A.N. Varma, J. (Chairman) -
(1.) THIS Full Bench has been constituted to resolve the controversy raised in this group of applications for compensation as to the true and correct interpretation of Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969. In each compensation application a preliminary objection was raised by the respondents as to the maintainability of the applications. The contention is that Section 12B does not comprehend within its scope claims for compensation founded on restrictive trade practices alleged to have been indulged in by the respondent anterior to the insertion of Section 12B on the statute book. We have to examine the correctness of this contention.
(2.) When these compensation applications came up before different Division Benches of the Commission, applications were moved on behalf of the respondents urging that in view of the obvious importance of the question and its impact on a large number of cases that will be coming up before the Commission under Section 12B, it would be desirable if a Full Bench is constituted to deal with the preliminary objection. The request in each case was accepted by the Bench hearing the matter which passed an order referring all these compensation applications to a Full Bench. In pursuance of those orders, the present Bench has been constituted to answer the question.
All the above noted compensation applications were heard by us together on various dates, as the issue raised in each case was identical. By this order, we propose to dispose of the preliminary objection. Shortly stated, the preliminary objection raised by the respondents is that Section 12B of the Act having been inserted into the Monopolies and Restrictive Trade Practices Act by Act No. 30 of 1984, with effect from August 1, 1984, and the provision not having been made expressly or by necessary intend-ment retrospective in its operation, compensation cannot be claimed thereunder where it rests on allegations of restrictive trade practice said to have been indulged in prior to August 1, 1984.
(3.) WE will elaborate this submission and various facets thereof a little latef. First the provision (Section 12B) itself. The section provides :
"Power of the Commission to award compensation.--(1) Where, as a result of the monopolistic or restrictive, or unfair, trade practice, carried on by any undertaking or any person, any loss or damage is caused to the Central Government, or any State Government or any trader or class of traders or any consumer, such Government or, as the case may be, trader or class of traders or consumer may, without prejudice to the right of such Government, trader or class of traders or consumer to institute a suit for the recovery of any compensation for the loss or damage so caused, make an application to the Commission for an order for the recovery from that undertaking or owner thereof or, as the case may be, from such person, of such amount as the Commission may determine, as compensation for the loss or damage so caused.
(2) Where any loss or damage referred to in Sub-section (1) is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Commission, make an application, under that sub-section, for and on behalf of, or for the benefit of, the persons so interested, and thereupon the provisions of rule 8 of Order I of the First Schedule to the Code of Civil Procedure. 1908 (5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to the application before the Commission and the order of the Commission thereon.
(3) The Commission may, after an enquiry made into the allegations made in the application filed under Sub-section (1), make an order directing the owner of the undertaking or other person to make payment, to the applicant, of the amount determined by it as realisable from the undertaking or the owner thereof, or, as the case may be, from the other person, as compensation for the loss or damage caused to the applicant by reason of any monopolistic or restrictive, or unfair trade practice carried on by such undertaking or other person.
(4) Where a decree for the recovery of any amount as compensation for any loss or damage referred to in Sub-section (1) has been passed by any court in favour of any person or persons referred to in Sub-section (1) or, as the case may be, Sub-section (2), the amount, if any, paid or recovered in pursuance of the order made by the Commission under Sub-section (3) shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance, if any, left after such set off.";