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 .....RESPONDENT(S)

& ANR.

JUDGMENT
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

Signature Not Verified

of the factual matrix in detail. Narration of the following facts,
Digitally signed by
SUSHIL KUMAR
RAKHEJA
Date: 2018.05.18

which are germane for deciding this appeal, would suffice.

17:05:51 IST
Reason:

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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”.

Civil Appeal No. 5029 of 2018 Page 3 of 9

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 4 th 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

Civil Appeal No. 5029 of 2018 Page 4 of 9

 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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