M/S. B. HIMMATLAL AGRAWALversusCOMPETITION COMMISSION OF INDIA & ANR.

496                      [2018]REPORTS
               SUPREME COURT    4 S.C.R. 496               [2018] 4 S.C.R.


A                     M/S. B. HIMMATLAL AGRAWAL
                                        v.
              COMPETITION COMMISSION OF INDIA & ANR.
                         (Civil Appeal No. 5029 of 2018)
B                                 May 18, 2018
                [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
            Competition Act, 2002:
            s. 53B – Appeal under – Dismissal of – For non-compliance
C     of condition imposed for granting stay of operation of the impugned
      order – Held: The condition was attached to the order of stay and
      not for entertaining the appeal – Therefore, non-compliance of the
      condition, would not warrant dismissal of appeal.
            Allowing the appeal, the Court
D             HELD: 1. The order of the Competition Commission was
      challenged by filing appeal under Section 53B of the Competition
      Act, 2002. Section 53B confers a right upon any of the aggrieved
      parties mentioned therein to prefer an appeal to the Appellate
      Tribunal. This statutory provision does not impose any condition
E     of pre-deposit for entertaining the appeal. Therefore, right to
      file the appeal and have the said appeal decided on merits, if it is
      filed within the period of limitation, is conferred by the statute
      and that cannot be taken away by imposing the condition of deposit
      of an amount leading to dismissal of the main appeal itself if the
      said condition is not satisfied. Sub-section (3) of Section 53B
F     specifically casts a duty upon the Appellate Tribunal to pass order
      on appeal, as it thinks fit i.e. either confirming, modifying or
      setting aside the direction, decision or order appealed against.
      It is to be done after giving an opportunity of hearing to the parties
      to the appeal. It, thus, clearly implies that appeal has to be decided
G     on merits. The Appellate Tribunal, which is the creature of a
      statute, has to act within the domain prescribed by the law/
      statutory provision. This provision nowhere stipulates that the
      Appellate Tribunal can direct the appellant to deposit a certain
      amount as a condition precedent for hearing the appeal. [Paras 6
      and 7][499-F; 501-A-D]
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                                    496
       M/S. B. HIMMATLAL AGRAWAL v. COMPETITION                                 497
                COMMISSION OF INDIA & ANR.

      2. In the present case, the condition of deposit was attached             A
to the order of stay. In case of non-compliance of the said
condition, the consequence would be that stay has ceased to
operate as the condition for stay is not fulfilled. However, non-
compliance of the conditional order of stay would have no bearing
insofar as the main appeal is concerned. Therefore, at the most,
                                                                                B
stay could have been vacated. The Appellate Tribunal, thus, had
no jurisdiction to dismiss the appeal itself. The appeal is restored
which shall be decided by the Appellate Tribunal on merits. [Paras
6, 7 and 9][499-H; 500-A; 501-E; 502-A]
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5029
of 2018.                                                                        C

      From the Judgment and Order dated 21.12.2017 of the High Court
of National Company Law Appellate Tribunal in IA No. 84 of 2017 in
COA No. 24 of 2017.
     Mohit Chaudhary, Kunal Sachdeva, Ms. Manju Jetley, Ms. Puja                D
Sharma, Ms. Tripti Podder, Balwinder Singh, Advs. for the Appellant.
     Arjun Krishnan, Ankur Singh, Sumit Srivastava, Advs. for the
Respondents.
      The Judgment of the Court was delivered by
                                                                                E
       A. K. SIKRI, J. 1. A neat question of law which arises for
consideration in this appeal is as to whether the order of the National
Company Law Appellate Tribunal (hereinafter referred to as the
‘Appellate Tribunal’) dismissing the main appeal itself of the appellant
herein for non-compliance of the direction to deposit the amount as a
condition for grant of stay, is justified and legal.                            F
       2. In order to decide this question, it is not necessary to take stock
of the factual matrix in detail. Narration of the following facts, which
are germane for deciding this appeal, would suffice.
      The appellant herein is a partnership firm, engaged in the business
                                                                                G
of transportation of coal and sand since 1981. In Ju.ne, 2014, the
appellant firm participated in two tenders, bearing numbers 03/2014-15
and 06/2014-15 floated by the respondent No. 2 herein i.e. M/s. Western
Coalfields Limited. The appellant firm was L-II and not the lowest
bidder for allotment of the tenders. In June, 2015, the appellant firm
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498            SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A     received a notice from the Competition Commission of India, New Delhi
      (hereinafter referred to as ‘CCI’) asking to show cause under Section
      19(1)(a) read with Section 3 of the Competition Act, 2002 (hereinafter
      referred to as the ‘Act’). In the said notice, it was alleged that the
      appellant firm was involved in anti-competitive and unfair trade practices
      in collusion with nine other firms. The appellant firm filed its reply. The
B
      CCI after considering the same passed orders under Section 26 of the
      Act and directed the inquiry to be conducted by the Director General
      (DG) of the CCI. DG submitted its report after the inquiry giving his
      findings to the effect that the appellant had indulged in anti-competitive
      and unfair trade practices in collusion with the other firms. The appellant
C     was given a chance to file its objections thereto. After considering those
      objections, the CCI passed orders dated September 14, 2017 affirming
      the findings of the DG and imposed penalties on the appellant firm as
      well as nine parties. Insofar as appellant is concerned, penalty of Rs.3.61
      crores has been imposed.
D            3. The appellant filed the statutory appeal thereagainst before the
      Appellate Tribunal which was registered as Competition Appeal (AT)
      No. 24/2017. The appellant also prayed for interim stay of the penalty
      order. Arguments were heard on admission as well as on stay. Vide
      orders dated November 20, 2017, Appellate Tribunal admitted the appeal.
E     It also granted stay on the orders of the CCI with the condition of
      depositing 10% of the total penalty (i.e. a sum of Rs. 36,12,222/-) imposed
      by CCI, to be paid by the appellant, within two weeks i.e. by December
      4, 2017. The appellant could not fulfill the said condition of deposit.
      When the matter was taken up on December 4, 2017, the appellant
      pleaded before the Appellate Tribunal that non-compliance because of
F     financial crunch which the appellant was facing. The Appellate Tribunal,
      however, passed orders dated December 4, 2017 to the following effect:

