9911796707
TMI Blog2008 (10) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 21-9-1995. The said consignment comprised three parcels contain- ing Badges and Crests, which were to be used on very specific tournaments/meetings/conference dates. The consignment was booked for carriage from New Delhi to New Orleans, USA. It was stated in the said complaint that on 26-9-1995 the complainant received a message from the appellant airlines that two out of the three parcels were missing. This message of 26-9-1995 was followed by another message of 3-10-1995 informing the complainant that in spite of efforts made by the appellant, the baggage could not be found and therefore it was suggested to the complainant that a claim could be filed with the underwriters if the aforesaid shipment was covered by insurance. The appellant airlines also asked the complainant to furnish necessary documents to process the claim. Near about the same time, the appellant airlines traced out the said two missing parcels and informed the complainant through its letter dated 24-10-1995, contending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 MRTP Commission, the present appeals have been preferred as statutory appeals in terms of the provisions of section 55 of the MRTP Act. 5. Mr. A.K. Ganguly, learned senior counsel appearing for the appellant brought to our notice various provisions of the MRTP Act and drew our attention to the correspondence between the parties, which is a part of the record and on the basis thereof submitted that the order passed by the MRTP Commission is illegal and without jurisdiction as there was no allegation anywhere by the respondent before the MRTP Commission that there was any fraudulent representation on the part of the appellant. He also submitted that none of the sub-clauses of section 36A is applicable in the present case, and therefore, the impugned order holding the appellant to be guilty of the said provision is illegal and unjustified. 6. Mr. V. Shekhar, learned senior counsel appearing for the Director General of Investigation and Registration, vehemently supported the order passed by the MRTP Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified in the order; (c )any information, statement or advertisement relating to such unfair trade practice shall be disclosed, issued or published, as the case may be, in such manner as may be specified in the order. (2) and (3) ****** 48C. Penalty for contravention of order made by Commission relating to unfair trade practices.-If any person contravenes any order made by the Commission under section 36D, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which may extend to ten lakh rupees : Provided that the Court may, for reasons to be recorded in writing, impose a sentence of imprisonment for a term lesser than the minimum term specified in this section." 8. There is no dispute with regard to the fact that the consignment of three parcels were booked for carriage by the original complainant, namely, M/s. Maharajah & Co., out of which two parcels were missing and could not be delivered to the addressee immediately. The said missing parcels were, however, traced out and were forwarded to destination on 20-10-1995. Allegations have been made that due to the missing of the aforesaid t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to repeat the same in future. 10. We have already extracted the definition of "unfair trade practice" and also other relevant provisions. There is no definition of "deficiency of service" or "deficiency" provided in the MRTP Act but expression "service" has been defined in section 2(r). In terms of such definition, "service" means which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, chit fund, real estate, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. 11. The appellant herein is engaged in the business of transportation of goods by airlines, and therefore, there could be no dispute with regard to the fact that they were providing service when they accept baggages to be carried by air. A representation is also made that the cargo would be delivered at the destination, with all promptness. If there is a failure in carrying out the said representation there would be a case of deficiency i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect of such a representation made by the manufacturer on the common man. This Court also stated that there could be another question posed as to whether an act leads a reasonable person in the position of a buyer to a wrong conclusion. This Court finally held that the issue cannot be resolved by merely examining whether the representation is correct or incorrect in the literal sense. The same ratio came to be reiterated in a subsequent decision of this Court in Rajasthan Housing Board v. Smt. Parvati Devi [2000] 26 SCL 309 . In the said case this Court has held that to decide whether or not there is unfair trade practice the Commission has to find out whether a particular act can be condemned as an unfair trade practice; whether representation contained a false statement and was misleading and also what was the effect of such a representation made to the common man. 14. In the case of Colgate Palmolive (India) Ltd. v. MRTP Commission [2003] 41 SCL 98 this Court laid down five ingredients which have to be established before a trade practice can be said to be an unfair trade practice, the Court laid the ingredients in following manner : "A bare perusal of the aforementioned provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of for the said purpose. However the statements of the nature which are wilfully made knowingly false, or made recklessly without honest belief in its truth, and made with the purpose to mislead or deceive will definitely constitute a false or misleading representation. In addition a failure to disclose a material fact when a duty to disclose that fact has arisen will also constitute a false or misleading representation. 15. In the backdrop of the aforesaid legal position propounded by this Court, we may now examine the facts of the present case. Neither in the complaint filed by M/s. Maharajah and Co. before the Director General nor in the complaint filed by the Director General filed before the MRTP Commission there is any allegation of any false or misleading representa- tion. None of the complaints aforesaid, in fact contains any of the aforesaid ingredients as mentioned. Unless any such allegation is made in such complaints, the MRTP Commission could not have come to a conclusion that the appellant has committed an unfair trade practice. We have carefully perused the impugned order passed by the MRTP Commission. In the findings recorded by the MRTP Commission there is not eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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