Monopolies and Restrictive Trade Practices Commission
Registrar Of Restrictive Trade ... vs Inchek Tyres Ltd. And Ors. on 22 November, 1974
JUDGMENT
Order on the Registrar's application dated 26th October, 1974.
1. This is an application by the Registrar of Restrictive Trade Agreements for amendment of the main application dated the 23rd December, 1971, filed under Section 10(a)(iii) of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as "the Act").
2. It appears that the eight respondents who were also manufacturers of tyres entered into an agreement between themselves called "General Code of Conduct". This was filed with the Registrar on 19th January, 1971. The Registrar took the view that this Code related to some restrictive trade practices. On 23rd December, 1971, he filed before the Commission an application praying that the Commission may inquire into the restrictive trade practices alleged in the said application. In the said application objection was taken to Clauses 1(h), 11 and 12 of the General Code of Conduct and to credit policy and trade practices covered by the General Code of Conduct. The original application complains about these 5 matters. The present application for amendment seeks to add several other restrictive trade practices alleged to arise from the General Code of Conduct filed with the Registrar on 19th January, 1971.
3. The first contention taken by Mr. Desai on behalf of the respondent is that the Commission has no jurisdiction to allow an amendment of the application. He contends that under Regulation 6 of the 1970 Regulations, which have since been repealed and replaced by the 1974 Regulations, an application under Section 10(a)(iii) has to contain the facts which constitute a restrictive trade practice and if it is in relation to any agreement registered with the Registrar of Restrictive Trade Agreements (hereinafter referred to as "the Registrar") as in the case here he shall set out such portions of the agreement as may be necessary to bring out the practice complained of. Mr. Desai contends that once the Regulation 6 has been complied with it is not open to the Registrar to add any new facts or clauses of the agreement to the main application. He pointed out that Regulation 22 of the 1970 Regulations did not expressly provide for amendment of applications under Section 10(a)(iii) of the Act. Regulation 22, however, does provide for amendment of the notice of enquiry issued, inter alia, on an application under Section 10(a)(iii). If the notice is allowed to be amended implicit in the permission to amend the notice is the incidental amendment of the application itself. However, these regulations were repealed by the 1974 Regulations and in the new Regulations, Regulation 72(1) provides for amendment of notice which in our opinion will cover the incidental amendment of the application itself. Regulation 72(2) provides for amendment of pleadings. It provides that the Commission may at any time or stage of the proceedings allow any party to alter or amend his reply to the notice of enquiry, rejoinder, pleading or supplemental pleading in such manner and on such terms as may be just. Mr. Desai contends that a reference to the other relevant regulations in the 1974 Regulations will show that an application under Section 10(a)(iii) is not covered by the word "pleadings" in Regulation 72(2). This contention was taken before us in Application No. 3 of 1974 (Registrar, Restrictive Trade Agreements v. Bata India Ltd., [1975] 45 Comp Cas 674 (MRTPC)) and by our judgment of 5th September, 1974, we have rejected this contention and held that the word "pleadings" will cover an application under Section 10(a)(iii) also. Mr. Desai has re-argued the whole question and we see no reason to differ from our decision dated the 5th September, 1974. We accordingly reject this contention.
4. The second objection is on the ground of delay. The main application was filed on 31st December, 1971. We might mention that this was Application No. 1 of 1971 and was the first application under Section 10(a)(iii) of the Monopolies & Restrictive Trade Practices Act filed by the Registrar before the Commission. The Act is a new piece of legislation on a subject which is new to this country and it may be that until the Act is worked for some time the applications at the initial stage may not envisage all the objections that might be taken in respect of such applications. The pleadings were completed in or about July, 1974. On 3rd May, 1974, the Registrar had filed an answer to the respondents' statements of the case in which it appears he had referred to several restrictive trade practices which did not arise out of the 5 matters complained of in the main application. This was objected to by the respondents. At the hearing, a statement was made by the learned counsel on behalf of the Registrar that the matters stated in the answer were in support of the restrictive trade practices already alleged in the main application. On 17th July, 1974, an order was made by the Commission allowing the respondents to file supplemental pleadings which were filed on 5th August, 1974. It is thereafter that the present application has been filed on 26th October, 1974. In the meanwhile certain directions were given and issues arising on the pleadings as they then existed were framed on 26th September, 1974. There is no doubt that there has been considerable delay in filing of the present application. But this, as we have said, may have arisen out of the fact that these are new types of proceedings introduced in our country and have to be worked for some time before the ideas of those who deal with the Act become clear with regard to the proceedings. The amendment sought arises from the same General Code of Conduct from which the restrictive trade practices initially alleged in the main application arose. What the Registrar is seeking to do now is to add some more practices arising from the same General Code of Conduct. Therefore, although he is setting out a new case in respect of the added restrictive trade practices, it is not an inconsistent case. In fact, it may save the parties some costs. In case a fresh application is filed by the Registrar in respect of the added restrictive trade practices, there will be further costs. We are of the opinion that it will be in the interest of all parties if one comprehensive application is proceeded with and multiplicity of proceedings is avoided. It will, therefore, be in the interest of justice if the amendment is allowed.
5. It was further contended by Mr. Desai on behalf of the respondents that on 17th July, 1974, when it was stated on behalf of the Registrar that the reference to restrictive trade practices not originally alleged in the main application in the Registrar's reply was in support of restrictive trade practices already alleged in the main application, in effect the Registrar waived the right to apply for amendment or to introduce further restrictive trade practices. We are afraid this contention does not appeal to us as being correct. There is no waiver of the right to apply for amendment. On 17th July, 1974, what was stated on behalf of the Registrar was that the additional restrictive trade practices were being cited in the Registrar's answer in support of the existing restrictive trade practices alleged in the main application. This, in our opinion, would not prevent the Registrar from seeking an amendment and introducing the further restrictive trade practices as the subject-matter of the main application.
6. Lastly, Mr. Desai has contended that the main application would be barred by the law of limitation. He referred to Article 137 of the Limitation Act. We are afraid Article 137 does not apply to tribunals of the nature of the Monoplies and Restrictive Trade Practices Commission : Town Municipal Council, Athatii v. Presiding Officer, Labour Court, Hubli, [1969] 36 FJR 177, AIR 1969 SC 1335 and Nityanand M. Joshi v. Life Insurance Corporation of India, [1969] 36 FJR 324, AIR 1970 SC 209. It would also appear to us that under Section 37 of the Act what the Commission enquires into is a restrictive trade practice. The very word "practice" implies a continuity. Restrictive trade practices furnish a continuing cause of action and would not be barred by the law of limitation. Apart from the above considerations we are also of the view that a court or a tribunal which has the power to allow amendment has in the interest of justice the power to allow amendment notwithstanding the fact that it may be allowing an amendment in respect of a cause of action barred by the law of limitation.
7. For reasons stated hereinabove, we allow the amendment. The Registrar has filed the amended application which is taken on file. The respondents will be at liberty to file a supplemental pleading in reply to the amendments within 4 weeks from today.
8. In view of the fact that the respondents have been put to the costs of filing supplemental pleadings in answer to the amendment and they have had to contest the present application and in view of the delay in making the application, we think the Registrar has to pay the costs of the present application and the supplemental pleadings. We quantify the costs at Rs. 250 and order the Registrar, Restrictive Trade Agreements, to pay Rs. 250 in one set to the respondents collectively.