MOHAN KUMAR SAINI vs OMNITEL INDUSTRIES LTD.

AN application under Section 13(2) of the Monopolies and Restrictive Trade Practices Act, 1969 (in short MRTP Act) titled as review application has been filed on behalf of respondent namely Omnitel Industries Limited. It is prayed that the order dated 15th December, 1995 be recalled and compensation application as filed be restored.

THE applicant/complainant Shri Mohan Kumar Saini filed compensation application alleging that the respondent has adopted and indulged in unfair trade practices in terms of Section 36A(1)(i), (ii) and (iv) of the MRTP Act. THE latter is in respect of hiring of ''pay phone'' No. 647 1244 from the respondent. THE respondent defaulted in payment of dues to Mahanagar Telephone Nigam Limited (MTNL) and the phone came to be disconnected. In the meanwhile the respondent had already taken deposit of Rs. 30,000/- from him. Neither the security nor the commission due to him as agreed upon was paid. The matter was taken up for hearing from time to time and as the respondent had not appeared, the order was passed ex-parte against it on 15.12.1995. As per the order, the respondent was directed to refund Rs. 36,000/- (including the refund of security deposit and other charges).

In its application dated 12th August, 1996 filed under Section 13(2) it is stated that an Advocate engaged by the respondent did not appear before Court and he also did not apprise the respondent about the proceedings. As soon as the respondent learnt that an ex-parte order has passed against it, a local Lawyer was engaged and application has been filed under Section 13(2) of the MRTP Act for recalling the order dated 15.12.1995.

BOTH the parties were heard. The learned Advocate for the respondent stated that since an Advocate was engaged to represent the proceedings, the respondent should not be made to suffer for his default and inaction, as held in the case of Rafiq & Anr. v. Munshilal & Anr., AIR 1981 SC at p. 1400. The applicant on the other hand resisted the recall of the order. He reiterated his stand as taken in the reply. The submissions made on both sides have been considered carefully. At the outset, it may be mentioned that the close reading of the application filed under Section 13(2) of the MRTP Act shows that in essence it is for restoration and not for the review of the order as mentioned. I would, therefore, confine myself to the reasons given for non-representation of the proceedings on certain dates which led to the passing of the ex-parte order. The stand of the respondent can be best appreciated in the background of the events which led to passing of the aforesaid order. On 16.3.1995, 25.5.1995 and 21.8.1995 none appeared on behalf of the respondent. For non-representation on 21.8.1995 the respondent was set ex-parte. On the last date of hearing i.e. 25.5.1995 the respondent was required to file its reply to the compensation application for which the date was given as 21.8.1995. On the aforesaid date neither anybody attended the proceedings nor filed the reply. Accordingly proceedings were set ex-parte against the respondent. It is to be noted that all along the proceedings, none appeared on behalf of the respondent. No cause was also shown for non-representation of the proceedings on 21.8.1995. It has also not been shown that non-representation of the proceeding was on account of the Advocate and the respondent was not aware of the facts. As held by the Lordships of Calcutta High Court in the case of Tulsiram v. Bhagwandas, AIR 1959 Calcutta 389 (V 46 C 108), the failure of the Lawyer to appear in a case for which his client is in no way responsible, may not always be a sufficient cause for non-appearance. But if non-appearance of the Pleader is the party''s non-appearance and such non-appearance takes place without any fault on the part of the party and in spite of his best efforts to prevent it, it is not fair to hold that there is still no sufficient cause for such non-appearance of the party. The respondent has not been able to show that the failure in this regard lay with his Counsel whose name has not been disclosed. There is also no Vakalatnama of any Counsel on record.

IN the premises, the application filed under Section 13(2) of the MRTP Act stands rejected for having not established sufficient cause for non-appearance and for non-prosecution of the case. However, there is no order as to costs on the facts and in the circumstances of the case. Application dismissed.