National Company Law Appellate Tribunal is not justified in dismissing the main appeal for non-compliance of the direction to deposit the amount as a condition for grant of stay
Supreme Court has held Appeals to Appellate Tribunal under Section 53B of the Competition Act 2002 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 by imposing the condition of deposit of an amount.
This was so held in the matter titled as B. Himmatlal Agrawal vs. Competition Commission of India decided on 18th May, 2018 and reported as MANU/SC/0595/2018
Challenge
The Appellant is a partnership firm, engaged in the business of transportation of coal and sand. It participated in two tenders, 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 received a notice from the Competition Commission of India, New Delhi asking to show cause alleging that the Appellant firm was involved in anti-competitive and unfair trade practices in collusion with nine other firms. After the reply of the Appellant firm the CCI directed the inquiry to be conducted by the Director General (DG) of the CCI. It was held that the Appellant had indulged in anti-competitive and unfair trade practices in collusion with the other firms and a penalty of Rs. 3.61 crores was imposed. An appeal was filed before the NCLAT, appeal was admitted, conditional stay was granted imposing condition of payment of 10% of the penalty amount.
Held
Section 53 B of the Competition Act which deals with Appeals to Appellate Tribunal 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 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 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.