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TMI Blog2003 (4) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and if on that point the negotiations broke and the transaction fell through the case would not fall within the ambit of section 2(o)(i ) or (ii) of the Act. Thus the view taken on the point by the Chairman commends approval. Also in absence of relevant and proper facts, mere use of words as used in the provision, would not be of any help and it would not constitute restrictive trade practice. In the present case as find that no such facts have been averred which may be said to have constituted restrictive trade practice on the part of the respondent. X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-1992 they wanted waiver of that condition. Ultimately the Memorandum of Understanding was not signed, nor bank guarantee was furnished by the respondent. Resultantly the deal fell through. According to the complainant the respondent avoided the agreement without any lawful cause but with a view to enhance the prices of the flats. It is further alleged in the complaint that the respondent in order to cause wrongful gain to itself and wrongful loss to the complainant had backed out to sign the Memorandum of Understanding. It is averred in the complaint "...the respondent wants to take benefit of the enhanced prices of the flats. Had the respondent not assured the complainant to furnish the bank guarantee, the complainant would have negotiated with some other builder for purchase of the flats". According to the complainant, the respondent exercised pressure upon the complainant to pay the enhanced prices. 4. The case of the complainant on the basis of the facts indicated above in a nut-shell is that the respondent manipulated conditions of rendering services with a view to cause unjustified cost increase to the detriment of the complainant attracting section 2(o)( ii) of the Act. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons and making them the parties to the proceedings. (iv)The flats were sold by the respondent to those purchasers at the same price at which negotiations for sale of the flats to the complainant were in progress. Therefore, there is no question of any restriction, limitation or distortion of competition or any manipulation on the part of the Respondent in terms of section 2(o) of the MRTP Act. (v)There is no plea before us about any alleged restrictive trade practice in terms of section 33 of the Act. The plea, whatsoever, is confined to the alleged practice in terms of section 2(o) of the Act. (vi)Assuming without admitting that any right accrued in favour of the complainant as a result of such negotiations the same is a right of a civil nature and the proper remedy, if any, is by way of civil suit. The Commission has not jurisdiction in the matter." 6. According to the other Hon'ble Member of the Commission, at the initial stage it is only to be examined as to whether there was a prima facie case against the respondent for institution of a regular inquiry under the provisions of the Act or not. Considering the facts of the case, it has been observed that it was only on 18th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olving a conscious and calculated manipulation of prices or conditions of delivery in such a manner as to impose unjustified costs or restrictions on the consumer, and, of course, gaining some advantage for itself. It is only the latter class of the cases which falls within the mischief of the provision of clause (ii) of section 2(o) of the MRTP Act." The learned Chairman, thereafter, considered the meaning of the word 'manipulation' and took note of the definition in Black's Law Dictionary, which has been quoted as follows :-- "The aptest definition I could lay my hands on is that to be found in Black's Law Dictionary (Sixth Edition) in which manipulation is stated to mean :-- Manipulation - Series of transaction involving the buying or selling of a security for the purpose of creating a false or misleading appearance of active trading or to raise or depress the price to induce the purchase or sale by others. Such acts are prohibited by section 10(b ) of the Securities Exchange Act of 1934, 15 U.S.C.A 781J See also Wash sale. Term as used in provision in Securities Exchange Act of 1934 (15 U.S.C.A. 78n (e) prohibiting use of manipulative practices in tender offers connotes con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dum of Understanding for providing bank guarantee on progressive payment and performance basis. On failure to reach to any consensus, the respondent wrote back that, in such a situation, it was not possible to execute memo of understanding. This is how the negotiations fell through and the contract could not be completed. Even for the sake of argument, it is accepted that the contract had been completed without signing of Memorandum of Understanding or any agreement, then too, it would be nothing more than a mere breach of a condition of an agreement which may, if at all, give rise to filing of a civil suit, for enforcing that condition of the contract, or in damages, or as it may be found to lie according to the law. 9. On facts, it is there on the record that the flats were sold by the respondent at a lower price as compared to the price which was being negotiated between the parties. There is no averment of facts to substantiate the allegation in the complaint that respondent wanted to extract higher price from the applicant to benefit itself or to course harm to the applicant. It is not understandable in what manner the complaint of the appellant was covered under section 2(o) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the complainant. It is also not the case of the complainant that the respondent created such a situation which could compel the complainant to purchase the flats from the respondents on respondent's term to the detriment of the complainant. The applicant could also not compel the respondent to sign the Memorandum of Understanding on applicant's own terms. The respondent could validly suggest a change in draft Memorandum of Understanding sent by the complainant and if on that point the negotiations broke and the transaction fell through the case would not fall within the ambit of section 2(o)(i ) or (ii) of the Act. We may observe that the view taken on the point by the Chairman commends approval. Yet another decision on the point that may be referred to is Mahindra & Mahindra Ltd. v. Union of India [1979] 2 SCC 529, as also Tata Engg. & Locomotive Co. Ltd. v. Registrar of the Restrictive Trade Agreement [1977] 2 SCC 55 observing that in absence of relevant and proper facts, mere use of words as used in the provision, would not be of any help and it would not constitute restrictive trade practice. In the present case we find that no such facts have been averred which may be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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