeals
against the order made by the State Commission in exercise of its power
conferred by sub-clause (i) of clause (a) of Section 17 and the said
section reads as follows:-
“19.Appeals.-Any person aggrieved by an order made by the State
Commission in exercise of its powers conferred by sub-clause (i) of clause
(a) of Section 17 may prefer an appeal against such order to the National
Commission within a period of thirty days from the date of the order in
such form and manner as may be prescribed:
Provided that the National Commission may entertain an appeal after
the expiry of the said period of thirty days if it is satisfied that there
was sufficient cause for not filing it within that period:
Provided further that no appeal by
a person, who is required to pay any amount in terms of an order of the
State Commission, shall be entertained by the National Commission unless
the appellant has deposited in the prescribed manner fifty per cent of the
amount or rupees thirty-five thousand, whichever is less.”
On plain reading of aforesaid Section 19, we find that the second proviso
to Section 19 of the Act relates to “pre- deposit” required for an appeal
to be entertained by the National Commission.
10. This Court in State of Haryana v. Maruti Udyog Ltd. and others,
(2000) 7 SCC 348, while dealing with case of waiver of “pre-deposit” in an
appeal under first proviso to Section 39(5) of the Haryana General Sales
Tax Act held:
“7…………….There cannot be any dispute that right of appeal is the creature of
the statute and has to be exercised within the limits and according to the
procedure provided by law. It is filed for invoking the powers of a
superior court to redress the error of the court below, if any. No right of
appeal can be conferred except by express words. An appeal, for its
maintainability, must have a clear authority of law. Sub-section (5) of
Section 39 of the Act vests a discretion in the appellate authority to
entertain the appeal if it is filed within sixty days and the amount of tax
assessed along with penalty and interest, if any, recoverable from the
persons has been paid. The aforesaid restriction is subject to the proviso
conferring discretion upon the appellate authority to dispense with the
deposit of the amount only on proof of the fact that the appellant was
unable to pay the amount. Before deciding the appeal, the appellate
authority affords an opportunity to the party concerned to either pay the
amount or make out a case for the stay in terms of proviso to sub-section
(5) of Section 39 of the Act. Once the conditions specified under sub-
section (5) of Section 39 are complied with, the appeal is born for being
disposed of on merits after hearing both the sides.”
11. The second proviso to Section 19 of the Act mandates pre-deposit for
consideration of an appeal before the National Commission. It requires 50%
of the amount in terms of an order of the State Commission or 35,000/-
whichever is less for entertainment of an appeal by the National
Commission. Unless the appellant has deposited the pre-deposit amount, the
appeal cannot be entertained by the National Commission. A pre-deposit
condition to deposit 50% of the amount in terms of the order of the State
Commission or Rs.35,000/- being condition precedent for entertaining
appeal, it has no nexus with the order of stay, as such an order may or may
not be passed by the National Commission. Condition of pre-deposit is
there to avoid frivolous appeals.
12. It is not the case of any of the appellants that the Consumer Forum
including State and National Commissions has no power to pass interim order
of stay. If the National Commission after hearing the appeal of the parties
in its discretion wants to stay the amount awarded, it is open to the
National Commission to pass an appropriate interim order including
conditional order of stay. Entertainment of an appeal and stay of
proceeding pursuant to order impugned in the appeal stands at different
footings, at two different stages. One (pre-deposit) has no nexus with
merit of the appeal and the other (grant of stay) depends on prima facie
case; balance of convenience and irreparable loss of party seeking such
stay.
13. In view of the finding recorded above, the interference with the
impugned order dated 15th May, 2012 passed by the National Commission is
not called for. In absence of any merit, the appeals are accordingly
dismissed. No costs.
…………………………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………………………….J.
(V. GOPALA GOWDA)
NEW DELHI,
JULY 07, 2014.
A number of complaints u/s 17(1) of the Consumer Protection Act, 1986
(hereinafter referred to as the, ‘Act’) were filed by different persons
before the Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad
(hereinafter referred to as the, ‘State Commission’) against the appellants
- opposite parties.
4. The State Commission by order dated 30th January, 2012 allowed the
applications in part and directed the appellants-opposite parties to pay
certain amount with interest in favour of the complainants.
5. Against the aforesaid orders, the appellants preferred separate
appeals u/s 19 of the Act before the National Commission being First Appeal
Nos.91-104 of 2012. In all these appeals separate interlocutory
applications for stay were filed by the appellants. The National Commission
by impugned common order dated 15th May, 2012 passed conditional interim
order which reads as under:
“Heard.
Issue notice on main appeal as well as on stay applications to
the respondents, returnable on 22.11.2012.
In the meanwhile, operation of the impugned order shall remain
stayed, till next date, subject to appellants depositing 50% of the awarded
amount (principal amount), within three months from today, with the State
Commission.
On deposit of the amount, State Commission shall put the same
in fixed deposit in a Nationalized Bank, initially for one year.
