# VIDEOCON INTERNATIONAL LTD v. SECURITIES & EXCHANGE BOARD OF INDIA

- **Citation:** [2015] 3 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2015-01-13
- **Case number:** Civil Appeal No. 117 of 2005
- **Bench:** Jagdish Singh Khehar, M.Y. Eqbal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/videocon-international-ltd-v-securities-exchange-board-of-india-30514
- **Pages:** 62

## Headnote

A
B
Securities and Exchange Board of India Act, 1992 - c
s.15Z (as amended by the Securities and Exchange Board
of India (Amendment) Act, 2002 and given effect from
29.10.2002) - Second appeal- Second appellate remedy
(pre-amendment) was before High Court on the questions
of facts as well as Jaw - Post-amendment the remedy was D
altered to before Supreme Court on the question of law
alone -
Second appeals filed before High Court -
Maintainability of, in view of amendment of s. 15Z - High
Court held that the appeals filed before 29.10.2002 (before
coming into force· of amended s. 15Z) were maintainable E
while those filed after 29.10.2002 (after coming into force
of amended s. 15Z) were not maintainable - On appeal,
held: The right of appeal being a vested right, the appellate
package as was available at the commencement of the
proceedings would continue to vest in the parties to a lis
F
till an eventual culmination of proceedings - Such vested
substantive right can be taken away by an amendment only
when the amending provision so provides - Failing which
such vested substantive right can be availed of irrespective
of the law which prevails at the date when the impugned G
order is passed or the date when appeal is preferred - The
scope of s. 15Z was varied by amendment thereof, and
. therefore it was not a mere change of forum -
The
1
H
2
SUPREME COURT REPORTS
[2015) 3 S.C.R.
A amendment having restricted the scope of s. 15Z to only
question of law, adversely affected the appellate right
vested, of the concerned litigant - Since the remedy of
second appeal vested in the respondent has not been
preserved, in the same format as it was available to the
B respondent, at the time of initiation of the lis between the
parties; and since the scope of the appellate remedy has
been diminished by the amendment, amendment to Section
15Z adversely affected the respondent, of a vested
substantive appellate right, as was available to the
C ·respondent, at the commencement of the lis or dispute
between the rival parties - Therefore, the appellate remedy
available to the respondent prior to the amendment of s. 15Z
must continue to be available to the respondent, despite
0
the amendment - The general principle is, that a law which
brought about a change in the forum, would not affect
pending actions, unless the intention to the contrary was
clearly shown - In view of the mandate contained in s. 6(c)
and (e) of the General Clauses Act also the amendment of
E . a statute, which is not retrospective in operation, does not
affect pending proceedings, except where the amending
~. provision expressly or by necessary intendment provides
otherwise - Pending proceedings are to continue as if the
unamended provision is still in force - All the appeals
F preferred by the Board, before the High Court, were
maintainable in law - In exercise of jurisdiction under Article
142 of the Constitution it is directed that the instant order
would govern all the cases which were disposed of by the
G
H
High Court through the impugned order.
Disposing of the appeal, the Court
HELD: 1. A right of appeal can be availed of only
when it is expressly conferred. When such a right is
conferred, its parameters are also laid down. A right of
VIDEOCON INTERNATIO~AL LTD. v. SEBI
3
f
appeal may be absolute, or it may be a limited right. A
Under the unamended Section 15Z of Securities and
Exchange Board of India Act, 1992 the appellate remedy
to the High Court, against an order passed by the
· Securities Appellate Tribunal, was circumscribed by the
words " ... on any question of fact or law arisigg out of B
such order." The amended Section 15Z, while altering
the appellate forum from the High Court to the Supreme
Court, curtailed and restricted the scope of the appeal,
against an ·Order passed by the Securities Appellate
T~ibunal, by expressing that the remedy could be C
availed of" ... on any question of law arising out of such
order." It is, therefore apparent, that the right to a

## Text

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[2015] 3 S.C.R. 1
VIDEOCON INTERNATIONAL LTD.
v.
SECURITIES & EXCHANGE BOARD OF INDIA
(Civil Appeal No. 117 of 2005)
JANUARY 13, 2015
[JAGDISH SINGH KHEHAR AND M.Y. EQBAL, JJ.]
A
B
Securities and Exchange Board of India Act, 1992 - c
s.15Z (as amended by the Securities and Exchange Board
of India (Amendment) Act, 2002 and given effect from
29.10.2002) - Second appeal- Second appellate remedy
(pre-amendment) was before High Court on the questions
of facts as well as Jaw - Post-amendment the remedy was D
altered to before Supreme Court on the question of law
alone -
Second appeals filed before High Court -
Maintainability of, in view of amendment of s. 15Z - High
Court held that the appeals filed before 29.10.2002 (before
coming into force· of amended s. 15Z) were maintainable E
while those filed after 29.10.2002 (after coming into force
of amended s. 15Z) were not maintainable - On appeal,
held: The right of appeal being a vested right, the appellate
package as was available at the commencement of the
proceedings would continue to vest in the parties to a lis
F
till an eventual culmination of proceedings - Such vested
substantive right can be taken away by an amendment only
when the amending provision so provides - Failing which
such vested substantive right can be availed of irrespective
of the law which prevails at the date when the impugned G
order is passed or the date when appeal is preferred - The
scope of s. 15Z was varied by amendment thereof, and
. therefore it was not a mere change of forum -
The
1
H
2
SUPREME COURT REPORTS
[2015) 3 S.C.R.
