KUONI TRAVELS (INDIA) LTD. vs THOMAS COOK (INDIA) LTD.

AN application has been made on behalf of the applicant/complainant, Kuoni Travels (India) Ltd. under Section 12A(2) of the Monopolies and Restrictive Trade Practices, 1969 (the Act for brief) read with Order 39 Rules 2A, 3, 4 and 5 of the Code of Civil Procedure, 1908 and Section 12 of the Contempt of Courts Act, 1971 stating therein, that the respondents have violated the order of this Commission passed on 13.2.2001 by virtue of which the respondent No. 1 was directed not to carry on "the impugned advertisement or similar advertisements, aimed at disparaging the tours of the applicant/complainant and making false and misleading claims in respect of its own tours, forthwith". It has been contended that the aforesaid order of the Commission was conveyed to respondent No. 1 at its Mumbai Office by letter No. KDB/MRTP/2416/16742 dated 13.2.2001, which was faxed at 3.49 p.m. on the same day. It has been further mentioned that to make doubly sure that the respondents are informed, at about 5.00 p.m. on 13.2.2001 itself, a letter giving an intimation of the aforesaid order of the Commission was also delivered at their Mumbai Office through the Clerk of Ms. Tripty Kapadia, Advocate. A copy of the above mentioned letter has been annexed with the present application. Further, it has been added that the respondent was duly informed that, on an application filed by the applicant/complainant, under Section 12A of the Act, the Commission, by its order of 13.2.2001, had injuncted respondent No. 1, from issuing the advertisement which appeared in the Times of India on 12.2.2001 or similar advertisements, forthwith and the aforesaid interim relief application, was listed for hearing on 19.2.2001. The respondent was also apprised that on the basis of the complaint, filed by the applicant/complainant, a Notice of Enquiry had also been issued for unfair trade practices within the meaning of Section 36A(1)(i), (ii), (ix) and (x) of the Act.

SIMILAR application has also been made on behalf of M/s. Cox and Kings (India) Ltd. and as both the applicants/complainants are aggrieved by the same advertisement of the respondent, these applications are being taken up together for disposal by this single order. Briefly stated, the facts giving rise to the present proceeding for initiating action for contempt against the respondents, are that the applicants/complainants [Kuoni Travel (India) Ltd. and Cox and Kings (India) Ltd.] approached the Commission with a complaint alleging therein adoption of and indulgence in unfair trade practices by the respondent [Thomas Cook (India) Ltd.] and complaining that by its false and misleading advertisement in the Times of India dated the 12th February, 2001 the respondent had disparaged their package tours to Europe and USA by suppressing certain benefits and services offered by them and by making false claims in respect of its own tours. In addition to the complaints, applications under Section 12A of the Act were also filed. As prima facie, a case of unfair trade practices within the meaning of Section 36A(i), (ii), (ix) and (x) of the Act was made out, a notice of enquiry was ordered to be issued to the respondent. Likewise, to protect the applicants/complainants, an ex-parte ad interim stay order was also passed on the 13th February, 2001 restraining the respondent from carrying on the impugned advertisement or similar advertisement forthwith. It is the alleged violation of this order of the Commission which is the subject matter of the present proceedings. The contention of the applicant/complainant, Kuoni Travels (India) Ltd. is that the respondents were duly informed about the Commission''s above order at the earliest at 3.49 p.m. on the same date the order was passed, but the respondents, in defiance of the Commission''s order, got published an identical full page advertisement, in the Times of India, on 14.2.2001. It has been further contended that the advertisement, in question, should have been withdrawn in view of the Commission''s order of injunction, and the failure on the part of the respondents to do so, renders them liable to action for contempt of Court.

The aforesaid applications were made on 19.2.2001 and were listed for consideration on 28.2.2001. However, on 26.2.2001, the learned Senior Advocates representing the applicant/complainant, Kuoni Travels (India) Ltd. as well as the respondents appeared before us and made a request that this matter may not be taken up on 28.2.2001 and instead, another date may be fixed. Accordingly, it was listed on 8.3.2001.

