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TMI Blog2010 (3) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... AL, JJ. Abhinav Vashisht and Debojit Bhattacharya, Ms. Harshita Priyanka for the Appellant. Ms. Praveena Gautam, Abhishek Baid, Ms. Parul Sharma and Sanjeev Kohli for the Respondent. JUDGMENT Sanjay Kishan Kaul, J. - The present writ petition has been filed under article 226 of the Constitution of India seeking to challenge the impugned order dated 13-11-2000 of the Monopolies and Restrictive Trade Practices Commission ( the Commission for short) which raises the issue of interpretation of section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 ( the said Act for short). 2. It is the case of the petitioner that an application under section 12B of the said Act for compensation is maintainable as a separate legal remedy irrespective of the other legal proceedings initiated by the petitioner while on the other hand Respondent No. 2, Bank of Baroda, claims that such an application is not maintainable in view of the earlier legal proceedings instituted by the petitioner. 3. The facts of the case are that the petitioner-Company was incorporated and registered as a private limited company under the Companies Act, 1956 in the year 1975 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the petitioner that the respondents had indulged in unfair and restrictive trade practices which caused grave loss to the petitioner and thus the respondents were liable to compensate the petitioner for the losses. 9. The aforesaid application was contested by R-2/Bank. The said respondent pleaded that in view of the earlier proceedings initiated by the petitioner, the application under the said Act was not maintainable. In terms of the impugned order, the Commission agreed to the said plea of the respondents and came to the conclusion that the Trial Court proceedings could not go on in view of the certain orders even earlier passed by the Commission in different proceedings to that effect. 10. In order to appreciate rival plea of the parties, it is necessary to re-produce section 12B of the said Act, which reads as under: "12-B. Power of the Commission to award compensation . (1) Where, a result of the monopolistic or restrictive, or unfair, trade practice, carried on by any undertaking or any person, any loss or damage is caused to the Central Government, or any State Government or any trader or class of traders or any consumer, such Government or, as the case ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to be filed for compensation, section 12B(4) provides that the amount of compensation recovered in pursuance to the order of the Commission, would be set off against the amount if any payable under any decree of any other court passed in favour of the applicant. It is thus the submission of the petitioner that the general principle of parallel proceedings not being maintainable would not apply in case of a special statute like the said Act where a specific provision has been made for claiming damages under the said Act with a right of set off against the amount payable under civil proceedings. 12. The aforesaid plea is sought to be fortified by Regulation 77 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1991 which provides that every application made under section 12B shall be supported by an affidavit of the applicant in the form appended to the Regulations and the format of the affidavit in turn inter alia provides as under: "(5) I undertake that if I receive any amount from any source in connection with or relating to the aforesaid compensation, I will intimate the same to the MRTP Commission." 13. It was thus the submission of learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to prove the indulgence by an undertaking or by any person in monopolistic or restrictive or unfair trade practice. 15. In Man Roland Druckimachinen AG. v. Multicolour Offset Ltd. [2004] 53 SCL 146 (SC), the Supreme Court categorically concluded that the remedies available under the said Act are in addition to the other remedies under other statutes and the proceedings under the said Act are thus in addition to and distinct from those before a civil court particularly in view of section 4(1) and section 12B of the said Act. Para 10 of the said judgment reads as under: "10. But although the Commission rejected the first submission of the appellant on an untenable ground, nevertheless, the conclusion arrived at was correct. The principle which we have outlined in the previous paragraph is applicable to a situation where the court is called upon to enforce rights arising under a contract which contains such a jurisdictional clause. The principle does not apply to proceedings under the Act which provide for statutory remedies in respect of statutorily defined offences. The remedies available under the Act are additional to the usual remedies available under the Cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injunction but also damages and punitive damages. Apart from this, section 41( h ) carries several important expressions. They being; "equally efficacious relief"; "can certainly be obtained"; and "by any other usual mode of proceedings." The remedies under the MRTP Act are certainly not as efficacious a relief as an injunction granted by a court. Section 36D of the MRTP Act, as indicated above, empowers the Commission to inquire into any unfair trade practice which may come before it for inquiry and, if, after such inquiry, it is of the opinion that the practice is prejudicial to the public interest, or to the interest of any consumer or consumers generally, then the Commission may by order direct, inter alia, that the practice shall be discontinued or shall not be repeated. It is clear that the Commission has to examine the case of an unfair trade practice from the stand-point of prejudice to public interest or to the interest of any consumer or consumers generally. It does not examine or inquire into an unfair trade practice from the stand- point of competitor which is purely a private interest, therefore, the scope of an inquiry into an unfair trade practice before the MRTP C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and distinct rights of the redress of different and distinct wrongs. 12. Concurrent or cumulative and consistent remedies . The doctrine of election of remedies does not apply where the available remedies are concurrent or cumulative and consistent. Where the remedies are not inconsistent, but are alternative and concurrent there is no bar until satisfaction has been obtained, unless the plaintiff has gained an advantage or the defendant has suffered a disadvantage . Because satisfaction is the bar, in some cases, parties have been allowed to take judgment independently on more than one remedy on the same set of facts. Applying the test of inconsistency of remedies, it is held that a remedy is not inconsistent where it merely seeks further relief which the court may grant inconsistent with that already given, or is of such a character as to indicate that the adoption of one is not an intentional relinquishment of the other or others. 