PL.K.NagappanManaging DirectorEx-Nagappan Recoveries (P) Ltd v. Monopolies and Restrictive TradePractice Commission rep. byDirector GeneralMRTP House

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:24.04.2008CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIWRIT PETITION NO.80 of 2006PL.K.NagappanManaging DirectorEx-Nagappan Recoveries (P) Ltd.,Flat No.7, 1st FloorKarpagam ApartmentsNew No.9, Old No.22BVenkatesa Nagar1st Main Road2nd ExtensionVirugambakkamChennai 600 092... Petitionervs.1.Monopolies and Restrictive TradePractice Commission rep. byDirector GeneralMRTP House, Shajahan RoadNew Delhi 110 011.2.Mr.Amit YadavHead of Risk ManagementM/s.American Express International Inc.Travel Relates ServicesEnkay CentreA,A1,A2 Udyog ViharPhase V, Gurgaon 122 106Haryana, India... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for issuance of Writ of Certiorari as stated therein.For petitioner: Mr.PL.K.Nagappan Party-in-personFor respondents: Mr.K.Suresh Babu for R.2ORDERThis writ petition is filed by the petitioner challenging theorder of the first respondent dated 17.08.2005 made in C.A.No.136 of2002. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner was functioning as a Managing Director of Ex-Nagappan Recoveries (P) Ltd. According to him, he has entered into adebt collection service agreement with M/s.American Express TravelRelated Services in November,1996 and the said Services are owned byAmerican Express Bank Limited (in short, "Express"), which is aScheduled Bank under the Reserve Bank of India Act,1934 which alsoholds a banking licence under the Banking Regulation Act,1949. 2(a). The second respondent is governed by the Reserve Bank ofIndia Act and the Banking Regulation Act. As per the agreementbetween the petitioner and the second respondent, the petitioner wasto collect credit card outstanding of M/s. Express and according tohim, he has collected Rs.3 crores on behalf of the Express fromdefaulting credit card holders. According to the petitioner, he hasbeen following only lawful methods for such collection. As per theagreement, he was to collect only the amount owed to Express fromdefaulting credit card holders. Even though the officers of theExpress have been insisting the petitioner to collect the chequeswhich were bounced, in respect of which the second respondent'sAdvocate has issued notice to the defaulting parties under Section 138of the Negotiable Instruments Act, the petitioner has refused to doso, since he is not authorised to do so under the agreement, and it isagainst his conscience. 2(b). It is the case of the petitioner that the second respondenthas authorised one Vinu, who has been urging the petitioner to indulgein rowdyism, to use force for speedy collection of money. Since thepetitioner has refused to do the same, the petitioner was intimidatedby the said Vinu and the other employees of the Express. It is thefurther case of the petitioner that the Express has appointed oneM/s.Dhun Collections, entrusting the same work which has beenentrusted to the petitioner, viz., collecting money from thedefaulting credit card holders and the second respondent has admittedthe same by letter dated 05.11.1998. However, the appointment of thesaid M/s.Dhun Collections has not been informed to the petitioner.Therefore, according to him, two collection agents have been appointedfor the very same set of work. 2(c). According to the petitioner, when the credit card holdershave been knowing that the petitioner, who alone was appointed asrepresentative for collection from the defaulting credit card holders,since the other person was indulged in rowdyism, the credit cardholders have been under the impression that the petitioner has beensending the said M/s.Dhun Collections to indulge in rowdyism for thepurpose of collection. The petitioner has in fact informed the sameto Mr.Vinu of Express of Chennai by email. Thereafter, the secondrespondent by letter dated 01.08.1999, has arbitrarily terminated thepetitioner's agency without giving 30 days' prior notice as per theagreement and also no reason has been given for such termination. 2(d). According to the petitioner, the termination is effected bythe second respondent only for the reason that the petitioner has notagreed for the rowdyism method for collection, and therefore thetermination is arbitrary, unilateral and monopolistic in nature. Thepetitioner has also issued a lawyer notice claiming compensation ofRs.2 crores. A reply notice was received from the second respondent https://hcservices.ecourts.gov.in/hcservices/ with untenable grounds on 01.02.1999. The petitioner, thereafterfiled Compensation Application No.136 of 2002 before the Monopolisticand Restrictive Trade Practices Commission (in short, "MRTPCommission"), New Delhi, claiming compensation of Rs.2 crores alongwith interest at the rate of 