Last month, I hesitated in characterizing why New India Assurance was an uncomfortable decision. Dave, Sen and Ghose JJ were clear, Kailash, (2005) 4 SCC 480 “ought to have respected the view expressed” in J.J. Merchant, (2002) 6 SCC 635. Kailash has been an important tool in my hands in civil suits. Procedure can be ignored, if it compliments justice. Justice cannot be ignored. I had no reason to doubt Kailash until New India Assurance came along.

There has been a turn of events. Hon’ble Justice R.F. Nariman quotes Kailash [Paragraphs 28, 29] in Jagatjit Industries v. The Intellectual Property Appellate Board, [Civil Appeal No. 430 of 2016] and states, “It is settled law that procedural provisions are to be construed in a manner that advances and does not subvert the cause of justice.” Nariman Sir’s endorsement is enough for me not to doubt anymore.

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Update: March, 2020

“The decision in Kailash, (2005) 4 SCC 480 has no bearing on the question under consideration, as the present reference before us is under The Consumer Protection Act, 1986, where as we have already observed, consequences are specifically provided for.”

– Hon’ble Justice Vineet Saran, New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., [Civil Appeal Nos. 10941-10942 of 2013].