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TMI Blog2000 (5) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... side. The Commission has not considered the necessary evidence and has accepted the plea of the respondent in arriving at the conclusion that the appellant board has indulged in unfair trade practice. We would again note that the Commission was not very clear about the application of the provisions of section 2(o)( ii) and it proceeded on the basis that the said section is also applicable. Further, as there is no proper finding of facts based on necessary evidence, we are of the opinion that the impugned order dated 30-5-1996 passed by the Commission in UTPE/RTPE No. 15 of 1994 holding that the appellant Board has indulged in unfair trade practices under section 36A(1)(i) and (vi) is unsustainable. - CIVIL APPEAL NOS. 14994 AND 15096 OF 1996 - - - Dated:- 3-5-2000 - M.B. SHAH AND R.P. SETHI, JJ. B.D. Sharma for the Appellant. Mrs. K. Sharda Devi and Mrs. Geetanjali Mohan for the Respondent. JUDGMENT Shah, J. - These appeals are filed under section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 ( the MRTP Act ) against the judg-ment and order dated 30-5-1996 of the Monopolies and Restrictive Trade Practices Commission, New Delhi ( the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty. Thereafter, by letter dated 29-2-1992, the respondent was intimated by the Board that total cost of house allotted to her had been worked out at Rs. 57,500 and she should start making payment of the remaining amount by instalments at Rs. 715 per month from 15-4-1992. 4. After receipt of the said letter respondent filed complaint before the District Consumer Protection Forum, Jodhpur, which was withdrawn. Thereafter, in the year 1993, the respondent filed complaint under sections 36A and 36B of the MRTP Act before the MRTP Commission at New Delhi. In the said complaint, it was mentioned that action of the Board amounted to unfair trade practice under section 36A(1) even though the house was allotted to the respondent on 29-11-1988, yet, on account of unfair trade practice, the possession of the house had not been given to her till 31-3-1993. and that as a result of the alleged unfair trade practice, the respondent has suffered a monetary loss of Rs. 26,000. It was prayed that demand of Rs. 57,000 as the cost of the house and monthly instalment of Rs. 715 with interest at 14 per cent be set aside and it be declared that Board has indulged in unfair trade practice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on at a later stage. Aggrieved by the said order, the Board has preferred this appeal. Contentions for determination 7. (A) Whether the order passed by the Commission that appellant has indulged in restrictive trade practice and further directions to file affidavit not to repeat such practices in future are at all justifiable ? (B) Whether the decision rendered by the Commission in UTPE/RTPE No. 15 of 1994 holding that appellant has indulged in restrictive and unfair trade practice attracting section 2( o )( ii ) and section 36A(1)( i ) and ( vi ) is at all justifiable? Contention A 8. The learned counsel for the appellant submitted that the finding given by the Commission that the Board indulged in restrictive trade practice as defined under section 2( o )( ii ) is, on the face of it, illegal and erroneous. It is apparent that the act of the respondent cannot be termed as restrictive trade practice which has or may have the effect of preventing, distorting or restricting competition in any manner. Section 2( o ) reads thus : "( o ) restrictive trade practice means a trade practice which has, or may have, the effect of preventing, distorting or restricting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition that it is only where a trade practice has the effect, actual or probable, of restricting, lessening or destroying competition that it is liable to be regarded as a restrictive trade practice . If a trade practice merely regulates and thereby promotes competition, it would not fall within the definition of restrictive trade practice, even though it may be, to some extent, in restraint of trade. Whenever, therefore, a question arises before the Commission or the Court as to whether a certain trade practice is restrictive or not, it has to be decided not on any theoretical or priori reasoning, but by inquiring whether the trade practice has or may have the effect of preventing, distorting or restricting competition. This inquiry obviously cannot be in vacuo but it must depend on the existing constellation of economic facts and circumstances relating to the particular trade. The peculiar facts and features of the trade would be very much relevant in determining whether a particular trade practice has the actual or probable effect of diminishing or preventing competition and in the absence of any material showing these facts or features, it is difficult to see how a decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the said provisions and, therefore, the Commission has rightly proceeded in the matter. 13. We would refer to section 36A(1)( ii ) and ( ix ), which reads as under : " Definition of unfair trade practice - In this Part, unless the context otherwise requires, unfair trade practice means a trade practice which, for the purpose of promoting the sale, use of supply of any goods or for the provisions of any services, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely: (1) The practice of making any statement, whether orally or in writing or by visible representation which, ( i )****** ( ii )falsely represents that the services are of a particular standard, quality or grade; ( iii )to ( viii )****** ( ix )materially misleads the public concerning the price at which a product or like products or goods or services, have been, or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or has been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly speci-fied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of promoting the sale, use or supply of any goods or for the provision of any service/services adopts one or more following practices and thereby causes loss or injury to the consumers of such goods or service whether by eliminating or restricting competition or otherwise would amount to unfair trade practice. The above key words used in section 36A, while defining the unfair trade practice, have laid emphasis on "thereby causes loss or injury to the consumers of such goods or services whether by eliminating or restricting competition or otherwise". It must, therefore, follow that any such unfair trade practice which causes loss or injury to the consumers of such goods or services either by eliminating or restricting competition or otherwise would attract the penal consequences as provided under this Chapter. Each of the clauses employed in section 36A is interwoven by use of the conjunction and would indicate that before determining a trade practice being unfair trade practice, the Commission has to be satisfied as to whether the necessary ingredients contained therein are satisfied or not. The words "or otherwise" in section 36A assuming are of wider import and would signify ..... X X X X Extracts X X X X X X X X Extracts X X X X
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