16% per annum from the date oftermination of the agency, viz., 01.08.1999.2(e). According to the petitioner, the MRTP Commission hasadmitted his complaint and prima facie found that there is an unfairtrade practice committed by the second respondent and the secondrespondent has evaded the receipt of notice and ultimately, on23.04.2003, the counsel for Express appeared and undertook to filevakalath and later, a written statement was also filed by SanjayAnand, as Principal Officer of the Express. According to thepetitioner, the said Sanjay Anand has also filed an affidavit ofevidence and thereby deliberately avoided to enter into the witnessbox. According to the petitioner, the Commission allowed suchaffidavit filed by Sanjay Anand, who has not been subjected to crossexamination and the petitioner has filed rejoinder before the firstrespondent meeting all the contentions and also demonstrated about thegenuineness of the claim of Rs.2 crores and made a good case in theenquiry as contemplated under Sections 12B, 36A and 55 of theMonopolistic and Restrictive Trade Practices Act,1969 (in short,"MRTP Act").2(f). The petitioner has also filed affidavit of proof and thematter has been adjourned by the first respondent for many days merelyto harass the petitioner to travel from Chennai to New Delhi. It isthe further case of the petitioner that Sanjay Anand, viz., thePrincipal Officer of Express, who has filed written statement has noteven filed his power of attorney document showing the authorisation toappear in the case. Thereafter, Gowrah Bhulla, Team Leader of theExpress filed another proof affidavit executed by one Sri.ShrikanthS.Grege, allegedly Senior Country Manager of the Indian Country ofExpress. According to the petitioner, Shrikant S.Grege has notsubjected himself to the examination in the witness box to prove hisauthenticity. 2(g). It is also the further case of the petitioner that oneMr.Alok Wadhava, Accounts Controller of Express has written 15letters to the petitioner to collect payment in respect of cheques,which were bounced but he has not chosen to be a witness before thefirst respondent. It is also the case of the petitioner that Mr.Vinuwas also not examined and therefore, according to the petitioner, non-examination of witnesses was due to the deliberate conduct of thesecond respondent, which affected the right of the petitioner inproving his case. There are 14 hearings in the New Delhi and thepetitioner has attended 12 hearings, while the second respondentattended 8 hearings. 2(h). It is the case of the petitioner that the second respondenthas fabricated the letter dated 01.02.1999 to escape from theliability of proving the documents of Express by deliberately avoidingthe authors of those documents to give evidence; that the materialwitnesses have been deliberately withheld by Express and the power ofattorney filed by Express was not in force and therefore, the https://hcservices.ecourts.gov.in/hcservices/ affidavit filed based on the power has no legal value; that theExpress has caused hardship and it is abuse of process; that thepetitioner has filed a criminal complaint before the VII MetropolitanMagistrate in C.C.No.9120 of 2004 for various offences which has notbeen considered and there has been Non-Bailable Warrant against them.2(i). It is the further case of the petitioner that the secondrespondent has been seeking adjournments from the first respondentCommission resulting in hardship to the petitioner. According to thepetitioner, the second respondent is liable for prosecution underSections 66 and 67 of the MRTP Act,1951 and Section 62 of the MRTP Actfor filing fabricated document. Ultimately, the first respondent hasdismissed the compensation application on 17.08.2005, against whichthe present writ petition has been filed. 2(j). The petitioner has challenged the order of the MRTPCommission dated 17.08.2005 on various grounds, including that thefirst respondent has erred in coming to the conclusion that the secondrespondent was not involved in any unfair trade practice; that thefirst respondent overlooked the order dated 01.08.2002 wherein thecompensation application was admitted by the first respondent itselfand therefore, it should be deemed that there is a prima facie case ofunfair trade practice; that the first respondent has failed toappreciate the very object of the MRTP Act which is to promote socialorder with socio-economic and political justice; that the firstrespondent failed to appreciate that the second respondent hasunilaterally and illegally terminated the agency of the petitioner;that the first respondent has overlooked the provisions of Section 2(u) of the MRTP Act, which defines the unfair Trade Practice; that thefirst respondent ought to have considered that the second respondenthas fabricated the alleged letter of termination, which is the