13. Distinct and independent grounds of action . Distinct and independent grounds of action arising from the same transaction and which may be concurrently or consecutively pursued to satisfaction are not subject to the doctrine of election o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law in such a manner that part of it is nugatory or otiose which is what would happen if the impugned order is sustained. 22. Section 12B of the said Act provides for a set off/adjustment of amounts recovered in other proceedings which in turn would entitle the petitioner to maintain both the proceedings under the said Act and civil proceedings simultaneously. Each and every provision of statute must be given effect to and no provision should be rendered invalid or ineffective, in this context, learned counsel relied upon the observations of the Full Bench of this Court in Badru Ram Dhanna Ram v. Ram Chander Khibru [1972] 8 DLT 135 as under : "13. ...The office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions; for continuance of the mischief, and pro private comodo, and to add force and life to the cure and remedy, according to the true intent of makers of the Act. Pro bono publico. ( See in this connection Maxwell on the Interpretation of Statutes, Twelfth Edition page 40). It has been observed on page 45 of that book: If the choice is between two interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a provision of Part IV or V of that Act may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. Similarly, in Canada, the Canadian Compensation Act, 1985 also provides for the remedy of compensation for breach of anti-trust laws in that country. 24. Learned counsel for R-2 R-3 (R-1 being the Commission itself) on the other hand sought to support the impugned order and pleaded that this was the consistent practice of the Commission as is apparent from the earlier orders passed by the Commission. 25. Learned counsel for the respondents referred to the historical aspect of introduction of section 12B of the said Act which was not contained in the Act as originally framed but came to be incorporated in pursuance to the recommendations of the Sachar Committee. By reference to the report of the Committee, it was pleaded that the same does not suggest parallel proceeding in respect of the same relief, but on the contrary suggested that the Commission should be the sole authority to decide on the compensation and damages aspect if the respondent entity was found to be indulging in monopolistic, rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the provision for awarding of compensation by the Commission for loss or damage caused by monopolistic, restrictive or unfair trade practice under section 12B of the said Act was held to provide an additional forum to the aggrieved party while preserving the remedy, before the civil court. It is in this context that the amount held by the commission to be payable under section 12B(3) of the said Act is to be set- off against the amount payable under decree for recovery of any amount as compensation for loss or damage referred in section 12B(1) of the said Act. These observations, it may noted, were in the context of the fact that introduction of section 12B of the said Act, did not imply that prior to the said enactment, the aggrieved consumer had no right to claim compensation with regard to restrictive trade practices. Section 12B of the said Act was, thus, held not to enact a substantive provision but to deal with the matter of procedure and would have prospective operation for unfair trade practices but retrospective operation for monopolistic and restrictive trade practices. 30. The said observations were sought to be utilized by learned counsel for the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be maintained. 35. The National Consumer Dispute Redressal Commission in Special Machines, Karnal v. Punjab National Bank 1 (1991) CPJ 78 held that where a subject-matter was subjudice before a civil court, the Consumer Commission would not deal with the same subject-matter. 36. In Ram Sumer Puri Mahant v. State of UP (1985) 1 SCC 427 in case of a pending civil litigation relating to a property, it was held that there was no justification to initiate parallel proceedings under section 145 of CPC. In State of HP v. Sunder Singh Banolta [2006] 12 SCC 484 in the context of an election in respect of elections to zila parishad or panchayat it was held that two parallel proceedings should not be maintained. 37. Learned counsel for the respondents in the end contended that the petitioner had filed not only one but three civil suits against the respondent in respect of the same subject-matter and transaction. It also filed a writ petition and another complaint before the National Consumer Dispute Redressal Commission. All the proceedings were still pending. The three suits and the writ petition were filed prior to the application under section 12B of the said Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the total quantum of damages payable would be the higher amount determined, and the lower amount would be set off against the higher amount. The regulations framed under the said Act provide in Regulation 77 that every application under section 12B of the said Act has to be supported by an affidavit in the prescribed format. The format in para 5 specifically requires for an undertaking to be given by the claimant that if he/she receives any amount from any source, in connection or relation to the compensation, he would intimate the same to the Commission. Thus if a decree is passed in his favour, the said fact would have to be informed to the Commission. This is in order to facilitate adjustment as provided for in section 12B(4) of the said Act. 41. We are unable to accept the plea of learned counsel for the respondents that there are three eventualities and parallel proceedings can be maintained only in one eventuality. The eventualities set out by learned counsel for the respondents are as under: ( i )Proceedings are filed simultaneously in the civil court and under section 12B of the said Act. ( ii )Proceedings are filed by way of a civil suit and subsequently the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a competitor against another competitor with regard to disparaging advertisement. 47. We also find that from a plain reading of section 4 of the said Act that the provisions of the said Act are in addition to and not in derogation of any law for the time being in force. 48. We are in agreement with the submissions of learned counsel for the petitioner that a reading of the statutory provisions to the contrary would make part of the provisions of section 12B(4) of the said Act otiose and such an interpretation has to be clearly avoided in view of the observations in Badru Ram Dhanna Ram s case ( supra ). 49. The respondents cannot be permitted to plead that the Sachar Committee which formed the basis of introduction of section 12B of the said Act did not suggest parallel proceedings and thus the said section should take colour from a reading of the report of the Sachar Committee. The Sachar Committee made suggestions and ultimately the Parliament enacted the law. The enacted law must be given its full effect. If section 12B of the said Act as enacted permits parallel proceedings, then the same cannot be restricted. In fact, learned counsel for the respondents argued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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