INDIAN AIRLINES CORPORATION Vs. FAROOQ AHMAD JAN

JUDGEMENT

(1.) This is an appeal from order dated 5th August, 1997 of the JandK State Consumers Protection Commission ("State Commission") by which the State Commision awarded a sum of Rs. 60,000/- in favour of the respondent on account of loss of baggage containing Video Camera, Cordless Telephone Instrument and some articles of day to day use and a sum of Rs. 5000/- on account of expenses for travel and costs of litigation.

(2.) This appeal was admitted by this Court on 22nd September, 1997. There was an interim application of the appellants for stay of the operation of the impugned order. On that application, it was directed that the impugned order shall remain stayed on condition that the appellants pay Rs. 10,000/- to the respondent within a period of two months from the date of the order subject to the ultimate decision of the case. The appellants complied with the above order. When this appeal came up for hearing, learned counsel for the respondent, Mr. Hakim Sami Yaqoob, raised a preliminary objection in regard to the maintainability of this appeal. He invited our attention to the Jammu and Kashmir Consumer Protection (Amendment) Act, 1997 (Act No. XIX of 1997) (hereinafter referred to the "Amendment Act"), by which, with effect from 2nd June, 1997, a new proviso has been added to S. 17, as third proviso, which provides that no appeal shall lie unless the memorandum of appeal is accompanied by a certificate issued by the Chairman, State Commission to the effect that the appellant has deposited 25% of the amount payable under the order. Learned counsel submits that the present appeal having been filed after the coming into force of the above amendment without complying with the mandatory requirement of the newly inserted third proviso, is liable to be dismissed as not maintainable. Learned counsel states that the present appeal was filed on 4th September, 1997, i.e. after the coming into force of the aforesaid amendment. He submits that in view of the above amendment, which was applicable on the date the appeal was filed, it was obligatory on the part of the appellants to deposit 25% of the amount payable under the impugned order with the State Commission and to obtain a certificate from the Chairman of the state Commission to that effect and to annex the same with the memo of appeal. He submits that this is a mandatory requirement which is evident from the expression "no appeal shall lie unless memo of appeal is accompanied by a certificate issued by the Chairman of the State Commission to the effect that the appellant has deposited 25% of the amount payable under the order" appearing in the newly inserted third proviso to S. 17 of the Act. The learned counsel for the respondent, therefore, submits that the present appeal is liable to be dismissed on that count itself.

(3.) Mr. B.A. Bashir, learned counsel for the appellants, on the other hand, submits that as the appellants were not aware of the amendment, the appeal was filed without complying the third proviso to S. 17 of the Act, which was inserted by the Amendment Act of 1997 with effect from 2nd June, 1997. He submits that as soon as this amendment was brought to the notice of this Court on 27th September, 1997 and objection raised about the maintainability of the appeal,this Court issued direction to the appellants to comply with the requirements of the newly inserted third proviso to S. 17 of the Act. In compliance to the above direction, the appellants deposited in the Court a sum of Rs. 6,250/- on 17-8-1998 which, according to him, was the only amount required to be deposited in view of the payment of a sum of Rs. 10,000/- to the respondent in compliance of the earlier order of this Court dated 22-9-1997. According to Mr. Bashir, in these peculiar facts and circumstances of the case, deposit of the above amount should be construed as sufficient compliance of the requirement of the third proviso to S. 17 of the Act. He further submits that this appeal would be maintainable even if the deposit is made subsequent to the filing of the appeal. In support of this contention he relies on the decision of the supreme Court in Commissioner of Income-tax v. M/s Filmistan Ltd. AIR 1961 SC 1134.