A amendment having restricted the scope of s. 15Z to only
question of law, adversely affected the appellate right
vested, of the concerned litigant - Since the remedy of
second appeal vested in the respondent has not been
preserved, in the same format as it was available to the
B respondent, at the time of initiation of the lis between the
parties; and since the scope of the appellate remedy has
been diminished by the amendment, amendment to Section
15Z adversely affected the respondent, of a vested
substantive appellate right, as was available to the
C ·respondent, at the commencement of the lis or dispute
between the rival parties - Therefore, the appellate remedy
available to the respondent prior to the amendment of s. 15Z
must continue to be available to the respondent, despite
0
the amendment - The general principle is, that a law which
brought about a change in the forum, would not affect
pending actions, unless the intention to the contrary was
clearly shown - In view of the mandate contained in s. 6(c)
and (e) of the General Clauses Act also the amendment of
E . a statute, which is not retrospective in operation, does not
affect pending proceedings, except where the amending
~. provision expressly or by necessary intendment provides
otherwise - Pending proceedings are to continue as if the
unamended provision is still in force - All the appeals
F preferred by the Board, before the High Court, were
maintainable in law - In exercise of jurisdiction under Article
142 of the Constitution it is directed that the instant order
would govern all the cases which were disposed of by the
G
H
High Court through the impugned order.
Disposing of the appeal, the Court
HELD: 1. A right of appeal can be availed of only
when it is expressly conferred. When such a right is
conferred, its parameters are also laid down. A right of
VIDEOCON INTERNATIO~AL LTD. v. SEBI
3
f
appeal may be absolute, or it may be a limited right. A
Under the unamended Section 15Z of Securities and
Exchange Board of India Act, 1992 the appellate remedy
to the High Court, against an order passed by the
· Securities Appellate Tribunal, was circumscribed by the
words " ... on any question of fact or law arisigg out of B
such order." The amended Section 15Z, while altering
the appellate forum from the High Court to the Supreme
Court, curtailed and restricted the scope of the appeal,
against an ·Order passed by the Securities Appellate
T~ibunal, by expressing that the remedy could be C
availed of" ... on any question of law arising out of such
order." It is, therefore apparent, that the right to appeal,
is available in different packages, and that, the
amendment to Section 15Z, varied the scope of the
second appeal provided under the Securities and D
Exchange Board of India Act, 1992. [para 25] {55-C-G]
2. What falls within the parameters of the package
at the initial stage of the /is or dispute, constitutes the
vested substantive right, of the concerned litigant. An E
aggrieved party, is entitled to pursue such a vested
substantive right, as and when, an adverse judgment
or order is passed. Such a vested substantive right can
be taken away by an amendment, only when the
amended provision, expressly or by necessary
intendment, so provides. Failing which, such a vested F
substantive right can be availed of, irrespective of the
law which prevails, at the date when the order
impugned is passed, or the date when the appeal is
preferred. The legal pursuit of a remedy, suit, appeal
and second appeal, are steps in a singular proceeding. G
All these steps, are connected by an intrinsic unity, and
are regarded as one legal proceeding. [para 26] [55-GH; 56-A-C]
3. By the amendment, the earlier appellate package H
4
SUPREME COURTREPORTS
[2015] 3 S.C.R.
A stands reduced, because under the amended Section
15Z, it is not open to an appellant, to agitate an appeal
on facts. Therefore, it cannot be said that the
amendment to Section 15Z of the SEBI Act, envisages
only an amendment of the forum, where the second
B appeal would lie. The amendment to Section 15Z of the
SEBI Act, having reduced the appellate package,
adversely affected the appellate right vested of the
concerned litigant. The right of appeal being a vested
c
right, the appellate package, as was available at the
commencement of the proceedings, would continue to
vest in the parties engaged in a /is, till the eventual
culmination of the proceedings. Obviously, that would
be subject to an amendment expressly or impliedly,
D providing to the contrary. Section 32 of the Securities
and Exchange Board of India (Amendment) Act, 2002,
neither expressly nor impliedly, so provides. Thus, it
cannot be said that the amendment to Section 15Z of
the SEBI Act, does not affect t~e second appellate
E remedy, but merely alters the forum where the second
appellate remedy would lie. [para 28] [57-8-G]
4. Since the .remedy of second appeal vested in the
respondent has not been preserved, in the same format
F as it was available to the respondent, at the time of
initiation of the /is between the parties; and since the
scope of the appellate remedy has been diminished by
the amendment, amendment to Section 15Z of the SEBI
Act adversely affected the respondent, of a vested
G substantive appellate right, as was available to the
respondent, at the commencement of the /is or dispute
between the rival parties. Therefore, the appellate
remedy available to the respondent prior to the
amendment of Section 15Z of the SEBI Act, must
.
