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TMI Blog2008 (10) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... L NOS. 815-816 OF 2002 - - - Dated:- 3-10-2008 - TARUN CHATTERJEE AND DR. MUKUNDAKAM SHARMA, JJ. A.K. Ganguly, S.C. Ghosh and Atishi Dipankar for the Appellant. V. Shekhar, Ms. Shalini Kumar, B.K. Prasad and Shreekant N. Terdal for the Respondent. JUDGMENT Dr. Mukundakam Sharma, J. - Challenge is made in the present appeals under section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 (for short "MRTP Act"), whereby the final judgment and orders dated 11-10-2001 and 12-11-2001 passed by the Monopolies and Restrictive Trade Practices Commission, New Delhi (for short MRTP Commission ) are being questioned. The appellant is aggrieved by the order and direction issued against them by the MRTP Commission and also by dismissal of the miscellaneous application filed by them holding that there is no apparent error on the face of the record. 2. The appellant is a worldwide airlines company with its headquarters at Amsterdam, Netherlands. A complaint was filed by M/s. Maharajah Co. (hereinafter also referred to as Complainant ) contending inter alia that they booked a consignment with the appellant airlines vide Airway Bill dated 21-9-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Warsaw Convention, 1929. After receiving the aforesaid reply the respondent, which is a statutory authority, came to the prima facie conclusion that the appellant failed to render services which were expected from it and that the trade practice carried on by the appellant thus constitutes an unfair trade practice falling under clauses ( ii ), ( iv ) and ( vi ) of section 36A(1) of the MRTP Act. Consequently, the respondent filed an application for registration and investigation before the MRTP Commission, New Delhi, in terms of the provisions of section 36(B) of the MRTP Act. 4. The Commission after receipt of the aforesaid application took up the same for consideration and issued notice and thereafter heard the aforesaid application. By the impugned judgment and orders the MRTP Com- mission found the appellant guilty of adoption of and indulgence in unfair trade practices to the extent that there was deficiency in service. Having held thus, the Commission issued a direction to the appellant to cease the aforesaid trade practice and also file an affidavit stating that the appellant would desist from the same in future. Being aggrieved by the aforesaid order passed by the MR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have; ( v )****** ( vi )makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services; 36B. Inquiry into unfair trade practices by Commission. The Commission may inquire into any unfair trade practice, ( a )and ( b )****** ( c )upon an application to it by the Director General; or ( d )****** 36D. Powers which may be exercised by the Commission inquiring into an unfair trade practice. (1) The Commission may inquire into any unfair trade practice which may come before it for inquiry and, if, after such inquiry, it is of opinion that the practice is prejudicial to the public interest, or to the interest of any consumer or consumers generally, it may, by order direct that ( a )the practice shall be discontinued or shall not be repeated; ( b )any agreement relating to such unfair trade practice shall be void or shall stand modified in respect thereof in such manner as may be specified in the order; ( c )any information, statement or advertisement relating to such unfair trade practice shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent have not been found to be of the standard and quality of an international transporter. Its services do not have uses or benefits for the customers. There is an implied representation that the services of the respondent would be useful to the customers and the respondent would transport the goods booked by the customers within a reasonable time without causing any damage to the goods. It is clear that the respondent has failed to render services which were expected of it. It has admitted its liability in causing loss to the complainant. The trade practice carried on by the respondent thus constitutes an unfair trade practice falling under clauses ( ii ), ( iv ) and ( vi ) of section 36A(1) of the MRTP Act, 1969." 9. In terms of the allegations and accusation in paragraph 4 of the application the Director General has submitted that the unfair trade practice carried on by the appellant is prejudicial to the public interest, and therefore, a direction should be issued to the appellant airlines to cease and desist from indulging in the unfair trade practice and not to repeat the same in future. 10. We have already extracted the definition of "unfair trade prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral that any such representation was made by the appellant airlines regarding their performance, uses or benefits which their services do not have. So far as other two clauses are concerned and in order to make out a case for attracting the said provision, there has to be a case of false statement and a case of misleading representation made by the service provider. We have carefully perused the entire contents of the application filed by the Director General and on such perusal, we find that there is no allegation that there was any false representation or misleading representation by the appellant airlines regarding their services. 13. In Lakhanpal National Ltd. v. M.R.T.P. Commission [1989] 3 SCC 251, a Bench of this Court held that the object of section 36A of the MRTP Act is to bring honesty and truth in the relationship between the manufacturer and the consumer and that when a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such a representation made by the manufacturer on the common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Man Roland Druckimachinen AG v. Multicolour Offset Ltd. [2004] 53 SCL 146 : "12. In the case of an unfair trade practice as invoked by respondent No. 1 the object of inquiry is a statement which is a false representation of the kind specified in sub-clause ( i ), ( ii ) or ( iii ) of sub-section (1) of section 36A or is an advertisement of the kind specified in clause ( vii ) or ( viii ) thereof. The statement or advertisement is the trade practice. The further requirement under the section is that the trade practice complained of must be for the purpose of promoting the sale, use or supply of goods or for promoting the provision of any service. The sale, use or supply need not, for the purposes of the section, actually have taken place although it may be relied upon by the complainant to establish the falsity of the representation." (p. 154) Whether a statement constitute a false or misleading representation will depend upon the facts and circumstances of each case. It is not possible to provide an exclusive list of the statements which may constitute false or misleading representation, nor can there be any straitjacket formula evolved thereof for the said purpose. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the said order is passed directing the air career that they will in future cease and desist from the aforesaid practice of providing deficient service. The aforesaid contention, however, cannot be accepted for what is sought to be done by the MRTP Commission is to hold that the appellant is guilty of unfair trade practice which is not equal to holding a person guilty of providing deficient service. Element of unfair trade practice definitely stands at a higher and onerous platform than the deficient service. For making out a case of unfair trade practice an element is involved to the extent of making false and misleading statement and representation and in order to make a case of unfair trade practice such ingredients, which are part and parcel of the concept of unfair trade practice has to be alleged and must be proved and established. In the present case there is neither such allegation of any such false and misleading representation nor is there any proof provided by way of evidence, which also we have perused. Therefore there could be no finding by the MRTP Commission that the appellant is guilty of unfair trade practice. That being so, the order of the Commission cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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