WAIVER OFF PAYMENT OF COURT FEES IN REFILING THE COMPENSATION APPLICATION

[Mr. M. GOVINDARAJAN]

In PREM PRAKASH (INDIVIDUAL) VERSUS COMPETITION COMMISSION OF INDIA, THE DIRECTOR GENERAL CENTRAL PUBLIC WORKS DEPARTMENT, THE PRINCIPAL SECRETARY MADHYA PRADESH PUBLIC WORKS DEPARTMENT - 2024 (3) TMI 761 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI, the appellant runs physical and chemical material testing lab with the name Venus Testing and Research Lab.   Madhya Pradesh PWD department has not accredited his lab on the ground that it has not been accredited by the National Accreditation Board for Testing and Calibration Laboratories.    The Appellant claimed that there were more than 100 accreditation bodies throughout the world and three accreditation bodies in India. The appellant contended that orders by which accreditation is being done by single accreditation body i.e. NABL is arbitrary, unreasonable and adversely affect the competition in the relevant market.

The appellant filed a compensation petition before Competition Commission of India (‘CCI’ for short).  The CCI dismissed the petition filed by the appellant.  The appellant filed an appeal before National Company Law Appellate Tribunal (‘NCLAT’ for short) which was dismissed as withdrawn by the appellant on 27.07.2022.  The NCLAT held that on behalf of the appellant a prayer is being made for withdrawal of the appeal since there are number of errors in the Memo of Appeal/Application. The appellant sought permission to withdraw the application with liberty to present corrected application.  The NCLAT granted permission to the appellant to file corrected application.   Accordingly the appellant filed a fresh claim petition.

The appellant submitted the following before the NCLAT-

• Sumit Jain the Authorized Counsel, who represented the appellant, had defrauded him and without his instructions made the prayer to withdraw the compensation application. 
• Sumit Jain represented himself as an advocate.
• Later it came to be known that he was neither an Advocate nor Chartered Accountant, Company Secretary or Cost Accountant. 
• On known the above the petitioner engaged another Advocate.
• When the application for compensation was refiled it was informed by the registry that a fresh court fees of Rs. 3,00,000/- had to be paid as the previous Compensation application No.01 of 2022 was dismissed as withdrawn.
•  It was under the bona-fide belief that Sumit Jain is an Advocate and holds a license to practice, engaged him as his authorized counsel to present his case before the NCLAT. 
• Sumit Jain himself withdrew the compensation application.
• The statutory fees of Rs.3 lakhs again for re-filing the same Compensation Application would be too harsh as it was withdrawn unauthorizedly and for no fault on his part of the appellant.
•  Rejection of the application is not justified as the party should not suffer from the inaction, deliberate, omission or misdemeanor of his agent i.e. the lawyer.
• For the fault of counsel party should not be made to suffer.

The Competition Commission submitted the following before NCLAT-

• The present application has been filed with a view to take undue advantage of the judicial process and to waste the valuable time of the NCLAT.
• The CCI vide its order dated 17.03.2017, held that the imposition of the above condition by MPPWD & CPWD was in contravention of the provisions of Section 4(2)(a)(i) of the Competition Act. CPWD has modified the conditions since then. Also MPPWD has developed its own laboratories at circle level and the condition of 20% material testing through NABL accredited laboratories is no more mandatory. 
• the Appellant through Mr. Sumit Jain, seeking compensation to the tune of Rs.9 Crores against the DG, CPWD and Rs.30 Crore against the Principal Secretary, MPPWD. 
• Sumit Jain was a proprietor of an accreditation agency and he, in connivance with the applicant have filed two more applications before CCI Case No. 25 of 2020 and Case No.48 of 2021, one in the name of the Applicant and other in the name of son of the appellant.
• Competition Appeal (AT) No. 27 of 2022 was dismissed by NCLAT  vide order dated 29.07.2022 [DUSHYANT VERSUS COMPETITION COMMISSION OF INDIA AND OTHERS - 2022 (8) TMI 330 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] by imposing a cost of Rs.1 lakh on the applicant and also by directing the Registrar to take appropriate steps as per law against Sumit Jain. 
• As per Rule 4(2) of the Competition Appellate Tribunal (Form and Fee for filing Competition Applications) Rules, 2009, every compensation application shall be accompanied by a fee with a maximum fee of Rs.3 lakhs. 
• Due to inadvertence, default could not be cured within time. 
• The appellant in collusion with Mr. Sumit Jain had committed various irregularities and the case was withdrawn on the specific submission made before NCLAT.

The NCLAT heard the submissions put forth by the parties to the present appeal.  The NCLAT analyzed Rule 3 of Competition Appellate Tribunals, 2009.  The said Rule 3(4) provides that the Tribunal may, to advance the cause of justice and in suitable cases, waive payment of fee or portion thereof, taking into consideration the economic condition or indigent circumstances of the petitioner or appellant or applicant or such other reason, as the case may be, by an order for reasons to be recorded.  The said Rule provides for waiving the fee, taking into consideration the economic condition or indigent circumstances of the Appellant.

The NCLAT observed that in the present case even assuming that the ‘Appellant’, was not aware of the fact that Sumit Jain, was not an ‘Advocate’ or ‘Chartered Accountant’, ‘Company Secretary’ or ‘Cost Accountant’, and he withdrew the ‘Compensation Application’, without instructions of the ‘Appellant’, ‘waiver of fee’, in re-filing the ‘Compensation Application’, has to be justified, as per the ‘Rule 4(3) of the Competition Appellate Tribunal Rules, 2009’, which provides for ‘waiver’, after taking into consideration the ‘economic condition’ or ‘indigent circumstances’ of the Appellant.  The NCLAT observed that even assuming that the ‘Appellant’, was not aware of the fact that Sumit Jain, was not an ‘Advocate’ or ‘Chartered Accountant’, ‘Company Secretary’ or ‘Cost Accountant’, and he withdrew the ‘Compensation Application’, without instructions of the ‘Appellant’, ‘waiver of fee’, in re-filing the ‘Compensation Application’, has to be justified, as per the ‘Rule 4(3) of the Competition Appellate Tribunal Rules, 2009’, which provides for ‘waiver’, after taking into consideration the ‘economic condition’ or ‘indigent circumstances’ of the Appellant.   Therefore, the ‘Fee for Re-filing the Compensation Application’, cannot be waived. The NCLAT dismissed the appeal filed by the appellant.