DIRECTOR GENERAL (INVESTIGATION AND REGISTRATION) vs Daewoo Motors India Limited

AN application under Regulation 65 of the MRTPC Regulations, 1991 had been made on behalf of the Director General (Investigation and Registration) (the DG) for amendment of his application filed on 3rd December, 1997 under Sections 10(a)(iii) and 36B(c) of the MRTP Act, 1969 (the Act for brief). It has been stated therein that paragraphs 5,6,7, 14(v) and 15(a) may be incorporated and/or substituted in the application under Sections 10(a)(iii) and 36B(c) of the Act. The grounds for the proposed amendment are that the complainant has brought certain new facts to the notice of the DG and the same are required to be incorporated in the application under Sections 10(a)(iii) and 36B(c) of the Act.

IT is necessary to recount here certain facts in order to understand the genesis of the dispute and also the present application. IT transpires that one Netaji Surinder Mohan Nayyar approached the DG with this complaint of 25th July, 1997 stating that he wanted to purchase a Cielo car from respondent No. 3, Auto Links with the loan of Rs. 4,38,000/- being provided by respondent No. 2. IT appears that respondent No. 2 (Citi Bank) disbursed the loan directly to respondent No. 3 pursuant to an agreement executed in this behalf on 25th January, 1996. The grievance of the complainant and the case of the DG before this Commission in the aforesaid application under Section 10(a)(iii) of the Act is that the complainant was delivered a second hand Cielo car instead of a brand new car. IT appears that the DG investigated into the matter and thereafter moved the aforesaid application under Sections 10(a)(iii) and 36B(c) of the Act. In the application, the manufacturer of the car, Daewoo Motors has also been made a party as respondent No. 1. IT may also be mentioned here that an application under Section 12A of the Act was also filed by the DG. On the basis of the DG''s above application under Sections 10(a)(iii) and 36B(c) of the Act, a Notice of Enquiry was ordered to be issued on 9th December, 1997 and the respondents were directed to file their replies within 6 weeks from the date of its service.

Respondent No. 2, Citi Bank moved an application under Section 13(2) of the Act on 24th April, 1998 for review of the Commission''s order of the 9th December, 1997 and for its discharge from the enquiry proceedings on the ground that it is a banking Company within the meaning of the Banking Regulation Act, 1949 and was not amenable to the jurisdiction of the Commission in view of the relevant provisions contained in Section 4(2) of the Act. The other submissions urged on behalf of respondent No. 2 were that under Section 11(2) of the Act, the DG is required to satisfy himself as to whether or not an application should be made by him to the Commission under Section 10 of the Act after making a preliminary investigation into a complaint made to him or upon his own knowledge or information regarding any restrictive trade practice being indulged in by any party or person. It was further submitted on behalf of respondent No. 2 that the preliminary investigation conducted by and on behalf of the DG is quite perfunctory in nature and the satisfaction reached by him for approaching this Commission with the application under Section 10(a)(iii) of the Act at least against respondent No. 2 can be said to have been vitiated on that account.

AFTER hearing the learned Advocate for respondent No. 2 and the learned Advocate, Mr. Makhija for the DG, it has been held by the Commission in the order passed on 1st September, 1998 that the Commission is precluded from exercising its jurisdiction over a banking Company qua its banking business by virtue of Section 4(2) of the Act. It has also been observed in that order "that the investigation carried out by the DG left much to be desired and it could be styled as cavalier, cursory and perfunctory". It was finally held that respondent No. 2 ought not to have been joined as respondent by the DG in his application under Section 10(a)(iii) of the Act and that the Commission was in error in issuing the Notice of Enquiry against respondent No. 2 and accordingly, the Notice of Enquiry against respondent No. 2 was discharged. In the course of hearing of respondent No. 2''s application under Section 13(2) of the Act for discharging of the Notice of Enquiry, it transpired that respondent No. 2 had moved an application for interim relief before competent Civil Court for restraining the complainant from disturbing or interfering with the custody of the vehicle hypothecated against the loan and which vehicle respondent No. 2 had recovered from the complainant in terms of the agreement between the parties. On the basis of the above facts it was further observed by the Commission in that order of 1st September, 1998 that the DG ought not to have made the application for interim relief under Section 12A of the Act at least qua respondent No. 2 as a Civil Court had granted the interim relief after satisfying itself as to the prima facie case and consideration of the balance of convenience.

THE observations and findings contained in the Commission''s order of the 1st September, 1998 have a bearing on the fate of the present application and therefore, have been recapitulated in the preceding paragraphs. I have heard both the Advocates for the DG as well as the respondent No. 1. THE submission made on behalf of respondent No. 1 is that the complainant''s letter of 24th July, 1997 addressed to the DG is the only information available with the DG and no new facts have come to the DG''s knowledge for making the present application for amendment of his application under Sections 10(a)(iii) and 36B(c) of the Act. It has been further stated that the DG''s amendment application is based on the information given by the complainant and not on any investigation made by him, and therefore, the provisions of Order 6, Rule 17 of the Civil Procedure Code are not applicable and further that the DG cannot be permitted to improve his case to the prejudice of the respondent. It has also been pointed out that the complaint was originally intended to be made against the Citi Bank with which the complainant had executed the loan agreement and the respondent No. 1 added as a party as an after-thought. It is pertinent here to examine the relevant provisions of Civil Procedure Code and the MRTPC Regulations under which the present application has been made. Under Order 6, Rule 17 of Civil Procedure Code as well as under Regulation 63 of the MRTPC Regulations, 1991, a party to the proceeding can be allowed to amend his reply to the NOE, rejoinder, pleadings or supplemental pleadings and such amendment can be made, if necessary, for the purpose of determining the real question in controversy. Further under the relevant provision of Regulation 65 either suo motu or on an application by a party, the Commission can give directions with regard to amendment of the NOE or any representation, answer or reply. It thus appears that the touchstone for allowing any amendment in the pleadings, rejoinders, notice of enquiry etc. is its relevant for the purpose of determining the real question in controversy. In the present case the real controversy is whether the respondent has adopted or indulged in the alleged restrictive trade practices qua its dealing with the informant. Thus the question for determination is whether it is necessary to allow the DG to make the proposed amendments in his application. The contention of the respondent No. 1 is that the present application is not maintainable under the above provisions of Civil Procedure Code or MRTPC Regulations and the paras proposed to be added or substituted by the DG should have formed a part of the original application under Sections 10(a)(iii)and 36B(c) of the Act on the basis of the DG''s investigation into the complaint and proper application of mind by him. In this context, it may be mentioned here that in our order dated 1st September, 1998 it has already been commented that the enquiry by the DG has been "cavalier, cursory and perfunctory". It has also been mentioned in that order that under the provisions of Section 11(2) of the Act that the DG is required to make preliminary investigation in a complaint made to him as in the present case and he has to satisfy himself as to whether or not an application should be made under Section 10 of the Act. The DG''s present application for amendment suffers from these infirmities. It appears as urged by the learned Advocate for the respondent No. 1 that the present amendment application has been made with a view to filling up the gaps and improving the DG''s case and if the application is allowed, it is bound to cause prejudice to the respondent No.. 1. In that view of the matter, there is no escape from the conclusion that the present application appears to be misconceived and cannot be allowed.

IN view of the aforesaid discussion the present application deserves to be and is hereby rejected. Application dismissed.