·~
H continue to be available to the respondent, despite the
VIDEOCON INTERNATIONAL LTD. v. SEBI
5
amendment. Accordingly, all the appeals preferred by A
the Board, before the High Court, were maintainable in
law. [para 29] [57-H; 58-A-E]
5. Insofar as the vesting of the second appellate
remedy is concerned, neither the date of filing of the B
second appeal, nor the date of hearing thereof, is of any
relevance. Legal pursuit of a remedy, suit, appeal and
second appeal, are steps in a singular proceeding. All
these steps are deemingly connected by an intrinsic
unity, which are treated as one singular proceeding. C
Therefore, the relevant date when the appellate remedy
(including the second appellate remedy) becomes
vested in the parties to the /is, is the date when the
dispute//is is initiated. The /is between the parties, out
of which the second appellate remedy was availed of D
by the Board before the High Court, came to be initiated
well before the amendment to Section 15Z by the
Securities and Exchange Board of India (Amendment)
Act, 2002. [para 30] [58-F-H; 59-A-B]
E
6. It is not correct to say that in the absence of a
saving clause, the pending proceedings (and the
jurisdiction of tHe High Court), cannot be deemed to
have been saved. The general principle is, that a law
which brought about a change in the forum, would not' F
affect pending actions, unless the intention to the
contrary was clearly shown. Since the amending
provision in the present case does not so envisage, the
pending appeals (before the amendment of Section 15Z)
would not be affected in any manner.[para 31] [59-DG
G]
Ambalal Sarabhai Enterprises Limited v. Amrit Lal and
Co. 2001 (2) Suppl. SCR 195 = (2001) 8 sec 397 - relied
on.
H
6
SUPREME COURT REPORTS
(2015] 3 S.C.R.
A
7. In view of the mandate contained in Section 6(c)
and (e) of the General. Clauses Act, 1897, the
amendment of a statute, which is not retrospective in
operation, does not affect pending proceedings, except
where the amending provision expressly or by
B necessary intendment provides otherwise. Pending
proceedings are to continue as if the unamended
provision is still in force. [para 31] [60-A-B]
8. Even if· it is assumed that the amendment to
C Section 15Z by the Securities and Exchange Board of
India (Amendment) Act, 2002 had no effect on the
second appellate remedy made available to the parties,
and further that, the above amendment merely alters the
forum of the second appeal, an amendment of forum
D would not necessarily be an issue of procedure. Where
the question is of change of forum, it ceased to be a
question of procedure, and becomes substantive and
vested, if proceedings stood initiated before the earlier
prescribed forum (prior to the amendment having taken
E effect). If the appellate remedy had been availed of
(before the forum expressed in the unamended
provision) before the amendment, the same would
constitute a vc:isted right. However, if the same has not
F been availed of, and the forum of the appellate remedy
is altered by an.amendment, the change in the forum,
would constitute a procedural amendment. In the
present case, all such appeals as had been filed by the
Board, prior to enforcement of the amendment Act,
G would have to be accepted as vested, and must be
adjudicated accordingly. [para 32] [61-B-G]
Commissioner of Income Tax, Orissa v. Dhadi Sahu
1992 (3) Suppl. SCR 168 =1994 Supp. (1) sec 257 -
H relied on.
VIDEOCON INTERNATIONAL LTD. v. SEBI
7
Maria Cristina De Souza Sodder v. Amria Zurana A
Pereira Pinto (1979) 1 SCC 92; Hitendra Vishnu Thakur v.
State of Maharashtra 1994 (1) Suppl. SCR 360 = (1994) 4
SCC 602; Thirumalai Chemicals Ltd. v. Union of India 2011
(4) SCR 838 = (2011) 6 SCC 739 • referred to.
B
9. In the impugned order, some of the appeals
preferred by the Board were held as maintainable
before the High Court, whilst a different view was
expressed with reference to the appeals preferred by
the Board after 29.10.2002 i.e. after enforcement of the C
amendment Act, the appeals preferred before the High
Court, were maintainable. In exercise of jurisdiction .
under Article 142 of the Constitution of India, it is
directed that the instant order would govern all the
cases which were disposed of by the High Court D
through the impugned order. [para 34] [62-C-E]
Hoosein Kasam Dada (India) Ltd. v. State of Madhya
Pradesh 1953 SCR 987 =AIR 1953 SC 221; Garikapati
Veeraya v. N. Subbiah Choudhary 1957 SCR 488 =AIR E
1957 SC 540; Jose Da Costa v. Bascora Sadasiva Sinai
Narcornim (1976) 2 SCC 917; Shyam Sunder v. Ram
Kumar(2001) 8 SCC 24, Dayawati v. lnderjit AIR 1966 SC
1423, Hitendra Vishnu Thakur v. State of Maharashtra,
(1994) 4 SCC 602; and K.S. Paripooman v. State of Kera/a,
F
(1994) 5 SCC 593; Daji Saheb v. Shankar Rao Vithalrao
Mane 1955 SCR 872 =AIR 1956 SC 29 - referred to.
Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369
-~~~
G
1905AC 369
1953 SCR 987
Case Law Reference
referred to
referred to
para 13
para 14
H
8
A
B
c
D
SUPREME COURT REPORTS
[2015] 3 S.C.R.
1957 SCR488
referred to
para 15
(1976) 2 sec 917
referred to
para 15
AIR 1966 SC 1423
referred to
para 15
1955 SCR 72
referred to
para 23
2001 (2) Suppl. SCR 195
relied on
para 31
1979 (1) sec 92
referred to
para 32
1994 (1) Suppl. SCR 360
referred to
para 32
2011 (4) SCR 838
referred to
para 32
1992 (3) Suppl. SCR 168
relied on
para 32 ·
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
117 of 2005.
From the Judgment and Order dated 13.10.2003 of the
High Court of Bombay iri SEBI Appeal No. 9 of 2002.
E
Jatin Zaveri, Neel Kamal Mishra for the Appellant.
F
Altaf Ahmed, Bhargava V. Desai, Shreyas Mehrotra for
the Respondent.
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. The Securities and
Exchange Board of India Act, 1992 (hereinafter referred to
as, the SEBI Act) was enacted to protect the interests of
investors in securities and to promote the development of,
G and to regulate, the securities market. The Securities and
Exchange Board of India (hereinafter referred to as, the
Board) was vested with statutory powers to effectively deal
with all matters relating to the capital market.
H
2. The functions of the Board have been depicted in
VIDEOCON INTERNATIONAL LTD. v. SEBI
9
[JAGDISH SINGH KHEHAR, J.)
Section 11 of the SEBI Act. Under Section 11 of the SEBI A
Act, the powers pf the Board include, the power to suspend
the trading of any security in a recognized stock-exchange;
the .-ower to restrain from access)ng the securities market
and prohibit any person associated with the securities
market from buying, selling or dealing in securities; the B
power to suspend any office-bearer of any stock-exchange
or self-regulatory organization from holding such position;
the power to impound and retain the proceeds or securities
in respect of any transaction which is under investigation;
the power to attach after passing of an order on an C
application made for approval (by the Judicial Magistrate
of First Class having jurisdiction) for a period not exceeding
one month, one or more bank account(s) of any
intermediary or any person associated with the securities 0
market in any manner involved in violation of any of the
provisions of the SEBI Act, or the rules/regulations framed
thereunder; and the power to direct any intermediary or any
person associated with the securities market in any manner
not to dispose of or alienate an asset forming part of any E
transaction which is under investigation. If the Board finds
(on investigation), that a person has violated (or is likely to
violate) any provision of the SEBI Act, or any rules/
regulations made thereunder, the Board is authorized under
\
Sectio~ 11 D of the SEBI Act, to pass an order requiring the F
person\concerned, to cease and desist from committing or
causing such violation.
3. Chapter VIA of the SEBI Act provides for penalties
and adjudication. Under Chapter VIA, a penalty can be G
levied, fo.r failure to furnish information, return or report to
the Board (Section 15A, inserted with retrospective effect
from 25.1:.1995); a penalty can be imposed, for failure by
any person to enter into such agreement, as he may be
required (Section 15B, inserted with retrospective effect H
10
SUPREME COURT REPORTS
[2015] 3 S.C.R.
A from 25.1.1995); a penalty can also be inflicted, for failure
to redress investors' grievances (Section 1 ~c. inserted with
retrospective effect from 29.10.2002); a penalty can be
foisted, for certain defaults in case of mutual funds (Section
150, inserted with retrospective effect from 25.1.1995); a
B penalty can be levied, for failure to observe rules and
regulations by an asset management company (Section
15E, inserted with retrospective effect from 25.1.1995); a
penalty can be inflicted, for default in case of stock brokers
(Section 15F, inserted with retrospective effect from
C 25.1.1995); a penalty can be imposed, for insider trading
(Section 15G, inserted with retrospective effect from
25.1.1995); a penalty can be demanded, for non-disclosure
of acquisition of shares and take-overs (Section 15H,
0
inserted with· retrospective effect from 25.1.1995/
29.10.2002); a penalty can be levied, for fraudulent and
unfair trade practices (Section 15HA, inserted wi.th
retrospective effect from 29.10.2002); a penalty can be
levied, for contravention, where no separate penalty has
E . been provided (Section 15HB, inserted with retrospective
effect from 29.10.2002). Under Section 15-1 of the SEBI Act,
the Board is mandated to appoint ah 'adjudicating officer'
(not below the rank of a Division Chief), for deciding the
quantum of penalty to be imposed under Sections 15A to
F 15HB of the SEBI Act.