offencecommitted by the second respondent under Section 15 of the MRTP Act;that the first respondent has failed to consider that the variouswitnesses have not been examined by the second respondent whichresulted in great hardship to the petitioner; that the firstrespondent failed to consider the case of illegal conduct of thesecond respondent in arbitrarily terminating the agency of thepetitioner as a result of which the petitioner had to close down hisbusiness; that the first respondent has not taken into account that noevidence has been let in on behalf of the second respondent to showthat the second respondent has not committed unfair trade practice;that the first respondent failed to appreciate that the appointment ofanother agent, viz., M/s.Dhun Collections while the petitionercontinued to be the agent of the second respondent itself is illegal;that the first respondent has not properly appreciated the provisionsof Section 16B of the agreement; and that even though it is open tothe second respondent to have another agent, there cannot be twoagents for same transaction; that the first respondent ought to haveconsidered that the second respondent's conduct in terminating theagency of the petitioner and in perpetuating the unfair tradepractice; that the first respondent has not considered the criminalcase filed by the petitioner against the officials of the secondrespondent; that the first respondent failed to consider that in facta public interest litigation has been entertained against the Express https://hcservices.ecourts.gov.in/hcservices/ by the Bombay High Court.3. The second respondent in the counter affidavit has raised apreliminary objection stating that the petitioner has not approachedthis Court with clean hands and he has suppressed the vital facts.According to the second respondent, as per the terms of the CollectionService Agreement dated 15.11.1996, the parties have specificallyagreed to submit themselves to exclusive jurisdiction of the Courts inNew Delhi and therefore, suppressing the said Clause, the writpetition has been filed before this Court. Further, this Court has noterritorial jurisdiction to decide about the orders of the MRTPCommission. Further, as per the MRTP Act, against the order of MRTPCommission, an appeal is provided. It is also stated that thequestion of legality or otherwise of termination of the Agreementcannot be decided by the MRTP Commission. That apart, the secondrespondent has denied the various allegations raised by thepetitioner.3(a). It is also stated that as per the terms of the Agreement,the second respondent is entitled, at his discretion, to appoint anynumber of agents. It is also stated that the second respondent hasentrusted the same collection cases which were already given to thepetitioner to M/s.Dhun Collection and hence, there is no violation inthe appointment of M/s.Dhun Collection as Collection Agent, since theAgreement provides a right on the part of the American Express toenter into similar Agreement with third parties during the currency ofAgreement. 3(b). It is also denied that M/s.Dhun Collection has involved inrowdyism. Further the allegation that the termination of Agreementwas arbitrary is denied. It is stated that the second respondent inthe letter dated 01.02.1999 has informed the petitioner that incontinuation of the discussion, the Agreement was terminated witheffect from 01.03.1999. It is also denied that MRTP Commission wasanywhere informed about the unfair trade practice on the part of thesecond respondent. It is also stated that Mr.Gaurav Bhulla has enteredinto witness box and he was examined and cross-examined by thepetitioner completely, and therefore, the allegation is baseless. Itis also stated that Mr.Sanjay Anand has also filed written statement.It is also stated that the finding of the first respondent Commissionthat the termination of Agreement is as per the terms of Agreement andit would not amount to unfair trade practice and the same is inaccordance with law.4. The petitioner has appeared party-in-person. He has repeatedwhat he has stated in the affidavit filed in support of the writpetition. His contention is that when he was authorised agent for thepurpose of collection from the defaulting credit card holders, theappointment of another person, viz., M/s.Dhun Collection, is opposedto the basic principles of law and therefore, it would amount tounfair trade practice. It is also his contention that the letterdated 01.02.1999, terminating the agency of the petitioner is a forgedone. According to him, February,1999 was only having 29 days andtherefore, the termination with effect from 01.03.1999 is not in https://hcservices.ecourts.gov.in/hcservices/ accordance with the terms of Agreement and therefore, it is treated asa restrictive trade practice. It is also his case that since thereare no