Dasti.” =
This Court in State of Haryana v. Maruti Udyog Ltd. and others,
(2000) 7 SCC 348, while dealing with case of waiver of “pre-deposit” in an
appeal under first proviso to Section 39(5) of the Haryana General Sales
Tax Act held:
“7…………….There cannot be any dispute that right of appeal is the creature of
the statute and has to be exercised within the limits and according to the
procedure provided by law. It is filed for invoking the powers of a
superior court to redress the error of the court below, if any. No right of
appeal can be conferred except by express words. An appeal, for its
maintainability, must have a clear authority of law. Sub-section (5) of
Section 39 of the Act vests a discretion in the appellate authority to
entertain the appeal if it is filed within sixty days and the amount of tax
assessed along with penalty and interest, if any, recoverable from the
persons has been paid. The aforesaid restriction is subject to the proviso
conferring discretion upon the appellate authority to dispense with the
deposit of the amount only on proof of the fact that the appellant was
unable to pay the amount. Before deciding the appeal, the appellate
authority affords an opportunity to the party concerned to either pay the
amount or make out a case for the stay in terms of proviso to sub-section
(5) of Section 39 of the Act. Once the conditions specified under sub-
section (5) of Section 39 are complied with, the appeal is born for being
disposed of on merits after hearing both the sides.”
11. The second proviso to Section 19 of the Act mandates pre-deposit for
consideration of an appeal before the National Commission. It requires 50%
of the amount in terms of an order of the State Commission or 35,000/-
whichever is less for entertainment of an appeal by the National
Commission. Unless the appellant has deposited the pre-deposit amount, the
appeal cannot be entertained by the National Commission. A pre-deposit
condition to deposit 50% of the amount in terms of the order of the State
Commission or Rs.35,000/- being condition precedent for entertaining
appeal, it has no nexus with the order of stay, as such an order may or may
not be passed by the National Commission. Condition of pre-deposit is
there to avoid frivolous appeals.
12. It is not the case of any of the appellants that the Consumer Forum
including State and National Commissions has no power to pass interim order
of stay. If the National Commission after hearing the appeal of the parties
in its discretion wants to stay the amount awarded, it is open to the
National Commission to pass an appropriate interim order including
conditional order of stay. Entertainment of an appeal and stay of
proceeding pursuant to order impugned in the appeal stands at different
footings, at two different stages. One (pre-deposit) has no nexus with
merit of the appeal and the other (grant of stay) depends on prima facie
case; balance of convenience and irreparable loss of party seeking such
stay.
13. In view of the finding recorded above, the interference with the
impugned order dated 15th May, 2012 passed by the National Commission is
not called for. In absence of any merit, the appeals are accordingly
dismissed. No costs.
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41748
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9052 OF 2014
(arising out of SLP (C) No.21668 of 2012)
M/s Shreenath Corp. & Ors. … APPELLANT
VERSUS
Consumer Education & Research
Society & ORS. … RESPONDENTS
WITH
Civil Appeal No. 9053 /2014 (@ SLP(C) NO.22442 of 2012)
Civil Appeal No. 9054/2014 (@ SLP(C) NO. 22452 of 2012)
Civil Appeal No. 9055/2014 (@ SLP(C) NO. 22511 of 2012)
Civil Appeal No. 9056/2014 (@ SLP(C) NO. 23047 of 2012)
Civil Appeal No. 9057/2014 (@ SLP(C) NO. 25741 of 2012)
Civil Appeal No. 9058/2014 (@ SLP(C) NO. 26119 of 2012)
Civil Appeal No. 9059/2014 (@ SLP(C) NO. 26683 of 2012)
Civil Appeal No. 9060/2014 (@ SLP(C) NO. 26687 of 2012)
Civil Appeal No. 9061/2014 (@ SLP(C) NO. 26699 of 2012)
Civil Appeal No. 9062/2014 (@ SLP(C) NO. 27433 of 2012)
Civil Appeal No. 9064/2014 (@ SLP(C) NO. 27434 of 2012)
Civil Appeal No. 9065/2014 (@ SLP(C) NO. 27435 of 2012)
Civil Appeal No. 9066/2014 (@ SLP(C) NO. 27436 of 2012)
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
Leave granted.
2. These appeals are directed against common interim order dated 15th
May, 2012 passed by the National Consumer Disputes Redressal Commission,
New Delhi (hereinafter referred to as the, ‘National Commission’) in
interlocutory applications for stay in First Appeals preferred by the
appellants.
3. The factual matrix of the case is as follows:-
A number of complaints u/s 17(1) of the Consumer Protection Act, 1986
(hereinafter referred to as the, ‘Act’) were filed by different persons
before the Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad
(hereinafter referred to as the, ‘State Commission’) against the appellants
- opposite parties.
4. The State Commission by order dated 30th January, 2012 allowed the
applications in part and directed the appellants-opposite parties to pay
certain amount with interest in favour of the complainants.
5. Against the aforesaid orders, the appellants preferred separate
appeals u/s 19 of the Act before the National Commission being First Appeal
Nos.91-104 of 2012. In all these appeals separate interlocutory
applications for stay were filed by the appellants. The National Commission
by impugned common order dated 15th May, 2012 passed conditional interim
order which reads as under:
“Heard.
Issue notice on main appeal as well as on stay applications to
the respondents, returnable on 22.11.2012.
