M/S. B. HIMMATLAL AGRAWAL versus COMPETITION COMMISSION OF INDIA & ANR.

Citation: [2018] 4 S.C.R. 496 · Decided: 18-05-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 4 S.C.R.
M/S. B. HIMMATLAL AGRAWAL
v.
COMPETITION COMMISSION OF INDIA & ANR.
(Civil Appeal No. 5029 of 2018)
May 18, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Competition Act, 2002:
s. 53B – Appeal under – Dismissal of – For non-compliance
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
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
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
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
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]
  [2018] 4 S.C.R. 496
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2. In the present case, 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.  Therefore, at the most,
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.
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
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
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.
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
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
M/S. B. HIMMATLAL AGRAWAL v. COMPETITION
COMMISSION OF INDIA & ANR.
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[2018] 4 S.C.R.
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
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