2004 (4) TMI 323 - SC - Companies Law

Whether the order dated August 23, 1989, was in respect of the sale, use or supply of goods or for the provision of services? Held that - Appeal allowed. The finding of the Commission that the practice forbidden by the earlier order dated August 23, 1989, also covered the housing scheme as advertised by the appellant is erroneous for the additional reason that service in connection with real estate was brought within the parameters of the Act only by an amendment of the definition of services in section 2(r) with effect from September 27, 1991. Therefore the order dated August 23, 1989, could not have related to advertisements pertaining to real estate. Besides the advertisement in question was made much prior to the amendment. Therefore, allow the appeal and set aside the order of the Commission without any order as to costs.

Summary

Issues:
1. Violation of Monopolies and Restrictive Trade Practices Commission's order dated August 23, 1989.
2. Interpretation of the order and its application to subsequent advertisements.
3. Lack of independent finding by the Commission on unfair trade practices.
4. Failure to conduct an enquiry before concluding violation of the order.
5. Inclusion of real estate in the definition of services post the original order.
6. Commission's failure to direct an investigation under section 13A.

Analysis:
1. The appeal concerned an order by the Monopolies and Restrictive Trade Practices Commission, accusing the appellant of breaching a previous order from August 23, 1989, and initiating prosecution under the Monopolies and Restrictive Trade Practices Act, 1969.
2. The appellant, engaged in hire-purchase business, faced allegations of unfair trade practices based on advertisements. Despite denying offering gifts, the appellant's silence was deemed an admission of unfair practices, leading to the 1989 order restraining future similar advertisements.
3. The Commission's 1989 order lacked a specific finding on the appellant's involvement in the impugned practice or its classification as an unfair trade practice under the Act.
4. Subsequent to the 1989 order, the appellant issued an advertisement related to a housing scheme with a lottery, prompting a new complaint. The Commission found the appellant in violation of the previous order, leading to prosecution under the Act.
5. The appellant challenged the Commission's decision, arguing that real estate was included in the Act's definition of services post the 1989 order, and no finding was made on the second advertisement constituting an unfair trade practice.
6. The Supreme Court held that the Commission's order was unsustainable as it lacked clarity on the nature of the prohibited practice and failed to conduct an investigation under section 13A before concluding the violation. Moreover, the order's coverage of real estate was erroneous due to the subsequent amendment, leading to the appeal's allowance and the Commission's order being set aside.