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TMI Blog2025 (3) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... averred that "and 47 of information are based on my personal knowledge which means that the prayer made in para 47 (a) for immediately reinstatement of CR status of the Appellant was also based upon the information of the Appellant to be correct whereas the CR status of the Appellant had already been restored on 23.06.2021 much before the information was filed on 01.07.2021 and false affidavit was filed in support of it. Besides this fact that the Appellant did not disclose the fact in the information that the issue of downgrade of CR status, which is the bedrock of the information, has already been restored and as far as the Appellant is concerned, the personal injury caused to it has been redressed, it not only filed the information but also continued with it before the R1 and disclosed the same very late. The Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu [1993 (10) TMI 315 - SUPREME COURT] has held that "the courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan- do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(a) of the Act against Respondent No. 2 alleging violation of Section 3(4) and 4 of the Act, alleging inter alia, that the informant is a dealer and supplier of Respondent No. 2. The Informant purchased Tinting machine from Respondent No 2, operated with the help of a software installation on the informant's computer system which is used for mixing the base shade with a colour to produce shade of a desired colour. It is alleged that there are several tiers of dealers and some of them are known as Ezycolor Retailer, Critical Retailer, CPC Club, PC Club and SPC Club. It is further alleged that the informant was classified as a critical retailer (CR) in 2010. It is alleged that on 24.02.2021, the informant took the dealership of Respondent No. 3 and started selling decorative paints manufactured by them. Tinting machine was also installed at the informant's shop on 25.04.2021. Having started the business of Respondent No. 3, territory sales officer of Respondent No. 2 visited the informant shop on 27.04.2021 and informed that the CR status of the Appellant has been revoked. The allegation of the Appellant is that the CR status was revoked because the Appellant had started selling dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with seven other dealers after a review exercise undertaken by Asian Paints on the basis of sales, expected sales, customer outreach and other relevant factors. 69. The Commission observes that, as per the DG, the retailing tier of the said dealer was restored in June 2021 along with seven other dealers after a review exercise undertaken by Asian Paints on the basis of factors such as sales, expected sales, customer outreach and other relevant factors. It has also been brought out by the DG that the restoration of dealers' status was done prior to the filing of information in Case No.17 of 2021. The Commission notes that, as per the DG, the retailing status of the said dealer was changed from Ezy Critical Retailer (Ezy CR) to Critical Retailer in 2018-19, when the said dealer had not even started business with any other competing brand. In view of the findings of the DG, the Commission notes that the allegation raised by Balaji Traders that the sudden revocation of the CR status without prior intimation was to punish him for dealing with JSW paints is misplaced. Accordingly, in the facts of this case, the commission tends to agree with the finding of the DG that no case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly considered by the DG in its Investigation Report. The Commission has not adverted to oral statements, if any, given by any parties or at their behest before the DG for the purposes of passing the present order. In any event, the Commission is of the view that the 1J1formants and even third parties had been ' given ample opportunity during the course of investigation by the DG. JSW Paints has not been able to demonstrate to the satisfaction of the Commission that it is necessa1y and expedient to grant a right of cross-examination to it. Accordingly, the Commission finds no merit in the said application and the same stands disposed of." 7. Aggrieved against the aforesaid order, the present appeal has been filed. 8. It is pertinent to mention that the case set up by the Appellant in the information is that the appellant was having CR status but when it took the dealership of Respondent No. 3 on 24.02.2021, its CR status was revoked on 27.04.2021 but it has not been disclosed in the information, filed on 01.07.2021 that the CR status was restored by R2 in June 2021, much before the information under Section 19(1) was filed before R1. 9. Counsel for the Appellant has submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Respondent No. 1 for ordering investigation that though on 17.06.2021 the Appellant was informed by R2 that its CR status will be reinstated only after three months review but It was hurriedly restored on 23.06.2021 to avoid the potential complaint to Respondent No. 1. 14. It is also submitted that no opportunity of evidence was given to the Appellant all that has been done by the Respondent No. 1 was a period of three days was given for evidence which was not sufficient. 15. Counsel appearing on behalf of the Respondent No. 1/CCI has submitted that DG found in his report that the downgrade of Appellant from critical retailer to colour world by Respondent No. 2 was fully justified and had no relationship with starting the business with the competing brand. The inference was drawn by the DG on the following reasons:- The change in the retailing tier was affected on 28.04.2021 as against the alleged claim of February 2021 by the dealer. The dealer was consistently reducing off-take from Asian Paints, which reduced to less than half over a period of 10 months, from October 2021 to July. Updating of tinting software was undertaken by Asian Paints on regular basis. Retail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with clean hands, therefore, not only the information but also the present appeal deserves to be dismissed. In this regard, reliance has been placed on the following decisions in the case of S.P. Chengalvaraya Naidu Vs. Jagannath, (1994) 1 SCC 1, Satish Khosla Vs. Eli Lilly Ranbaxy Ltd., 1997 SCC Online Del 935 and SJS Business Enterprises (P) Ltd. Vs. State of Bihar, (2004) 7 SCC 166. It is further submitted that the Appellant deliberately did not mention in the information that its grievance has already been addressed by R2 because that itself would have led Respondent no. 1 to close the case on that account. It is further submitted that although in the case of Samir Agrawal (Supra), the Hon'ble Supreme Court has held that proceedings under the Act are in rem but the said judgment is distinguishable because information in that case has been filed in public interest whereas in the present case the Appellant has been espousing the personal grievance which had already been addressed before the information was filed, therefore, the information should have been rejected / dismissed on this ground alone. 19. It is further submitted that Respondent No. 1 (as well as the DG) have not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 2019 14. Uma Hardwares Upgraded in 2021-22 August 2019 15. Venkateshwara Paints & Steels No change November 2019 22. Counsel for Respondent No. 2 has also submitted that the criteria of the Appellant was downgraded because of the change in value off take. In this regard, a chart has been produced by Respondent No. 2 since Oct, 2020 to March, 2021 in which the offtake of the Appellant has been shown on the reducing side. The chart is reproduced as under:- S. No. Month and Year Offtake of the Appellant in INR Lakh 1. October 2020 10.36 2. November 2020 6.43 3. December 2020 7.14 4. January 2021 6.56 5. February 2021 4.55 6. March 2021 4.87 23. It is also submitted that the allegation of the Appellant that it was left with deadstock worth Rs. 3.5 lakh is not correct because it can offload that stock in numerous ways including tinting the several base shades and pigments available to a CW dealer, reselling the stock to another held by R3. It is also argued that the criteria of the Appellant was restored after review of its future prospects on sales, expected sales, customers outreach and other relevant factors. 24. In respect of the audio conversat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d false affidavit was filed in support of it. Besides this fact that the Appellant did not disclose the fact in the information that the issue of downgrade of CR status, which is the bedrock of the information, has already been restored and as far as the Appellant is concerned, the personal injury caused to it has been redressed, it not only filed the information but also continued with it before the R1 and disclosed the same very late. 27. The fact that the personal injury having been redressed has also been taken note of by the R1 in its impugned order where it has been observed that "It has also been brought by the DG that the restoration of the dealer status was down prior to the filing information in case no. 17 of 2021." 28. In this regard, the Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu (Supra) has held that "the courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court- process a conv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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