Decided on March 16,1993



A.N. Varma, Chairman - (1.) BY this order we are disposing of the injunction application in an enquiry which has been initiated upon the complaint of one Shri Ajmer Pratap Singh, who claims to be a consumer of the fan in question. The complainant approached this Commission with a complaint purporting to be under Section 36B(a) read with Section 36A(3)(a) and (b) of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as "the Act").
(2.) The complainant assails the validity of a gift scheme introduced by Orient General Industries Ltd. ("Orient" for short) arrayed as the first respondent in the complaint and the injunction application. The case of the complainant is that Orient introduced a gift scheme on November 21, 1992, called "Orient fans free gift scheme". Under the scheme, on purchase of an Orient fan manufactured by the sixth respondent, the purchaser would get a free gift coupon offering 555 prizes including a Contessa car and an Ambassador car apart from scooters, VCRs, refrigerators, etc. The case of the complainant is that the scheme is directly hit by Clauses (a) and (b) of Section 36A(3) of the Act inasmuch as the scheme was intended to allure customers not because of the standard and quality of the fan but purely because of the attractive prizes offered under the scheme. It is further stated that the price lists issued by the fifth respondent, who is a distributor for Orient fans, would indicate that the prices of the fans were increased just before the commencement of the scheme and it continued to show an upward trend throughout the period that the scheme has been in operation as on the date of the filing of the complaint. It is also the case of the complainant that the cost of the gifts and prizes offered under the scheme is covered by the amount charged by the respondents in the transaction as a whole, whereas the impression that is being sought to be created by the impugned scheme is that the prizes or gifts are being offered free of charge. On these facts, it is claimed that the impugned gift scheme and the contest clearly attracts Clauses (a) and (b) of Section 36A(3) of the Act. Along with the complaint, the complainant also filed an injunction application under Section 12A of the Act. After hearing learned counsel for the complainant and perusing the complaint and the injunction application, the Commission issued a notice of enquiry to the respondents under Clauses (a) and (b) of Section 36A(3) of the Act. On the injunction application, the Commission simply issued notices to the respondents and fixed a date.
(3.) IN response to that notice, the respondents have entered appearance and filed a consolidated reply. Thereupon, we heard learned counsel for the parties in the injunction matter. Both sides addressed us on the usual two issues that arise for consideration in matters of grant of injunction, namely, (1) whether or not prima facie case exists ; and (2) on which side does the balance of convenience tilt.;

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