JUDGMENT
V.K. Gupta, C.J.
1. It was on 8th November, 2007 that an order was passed by the Single Bench of this Court referring this case for hearing by a Division Bench on account of the fact that interpretation of the second proviso to Section 15 of the Consumer Protection Act, 1986 was involved in this case. The Order dated 8th November, 2007 is reproduced hereunder. It reads thus:
In view of the fact that interpretation of the second proviso to Section 15 qua the entertaining of an appeal by the State Commission as well as qua the passing of the stay order by the State Commission is involved for consideration in this case and this interpretation will have far reaching consequences, I direct that this case shall be heard by a Division Bench for an authoritative pronouncement.
Mr. R.K. Bawa, learned Senior Advocate has very kindly agreed to assist the Court at the stage of the final hearing of the case in addition to the learned Counsel appearing for the parties.
List before Division Bench-I for hearing on 15th November, 2007.
2. Against an award dated 31st July, 2006 passed by the learned District Consumer Disputes Redressal Forum, Shimla whereby the appellant was, inter-alia, directed to pay. a sum of Rs. five lacs alongwith interest etc. in case of its failure to replace’ a defective machine, Appeal No. 195 of 2007 was filed by the appellant before the learned State Consumer Disputes Redressal Commission, Shimla. M.A. No. 628 of 2007 was an Application for stay, accompanying the aforesaid appeal. On 25th May, 2007 the learned State Commission passed an order admitting the appeal for hearing and while issuing notice in the stay matter, directed that the execution of the impugned judgment passed by the District Forum would stay subject to the appellant depositing the balance award amount as per the terms of the impugned judgment of the District Forum. It is against this Order dated 25th May, 2007 that the appellant has filed the present Petition in this Court under Article 227 of the Constitution of India assailing this Order primarily and mainly, rather the only ground that the learned State Commission went beyond the jurisdiction vesting in it in ordering the appellant to deposit the balance award amount as a condition precedent for the stay of execution and operation of the impugned judgment of the District Forum. Reliance in support of the challenge is placed upon the second proviso to Section 15 of the Consumer Protection Act, 1986 (1986 Act for short).
3. Under the scheme of 1986 Act, whereas appeals are provided for against the orders passed by the District Forum before the State Commission in Section 15, under Section 19 of the said Act any person aggrieved by an order passed by the State Commission (in exercise of the power conferred upon the State Commission under Sub-clause (i) of Clause (a) of Section 17) may prefer an appeal to the National Commission. Both the Sections are in pari materia because both the Sections contain identical provisions. Whereas the first proviso in both the Sections enables the Appellate Fora to entertain the appeals after the expiry of limitation period, second proviso requires the appellants to pay, in case of an appeal filed before the State Commission fifty per cent of the award amount or twenty five thousand rupees, whichever is less. Now, let’s have a look on the provision itself. Section 15 is reproduced hereinunder for ready reference which reads thus:
15. Appeal.–Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:
Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not finding it within that period.
Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent of that amount of twenty five thousand rupees, whichever is less.
4. What does second proviso lay down and stipulate is that no appeal filed under Section 15 with respect to an order passed by the District Forum where the District Forum has directed the appellant to pay an amount in terms of the said order, shall be entertained by the State Commission unless the appellant has deposited fifty per cent of the award amount for twenty five thousand rupees, whichever is less. The contention of the learned Senior Counsel appearing for the petitioner is that in view of the aforesaid legal stipulation in the second proviso it is not open to the State Commission while dealing with the application of the appellant for staying the execution of the impugned order of the District Forum to direct the appellant, or insist upon the appellant, to deposit any amount over and above, or in excess of Rs. twenty five thousand, much less to direct the appellant or insist upon it to deposit the entire award amount as a condition precedent for staying the operation or execution of the impugned order passed by the District Forum. Reliance has also been placed upon Section 24 of 1986 Act to contend that finality attached to an order passed by the District Forum comes into play only if no appeal has been preferred against such an order before the State Commission. In other words, the argument goes, that if a person aggrieved by an order of District forum has filed an appeal before the State Commission against the same, the mere filing of the appeal in terms of Section 24 (supra) takes away the finality from such an order impugned in the appeal with the result that, as per mandate of Section 24 the mere filing of appeal before the State Commission operates as a stay against the order impugned in the appeal. We do not agree.
6. Second proviso to Section 15 as well as the second proviso to Section 19 of 1986 Act both are in pari materia to the first proviso to Section 173 of the Motor Vehicles Act, 1988 which also requires an appellant to pay 50% of the award amount or Rs. twenty five thousand, whichever is less, as a condition precedent for entertaining of an appeal by the High Court against an award passed by the Claims Tribunal. Section 173 of the Motor Vehicles Act, 1988 reads thus:
173. Appeals.–(1) Subject to the provisions of Sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court:
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.
6. An identical provision relating to the very maintainability of an appeal, which can also profitably be referred here is contained in Section 30 of the Workmen’s Compensation Act, 1923. Whereas this Section creates a substantive right of an appeal being filed in the High Court against the orders passed by the Commissioner under the Act, 3rd proviso to Sub-section (1) of this Section clearly lays down that no appeal by an employer under Clause (a) of Sub-section (1) shall lie unless the appellant has deposited with the Commissioner the amount payable under the order appealed against. For ready reference the said third proviso is reproduced hereunder. It reads thus:
Provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.
