DIRECTOR GENERAL (INVESTIGATION AND REGISTRATION) vs INFORMATICS COMPUTER SYSTEMS

ON the basis of the Preliminary Investigation Report (the PIR) submitted by the DG, a Notice of Enquiry (NOE) came to be issued to the respondent charging it with adoption of and indulgence in restrictive trade practices qua its agreement with one Shri Vinay Kumar.

IT would be appropriate to look at certain facts in order to appreciate rival submissions urged before us. One Shri Vinay Kumar made a complaint before this Commission against the respondent alleging illegal collection of and refusal to refund some security deposit. That complaint was sent to the DG for investigation. The DG submitted his preliminary report suggesting that the respondent was guilty of adoption of and indulgence in restrictive trade practices qua its agreement with said Shri Vinay Kumar. He also suggested institution of an NOE. Apropos an NOE came to be issued. The respondent filed its reply and resisted the NOE in the light of the PIR on several grounds. By the order passed by this Commission on 10th July, 1998, the necessary issues were framed. The issues include the issue as to the maintainability of the present proceeding. IT was ordered to be tried as the preliminary issue. That is how the matter has been placed before us for consideration of the issue as to the maintainability of the present proceeding. The charge of adoption of and indulgence in restrictive trade practices on the part of the respondent is levelled on the basis of one agreement between said Shri Vinay Kumar and the respondent. That agreement is in the nature of a contract of personal service. In order to substantiate the charge of adoption of and indulgence in restrictive trade practice, it has to be found that what has been carried on by or on behalf of the respondent was in the nature of some trade practice. The term "trade practice" has been defined in Section 2(u) of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for brief) to mean any practice relating to the carrying on of any trade. The word "trade" has been defined in Section 2(s) thereof to include provision of any services. The word "service" has been defined in Section 2(r) thereof to exclude a contract of personal service. If a contract of personal service is excluded from the purview of "service" defined in Section 2(r) of the MRTP Act, it would not fall within the purview of "trade " defined in Section 2(s) thereof and would consequently not fall within the purview of "trade practice" as defined in Section 2(u) thereof. If it is not a "trade practice", no question of adoption of and /or indulgence in restrictive trade practice on the part of the respondent qua the agreement in question would arise.

In view of our aforesaid discussion, we are of the view that the respondent cannot be said to be guilty of adoption of and/or indulgence in restrictive trade practice as no trade practice is found to have been involved in this case. The proceeding, therefore, deserves to be branded as not maintainable.

IN the result, the restrictive trade practice enquiry fails on the ground that it is not maintainable under the MRTP Act. The NOE accordingly stands discharged, however, with no order as to costs on the facts and in the circumstances of the case. Enquiry fails.