4. A remedy of appeal to the Securities Appellate
Tribunal (established under Section 15K, by insertion of
Chapter VIB int~ the SEBI Act, with retrospective effect from
G 25.1.1995) was provided for under Section 15T of ~he SEBI
Act, to a person aggrieved of an order passed by the Board,
or by an 'adjudicating officer' (for details, refer to the
preceding two paragraphs). A further remedy of appeal, was
provided from an appellate order passed by the Securities
H ·Appellate Tribunal, vide Section 15Z (inserted with
VIDEOCON INTERNATIONAL LTD. v. SEBI
11
[JAGDISH SINGH KHEHAR, J.]
retrospective effect from 15.1.1995). Section 15Z of the A
SEBI Act (as has tieen referred to above), is being extracted
hereunder:-
"15Z. Appeal to High CourtAny person aggrieved by any decision or order of the B
Securities Appellate Tribunal may file an appeal to the
High Court within sixty days from the date of
communication of th.e decision or order of the Securities
Appellate Tribunal to him on anv question of fact or law
arising out of such order."
C
(emphasis is ours)
A perusal of Section 15Z reveals, that when the second
appellate remedy was made available to an aggrieved party 0
for the first time, the forum for the second appeal was the
High Court. And second appellate remedy was available on
questions of fact, as also, questions of law.
5. Section 15Z of the SEBI Act as originally enacted,
was amended with retrospective effect, from 29.10.2002. E
The above amendment to Section 15Z, was brought into
· force by the Securities and Exchange Board of India
(Amendment) Ordinance, 2002. The Ordinance was
replaced by the Securities and Exchange Board of India F
(Amendment) Act, 2002. Section 15Z, as amended is
reproduced hereunder:-
"15Z.
Appeal to Supreme CourtAny person aggrieved by any decision or order of the G
Securities Appellate Tribunal may file an appeal to the
Supreme Court within sixty days from the date of
communication of the decision or order of the Securities
Appellate Tribunal to him on any question of law arising
out of such order.
H
12
SUPREME COURT REPORTS
[2015] 3 S.C.R.
~
\.
A
Provided that the Supreme Court may, if it is satisfied
that the applicant was prevented by sufficient cause
from filing the appeal within the said period, allow it to
be filed within a further perio9 not exceeding sixty days."
B
(emphasis is ours)
A perusal of Section 15Z, as amended, reveals that the
forum of the second appellate remedy was changed from
·the High Court, to the Supreme Court. And the second
c
appellate remedy was limited to questions of law alone, and
not on questions of fact.
6. Through the present Civil Appeal no. 117 of 2005
(arising out of Special Leave Petition (Civil) no. 3221 of
2004), the appellant has impugned the order passed by the
D High Court of Judicature at Bombay (hereinafter referred
to as, the High Court), on 13.10.2003: The High Court,
through the impugned order had examined Section 15Z of
the SEBI Act (as amended by the Securities and Exchange
E
Board of India (Amendment) Act, 2002). The issue for
determination before the High Court was, whether the
aforesaid amendment to Section 15Z of the SEBI Act, would
operate prospectively or retrospectively. Appeals had been
preferred by the Board, before the High Court assailing the
F orders passed by the Securities Appellate Tribunal. All the
orders under challenge, had been passed by the Securities
Appellate Tribunal before 29.10.2002. Some appeals were
preferred before 29.10.2002, and one of the appeals was
preferred after 29.10.2002. The question which had arisen
;
G for adjudication before the High Court was, whether an
appeal would lie to the High Court, after the amendment of
Section 15Z oft.he SEBI Act. The Board which had preferred
the appeals', asserted, that all the appeals were
maintainable. The appellant before us, felt otherwise.
H
7. The High Court by the impugned order arrived at the
•
VIDEOCON INTERNATIONAL LTD. v. SEBI
13
[JAGDISH SINGH KHEHAR, J.]
conclusion, that such of the appeals as had been filed A
before the coming into force of the amended Section 15Z,
would not be affected by the amendment, and the High
Court had the jurisdiction to hear and dispose of the same.
The High Court aiso concluded, that such of the appeals
as had been filed aft.er the coming into force of the amended
B
Section 15Z, would not be maintainable.
8. The instant appeal has arisen with reference to the
appeals which have been held as maintainable by the High
Court. According to the learned counsel for the appellant, C
where the repealing Act provides for a new forum (as in the
instant case), the original remedy (or legal proceedings)
cannot be pursued after the repeal, the remedy before the
new forum alone would be available.
D
9. lns['.>far as the factual aspect of the present matter
is concerned, the impugned order which was assailed
before the High Court, under the unamended Section 15Z
was disposed of before 29.10.2002. And therefore it was
felt, that the remedy available at the time when the E
impugned order was passed, had to be pursued. Therefore,
the pointed question to be determined by this Court, in the
present appeal would be, whether an order passed by the
S.ecurities Appellate Tribunal before 29.10.2002 would be
appealable under the unamended provision of Section 15Z F
of the SEBI Act before the High Court, or alternatively,
whether the same would be appealable under the amended
provision of Section 15Z of the SEBI Act before the
Supreme Court. And also, whether the date on which the
Board had preferred the appeals, was a relevant G
consideration, in the facts and circumstances of the present
case.
10. In order to canvass the proposition which has arisen
in the present controversy, learned counsel for the appellant H
14
SUPREME COURT REPORTS
[2015] 3 S.C.R.
A has vehemently contended, that the amendment of Section
15Z, having only brought about a change in the forum,
would be deemed to have amended a procedural provision.