7. What emerges from a comparative reading of the second provisos to Sections 15 and 19 of 1986 Act, first proviso to Section 173 of the Motor Vehicles Act, 1988 and the third proviso to Sub-section (1) of Section 30 of Workmen’s Compensation Act, 1923 is that the stipulation contained in these provisos is only qua the maintainability of the appeal itself and such stipulation has nothing to do with the Appellate Fora created by these Statutes exercising their jurisdiction with respect to the passing of orders staying or refusing to stay the operation or execution of the judgments, awards or orders appealed against. The aforesaid provisions in clear and categorical terms lay down that if the amounts relating to Awards etc. mentioned in these provisions are not paid or deposited before or at the time of filing the appeals, the appeals themselves would not lie, these would not be held maintainable and thus liable to be dismissed only on the ground of non-payment or non-deposit of the said amounts. This stipulation should not be confused with the exercise of jurisdiction by the Appellate Fora in taking up and deciding application for staying the operation or execution of the orders appealed against.
8. We may at this stage cannot fail to notice that in none of the aforesaid three Statutes is there any provision, much less an explicit or a specific provision, with respect to the exercise of jurisdiction by the Appellate Fora about staying the operation or execution of the orders appealed against, even though as noticed these Statutes do contain specific provisions about the right to file appeals. The absence of a specific provision in the Statutes about the exercise of jurisdiction by the Appellate Fora for staying the operation or execution of the impugned orders docs not mean that the Appellate Fora do not have such jurisdiction. The jurisdiction tc entertain, receive, hear and dispose of an appeal includes the jurisdiction to grant or not grant an order staying the operation or execution of the judgment impugned in the appeal. An Appellate Forum clothed with jurisdiction to hear an appeal by virtue of the right to maintain appeal being created by a statutory provision inherently will be possessed of jurisdiction to pass orders both at the interim/interlocutory as well as later stages staying or refusing to stay the operation or execution of the order, appealed against because the absence of such a jurisdiction in the Appellate Forum can render the exercise of plenary appellate jurisdiction nugatory or at times even otiose. Such an absence of exercise of jurisdiction can also at times result in undue hardship to the party or parties appearing in the appeal.
9. Exercise of jurisdiction by the Appellate Fora with respect to grant or non-grant of an order staying the operation or execution of the impugned judgment is always guided and influenced by the well established principles, such as the capacity of the appellant to pay or not to pay the amount in question, the appellant having established or having failed to established a prima facie case in his favour, the balance of convenience between the parties, the prospects of the respondent in the appeal being deprived of the benefits of the impugned judgment if the amount in question is not deposited and if ultimately the appeal filed by the appellant fails, etc. etc. It is on these and various other considerations, by now based on well established principles of law, that the Appellate Fora exercise jurisdictions in granting or refusing to grant orders staying the operation or execution of the impugned judgments. While exercising such jurisdiction the Appellate Fora can put the appellants to such terms as these are considered appropriate and suitable. In a given situation, based on its own appreciation of facts, an Appellate Forum has the jurisdiction to insist that the entire award amount be deposited by the Appellant and only then it would grant an order staying the operation of the impugned judgment. It may, in a differently given situation, insist upon the appellant about the part-payment of the amount in question. Each case would depend upon its own merits and in each fact situation the Appellate Fora would exercise the jurisdiction as well as its discretion based upon the well established parameters and norms.
10. As is commonly known discretion in granting or refusing stay orders has to be exercised objectively, fairly and in accordance with well established norms and principles of law. There can be instances where the Appellate Forum can dispense with altogether the requirement of deposit of any additional sum, over and above the statutory amount enabling it to pass an order staying the operation of the impugned judgment or it can permit the appellant to deposit only a part of the award amount or furnish security in any form. Each case would depend upon its own merits and has to be dealt with in a given fact situation.
11. Coming to the arguments of Mr. Sood that in terms of Section 24 of 1986 Act the filing of an appeal against an order of District Forum etc. would automatically, by itself amount to the stay of execution of the said order, we do wish to observe that on a plain reading of Section 24 we feel that such an interpretation cannot be put upon Section 24 as is sought to be placed by Mr. Sood. All that Section 24 says is that if no appeal has been preferred, against the orders mentioned therein, these orders would become final. It was quite natural for the legislature to specify, in clear terms that if against an order passed by a District Forum, State Commission or the National Commission no appeal has been preferred, such an order would become final. The Section does not say anything more. This plain meaning of Section 24 cannot be stretched to include a situation where the mere filing of the appeal would amount to the staying of the operation of the impugned order. That would run contrary to the well established principle of law that unless a specific order by the Appellate Court staying the operation/execution of the order appealed against is passed, the mere filing of the appeal would not operate as a stay.
12. No other point was urged. The Petition is dismissed but without any orders as to cost. CMPs No. 555 and 526 of 2007. In view of the dismissal of the main petition, both these applications are dismissed as having infructuous.