INFO ELECTRONICS SYSTEM LTD. Vs. SUTRAN CORPORATION
LAWS(CA)-2011-3-1
CENTRAL ADMINISTRATIVE TRIBUNAL
Decided on March 29,2011

Info Electronics System Ltd. Appellant
VERSUS
Sutran Corporation Respondents

JUDGEMENT

- (1.) THIS matter along with other connected matters was heard on the question of maintainability of the compensation application filed under section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (In short the 'Act'). In each of these cases, the compensation application was filed claiming compensation on the alleged ground that the applicant suffered loss or damage as a result of monopolistic or restrictive or unfair trade practice carried on by the respective respondent. The respondent in each case raised preliminary objection to the maintainability of the compensation application in the absence of separate proceedings to prove alleged monopolistic or restrictive or unfair trade practices. Section 12B is the pivotal provision which reads as follows: 12B. 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 or 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 1 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 inquiry 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 realizable 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.
(2.) IT has been brought to our notice by Mr. Makheeja who was appointed as Amicus -Curie that the erstwhile Monopolies and the 'Restrictive Trade Practices Commission (hereinafter referred to as Commission') had taken a view that application for compensation in terms of section 12B of the Act is maintainable notwithstanding the fact that separate proceedings' for alleged unfair, restrictive or monopolistic trade practice has not been filed. He referred to section 12B(3) of the Act to contend that there is no necessity for filing a separate application. Learned counsel appearing for the applicant in each of the cases supported the stand of Mr. Makheeja. In response, learned counsel for the respondent in each case submitted that the issue is no longer res Integra in view of what has been stated by Hon'ble Supreme Court in Saurabh Prakash v DLF Universal Ltd. : (2007) 1 Comp LJ 215 (SC) : (2007) 1 SSC 228. By way of reply to the stand of the respondents, Mr. Makheeja brought to our notice a decision of the Hon'ble Supreme Court in Manjul Srivastava v Government of U.P. and others : (2008) 5 Comp LJ 66 (SC) : : (2008) 8 SSC 652; more particularly, the observations that in paragraph 51 of Saurabh Prakash v DLF Universal Ltd. : (2007) 1 Comp LJ 215 (SC) that the decision was not be treated as a precedent.
(3.) IN Saurabh Prakash v DLF Universal Ltd. : (2007) 1 Comp LJ 215 (SC), the Hon'ble Supreme Court observed as follows: 33. The power of the Commission is enumerated under section 12 of the Act. Section 12A provides for the power of the Commission to grant temporary injection. Power to award compensation by the Commission is contained in section 12B of the Act, sub -section (1) whereof reads as under: 12B. 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. 34. The power of the Commission to award compensation, therefore, is restricted to a case where loss or damage had been caused as a result of monopolistic or restrictive or unfair trade practice. It has no jurisdiction where damage is claimed for mere breach of contract. 35. It was not a case where a notice of enquiry had been directed. If there had been no inquiry, the petitioner has to file a suit wherein the relevant particulars are required to be stated as to how loss or damage occurred owing to one or the other trade practices referred to therein. The power of the Commission is not in addition to the power of the civil court. An application under section 12B of the Act would not lie where a complaint is confined to a breach of contract. Purchases on the part of the respondent must necessarily relate to one or the other trade practices contemplated under sub -section (1) of section 12B of the Act. (Emphasis supplied);


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