Accordingly it was the submission of the learned counsel,
that the afore-stated amendment would be deemed to be
B retrospective, specially because no vested right can be
deemed to have been take'1 away. It was also the vehement
contention of the learned counsel, that in the absence of a
saving clause, the pending proceedings and jurisdiction of
the High Court, cannot be deemed to have been saved. It
C . was the contention of the learned counsel, that a case
cannot be deemed to have been entertained by a Court,
till the Court applies its mind, and as such, even the appeals
preferred before the amended Section 15Z took effect
0
retrospectively from 29.10.2002, would be governed by the
amended provision, rather than the unamended Section
15Z of the SEBI Act.
11. In order to support his aforesaid contention, learned
counsel for the appellant submitted, that Sections 15Y and
E 15Z of the SEBi Act had to be considered together. Section
15Y is being extracted hereunder:-
F
G
"15Y. Civil court not to have jurisdiction- No civil
court shall have jurisdiction to entertain any suit or
proceeding in respect 'of any matter which an
adjudicating officer appointed under this Act or a
Securities Appellate Tribunal constituted under this Act
is empowered by or under this Act to determine and
no injunction shall be granted by any court or other
authority in respect of any action taken or to be taken
in pursuance of any power conferred by or under this
Act."
(emphasis is ours)
H
On the basis of Section 15Y extracted above, it was
VIDEOCON INTERNATIONAL LTD. v. SEBI
15
[JAGDISH SINGH KHEHAR, J.]
tbe submission of the learned counsel for the appellant, that A
the powers of civil courts to entertain issues emerging out
of the provisions of the SEBI Act were expressly taken away.
Section 15Y, according to the learned counsel for the
appellant, excluded even the jurisdiction of the High Court,
with respect to the civil jurisdiction vested in the High Court,
B
in respect of matters entrusted for adjudication, by the SEBI
Act, with the adjudicating officer or with the Securities
Appellate Tribunal. In fact, accorci\lig to the learned counsel,
the mandate of Section 15Y of the SEBI Act, debarred a
civil court from even' granting an injunction in respect of any C
action taken (or to be taken) in pursuance of any power
conferred by or under the SEBI Act. It was the contention
of the learned counsel, that Section 15Z of the SEBI Act,
should be examineq in the background of the intent 0
expressed by the legislature through Section 15Y.
12. In conjunction with the above submission, learned
counsel for the appellant invited the Court's attention to
Sections 27 and 32 of the Securities and Exchange Board
of India (Amendment) Act, 2002, which are reproduced
E
hereunder:-
"27. Substitution of new Section for.Section 15Z- For
Section 15Z of the principal Act, the following section
shall be substituted, namely:- "15Z. Appeal to Supreme F
Court - Any person aggrieved by any decision or order
of the Securities Appellate Tribunal may file an appeal
to the Supreme Court within sixty days from the date
of communication of the decision or order of the
Securities Appellate Tribunal to him on any question of G
law arising out of such order: Provided that the
Supreme Court may, if it is satisfied that the applicant
was prevented by sufficient cause from filing the appeal
within the said period, allow it to be filed within a further H
16
SUPREME COURT REPORTS
(2015] 3 S.C.R
A
period not exceeding sixty days.
32. Repeal and SavingB
c
D
1. The Securities and Exchange Board of India
(Amendment) Ordinance, 2002 (Ord. 6 of 2002), is
hereby repealed.
2. Notwithstanding the repeal of the Securities and
Exchange Board of India (Amendment) Ordinance,
2002 (Ord. 6 of 2002), anvthing done or any action
taken under the principal Act as amended by the said
Ordinance. shall be deemed to have been done or
taken under the principal Act. as amended by this Act."
(emphasis is ours)
Drawing the Court's attention to Section 32, the
contention of the learned counsel for the appellant was, that
in the absence of any saving clause, which may have had
th,e effect of preserving, protecting, securing or sustaining
E the jurisdiction vested in respect of appeals pending before
the High Court, all the pending appeals would have to be
adjudicated by the substituted forum, after the amendment
of Section 15Z of the SEBI Act. On the instant score, the
further submission of the learned counsel was, that whilst
F amendment to procedure had generally retrospective effect,
an amendment to a provision vesting a substantive right
was generally prospective.
13. In order to support his contentions, learned
G counsel for the appellant, placed reliance on the decision
in Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369.
In the judgment relied upon, a right of appeal was available
from. the Supreme Court of Queensland, to the King in
Council. The aforesaid right was taken away by the
H
VIDEOCON INTERNATIONAL LTD. v. SEBI
17
(JAGDISH SINGH KHEHAR, J.]
Australian Commonwealth Judiciary Act, 1903 (hereinafter A
referred to as, the 1903 Act). Section 39(2) of the 1903
Act, provided for an appeal from the Supreme Court of
Queensland, to the High Court of Australia. The question
which arose for determination was, whether from a suit
pending when the 1903 Act was enacted, a remedy of B
appeal would lie before the King in Council or before the
High Court of Australia. In the judgment relied. upon, the
Privy Council held as under:-
"As regards the general principles applicable to the C
case there was no
controversy. On the one hand,
it was not disputed that if the matter in question be a
matter of procedure only, the petition is well founded.
