H.C.Gupta, - (1.) THIS order shall finally dispose of an injunction application under section 12A of the Monopolies and Restrictive Trade Practices Act, 1969, read with Order XXXIX of the Civil Procedure Code and shall be read in conjunction with the ad interim order dated September 14, 1990. By the aforesaid order dated September 14, 1990, an ad interim ex parte temporary injunction was issued restraining respondents Nos. 1 to 45 from carrying on the restrictive trade practice of raising the prices of cement any further from today till further orders. The respondents were also called upon to show cause on October 22, 1990, as to why the injunction order issued above be not made absolute for the duration of enquiry.
(2.) On October 10, 1990, Shri. G. Ramaswami, Senior Advocate, appeared on behalf of respondents Nos. 23, 36 and 37 along with Shi P. R. Seetharaman and moved four applications praying for the suspension of the ad interim injunction order dated September 14, 1990. Copies of these applications were furnished to learned counsel for the Director-General and the Director-General was directed to file reply to the aforesaid application on October 22, 1990. Replies on behalf of the Director-General were filed to the application of respondents Nos. 23, 32 and 36. On the same date, respondents Nos. 1, 3, 4, 6, 7, 9, 10, 11, 12, 14, 18, 20, 21, 24, 25, 26, 28, 32, 33, 35, 38, 40, 41, 42, 45 filed replies to the injunction application. The injunction application was fixed for further hearing on 29th October, 1990, at 2.30 p.m. Reply to the injunction application was filed at this stage by the remaining respondents except respondents Nos. 15, 17, 22, 23, 34, 37 and 39. Thereafter, the arguments on the injunction application were heard from day-to-day on the request of learned counsel for the respondents. On October 31, 1990, Shri G. Ramaswami, Senior Advocate for respondent No. 32, made a prayer to say that the relief granted by the Commission on the application of the Director-General under Section 12A of the Monopolies and Restrictive Trade Practices Act, 1969, should not go beyond the prayer made by the Director-General in the application for injunction. It was made clear that the relief granted on the injunction application of the Director-General under Section 12A of the Monopolies and Restrictive Trade Practices Act is in terms of the prayer made by the Director-General.
(3.) ON November 1, 1990, Shri 0, P. Dua, learned counsel for the Director-General, sought permission of the Commission to file a rejoinder to the counter-affidavit filed by the respondents before the Commission in respect of the vacation of the injunction order dated September 14, 1990. Shri J. M. Mukhi, learned counsel for respondent No. 28, opposed the filing of the rejoinder by Shri 0. P. Dua on the grounds as stated in my order dated November 1, 1990. The filing of the rejoinder by the Director-General was allowed. There after, arguments were advanced before the Commission for the vacation of the ad interim temporary injunction by various counsel representing the various respondents and, ultimately, they concluded their arguments on November 27, 1990, and the enquiry was posted for the hearing of the arguments on behalf of the Director-General on December 10, 1990, who concluded his arguments on December 18, 1990, and order was reserved. Various counsel for the respondents raised a few common preliminary objections touching upon the jurisdiction of the Commission and maintainability of the injunction application. They are stated as follows : 1. The impugned order restraining the respondent from raising the prices of cement any further with effect from September 14, 1990, has been passed in excess of the power conferred under Section 12A of the Monopolies and Restrictive Trade Practices Act. The powers under Section 12A are circumscribed by the power to pass final orders under Section 37, as the Commission can only pass an order of "cease and desist" under Section 37 of the Monopolies and Restrictive Trade Practices Act in the event restrictive trade practice is proved at the end of the enquiry. The order under Section 12A freezing prices cannot go beyond the final orders which this Hon'ble Commission can pass. 2. The impugned order has the effect of fixing the price of cement which by laws enacted by Parliament can only be done by the Central Government in exercise of its legislative functions delegated under the Industries (Development and Regulation) Act and or the Essential Commodities Act. The impugned order is, therefore, beyond the scope and purview of the Monpolies and Restrictive Trade Practices Act as is more particularly evident from the Statement of Objects and Reasons of the Monopolies and Restrictive Trade Practices Act. 3. The impugned order has been passed in violation of Order 39, Rule 3 of the Civil Procedure Code. 4. Admittedly, there has been a rise in the cost of production, but the allegation is that the rise in price is not proportionate to the rise in the cost of production. This basis has no material and if this allegation is eschewed nothing survives. The cost of production has increased by 11.44% whereas the selling price has increased only by 10.45%.;