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TMI Blog2003 (9) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 9-9-2003 - N. SANTOSH HEGDE AND B.P. SINGH, JJ. P. Chidambaram, Ashok H. Desai, Dushyant A. Dave, Kapil Sibal, Gopal Jain, Ms. Avantika Keswani, R.N. Karanjawala, Ankur Chawla, Ms. Saloni Gupta, Mrs. Manik Karanjala, Atul Y. Chitale, Aditya Narain, Dr. Tamale Sengupta, Mrs. Suchitra Atul Chitale, Mrs. Lakshika Joshi, N. Ganapathy, Maninder Singh, Mrs. Prathiba M. Singh, Ankur Talwar, Kirtiman Singh and Angad Mirdha for the Appearing Party. JUDGMENT N. Santosh Hegde, J - Heard learned counsel for the parties. 2. Leave granted. 3. In this judgment, we will be referring to the parties as appellants and complainants respectively. The complainants filed a complaint under section 10, read with section 36B of the Monopolies and Restrictive Trade Practices Act, 1969, (the Act) before the Monopolies and Restrictive Trade Practices Commission (the Commission) against the appellants herein alleging unfair, unethical, restrictive trade practices by the appellants in not permitting the complainants and their associates from using the latest technology in Telecommunication known as Headend In The Sky (HITS) which would facilitate easy distribution of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a basic requirement of law since the Commission could pass an interim order only on proved facts. 7. The appellants further contend that the large number of legal, technical and factual issues arise for consideration of the Commission but the Commission has not applied its mind to any one of those issues while passing the impugned order. They also contend that by the impugned order the Commission has changed the status quo which was prevailing on the date of the said order which status quo was pursuant to certain agreements and entered into between the parties concerned, the condi-tions of which prevented the parties to the agreement from changing the manner of distribution of the appellants signals during the currency of the agreement. They also contend that the permission granted by the Government of India for uplinking signals to HITS itself is conditioned by requiring the applicants who wanted to install HITS to obtain prior permission for turnaround from the owners of the channels by entering into agreements clearly laying down terms and conditions permitting such turnaround of the channels. The appellants contend no such agreements have been entered into by the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0th September, 2003. Since the argument advanced on behalf of the appellants goes to the root of the jurisdiction of the Commission to grant an interim order, we intend to examine this question keeping in mind the fact that the impugned order is only interim in nature. While doing so, we would not like to pre-empt any argument available to the parties before the Commission by giving any conclusive finding on the various points urged before us. We also consider it prudent to make only such order as is absolutely necessary to protect the interest of all parties concerned till such time as the Commission takes up the matter for further consideration. 10. At the cost of repetition, it is necessary for us to reproduce some of the arguments of the parties once again. 11. As stated above, the first contention of the appellants before us is in regard to the scope of the Commission s power under section 12A of the Act which enables the Commission to issue interim orders. The appellants contend that the Commission has a conditional power to grant an interlocutory order as could be seen from the language of section 12A of the Act. In this regard, the appellants place reliance on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y trader or class of traders is carrying on a restrictive trade practice which is likely to affect prejudicially the public interest or the interest of any trader, class of traders or traders generally or of consumers that the Commission would have jurisdiction to grant a temporary injunction restraining any undertaking or person from carrying on any restrictive trade practice. While the Commission has power to grant ex parte temporary injunction, but in view of Explanation II to section 12A, whereby the provisions of rule 2A of the Order 39 CPC are made applicable, for the grant of temporary injunction the commission normally ought to give notice and hear the respondents before passing an order of injunction. What is, however, important is that the conditions stipulated in section 12A(1) have to be satisfied before an order for injunction can be passed. In other words, it has to be proved that the respondents before the Commission are carrying on or about to carry on a restrictive trade practice which will be prejudicial to the public interest or to the interest of traders etc. before an order for injunction can be issued. It is only if the trade practice which is being impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n serious thought to the fact that the Commission has now posted the matter to 10-9-2003, hence, whether we should permit the continuation of the impugned order or not, till such time as the Commission passes any further order on or after 10-9-2003. Having done so, we are of the opinion that the impugned order to the extent stated hereinabove, being contrary to the judgment of this Court in Haridas Exports case ( supra ), falls outside the scope of section 12A. Firstly, because the Commission has not assigned any reason for exercise of its power under section 12A of the Act, secondly because there is no indication in the impugned order that the same is being made on the basis of proved facts, and thirdly, if so, what is the basis for such conclusion. Therefore, same being contrary to law in our opinion in spite of the fact that the matter is listed on 10-9-2003, the same has to be quashed. 17. Therefore, we set aside the impugned order on the above limited grounds without expressing any conclusive opinion on the various points raised in these appeals. It will be open to the parties to raise all these issues before the Commission which will consider these issues on their meri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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