DIRECTOR GENERAL (INVESTIGATION AND REGISTRATION) vs NATIONAL PANASONIC INDIA Pvt. Ltd.

THE DG has approached this Commission under Section 36B(c) and Section 10(a)(iii) of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for brief) charging the respondent with adoption of and indulgence in unfair and restrictive trade practices within their respective meanings contained therein qua its advertisement announcing a prize contest. THE respondent has filed its reply and has resisted the proceeding on various grounds.

IT would be quite proper to look at a few facts giving rise to the present proceeding. The respondent appears to have issued one advertisement in The Hindustan Times daily on 20th July, 1997 announcing some prize contest. The contest was to remain open till 15th August, 1997. The first prize was a trip for two persons to witness the Winter Olympics in Japan, the second prize was two Panasonic Mini Hi-Fi systems with 5 CD changer and the third prize three Panasonic G-400 cellular phones and 500 exciting consolation prizes. In order to enter the contest a person had to buy a Panasonic T.V. which was offered at a special price of Rs. 2,000/- below the normal price. The contest consisted of certain three simple questions to be answered by the participants therein. The DG found this advertisement to be in the nature of restrictive and unfair trade practices on the part of the respondent. IT has therefore approached this Commission by means of its application under Sections 10(a)(iii) and Section 36B(c) of the MRTP Act. A Notice of Enquiry came to be issued by the order passed by this Commission on 4th August, 1997. The respondent has filed its reply and has resisted the proceeding on several grounds. It has inter alia denied adoption of and indulgence in any kind of restrictive and/or unfair trade practice on its part.

On the aforesaid pleadings of the parties, the issues were framed on 18th February, 1998. The respondent thereafter moved an application under Section 37(2) and Section 36D(2) of the MRTP Act and prayed for passing appropriate orders with respect thereto. However, when the matter was taken up for hearing for the purpose on 28th September, 1999, the respondent prayed for withdrawal of the aforesaid application and this Commission granted permission to withdraw the aforesaid application.

LEARNED Advocate Mr. Desai for the respondent then raised a preliminary issue regarding the maintainability of the present proceeding in the context of the binding ruling of the Hon''ble Supreme Court in the case of H.M.M. Limited v. The Director General (Investigation and Registration), reported in A.I.R. 1998 Supreme Court at P. 2691. Since the preliminary issue as to the maintainability of the present proceeding involved a pure question of law requiring no evidence to be led for the purpose, we heard arguments thereon. It may be noted that in the case before the Hon''ble Supreme Court in its aforesaid ruling what was involved was a scheme floated by the Company by the name of HMM Limited. Under the said scheme, a coupon was inserted in some of its packs of Horlicks with a prize ranging from a colour TV to Rs. 20/- in cash. The DG had approached this Commission charging the Company with adoption of and indulgence in unfair trade practices qua the scheme in question. This Commission accepted the case of the DG and found the Company guilty of adoption of and indulgence in unfair trade practices qua the scheme in question. In that context, the Hon''ble Supreme Court has ruled that the scheme was not in the nature of a lottery and it would not therefore fall within the purview of Section 36A(3)(b) of the MRTP Act. The aforesaid provision has not undergone any amendment and it remains on the Statute Book as it was when the case against that Company by the name of HMM Ltd. was filed by and on behalf of the DG.

THIS Commission had an occasion to consider the aforesaid binding ruling of the Hon''ble Supreme Court in several cases where the prize scheme was floated by certain business houses. The latest ruling on this score is handed down by this Commission in the case of Binita Nilesh Panchal & Ors. v. Britannia Industries Limited, and allied matters reported in (1999) 7 C.T.J. at P. 169. It has been held by this Commission in those cases that such prize scheme would not fall within the purview of Section 36A(3)(b) of the MRTP Act for the simple reason that the purchaser of an item with which the prize scheme is attached gets his money''s worth and he gets the additional benefit of participating in the scheme in question. THIS Commission has also considered what would be a lottery in its acceptable meaning. It has been understood to mean payment of a price for winning a prize. That would be applicable even for a game of chance or a contest in its strict sense. In order to win a prize in a contest or in a game of chance or in a lottery one has to pay a price. In the scheme in question, the purchaser of a T.V. would get his money''s worth in the form of the T.V. itself. He has not to pay any separate price for participating in the scheme by whatever name or nomenclature it may be styled, whether as a contest, a game of chance or a lottery. If that be so, we are of the opinion that the scheme would not fall within the purview of the aforesaid statutory provision contained in Section 36A(3)(b) of the MRTP Act. It is difficult to accept the submission urged before us by learned Advocate Mr. Chawla for the DG to the effect that no case of contest or lottery was involved in the aforesaid ruling of the Hon''ble Supreme Court. As pointed out hereinabove, the question is answered in the Division Bench ruling of this Commission in the case of Binita Nilesh Panchal & Ors. (supra). It has been held therein that a lottery has been understood to mean payment of a price for winning a prize. That would be applicable even for a game of chance or a contest in its strict sense. In order to win a prize in a contest or in a game of chance or in a lottery one has to pay a price. As pointed out hereinabove, in the scheme in question the purchaser of a T.V. has not to pay any separate price for participating in the contest for winning a prize. We are therefore of the opinion that the aforesaid binding ruling of the Hon''ble Supreme Court in the case of H.M.M. Limited (supra), cannot be distinguished on the basis of the aforesaid submission urged before us by learned Advocate Mr. Chawla for the DG. We do not find any kind of restrictive trade practice involved in this case. We do not think that any attempt is made to restrict supply of T.V. in the market by means of the aforesaid prize scheme. It is not the case of the DG that there was manipulation of the price of the T.V. for the purposes of the prize scheme. If a prize scheme is announced with a view to promoting sales of its T.V. by the respondent, it cannot be said that the respondent has indulged into any kind of restrictive trade practice thereby.

IN view of our aforesaid discussion, we are of the opinion that this proceeding is not maintainable in law and the complaint application made by the DG deserves to be rejected and the Notice of Enquiry deserves to be discharged.

IN the result, this complaint application fails. It is hereby rejected. The Notice of Enquiry is discharged, however, with no order as to costs on the facts and in the circumstances of the case. C.A. dismissed.