Decided on September 09,1996



- (1.) WE have heard Shri Shanti Bhushan, senior counsel for the complainant at some length. There is an allegation of cartelisation by six companies (of USA) manufacturing soda ash named at page 5 of the complaint. It has been alleged that these six American producers of soda ash have joined together to form an export cartel known as American Natural Soda Ash Corporation (ANSAC). ANSAC came into existence in December, 1983, when by a membership agreement of December 8, 1983, its six members in order not to compete with each other agreed that all export sales by them or by any of their subsidiaries would be made through ANSAC. ANSAC is a corporation set up 'in accordance with the provisions of the United States Export Trade Act, 1918. Under the American law, it has the power to decide its export price, market location and export distribution channels on behalf of its members (the aforesaid six American domestic producers).
(2.) In support of the allegations of cartelisation, the senior counsel has drawn our attention to two important decisions of the Commission of the European Communities. The said Commission examined the activities of cartelisation of respondent No. 1 in detail and ruled that they infringe article 85 of the EEC Treaty because they have the effect of preventing, restricting or distorting competition in the market. Articles 85 and 86 of the EEC Treaty according to the senior counsel for the complainant are equivalent to Section 2(o) of the Monopolies and Restrictive Trade Practices Act, 1969 (definition of restrictive trade practices). After a perusal of the decision of the Commission of the European Communities in the official journal of the European Communities dated June 15, 1991, and a perusal of the annexures, we are of the prima facie view that the respondents are indulging in the alleged restrictive trade practices of cartelisation which attract the provisions of the Monopolies and Restrictive Trade Practices Act, 1969. In our prima facie view, this is a fit case to be enquired into in order to protect the interest of public at large and the interest of domestic industries of this country. We also note that there are allegations of monopolistic and unfair trade practices in addition to the restrictive trade practices of predatory pricing and cartelisation. According to annexures "I", "J" flnd "K" (pages 85, 86 and 87 of the complaint petition), a letter of credit has been opened on an Indian bank by an Indian party (respondent No. 3) for import of soda ash. Senior counsel states that the import is from ANSAC into India and that the first shipment is expected in the first fortnight of September, 1996. Thus, a part of the trade practice is carried on in India attracting Section 14 of the Monopolies and Restrictive Trade Practices Act, 1969. In the premises, we direct that a notice of enquiry shall issue under Section 33(1)(j), Section 2(o), Section 36A and Section 2(i) read with Section 37, Section 36D and Section 31(1) of the Monopolies and Restrictive Trade Practices Act, 1969, returnable on December 2, 1996. We have also heard Shri Shanti Bhushan, senior counsel on the application of the complainant under Section 12A. Since we have already taken the prima facie view that the respondents are indulging in the alleged objectionable trade practices, namely, restrictive, unfair and monopolistic trade practices, there is no harm in passing a limited order that respondent No. 1 namely, ANSAC, shall not indulge in the practice of cartelisation by exporting soda ash to India in the form of cartel, directly or indirectly. However, this order is without prejudice to the final outcome of this enquiry as well as the rights of the importers or exporters in their individual capacity. It will also be open to the respondents to seek any clarification/ modification of this order if it becomes legally necessary.
(3.) AS prayed, in addition to the usual mode of service, the complainant is given the liberty to serve the copies of the complaint petition and Section 12A application along with this order dasti and file an affidavit of service within four weeks.;

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