On the other hand, if it be more than a matter of
procedure, if it touches a right in existence at the D
passing of the Act, it was conceded that, in
accordance with a long line of authorities extending
·.from the time of Lord Coke to the present day, the
appellants would be entitled to succeed. The Judiciary E
Act is not retrospective by exp.ress enactment or by
necessary intendment. And therefore the only question
is. was the appeal to His Majesty in Council a right
vested in the appellants at the date of the passing of
the. Act. or was it a mere matter of procedure? It F
seems to their ,Lordships that the question does not
admit of doubt. To deprive a suitor iri a pending action
of an appeal to a superior tribunal which belonged to
him as the right is a very different thing from regulating
procedure. In principle. their Lordships see no G
difference between abolishing an appeal altogether
and transferring the appeal to a new tribunal. In .either
case there is an interference with existing rights
contrary to the well-known general principle that
statutes are not to be held to act retrospectively unless H
18
A
SUPREME COURT REPORTS
[2015] 3 S.C.R.
• •
a clear intention to that effect is manifested."
(emphasis is ours)
14. Learned counsel for the appellant pointed out, that
8
the decision rendered by the Privy Council in Colonial Sugar
Refining Co. Ltd. case (supra) was followed by this Court
in Hoosein Kasam Dada (India) Ltd. v. State of Madhya
Pradesh, AIR 1953 SC 221. The issue which came up for
consideration in Hoosein Kasam Dada (India) Ltd. case
c (supra) was in respect of the return filed by the appellant
under the Berar Sales Tax Act, 1947 (hereinafter referred
to as, the 1947 Act). The 1947 Act was amended, requiring
the payment of the entire assessed amount, as a condition
precedent, to the admission of an appeal. The Assistant
D Commissioner to whom the return was transferred for
. disposal, made an assessment, against which the appellant
preferred an appeal, without depositing the assessed tax.
The Board of Revenue was of the view, that Section 22( 1)
of the 1947 Act as amended, applied to the case, as the
E assessment was made, and the appeal had been preferred,
after the amendment came into force. The appeal
accordingly came to be rejected. In further appeal, this Court
following the decision ofthe Privy Council in Colonial Sugar
Refining Co. Ltd. case (supra), as well as certain other
F decisions held, that a right of appeal was not merely a
matter of procedure. An appellate remedy, it was held, was
a substantive right. The right of appeal from the decision
of an inferior Tribunal, becomes vested in a party, when
proceedings were first initiated before an inferior Court.
G Such a vested right, it was held, could not be taken away
·except by an express enactment or by necessary
intendment. Accordingly, it was concluded, that the earlier
provision which created the right of appeal, would continue
H to apply. The unamended provision was held, to govern the
VIDEOCON INTERNATIONAL LTD. v. SEBI
19
[JAGDISH SINGH KHEHAR, J.]
exercise and enforcement of the right of an appeal. It is thus A
concluded, that there could be no question of the amended
provision divesting the aggrieved party of its right to appeal.
15. Eventually, the above proposition of law, according
to learned counsel, came to be crystallized by the B
Constitution Bench judgment in Garikapati Veeraya v. N.
Subbiah Choudhary, AIR 1957 SC 540, wherein this Court
recorded its conclusions in paragraph 23, which is being
extracted hereunder:-
"23.
From the decisions cited above the following
principle clea(ly emerge :
c
(i) That the lepal pursuit of a remedy, suit. appeal and
second appeal are really but steps in a series of 0
proceedings all connected by an
intrinsic unity and
are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of
procedure but is a substantive right.
(iii) The institution of the suit carries with it the
implication that all rights of appeal then in force are
preserved to the parties there to till the rest
__Qf
the career of the suit.
E
F
(iv) The right of appeal is a vested right and such a
right to enter the superior Court accrues to the litigant
and exists as on and from the date the lis c~mmences
and although it may be· actually exercised when the
adverse judgment is pronounced such right is to be G
governed by the law prevailing at the date of the
institution of the suit or proceeding and not by the law
that prevails at the date of its decision or at the date of
the filing of the appeal.
H
20
SUPREME COURT REPORTS
[2015] 3 S.C.R.
A
(v) This vested right of appeal can be taken away
only by a
subsequent enactment. if it so provides
expressly or by necessary intendment and not
otherwise."
B
(emphasis is ours)
The aforesaid conclusions, came to be applied in
Garikapati Veeraya's case (supra), as is apparent from an
'
extract of the judgment, which is being reproduced
c hereunder:-
·
D
E
F
G
"24. In the case before us the suit was instituted on April
22, 1949, and on the principles established by the
decisions referred to above the right of appeal vested
in the parties thereto at that date and is to be governed
by the law as it prevailed on that date, that is to say,
on that date the parties acquired the right, if
unsuccessful, to go up in appeal from the sub-court to
the High Court and from tlie High Court to the Federal
Court under the Federal Court (Enlargement of
Jurisdiction) Act, 1947 read with Cl. 39 of the Letters
Patent and Ss. 109 and 110 of
the Code of Civil
Procedure provided the conditions thereof were
satisfied. The question for our consideration is whether
that right has been taken away expressly or by
necessary intendment by any subsequent enactment.