clear 30 days, the termination should be ignored.4(a). It is his further contention that many witnesses who havebeen cited have not entered into the witness box. It is also his casethat even in the termination order there is nothing about the showcause notice dated 01.02.1999. According to him, he, having 20 yearsof experience, has to close the business because of the unfair tradepractice committed by the second respondent. It is his case that onceMRTP Commission was prima facie satisfied about the unfair tradepractice, it cannot go against its order unless concrete proof isavailable. According to the petitioner, the order of the MRTPCommission, which is challenged in this writ petition suffers fromillegality, since the MRTP Commission has failed to take intoconsideration that no notice of termination was served on thepetitioner.4(b). It is also his case that MRTP Commission has wrongly cometo the conclusion that no question of law is involved in this case.He would also submit that as per the oral order of the Commissiondated 07.08.2003, the second respondent was to pay Rs.5,000/- ascosts, but, the amount of Rs.2 crores arrived at by the petitioner hasnot been considered by the first respondent Commission. He wouldsubmit that the conduct of the second respondent is nothing but arestrictive trade practice as per the provisions of the Act. Since adeceptive method has been played, the second respondent is liableunder Section 36A of the Act. He would also refer to variousjudgements, including he Commentary of MRTP Law by S.M.Dugar regardingthe amount of damages. In respect of the issue of jurisdiction, it ishis submission that the petitioner has received letters at Chennai.He would also submit that appeal to Supreme Court against the order ofMRTP Commission will lie only in respect of proceedings under Section12A of the Act. Relying upon the Commentary of MRTP Law of Dugar, hesubmitted that in cases where the order is relating to Section 12B,there is no appeal to Supreme Court. He would rely upon variousjudgements to impress that the first respondent being quasi-judicialauthority must act judiciously and when prima facie case is made outit is not for the first respondent to go back from the said order.5. On the other hand, it is the contention of the learnedcounsel for the second respondent that as per the clause of the agencyagreement, the parties have agreed to submit to the jurisdiction ofthe Courts in Delhi and therefore, the writ petition in this Court isnot maintainable. He would also rely upon the judgements in New MogaTransport Co. vs. United India Insurance Co. Ltd. (2004 (4) SCC 677);and Sanghi Transport Ltd., rep. By its General Manager having itsregistered office in M.I.Road, Jaipur vs. Oriental Insurance CompanyLtd., rep. By its Manager, Tiruvallur (2007 (4) CTC 496). His furthersubmission is that in fact the petitioner has questioned the validityof the order of termination of agency before the MRTP Commission,which has no jurisdiction at all as such question can only be raisedin a Civil Court and he would also rely upon the judgement of theSupreme Court in Peico Electronics & Electricals vs. Union of India https://hcservices.ecourts.gov.in/hcservices/ (2004 (3) SCC 658). He would submit that termination of agreement isnot at all unfair trade practice and therefore, the matter cannot becovered under MRTP Act. Even assuming otherwise, it is for thepetitioner to prove the unfair trade practice committed by the secondrespondent. That apart, there is no unfair trade practice intermination of the agency of the petitioner. There is absolutely noevidence before the MRTP Commission about rowdyism stated to have beencommitted by the subsequent agent. He would submit that the complaintbefore the MRTP Commission is baseless and the MRTP Commission has nojurisdiction as per the judgement of the Supreme Court in NationalTextile Corporation Ltd., vs. M?s.Haribox Swalram [AIR 2004 SC 1998].6. I have heard learned counsel for the petitioner andrespondents and perused the entire records.7. At the outset, by virtue of passing of the CompetitionAct,2002 (Act 12 of 2003), Monopolies and Restrictive Trade PracticesAct,1969 came to be repealed and the Monopolies and Restrictive TradePractices Commission established under Section 5(1) of the said Actstood dissolved as it is seen from Section 66 of the CompetitionAct,2002. The said provision also states that all cases pertaining tounfair trade practices except those referred to in Clause (x) of sub-section (1) of Section 36-A of the Monopolies and Restrictive TradePractices Act,1969 and pending before the Monopolies and RestrictiveTrade Practices Commission on or before the commencement ofCompetition Act,2002, shall be transferred to the National Commissionconstituted under the Consumer Protection Act,1986. 