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TMI Blog2005 (8) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... o the respondent. The application filed by the applicant/respondent was not only cryptic but lacked in particulars to fall-within the definition of unfair trade practice as defined in section 36A read with section 2(u) of the MRTP Act. The MRTP Commission in its order has not adverted to this fact and has not recorded a finding as to the any actual loss or injury caused to the respondent. Since the respondent in the present case failed to aver as well as prove that actually any loss or injury was caused to it which was the sine qua non for invoking the provisions of section 36A, this appeal is accepted. The MRTP Commission has also not recorded any finding as to whether any actual loss or injury or a notional loss was caused to the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduction gear box and fluid coupling to be fitted to the machine by the appellant as these input components were not manufactured by the appellant. Respondent paid a sum of Rs. 2,000 for which a receipt was given by the appellant. Later on a sum of Rs. 5,000 was also paid by the respondent on 16-3-1981. N.A. Rubber Industries was closed and thereafter respondent firm M/s. Taj Rubber Industries was started in its place. On 21-2-1985 the appellant informed the respondent that the machine would be ready and supplied within a week. The respondent thereafter paid Rs. 50,000 in May 1985 and approached the appellant for taking delivery of the machine. Due to certain reasons which were accepted by both the parties the machine could not be supplied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... single averment disclosing any unfair trade practice". 4.The controversy must be adjudicated upon by a civil court, as it relates to enforcement or breach of contract between the parties. 5.An earlier application of the applicant had been closed by the Commissioner and thus the present application was barred by the principle of res judicata . On merits, the allegations made against the appellant were controverted and the appellant denied its liability to compensate the respondent. 4. The MRTP Commission overruled the preliminary objections raised by the appellant and came to the conclusion that the appellant had indulged in unfair trade practices as there was abnormal and unconscionable delay in supplying the machine by almost t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractices Act]. 2.The trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or the provisions of any services. 3.The trade practice should fall within the ambit of one or more of the categories enumerated in clauses (1) to (5) of section 36A. 4.The trade practice should cause loss or injury to the consumers of goods or services. 5.The trade practice under clause (1) should involve making a statement whether orally or in writing or by visible representation. 8. After having observed so the Court set aside the order of the MRTP Commission in which the Commission had held that actual loss and injury are not the essential ingredients of the unfair trade practice. It was observed that caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siderable delay the respondent did not say a word regarding the actual loss and injury or a notional loss caused to the respondent. There is nothing on the record to suggest that any actual loss or injury was caused to the respondent. The application filed by the applicant/respondent was not only cryptic but lacked in particulars to fall-within the definition of unfair trade practice as defined in section 36A read with section 2( u ) of the MRTP Act. The MRTP Commission in its order has not adverted to this fact and has not recorded a finding as to the any actual loss or injury caused to the respondent. 11. Since the respondent in the present case failed to aver as well as prove that actually any loss or injury was caused to it which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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