AGARWAL TUBES (I) LTD. vs STATE BANK OF BIKANER and JAIPUR

AN application has been made on behalf of the respondent, State Bank of Bikaner and Jaipur in R.T.P.E. No. 242/ 1996 and C.A. No. 406/1997 stating that the above proceedings are not maintainable on the ground that a recovery suit has already been filed against the above applicant/complainant and is pending before the Debt Recovery Tribunal at Jaipur. It has been further stated that both, in the reply, to the complaint as well as the compensation application, a preliminary objection has been raised about the maintainability of the proceedings before the Commission in view of the provisions of Section 10 of C.P.C. It has been further stated that unfortunately, the Counsel for the respondent was pre-occupied with a case in the High Court and, therefore, could not appear before the Hon''ble Commission on the 27th January, 1998 and the objection regarding the maintainability of the present proceedings was not taken when the issues were settled and consequently, the preliminary issue with regard to maintainability was not framed.

ALTHOUGH a copy of the above application of the respondent was furnished to the applicant/ complainant and repeated opportunities were afforded to it, neither a reply was filed on behalf of the applicant/complainant nor its Advocate appeared before the Commission for addressing arguments. On the 16th April, 1998 when the present application came up for consideration, an adjournment was granted as the applicant/ complainant''s Advocate was not available for addressing arguments due to his indisposition. While the case was adjourned to 24th May, 1999, it was however, made clear in the order that no further adjournment would be granted. On 24th May, 1999 again the applicant/complainant''s Advocate was not available for addressing arguments but a hearing was given to the applicant/complainant in consonance with the principles of natural justice. While considering the above application, it transpired that it was actually an application for review of the order of the 27th January, 1998 under Section 13(2) of the Act read with Section 151 of the C.P.C. and not under Section 10 of the C.P.C. It appears that inadvertently, the respondent has mentioned Section 10 of the C.P.C. as the perusal of the application reveals that it is the maintainability of the present proceedings which has been challenged and accordingly it is being treated as an application for review and recall of the order of the 27th January, 1998.

It is pertinent to give here the genesis of the present proceedings. The applicant/ complainant has made a complaint under Sections 10(a)(i), 36B(a) and Section 2(o) of the MRTP Act, 1969 (the Act for brief) charging the respondent with unfair and restrictive trade practices and alleging that although the respondent granted a term loan of Rs. 47 lakhs, it refused to sanction the working capital loan of Rs. 33 lakhs with the result that the applicant/ complainant could not start production in its industrial unit and consequently, suffered losses. The applicant/complainant has also made an application under Section 12B of the Act claiming compensation on account of the loss and damage allegedly suffered by it.

A Notice of Enquiry was issued on the basis of the complaint. In reply, while denying the allegations, the respondent raised a preliminary objection with regard to the maintainability of the proceedings. While it is true that the respondent''s objection with regard to maintainability is reflected in the docket orders, a preliminary issue was not framed when other issues were settled on 27th January, 1998. The respondent, therefore, filed the present application which has been treated as an application under Section 13(2) of the Act read with Section 151 of the C.P.C. challenging the present proceedings on grounds of maintainability. It has been stated on behalf of the respondent that while it is true that a term loan of Rs. 47 lakhs was disbursed to the applicant/ complainant, working capital loan was not sanctioned as, in the meantime, the respondent came to know that the applicant/complainant had defaulted in payments to other Banks and suppliers. It has also been stated that a demand notice dated 14th September, 1994 recalling the loan was also issued to the applicant/ complainant and a suit for recovery was filed on the 16th March, 1995 before the Debt Recovery Tribunal at Jaipur prior to the filing of the present complaint and the compensation application by the applicant/complainant. It has been further contended that the matter in issue in the complaint and the compensation application before the Commission is also directly and substantially the same as in the previously instituted recovery suit pending in the Debt Recovery Tribunal between the same parties. It is not denied by the applicant/complainant that the recovery suit instituted by the respondent is pending before the Debt Recovery Tribunal. The contention of the respondent is that these are parallel proceedings and the complaint on the basis of which an enquiry into the altered -unfair trade practices has been instituted and the compensation application filed by the applicant/ complainant are, therefore, not maintainable.

GOING by the averments made by and on behalf of the respondent, it appears that the recovery suit and the present proceedings before the Commission are parallel between the same parties and arise from the same cause of action and parallel proceedings before two FORA, one before the Commission and the other before the Debt Recovery Tribunal should be discouraged in order to avoid conflicting orders. We are also fortified in our above conclusion by the order passed by a Division Bench of this Commission on the 2nd August, 1993 in RTPE No. 93 and IA No. 25/93 - Pragati Construction Co. v. Otis Elevators Co. (India) Ltd., dismissing the complaint and the injunction application on the ground that parallel proceedings raising substantially the same issues of fact before two FORA, one before the Commission and the other before some other adjudicatory body, Tribunal or Court should not be allowed to go on simultaneously in order to avoid conflicting orders and resultant embarrassment and confusion arising there from. In view of our aforesaid discussion, there is no escape from the conclusion that the present proceedings are not maintainable and are accordingly dismissed with no order as to costs on the facts and in circumstances of the case. Application dismissed.