DIRECTOR GENERAL I R Vs. NOGI AND CO PVT LTD
LAWS(NR)-1993-5-2
MONO POLIES AND RESTRICTIVE TRADE PRACTICES COMMISSION
Decided on May 04,1993

Appellant
VERSUS
Respondents

JUDGEMENT

Sardar Ali, Member - (1.) THIS enquiry has been instituted under Section 10(a){iii) read with Section 37 of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as "the Act"), on the basis of an application made by the Director-General of Investigation and Registration (hereinafter referred to as "the D.G.") against Nogi and Co. P. Ltd. (respondent No. 1) and Nogi Sales Corporation (respondent No. 2). Respondent No. 1 is engaged in the business of manufacturing and sale of tooth powder and hair oils, whereas respondent No. 2 is being appointed as sole selling agent by respondent No. 1 in terms of an agreement as renewed from time to time and the latest one is of dated December 24, 1986.
(2.) The Director-General in its application, referred to above, has submitted that respondent No. 1 had furnished the agreement relating to its marketing arrangements to the office of the Director-General and along with the agreement he has also submitted the price list. The Director-General has taken exception to Clause (3) of the said agreement. According to the Director-General, this agreement had imposed a condition on respondent No. 1 itself that it would not appoint any agent/sub-agent other than respondent No. 2 for the purpose of sale and distribution of its products, which is a restrictive trade practice within the meaning of Section 33(1)(a) of the Act. The second allegation against the respondent, the Director-General has disclosed in its application is that the price list dated October 15, 1987, issued by respondent No. 2 did not stipulate that the dealers/retailers are at liberty to sell the products at a price lower than those indicated in the price list which is a restrictive trade practice and falls within the mischief of Clause (f) of Section 33(1) of the Act. The Director-General, lastly, alleged that the price lists dated October 15, 1987, issued by respondent No. 2 stipulates different prices of tooth powder and hair oil for different areas/territories, which is a restrictive trade practice within the meaning of Clause (e) of Section 33(1) of the Act. On the basis of the aforesaid application, the Monopolies and Restrictive Trade Practices Commission (hereinafter referred to as "the Commission") issued a notice of enquiry dated March 30, 1988. The respondents filed their reply dated October 5, 1988. The respondents in their reply, besides controverting the allegation of the Director-General of indulging in a restrictive trade practice, has also taken certain preliminary objections on the question of maintainability of the enquiry itself. Thereafter, the rejoinder dated December 12, 1988, was filed and after completing the pleadings the following issues were framed by the Commission on December 13, 1988, as follows : 1. Is the enquiry not maintainable on the basis of preliminary grounds pleaded by the respondent in its reply to the notice of enquiry ? 2. Did the respondents indulge in restrictive trade practices, as alleged by the Director-General, and as mentioned in the notice of enquiry? 3. In case issue No. 2 is decided against the respondent, are they entitled to gateways under Clauses (e), (g) and (h) of Section 38{1) as pleaded by them ?
(3.) RELIEF. 4. The Director-General has placed on record three documents admitted by the respondents and closed his evidence. These documents were exhibited as exhibits A-1 to A-3. Exhibit A-1 is an agreement dated December 24, 1986, entered between respondent No. 2 through its partners, Mrs. Tara Padmakar Bole, Dr. Mrs. Sindhu Rameshchandra Pandit and Smt. Saraswatibai Ganesh Vader and respondent No. 1, which is a private limited company. Exhibit A-2 is a price list dated October 15, 1987, issued by respondent No. 2, which is applicable for out of Maharashtra State only. It has, inter alia, stated the wholesale price of 100 bottles and maximum price per bottle of the various products of the respondents. Exhibit A-3 is a price list dated October 15, 1987, issued by respondent No. 2 again and is applicable only for the Maharashtra State only. It has also, inter alia, stated the wholesale price of 100 bottles and maximum price per bottle of the various products of the respondents.;


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