8. Further, the cases covered under Clause (x) of sub-section (1)of Section 36-A of the Monopolies and Restrictive Trade PracticesAct,1969 pertaining to unfair trade practices, on commencement of theCompetition Act,2002, stand transferred to Competition Commission ofIndia. Competition Act,2002 has come into force on notification bythe Central Government on 31.03.2003 in respect of certain provisionsand on 19.06.2003 in respect of other provisions.9. Under the erstwhile Monopolies and Restrictive TradePractices Act,1969, unfair trade practice was defined to mean "inrelation to promoting the sale, use or supply of any goods or for theprovision of any services, (adopts any unfair method or unfair ordeceptive practice) including the false representation that goods areof a particular standard, quality or quantity, grade or composition,style or model or falsely representing that the services are of aparticular standard, quality or grade; or falsely representing any re-built, second-hand, renovated, reconditioned or old goods as newgoods; representing that the goods or services have sponsorship,approval, performance, characteristics, accessories, uses or benefitswhich such goods or services do not have; or representing that theseller or the supplier has a sponsorship or approval or affiliationwhich such seller or supplier does not have; or making a false ormisleading representation concerning the need for, or the usefulnessof any goods or services; or giving to public any warranty or https://hcservices.ecourts.gov.in/hcservices/ guarantee of the performance, efficacy or length of life of a productor of any goods that is not based on an adequate or proper testthereof; or making to the public a representation in form thatpurports to be a warranty or guarantee of a product or any goods orservices or a promise to replace, maintain or repair an article or anypart thereof or to repeat or continue a service until it has achieveda specified result; or materially misleading the public concerning theprice at which a product or like products or goods or services havebeen; or are ordinarily sold or provided, etc." Of course, Clause (x)of sub-section (1) of Section 36-A of the erstwhile Monopolies andRestrictive Trade Practices Act,1969 deals about the false ormisleading facts disparaging the goods, services or trade of anotherperson.10. The term "trade" is defined under Section 2(s) to mean anytrade, business, industry, profession or occupation relating to theproduction, supply, distribution or control of goods and to includethe provision of any service. Section 2(u) defines "trade practice"as under:"2(u). "trade practice" means any practice relating to thecarrying on of any trade, and includes-(i) anything done by any person which controls oraffects the price charged by, or the method of trading of,any trader or any class of traders;(ii) a single or isolated action of any person inrelation to any trade."11. On the facts and circumstances of the case, it is clear thatwhat is claimed by the petitioner is that he is an agent for thepurpose of collection of amounts from defaulting credit card holderson behalf of Express, viz., the second respondent. The authorisationwhich is purely a contract of agency has been given to the petitionerunder a collection of service agreement entered between the parties.Under the terms of agreement, the petitioner has been authorised tocollect from the defaulting credit card holders. The grievance of thepetitioner is that while the authorisation given to him as acollecting agent continued, the second respondent has appointedanother agent, viz., M/s.Dhun Collections for the same purpose andtherefore, according to him it would amount to unfair trade practice.In addition to that, it is the case of the petitioner that the secondrespondent has arbitrarily terminated the service agreement andtherefore, the termination would also amount to unfair trade practice.According to the petitioner, in the agreement it is provided that thepetitioner must be given 30 days' time by registered post, but thetermination notice dated 01.02.1999 states that the termination willbe effective from 01.03.1999. According to him, in the year 1999,February month had only 29 days and therefore, the notice oftermination is an unfair trade practice. 