Krishna And Company vs RAJASTHAN STATE ELECTRICITY BOARD

THE respondents have moved this application for rejection of the complaint filed by and on behalf of the applicant/complainant under Section 10(a)(i) 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 (the MRTP Act for brief) within the meaning of Section 2(o) thereof. THE applicant/complainant has filed its reply and has resisted this application on various grounds.

IT would be quite proper to look at certain facts giving rise to the present proceeding. The applicant/complainant has approached this Commission under Section 10(a)(i) read with Section 2(o)(ii) of the MRTP Act. He has also taken out an application under Section 12A thereof for some interim relief. By an order passed by this Commission on 1st July, 1998, a Notice of Enquiry (NOE for convenience) has come to be issued. Simultaneously therewith, a notice as to the interim relief application has also come to be issued. No interim relief has come to be granted by this Commission in favour of the applicant/ complainant. IT transpires from the material on record that on 18th September, 1998, learned Advocate Mr. Agnani for the respondents on instructions informed this Commission that the parties have already compromised the dispute between them on 12th September, 1998. Learned Advocate Mr. Sachdev for the applicant/ complainant drew blank on this point. On 8th October, 1998, learned Advocate Mr. Agnani for the respondent informed this Commission that he wanted to move an application on the basis of the letter given to him by the applicant/ complainant stating that the cases pending in this Commission would be withdrawn. He further informed this Commission that the applicant/complainant had got the electricity connection restored but the cases in this Commission were not withdrawn. This Commission granted time to the Advocate for the respondent to move such application within two weeks under a copy to the applicant/ complainant through its Advocate. That is how the present application has come to be moved. As aforesaid, the applicant/complainant has filed its reply and has resisted the said application on several grounds. It transpires from the material on record that the applicant/complainant by its letter of 8th September, 1998 requested the Chairman of respondent No. 1 to pay the amount by instalment. By his letter of 11th September, 1998, respondent No. 2 addressed one communication to the concerned Executive Engineer for reconnection of supply inter alia on condition that the consumer (that is the applicant/complainant herein) will withdraw all cases pending in any Court/MRTP Commission before reconnection. It appears that its copy was forwarded to the applicant/ complainant. Thereupon it appears that the applicant/complainant sent one more communication on 12th September, 1998 to the concerned Executive Engineer of respondent No. 1 inter alia undertaking that the cases pending in the MRTP Commission against respondent No. 1 will be withdrawn. Relying on this undertaking, it appears that reconnection of electricity supply was affected. It appears that the applicant/complainant did not honour his undertaking, and as such the respondent has moved the present application.

Learned Advocate Mr. Sachdev for the respondent has submitted that the aforesaid undertaking was obtained under duress and the applicant/complainant would not be bound by it. It has further been urged that such an agreement for withdrawal of the cases before this Commission would be hit by Section 28 of the Indian Contract Act, 1872 (the Contract Act for brief) and it cannot be binding to the parties, more particularly to the applicant/complainant. It has further been urged that the applicant/ complainant was not equal in its bargaining power with the respondents and the applicant/ complainant should not, therefore, be obliged to fulfil the undertaking.

WE are not impressed by the aforesaid submissions urged before us by learned Advocate Mr. Sachdev for the applicant/complainant. The complaint application of the applicant/ complainant was pending before this Commission. In view of the huge outstanding amount payable by the applicant/complainant to the respondents, this Commission did not think it fit to grant any interim relief at that stage. Thereupon the applicant/complainant willingly approached the Chairman of respondent No. 1 on its own as aforesaid and struck bargin for reconnection of electricity supply. If it had no equal bargaining power, it could have approached this Commission at that stage itself and obtained some orders from this Commission for reconnection of electricity supply on some reasonable terms. After striking the bargain with the respondents, it would not be open to the applicant/complainant to back out from his undertaking given to the respondents for withdrawal of its cases before this Commission. We do not think that the applicant/ complainant can take recourse to Section 28 of the Contract Act. It would be quite proper to look at the binding ruling of the Hon''ble Supreme Court in the case of Bihar State Electricity Board, Patna & Ors. v. Green Rubber Industries & Ors., reported in AIR 1990 SC at P. 699. It has clearly been held therein : "It is settled law that a person who signs a document which contains contractual terms is normally bound by them even though he has not read them, even though he is ignorant of the precise legal effect". In view of the aforesaid dictum of law pronounced by the Hon''ble Supreme Court it does not lie in the mouth of the applicant/complainant to press into service Section 28 of the Contract Act to back out from his undertaking.

EVEN otherwise, we think that the complaint application of the applicant/ complainant is not maintainable in law under Section 10(a)(i) of the MRTP Act for the simple reason that the applicant/complainant will not answer the definition of "consumer" contained in Section 2(1)(d) of the Consumer Protection Act, 1986 (the C.P. Act for brief). Since the word "consumer" has not been defined in the MRTP Act by virtue of the binding Division Bench 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, its meaning will have to be ascertained from the C.P. Act. It ha been defined therein to exclude a person who inter alia obtains goods for any commercial purpose. It cannot be gainsaid that electricity would be goods within the meaning of the Sale of Goods Act, 1930. It is not in dispute that the applicant/complainant has chosen to obtain electricity for its commercial purpose. In that view of the matter, the applicant/complainant would not be a consumer within the meaning of Section 2(1)(d) of the C.P. Act. Examining the case from either angle, the complaint application deserves to be rejected. In the result, the application made by and on behalf of the respondents for rejection of the complaint application and for discharge of the NOE is accepted. The complaint application is rejected. The NOE accordingly stands discharged, however, with no order as to costs on the facts and in the circumstances of the case. Application allowed.