            “By way of last opportunity, the appellant is given time till
            20th December, 2017 to deposit 10% of the penalty amount,
            failing which, the appeal stands disposed without referring further
G           to the bench”.

             4. As per the appellant, since it was in deep financial trouble, it
      could not deposit the amount by December 20, 2017 in spite of all bona
      fide intentions. The appellant accordingly filed I.A. No. 84 of 2017 on
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       M/S. B. HIMMATLAL AGRAWAL v. COMPETITION                                499
       COMMISSION OF INDIA & ANR. [A.K. SIKRI, J.]

December 18, 2017 seeking modification of orders dated December 4,             A
2017. It was stated in the said application that it had incurred net loss of
Rs.3,72,45,393.94 for the Financial Year 2016-17 and, therefore, was
not in a position to deposit the said amount. The request of the appellant
was, however, not acceded to and vide orders dated December 21, 2017,
the Appellate Tribunal has dismissed I.A. No. 84 of 2017. At the same
                                                                               B
time, it has dismissed the appeal of the appellant as well for non-
compliance of its order dated December 4, 2017. The order dated
December 21, 2017 reads as under:

      “21.12.2017 – We find no ground made out to modify our interim
      order dated 20th November, 2017. In fact, the stay order was             C
      passed on the request of the learned counsel for the appellant and
      the amount having not deposited within the time, last opportunity
      was given on 4th December, 2017 to deposit the amount. In terms
      of the order dated 4th December, 2017 the appeal now stands
      disposed off without further reference to the Bench.
                                                                               D
         In view of the order aforesaid dated 4th December, 2017, both
      the IA No.84/2017 and Competition Appeal (AT) No. 24/2017
      stands disposed off for non-compliance of the Appellate Tribunal.”

       5. A pure legal submission which is advanced by the learned
counsel for the appellant is that even if the appellant could not comply       E
with orders dated December 4, 2017 vide which conditional stay was
granted directing the appellant to deposit 10% of the penalty amount, the
maximum effect thereof was to vacate the stay granted and the Appellate
Tribunal was not legally justified in dismissing the appeal itself. This
submission of the appellant commends acceptance, having due force              F
and substance in law.

       6. From the facts narrated above, it is apparent that order of the
CCI was challenged by filing appeal under Section 53B of the Act. Along
with this appeal, the appellant had also filed application for stay of the
operation of the order of the CCI during the pendency of the appeal.           G
Appeal was admitted insofar as stay is concerned, which was granted
subject to the condition that the appellant deposits 10% of the amount of
penalty imposed by the CCI. It needs to be understood, in this context,
that the condition of deposit was attached to the order of stay. In case

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500            SUPREME COURT REPORTS                              [2018] 4 S.C.R.