12. On the face of it, there is no difficulty to come to the https://hcservices.ecourts.gov.in/hcservices/ conclusion that the appointment of another agent in the place of thepetitioner by the second respondent cannot be brought within the termof unfair trade practice under Section 36-A of the Act by any stretchof imagination and therefore, Monopolies and Restrictive TradePractices Commission has correctly held that the petition itself isnot maintainable. Clause 14 of the agreement which deals about thetermination states as follows: "14. Termination.This Agreement may be terminated by either party bygiving (30) days prior notice to the other party. Upontermination, you shall cease all collection activity inrespect of all Accounts and you shall, upon request,immediately forward to American Express:(i) a detailed summary of all collection action taken byyou;(ii) all monies collected on the relevant Accountsincluding all post dated cheques made payable to AmericanExpress;(iii) an evaluation of the strength of weakness ofAmerican Express' position;(iv) all documentation relating to the Accounts;(v) any information which American Express may requestof you in respect thereof; and(vi) a final invoice for all collection fees andreimbursable expenses due for collection action taken priorto the effective date of termination.American Express shall not be liable to you for fees relatingto payment received subsequent to the effective date oftermination excluding specifically all post dated chequescollected by you prior to the effective date of terminationsubject to the amount being realised by American Express."13. If really the grievance of the petitioner is that by noticedated 01.02.1999 when the termination was effected from 01.03.1999, 30days notice was not given, it is for him to work out his remedy forthe breach of contract under the terms of contract. Even though it isthe case of the second respondent that the termination was effectivefrom August,1999, it is for the petitioner to work out his remedy asper the terms of contract. It is also specifically agreed underClause 16(b) that the second respondent has right during the currencyof agreement to enter into the same or similar agreement with a thirdparty. The said clause reads thus:"16 (b). American Express reserves the right during theterm of this agreement to enter into the same or similaragreement as set forth herein with any other person orentity."Therefore, the grievance of the petitioner that appointment ofM/s.Dhun Collections would amount to unfair trade also deservesoutright rejection. If appointment of M/s.Dhun Collections was for https://hcservices.ecourts.gov.in/hcservices/ the same transactions that were entrusted with the petitioner as itwould affect the right of the petitioner to proceed with thecollection, it is for the petitioner to proceed against the secondrespondent for damages and the said conduct can never be treated asunfair trade practice in the eye of law.14. Under clause 18 of the agreement, the parties have agreed tohave the jurisdiction of the Courts of the State of Delhi as Court ofjurisdiction. The said clause reads thus:"18. Governing Law: This agreement shall be governed byand construed in accordance with the laws of Republic ofIndia and the parties hereto unconditionally submit to theexclusive jurisdiction of the Courts of the state of Delhi."This clause cannot be treated as opposed to public policy, because,by mutual consent the parties agreed to the jurisdiction of aparticular Court. 15. It was held in New Moga Transport Co., through its ProprietorKrishanlal Jhanwar vs. United India Insurance Co. Ltd., and others(2004 (4) SCC 677) that in cases where two or more Courts havejurisdiction under the Civil Procedure Code, any agreement restrictingthe place of suing to any one of the Courts cannot be treated as acontract against public policy and it cannot be treated ascontravening Section 18 of the Contracts Act,1872. The Supreme Courthas held as follows:"14. By a long series of decisions it has been held thatwhere two courts or more have jurisdiction under CPC to trya suit or proceeding, an agreement between the parties thatthe dispute between them shall be tried in any one of suchcourts is not contrary to public policy and in no waycontravenes Section 28 of the Indian Contract Act,1872.Therefore, if on the facts of a given case more than onecourt has jurisdiction, parties by their consent may limitthe jurisdiction to one of the two courts. But by anagreement parties cannot confer jurisdiction on a courtwhich otherwise does not have jurisdiction to deal with amatter. "16. As held by the Supreme Court, to prove that there is arestrictive trade practice, it must be proved that there is such tradepractice, which has or may have the effect of preventing, distortingor restricting competition in any manner and carrying on of such tradepractice which inter alia has the effect of imposing unjustified costsor restrictions on consumers. It was held in Peico Electronics &Electricals and another vs. Union of India and another (2004 (3) SCC658), while dealing with Section 12B of the Monopolies andRestrictive Trade Practices Act,1969 that to award compensation, theCommission is not empowered to probe into the question whether thetermination of contract is valid or not and equally the Commission has https://hcservices.ecourts.gov.in/hcservices/ no jurisdiction to revive the contract which was