H. M. Jhala (Member) -
(1.) THE question for consideration in the present order has arisen because respondent No. 1 in the present case, viz., M/s. Sarabhai M. Chemicals Private Ltd., refused to give a copy of its application. dated the 24th March, 1977, to the learned counsel for M/s. Jayant Vitamins Ltd. (hereinafter for the sake of brevity referred to as " JV "). It was, therefore, decided to hear hath the parties on the question whether JV had any locus standi in the proceedings before the Commission in R.T.P. Enquiry No. 45 of 1975.
(2.) Before examining the issue it will be pertinent to give the background of the case. Respondent No. 1 in the inquiry is a private limited company manufacturing fine chemicals, pharmaceutical chemicals, vitamins, etc , in India, and respondent No. 2, viz., M/s. E. Merck Aktiengesselschaft of . West Germany, is a manufacturer of fine chemicals, pharmaceutical chemicals, vitamins, etc., in West Germany. Respondent No. 1 had entered into an agreement dated 15/24th July, 1969, with respondent No. 2, under . which respondent No. 2 agreed to provide and make available to respondent No. 1 technical and other data and know-how necessary for the manufacture of the products listed in the agreement, numbering over 400, under the terras and conditions set out therein. The Commission issued a notice dated the 25th August, 1975, to respondents Nos. I and 2 for inquiry under Sections 10(a)(iv) and 37 of the MRTP Act, 1969, into certain restrictive trade practices which were alleged to be indulged in by these two respondents, with particular reference to cl. No. 9 of the agreement between them. The said cl. No. 9 read as under :
" 9. E.M. agrees that from the date both parties signed this agreement up to the 28th October, 1978, E.M. shall not directly nor indirectly either by itself or by its licensees or agents manufacture within the Union of India any of the LISTED ITEMS and shall not package, sell or distribute such products within the Union of India. E.M., however, shall be free to import into the Union of India any such products and shall be free to package, to sell and to distribute such imported product within the Union of India whether by itself or a licensee or an agent."
By a letter dated the 5th September, 1975, the Deputy Secretary of the Commission sent a copy of the notice to JV for its information. This was because JV had given information to the Commission about the existence of the agreement, Clause 9 of which was impugned in the notice. It was also requested to indicate whether it would like to take part in the proceedings and if so, enter appearance by giving the name of the advocate having an office in Delhi/New Delhi on whom the processes could be served in the proceedings on their behalf. In response to this letter, JV appointed Shri R. H. Dhebar, Advocate, Supreme Court, to file a vakalat-nama before the Commission on its behalf. After some delay, the memorandum of appearance was filed on behalf of JV on or about 31st October, 1975.
(3.) RESPONDENT No. 1, after filing its memorandum of appearance, filed its reply to the notice on November 4, 1975. The Director of Investigation thereafter filed his rejoinder to the reply by respondent No. 1. In regard to respondent No. 2, the Director applied for ex parte proceedings because it had failed to file its memorandum of appearance and also to file its reply. The Director also applied for directions in respect of respondent No. 1 for making discovery on oath of the documents relating to all matters in question in its power or possession, etc. The Commission by its order dated the 30th January, 1976, directed respondent No. 1 to make and file an affidavit of documents in Form 5 of Appendix C of the Schedule I of the Code of Civil Procedure. It also directed for inspection of documents disclosed. RESPONDENT No. 1 made the affidavit of documents on or about the 27th February, 1976.;