Decided on May 20,1993



Sardar Ali, Member - (1.) FOLLOWING the receipt of a complaint under Section 36A, 36B(a), 36D of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as "the Act"), from the Gujarat State Consumer Protection Centre, Nadiad and Sarvodaya Grahak Suraksha Mandal, Ahmedabad (hereinafter referred to as "the complainant") coupled with an application under Section 12A seeking an ex parte interim injunction, in which it was, inter alia, alleged that the respondent who is a public limited company has floated an advertisement, which appears to give a message that free gift of cold coffee shaker to any consumer, who purchases a refill hermetet pack of 200 grams of Nescafe Select Instant Coffee and in fact the cost either in part or in whole of the so-called free gift seems included in the price of 200 grams hermetet pack of Nescafe Select, an investigation was ordered on December 15, 1986, to be conducted by the Director-General of Investigation and Registration in terms of Section 36C of the Act as the complaint was filed by a consumer association and on the injunction application it was directed that the same shall be decided on the receipt of the preliminary investigation report.
(2.) In the preliminary investigation report dated March 3, 1987, submitted by the Director-General, it has been stated that the trade practice of holding out the promise that every 200 grams of Nescafe Select will carry a free gift of a coffee shaker is an unfair trade practice and as such the respondent-company violated the provisions of Sections 36A(3)(a) and 36A(2). The letter dated February 11, 1987, of the respondent addressed to the Director-General annexed with the preliminary investigation report as annexure 1 shows that the invoicing of the scheme stock to the wholesaler was carried out during March, 1986, to December, 1986, and no specific indication as to the duration of the scheme has been stated. The prices of 200 grams packs were stated to have been increased on March 26, 1985, September 29. 1985, and January 1, 1986, by Rs.1.71, Rs. 1.50 and Rs. 2.50, respectively, which come to Rs. 5.71 during a period of about one year. Finding a prima facie case a notice of enquiry (NOE) was ordered under Section 36A(3)(a) of the Act on April 8, 1987, which was returnable on June 3, 1987, on which date the respondent has taken further time to file the same. On July 22, 1987, the reply was filed in which the respondent besides replying to the notice of enquiry and complaint on the merits had also taken certain preliminary objections. Subsequently, the Director-General had filed the rejoinder to the reply of the respondent on September 15, 1987, and also seeks liberty of the Commission for administering interrogatories/further better particulars by moving an application under Regulation 74 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1974 (old). Initially, the respondent objected to replying to the interrogatories on the ground of relevancy. However, on August 11, 1988, the Commission directed the respondent to file supplementary replies to the interrogatories, which was filed and, upon scrutiny, the replies were to be found in order.
(3.) AFTER scrutinising the pleadings of the parties, no preliminary issue was framed as raised by the respondent in their reply to the notice of enquiry and only the following issues were framed on November 8, 1988 : (1) Did the respondent indulge in the unfair trade practices as alleged in the notice of enquiry and in the complaint of the complainant ? (2) If issue No. 1 is decided against the respondent are the unfair trade practices prejudicial to the public interest or to the interest of the consumers generally or any consumer ? (3) Relief.;

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