terminated, in thefollowing words:"17. We find it difficult to accept the contention ofthe learned counsel for R-2. Normally, the Commission is notempowered to probe into the question whether the contract wasvalidly terminated under one clause or the other of theagreement. The Commission cannot assume the role of the civilcourt in this regard. True, as contended by the learnedcounsel for the appellant the Commission has incidental andancillary power to consider whether the termination of thedealership was a device to perpetuate the objectionable tradepractices and whether such termination is closely interlinkedwith the continuance of restrictive trade practice. But, wesearch in vain for a specific finding by the Commission inthis regard. The Commission did not hold that the terminationunder clause 29 which undoubtedly gives a right to eitherparty to the agreement to put an end to it by giving thirtydays’ notice would per se give rise to restrictive tradepractices or that the termination under clause 29 is a cloakto circumvent clause 28 in order to go ahead with therestrictive trade practices. In fact, some of the findings ofthe Commission, which we have already adverted to, indicatethat there was some justification to feel dissatisfied withthe manner of conducting business by R-2. The fact alsoremains that a number of letters which R-2 had been writingto the appellant protesting against alleged unfairness anddiscriminatory treatment, evoked no response from theappellant. Thus, when there is much to be said on both sides,the Commission should have recorded a specific finding on thelines indicated above. No reason, whatsoever, has been givenas to why the contract which was terminated ostensibly inexercise of the right reserved under the agreement should berevived. Obviously, the direction of this nature cannot beconstrued to be one made with a view to compensate the lossto the complainant. As far as the compensation for the lossis concerned, it is Section 12-B which is applicable and anapplication has already been filed under that provision. Ofcourse, it is open to the Commission to pass suitable orderson that application; but, the direction not to give effect tothe termination letter, thereby reviving the contract goesclearly beyond the powers of the Commission, especially forthe reason that the Commission did not record a finding thatthe termination of the contract was in the teeth of theprovisions of the Act and was resorted to only with a view toperpetuate the restrictive trade practices. Consequently, thedirection to resume supplies of Philips products is equallyunsustainable."17. In view of the categoric pronouncement of the Supreme Court,applying the above said dictum in the factual situation herein, thecomplaint filed by the petitioner before the Monopolies and https://hcservices.ecourts.gov.in/hcservices/ Restrictive Trade Practices Commission is on the face of it notmaintainable. The mere fact that the Monopolies and RestrictiveTrade Practices Commission has admitted the complaint and issuednotice on the basis that it was satisfied prima facie for the purposeof admission does not mean that under Section 12-B of the Monopoliesand Restrictive Trade Practices Act,1969, it is obligatory on the partof the Monopolies and Restrictive Trade Practice Commission to allowthe complaint and award compensation.18. Even on going through the entire pleadings it is seen that ithas been the only case of the petitioner that the second respondenthas not examined various witnesses to enable the petitioner to provehis case. This concept is contrary to the basic concept of law andevidence. The petitioner who files a complaint against the secondrespondent has a legal obligation to prove through appreciableevidence that there has been unfair trade practice which resulted inconsequential loss to him. There is absolutely no evidence on theside of the petitioner except by making a statement that rowdyism hasbeen done by the other agent. As rightly pointed out by theMonopolistic and Trade Practices Commission, the petitioner was notable to let in any evidence about the so-called rowdyism.19. The Monopolistic and Trade Practices Commission, has clearlydealt with entire aspects and found that the complaint is notmaintainable at all as there is no iota of evidence and therefore, Ihave no hesitation to come to the conclusion that the petitioner isnot entitled for any relief as claimed in this writ petition and inview of the same the writ petition fails and the same is dismissed.No costs.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarkhTo1.The Director General, Monopolies and Restrictive TradePractice Commission MRTP House, Shajahan RoadNew Delhi 110 011.+2 cc to Mr.Pl.K.Nagappan,Party in Person, SR.No.23354.+1 cc to Mr.K.Suresh babu, Advocate, SR.No.23331.Sj (Co)krd / 30.4 W.P.No.80 of 2006