A     of non-compliance of the said condition, the consequence would be that
      stay has ceased to operate as the condition for stay is not fulfilled.
      However, non-compliance of the conditional order of stay would have
      no bearing insofar as the main appeal is concerned. Right to appeal is
      statutorily provided under Section 53B of the Act, which reads as under:
B           “53B. Appeal to Appellate Tribunal. —

            (1) The Central Government or the State Government or a local
            authority or enterprise or any person, aggrieved by any direction,
            decision or order referred to in clause (a) of section 53A may
C           prefer an appeal to the Appellate Tribunal.

            (2) Every appeal under sub-section (1) shall be filed within a
            period of sixty days from the date on which a copy of the
            direction or decision or order made by the Commission is received
            by the Central Government or the State Government or a local
D           authority or enterprise or any person referred to in that sub-section
            and it shall be in such form and be accompanied by such fee as
            may be prescribed:

               Provided that the Appellate Tribunal may entertain an appeal
            after the expiry of the said period of sixty days if it is satisfied that
E           there was sufficient cause for not filing it within that period.

            (3) On receipt of an appeal under sub-section (1), the Appellate
            Tribunal may, after giving the parties to the appeal, an opportunity
            of being heard, pass such orders thereon as it thinks fit, confirming,
F           modifying or setting aside the direction, decision or order appealed
            against.

            (4) The Appellate Tribunal shall send a copy of every order made
            by it to the Commission and the parties to the appeal.

G           (5) The appeal filed before the Appellate Tribunal under
            sub-section (1) shall be dealt with by it as expeditiously as possible
            and endeavour shall be made by it to dispose of the appeal within
            six months from the date of receipt of the appeal.”


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       M/S. B. HIMMATLAL AGRAWAL v. COMPETITION                                  501
       COMMISSION OF INDIA & ANR. [A.K. SIKRI, J.]

       7. The aforesaid provision, thus, confers a right upon any of the         A
aggrieved parties mentioned therein to prefer an appeal to the Appellate
Tribunal. This statutory provision does not impose any condition of pre-
deposit for entertaining the appeal. Therefore, right to file the appeal
and have the said appeal decided on merits, if it is filed within the period
of limitation, is conferred by the statute and that cannot be taken away
                                                                                 B
by imposing the condition of deposit of an amount leading to dismissal of
the main appeal itself if the said condition is not satisfied. Position would
have been different if the provision of appeal itself contained a condition
of pre-deposit of certain amount. That is not so. Sub-section (3) of
Section 53B specifically cast a duty upon the Appellate Tribunal to pass
order on appeal, as it thinks fit i.e. either confirming, modifying or setting   C
aside the direction, decision or order appealed against. It is to be done
after giving an opportunity of hearing to the parties to the appeal. It,
thus, clearly implies that appeal has to be decided on merits. The Appellate
Tribunal, which is the creature of a statute, has to act within the domain
prescribed by the law/statutory provision. This provision nowhere
                                                                                 D
stipulates that the Appellate Tribunal can direct the appellant to deposit a
certain amount as a condition precedent for hearing the appeal. In fact,
that was not even done in the instant case. It is stated at the cost of
repetition that the condition of deposit of 10% of the penalty was imposed
insofar as stay of penalty order passed by the CCI is concerned.
Therefore, at the most, stay could have been vacated. The Appellate              E
Tribunal, thus, had no jurisdiction to dismiss the appeal itself.

       8. We may mention that the learned counsel appearing for the
CCI had referred to the judgment of this Court in the case of Ultra
Tech Cement Ltd. v. Competition Commission of India & Ors.1. Said
judgment has no application to the facts of this case. That was a case           F
where the appellant had challenged the jurisdiction of the Appellate
Tribunal to pass conditional order i.e. deposit of 10% of the penalty as a
condition for grant of stay. It was argued that the Appellate Tribunal did
not have any power to impose such a condition for grant of stay. This
challenge was rejected by the Court holding that Appellate Tribunal              G
could pass a conditional stay order. No such issue, that has arisen in the
instant appeal, was raised therein, namely, whether the Tribunal could
dismiss the appeal itself if the condition attached to the grant of stay is
not complied with.
1
 Civil Appeal Nos. 4766-4767 of 2013 with Ors. decided on June 12, 2013
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502             SUPREME COURT REPORTS                         [2018] 4 S.C.R.


A            9. Accordingly, we allow this appeal and set aside that part of the
      impugned order whereby the appeal of the appellant is dismissed and
      restore the appeal which shall be decided by the Appellate Tribunal on
      merits. We, however, make it clear that as far as stay of the penalty
      order is concerned, that stood vacated for non-compliance of the condition
      of deposit of 10% of the penalty and, thus, there is no stay of the CCI
B
      order in favour of the appellant.

               No cost.


C     Kalpana K. Tripathy                                         Appeal allowed.




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