WE have heard the learned Senior Advocates for the applicants/complainants as well as that of the respondents. It has been submitted on behalf of the respondent, in its application under Section 151 of the Code of Civil Procedure, 1908 read with Regulation 65 of the MRTPC Regulations, 1991 that the advertisement in question, appeared on 14.2.2001 in the various newspapers/publications in spite of the injunction order, due to circumstances beyond their control. An affidavit of Shri Tushar Shastri, Assistant Manager, Legal and Secretarial of the respondent has also been filed explaining the circumstances in which the advertisement, in question, came to be published on 14.2.2001. It has not been denied that the Advocates of the applicant/complainant, Kuoni Travels (India) Ltd. faxed a letter to the respondent at its Mumbai Office at about 4.00 p.m. on 13.2.2001 itself although it has been stated that a copy of the Commission''s order was not enclosed with it. It is also not denied that a similar fax from the Advocate of the other applicant/complainant M/s. Cox and Kings (I) Ltd. was delivered at the New Delhi Office of the respondent and was received by Shri S. Venkataraman at about 6.45 p.m. on 13.2.2001. However, it has been clarified by Shri Tushar Shastri, in his affidavit, that this letter was brought to his notice at about 6.00 p.m. and he apprised Shri R.R. Kenkare, Head of Legal and Company Secretary about it by about 6.45 p.m. and he, in turn issued memos to Shri A. Kakkar, M.D. and CEO; Shri Madhavan Menon, Executive Director; Shri Sunil Gupta, Head of Leisure and Travel to stop the publication of the advertisement, in question, with immediate effect. It has been further mentioned that a copy of the Commission''s injunction order was received at the respondent''s New Delhi Office at around 6.45 p.m. which was after office hours but the same was faxed to the Mumbai Office of the respondent. It has also been submitted that in the meantime, on instructions from Mr. R.R. Kenkare, a fax was sent by Ms. Ameeta Munshi, consultant in the Public Relations Department of the respondent, to Mr. Vinod Nair, Network Advertising, Mumbai asking him to stop the advertisement, in question. The fax sent by Ms. Ameeta Munshi has also been annexed with the affidavit of Shri Tushar Shastri. It has been further stated that the fax sent by Ms. Munshi was acknowledged by the Network Advertising at about 7.25 p.m. and it was stated therein that at that late hour, it would be impossible to stop the advertisement scheduled for the next date, nevertheless they would do their best. It has been also brought to our attention that the Network Advertising asked through fax the person concerned in the newspapers/dailies to cancel the advertisement. However, the Times of India and other newspapers/publications in their letters to Network Advertisement informed that as the cancellation advice was received at 8.00 p.m., no action could be taken on it. A copy of the fax received from the Times of India was also produced before us and it is to the effect that no action could be taken on the cancellation advice as it was received at about 8.00 p.m. Likewise, other dailies such as Mid-Day, Amar Ujala and Punjab Kesari too informed Network Advertising that as the advice was received late, the publication of the advertisement could not be cancelled. Copies of the replies received from the above mentioned newspapers/dailies have also been annexed with Shri Tushar Shastri''s affidavit.

IT has thus been submitted, on behalf of the respondents that they had no intention of disobeying or defying the order of the Commission passed on 13.2.2001 injuncting the publication of the same or similar advertisement and that all the necessary steps were taken to stop its publication but since the cancellation advice could be sent only by about 8 p.m. or so, it was quite late and, therefore, it was not acted upon by the concerned newspapers/dailies. IT has also been stated that the bona fides of the respondents are established by the fact that thereafter, same or similar advertisements have not appeared. IT has been further stated that the fact that those advertisements were not issued for publication after 14.2.2001 not only demonstrates the bona fides of the respondents but also supports their plea that they made all efforts to stop the publication of the advertisement, in question, and they had no intention of violating the Commission''s order of 13.2.2001 and, therefore, there was no grounds for issuing a notice for action in contempt. The steps taken by the respondent for stopping the publication of the advertisement, in question, mentioned in the affidavit of Shri Tushar Shastri, are duly supported by the letters issued by the various functionaries of the respondent as well as the replies of the various newspapers and are not controverted by the applicants/complainants although it has been urged before us on behalf of the applicants/complainants, that the publication of the advertisement, in question, could have been stopped provided 100% cancellation charges had been paid by the respondent and since the respondents avoided paying these cancellation charges, the advertisement appeared in several dailies on 14.2.2001 and, therefore, action for contempt of this Commission may be initiated. Be that as it may, there is no mention of the cancellation charges in the reply of the newspapers/dailies. All that the newspapers in question have stated is that the cancellation advice was received late and at that late hours it was not possible to withdraw the said advertisement from publication. On a careful consideration of the facts of the case, it appears to us that although the respondent had been injuncted from issuing the advertisement which came to be published in the Times of India and other dailies in their respective issues of 14.2.2001 and on the face of it and going by the definition of "Contempt of Court", the provisions of Section 2(b) of the Contempt of Courts Act, 1971 are attracted, it has also to be borne in mind, that disobedience has to be wilful to come within the mischief of this Act. As the proceedings in contempt are quasi-criminal in nature, it has to be established that the respondents wilfully disobeyed the Commission''s order and published the advertisement which the respondents had been restrained from doing so. From the affidavit of Shri Tushar Shastri, it appears that the respondents had no intention or design to defy or disobey the Commission''s order and, therefore, all concerned functionaries took the necessary steps to stop its publication but due to the delay in giving cancellation advice, they did not succeed in their efforts. The various steps taken by the respondents have been delineated in Shri Tushar Shastri''s affidavit and the replies from the newspapers also indicate that the cancellation advice could not be acted upon as it was received at about 8 p.m. and it was too late to withdraw the advertisement from publication. In view of the above, there is no escape from the conclusion that inability of the respondents to stop the publication of the advertisement can''t be construed to be contemptuous and wilful disregard of the Commission''s order and no case for civil contempt is established and, therefore, no action is required to be taken on the applications of the applicants/complainants. These applications are accordingly rejected. A copy of the order may be placed in each of the two files. C.A. dismissed.