GOENKA ENGG. And INDUSTRIAL PVT. LTD vs Fertilizer Corpn. of India Ltd

THE matter has come before this Bench for deciding the question of maintainability of the proceeding. THE applicant/complainant has approached this Commission with a complaint under Section 10(a)(i) read with Section 2(o) and Section 33 of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for brief) charging the respondents with adoption of and indulgence in restrictive trade practices with respect to their tender enquiry for purchase of one High Pressure Breathing Air Compressor for charging breathing air cylinder capacity. THE tender enquiry was issued by respondent No. 2 on 4th January, 1997. According to the applicant/ complainant, it also submitted its tender for supply of the tender item in question. THE tenders were opened by respondent No. 2 on the scheduled date on 7th February, 1997and it is the case of the applicant/complainant that its tender was found to be the lowest and its offer was found to be according to the tender specifications. THE grievance of the applicant/complainant in its complaint is to the effect that, despite its tender was found to be the lowest, respondent No. 2 did not place any order with the applicant/ complainant for supply of the tender item in question for reasons best known to it. THE applicant/complainant has thereupon approached this Commission under Section 10(a)(i) of the MRTP Act charging the respondents with adoption of and indulgence in restrictive trade practices within the meaning of Section 2(o) read with Section 33 thereof. THE applicant/ complainant has also moved an application under Section 12 A of the MRTP Act for an interim relief in the nature of tine relief of injunction directing the respondents to maintain status quo and to decide the case on merits with -respect to the tenders already opened for supply of the tender item in question and for other incidental reliefs.

THE respondents have filed their reply both to the complaint and the interim relief application and have resisted the same on several grounds. THEy have inter alia contended that, since the applicant/complainant is not a consumer, its complaint under Section 10(a)(i) of the MRTP Act is not maintainable. THEy have further contended that the respondents are not bound to accept the tender of the applicant/ complainant simply because its quotation for the tender item was the lowest. THE applicant/ complainant has filed its rejoinder thereto and has controverted certain facts mentioned in the replies. It cannot be gainsaid that under Section 10(a)(i) of the MRTP Act inter alia a consumer can approach this Commission charging the complainee or the complainees, as the case may be, with adoption of restrictive trade practices for the purpose thereof. The word "consumer" has not been defined in the MRTP Act. However, in view of the binding ruling of the High Court of Delhi in the case of Ballarpur Industries Ltd. v, The Director General (Investigation and Registration), reported in (1988) 64 Company Cases at p. 884, the definition of "consumer" contained in the Consumer Protection Act, 1986 (the C.P. Act for brief) will have to be adopted for the purposes of the MRTP Act. In view of the activities undertaken by the applicant/ complainant and in view of the fact that he decided to sell the tender item in question to the respondents, he would not answer the definition of "consumer" contained in Section 2(d) of the C.P. Act.

It would be quite proper to look at the decision of this Commission in the case of The Director General of Investigation and Registration v. Traco Cable Company Ltd., reported in (1997) 4 Company Law Journal at p. 312. In the context of a similar tender enquiry, this Commission has held that a supplier of goods would not be a consumer for the purposes of the MRTP Act, more particularly, for the purposes of Section 10(a)(i) thereof. We are in complete agreement with the aforesaid ruling of this Commission in the case of Traco Cable (supra). It is on all fours applicable in the present case. As pointed out hereinabove, the applicant/ complainant submitted its tender for the supply of the tender item. It can, therefore, be said to be a seller or supplier of goods. It would not therefore be a consumer for the purposes of Section 10(a)(i) of the MRTP Act, and its complaint would not therefore be maintainable thereunder.

EVEN otherwise, it would be difficult to come to the conclusion that the respondents are guilty of adoption of and indulgence in restrictive trade practices within the meaning of Section 2(o) read with Section 33 of the MRTP Act. The charge of adoption of such restrictive trade practices is levelled against the respondents solely on the ground that respondent No. 2 did not accept the tender submitted by the applicant/ complainant containing the lowest quotation for the tender item. As rightly submitted by learned Counsel Mr. Haksar for the respondents, respondent No. 2 was not bound to accept the tender containing the lowest quotation for the tender item. Non-acceptance of such tender containing the lowest quotation for the tender item would not amount to any restrictive trade practices for the purpose of the MRTP Act. It would be quite proper to look at the binding ruling of the Hon''ble Supreme Court in the case of Asia Foundation and Construction Ltd. v. Trafalgar House Construction India Ltd. & Ors., as reported in 1997 (1) Supreme Court Cases at p. 738. It has clearly been held therein that the Authority inviting tenders is not bound to accept tenders containing lowest quotations. In view of the aforesaid binding ruling of the Hon''ble Supreme Court, it would be difficult to accept the submission urged before us by learned Advocate Mr. Sachdev for. the applicant/ complainant to the effect that, by not accepting its tender containing the lowest quotation for the tender item, the respondents can be said to have indulged into restrictive trade practices for the purposes of the MRTP Act. We are disinclined to accept the submission urged before us by learned Advocate Mr. Sachdev for the applicant/complainant that, even if its complaint is not found maintainable under Section 10(a)(i) of the MRTP Act, this Commission should treat this complaint as information for the purposes of Section 10(a)(iv) thereof. In view of the aforesaid binding ruling of the Hon''ble Supreme Court governing the point, we do not think that we should treat the complaint as information for the purposes of Section 10(a)(iv) of the MRTP Act. In view of our aforesaid discussion, we have found no merit or substance in this complaint. It, therefore, deserves to be and is hereby summarily rejected. There shall be no order as to costs on the facts and in the circumstances of the case. Complaint dismissed.