In the meanwhile, operation of the impugned order shall remain
stayed, till next date, subject to appellants depositing 50% of the awarded
amount (principal amount), within three months from today, with the State
Commission.
On deposit of the amount, State Commission shall put the same
in fixed deposit in a Nationalized Bank, initially for one year.
Dasti.”
6. Learned counsel for the appellant contended that the impugned interim
order dated 15th May, 2012 passed by the National Commission is contrary to
the provisions of Section 19 of the Act. It was further contended that
deposit of specific amount has been prescribed under the second proviso to
Section 19 of the Act, and, therefore, the National Commission cannot pass
an order asking the appellant before it to deposit an amount more than 50%
of the amount awarded by the State Commission or Rs.35,000/- whichever is
less. In support of such contention learned counsel for the appellant
relied upon judgment of Delhi High Court in Dr.(Mrs.) K. Kathuria v.
National Consumer Disputes Redressal Forum, AIR 2007 Delhi 135.
7. On the other hand, according to counsel for the respondents, the
impugned order is a conditional order of stay and is not passed under
second proviso to Section 19 of the Act.
8. After giving our careful consideration to the facts and circumstances
of the case and submissions made by learned counsel for the parties, we
find ourselves entirely in agreement with the submission made on behalf of
the respondents.
9. Section 19 of the Consumer Protection Act, 1986 deals with appeals
against the order made by the State Commission in exercise of its power
conferred by sub-clause (i) of clause (a) of Section 17 and the said
section reads as follows:-
“19.Appeals.-Any person aggrieved by an order made by the State
Commission in exercise of its powers conferred by sub-clause (i) of clause
(a) of Section 17 may prefer an appeal against such order to the National
Commission within a period of thirty days from the date of the order in
such form and manner as may be prescribed:
Provided that the National Commission may entertain an appeal after
the expiry of the said period of thirty days if it is satisfied that there
was sufficient cause for not filing it within that period:
Provided further that no appeal by
a person, who is required to pay any amount in terms of an order of the
State Commission, shall be entertained by the National Commission unless
the appellant has deposited in the prescribed manner fifty per cent of the
amount or rupees thirty-five thousand, whichever is less.”
On plain reading of aforesaid Section 19, we find that the second proviso
to Section 19 of the Act relates to “pre- deposit” required for an appeal
to be entertained by the National Commission.
10. This Court in State of Haryana v. Maruti Udyog Ltd. and others,
(2000) 7 SCC 348, while dealing with case of waiver of “pre-deposit” in an
appeal under first proviso to Section 39(5) of the Haryana General Sales
Tax Act held:
“7…………….There cannot be any dispute that right of appeal is the creature of
the statute and has to be exercised within the limits and according to the
procedure provided by law. It is filed for invoking the powers of a
superior court to redress the error of the court below, if any. No right of
appeal can be conferred except by express words. An appeal, for its
maintainability, must have a clear authority of law. Sub-section (5) of
Section 39 of the Act vests a discretion in the appellate authority to
entertain the appeal if it is filed within sixty days and the amount of tax
assessed along with penalty and interest, if any, recoverable from the
persons has been paid. The aforesaid restriction is subject to the proviso
conferring discretion upon the appellate authority to dispense with the
deposit of the amount only on proof of the fact that the appellant was
unable to pay the amount. Before deciding the appeal, the appellate
authority affords an opportunity to the party concerned to either pay the
amount or make out a case for the stay in terms of proviso to sub-section
(5) of Section 39 of the Act. Once the conditions specified under sub-
section (5) of Section 39 are complied with, the appeal is born for being
disposed of on merits after hearing both the sides.”
11. The second proviso to Section 19 of the Act mandates pre-deposit for
consideration of an appeal before the National Commission. It requires 50%
of the amount in terms of an order of the State Commission or 35,000/-
whichever is less for entertainment of an appeal by the National
Commission. Unless the appellant has deposited the pre-deposit amount, the
appeal cannot be entertained by the National Commission. A pre-deposit
condition to deposit 50% of the amount in terms of the order of the State
Commission or Rs.35,000/- being condition precedent for entertaining
appeal, it has no nexus with the order of stay, as such an order may or may
not be passed by the National Commission. Condition of pre-deposit is
there to avoid frivolous appeals.
12. It is not the case of any of the appellants that the Consumer Forum
including State and National Commissions has no power to pass interim order
of stay. If the National Commission after hearing the appeal of the parties
in its discretion wants to stay the amount awarded, it is open to the
National Commission to pass an appropriate interim order including
conditional order of stay. Entertainment of an appeal and stay of
proceeding pursuant to order impugned in the appeal stands at different
footings, at two different stages. One (pre-deposit) has no nexus with
merit of the appeal and the other (grant of stay) depends on prima facie
case; balance of convenience and irreparable loss of party seeking such
stay.
13. In view of the finding recorded above, the interference with the
impugned order dated 15th May, 2012 passed by the National Commission is
not called for. In absence of any merit, the appeals are accordingly
dismissed. No costs.
…………………………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………………………….J.
(V. GOPALA GOWDA)
NEW DELHI,
JULY 07, 2014.
