REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5029 OF 2018

M/S. B. HIMMATLAL AGRAWAL .....APPELLANT(S)

VERSUS

COMPETITION COMMISSION OF INDIA & ANR.

.....RESPONDENT(S)

J U D G M E N T

A.K.SIKRI, J.

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.   

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.   

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The appellant herein is a partnership firm, engaged in the

business of transportation of coal and sand since 1981.  In June,

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 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 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 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

Civil Appeal No. 5029 of 2018 Page 2 of 9

penalties on the appellant firm as well as nine parties.  Insofar as

appellant  is  concerned,  penalty  of  Rs.3.61  crores  has  been

imposed.   

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.  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

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 to the bench”.  

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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 December 18, 2017 seeking modification of orders dated

December 4, 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 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 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.

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

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comply  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  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.  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  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: Civil Appeal No. 5029 of 2018 Page 5 of 9

“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 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 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  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,  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.

(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.”

7. The aforesaid  provision,  thus,  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 of pre-deposit  for entertaining the appeal.   Therefore,

right  to  file  the  appeal  and  have  the  said  appeal  decided  on Civil Appeal No. 5029 of 2018 Page 6 of 9

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.  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.  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

Tribunal, thus, had no jurisdiction to dismiss the appeal itself.  

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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  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 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.   

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-

1 Civil Appeal Nos. 4766-4767 of 2013 with Ors. decided on June 12, 2013 Civil Appeal No. 5029 of 2018 Page 8 of 9

compliance of the condition of deposit of 10% of the penalty and,

thus, there is no stay of the CCI order in favour of the appellant.   

No cost.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; MAY 18, 2018.

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