That respondents to the application maintain that it has
been so taken away by the provisions of our
Constitution."
In continuation with the conclusions drawn hereinabove,
learned counsel for the appellant placed reliance on Jose
Da Costa v. Bascora Sadasiva Sinai Narcornim, (1976) 2
sec 917, specially, the following observations recorded
H therein:-
VIDEOCON INTERNATIONAL LTD. v. SEBI
21
[JAGDISH SINGH KHEHAR, J.]
"31. Before ascertaining the effect of the A
enactments aforesaid passed
by
the
Central
Legislature on pending suits or appeals, it would be
appropriate to bear in mind two well-established
principles. The first is that "while provisions of a statute
dealing merely with matters of procedure may properly,
B
unless that construction be textually inadmissible. have
retrospective effect attributed to them. provisions which
touch a right in existence at the passing of the statute
are not to be applied retrospectively in the absence of
express enactment or necessary intendment" (see C
Delhi Cloth and General
Mills Co. Ltd. v. Incometax Commissioner, AIR 1927 PC 242.
The second is that a right of appeal being a substantive
right the institution of a suit carries with it the implication · D
that all successive appeals available under the law then
in force would be preserved to the parties to the suit
throughout the rest of the career of the suit. There are
two exceptions to the application of this rule. viz. (1) E
when by competent enactment such right of appeal is
taken away expressly or impliedly with retrospective
effect and (2) when the court to which appeal lay at the
commencement of the suit stands abolished (see
Garikapatti Veeraya v. N. Subbiah Chaudhry, AIR 1957 F
SC 540, and Colonial Sugar Refining Co. Ltd. v. Irving,
1905 AC 369.
32. In the light of the above principles, these points
arise for consideration: Are the provisions of the
Portuguese Civil Code relating to reclamacao merely G
matters of procedure? Or, do they create or affect
vested rights and remedies? That is to say, does a
reclamacao have all the attributes of a substantive right
of appeal existing at the commencement of the suit? H
22
A
B
c
D.
E
F
G
H
SUPREME COURT REPORTS
(2015] 3 S.C.R.
Did the superior Court of Appeal at Lisbon stand
abolished as an appellate forum in relation to Goa,
Daman and Diu from December 20, 1962? If so, what
is its effect on the right of appeal given by Articles 677
and 722 of the Portuguese Civil Code and their
application to the present case? Was the Portuguese
Supreme Court at Lisbon succeeded by the Supreme
Court of India for the purpose of the aforesaid Articles
677 and 722 of the Portuguese Code? If so, did this
position hold good after June 15, 1966? Does the
Central Act 30 of 1965 read with Notification No. S.O.
1597, issued thereunder, expressly or impliedly, make
inapplicable the provisions of the Portuguese Civil Code
in the matter of reclamacao in respect of a decision or
Judgment rendered by the Court of Judicial
Commissioner after June 15, 1966? That is to say, have
the rights, remedies or obligations arising out of the
Portuguese Law relating to reclamacao been saved by
any of the Clauses (a), (b) or (c) of the first Proviso to
Section 4(1) of Act 30 of 1966?
33. It may be noted that while a right of appeal from
court to court isa substantive right which under the
then law, exists on and from the
date
of
the
institution of the suit, the same cannot be said with
regard to reclamacao. The provisions of the Portuguese
Civil Code relating to reclamacao lay down only special
/
rules of procedure which have to be gone through
before a litigant is entitled to raise in appeal a material
point left undecided by the lower court. The object of
requiring a party aggrieved by a 'nullity' is to save the
time of the appellate Court
by precluding a party to
reagitate in appeal pleas that had been left undecided
by the lower court. It also minimizes the necessity of
remands to the lower court for trial of particular issues
VIDEOCON INTERNATIONAL LTD. v. SEBI
23
[JAGDISH SINGH KHEHAR, J.]
and thus shortens litigation. The requirement or A
obligation to file a reclamacao is not an obligation in
esse or/and from the institution of the suit. Nor is the
procedural right to file reclamacao-if at all it can be
called a 'right'- a vested right existing from the date of
the suit. The filing of a reclamacao is dependent upon B
the happening of an uncertain event. It arises only when
a Judgment suffering from a 'nullity' is passed. Such a
contingency may or may not arise. On the other hand
in the case of a suit it can be predicated that it would
normally result in a decree entitling the aggrieved party C
to have the suit reheard and redecided in a higher
forum by filing an appeal provided of course such a
right is available under the law prevailing at the
institution of the suit.
D
34. In the present case, the Judgment of the Additional
Judicial Commissioner in which the alleged "nullity" or
"omission to adjudicate" on the point of prescription
occurs was delivered on January 20, 1968, that is, long
after the extension of Articles 132, 133 and 134 of the E
Constitution, rules framed under Article 145 of the
Constitution and Sections 109 and 116 of the Code of
Civil Procedure to Goa, Daman and Diu.