H.S. MALHOTRA THROUGH THE DIRECTOR (RESEARCH) vs PERTECH COMPUTERS LTD.

ON receipt of a complaint from Shri H.S. Malhotra, the Director (Research) was ordered to carry out an investigation into the allegations of unfair trade practices made in the complaint and submit a Preliminary Investigation Report (PIR) under Regulation 18 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1991.

BASED on the PIR dated 16.11.1998 submitted by the Director (Research), a Notice of Enquiry (NOE) under Section 36B(d) read with Sections 37 and 36D of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the MRTP Act), alongwith a copy of the PIR was issued to the respondents on 11.1.1999 making the same returnable on 12.4.1999. From the record, we find that the NOE was despatched to the respondents on 12.1.1999 by registered post. A copy of the PIR was served on the respondents directly also by the office of the Director (Research). In support of this, an affidavit of service on behalf of the Director (Research) dated 7.4.1999 was filed in the Court on 12.4.1999. Despite proper service, the respondents neither filed their replies to the complaint nor entered appearance in the Court. The proceedings were, therefore, set ex-parte against the respondents. On several dates fixed thereafter also, the respondents never appeared in the Court, not even on the date of final arguments, though, in the interest of justice, they were given an opportunity to participate in the ex-parte final arguments despite their ex-parte status. Arguments were finally heard ex-parte on 19.7.2000. Learned Advocate for the Director (Research) filed written submissions in addition to the oral arguments addressed in the Court. Briefly, the facts of the case are that in the advertisement published in major newspapers including the Hindustan Times the respondents made a special offer for sale of two types of computers at attractive prices. One of these computers with a particular configuration was offered at a price of Rs. 25,000/-subject to advance payment of the full amount. Delivery of the computer was promised within 4-6 weeks from the date of booking on "first come first serve" basis. Attracted by this offer, the complainant approached the Access Manager of the respondent No. 1, Sh. H.K. Venkateshwaran who in turn directed him to contact the Company''s authorised local dealer, i.e. Respondent No. 2. The complainant approached the said dealer on 4.1.1997 who prepared Quotation No. ZEST/0042/97 dated 4.1.1997 on Company''s behalf. Thereafter, the complainant booked a computer with Respondent No. 2 and also made advance payment of the full amount of Rs. 25,000/- through Cheque No. 212729 dated 8.1.1997 drawn on the Corporation Bank, Karol Bagh, New Delhi. The receipt of payment was duly acknowledged by the dealer vide its receipt dated 8.1.1997. The said cheque is stated to have been duly encashed by the drawee Bank. With this, the complainant fulfilled his part of the obligation and waited for the computer to be delivered within the stipulated time of 4-6 weeks. But the delivery of the computer did not come through despite a lapse of an year and a half from the date of booking. Thus aggrieved, the complainant approached the MRTP Commission for issue of an order of restraint against the respondents for the unfair trade practices adopted by them and also for an order under Section 12-B of the MRTP Act which obviously means grant of compensation for the loss suffered.

We have carefully considered the submissions made on behalf of the Director (Research) and have also gone through the PIR and the pleadings on record. Perusal of the record reveals that the attitude of the respondents in this case has been totally uncooperative. They neither responded to the various notices issued by the Commission nor did they cooperate with the Director (Research) during his investigation, despite the fact that in addition to the usual mode of service, a copy of the PIR was also directly served on them. In sum, the respondents failed to present their written statement within the stipulated period and, therefore, it will be justified to draw adverse inferences against them and to pass an appropriate order against them in terms of the provisions contained in Order VIII, Rule 10 of the Civil Procedure Code, 1908 (CPC in brief). It is one of the settled principles of system of pleadings that an averment not denied by the opposite party has to be taken to have been admitted. The opportunity that law provides to the opposite party for denial of an averment of fact is by filing a written statement or a counter affidavit. In this case, the respondents neither filed a written statement nor a counter affidavit despite adequate opportunities given.

FROM the documents submitted by the complainant, it is evident that in the advertisement released in the newspapers, the respondents made a special offer for the sale of computer units at attractive prices on payment of 100% of the price in advance. In the said advertisement, delivery of computer was promised within 4-6 weeks from the date of booking on "first come first serve" basis. The documents on record also prove beyond doubt that the complainant booked a computer and deposited the entire amount of Rs. 25,000/- in advance with the authorised dealer, i.e. respondent No. 2. The complainant''s statement that the cheque given to the respondents was encashed, has been supported by an affidavit. In the absence of any denial from the respondents, the allegations of the complainant that the respondents neither delivered the computer unit nor refunded the booking amount stand proved. These acts of omission and commission on the part of the respondents amount to unfair trade practices as defined in Section 36-A of the MRTP Act. It is also true that the complainant has suffered financial loss on account of the unfair trade practices thus adopted by the respondents. We are also of the view that such unfair trade practices are prejudicial to public interest and to the interests of consumers generally. In this view of the matter, the respondents are directed to cease the aforesaid unfair trade practices and desist from indulging in the same or similar unfair trade practices in future. For the loss suffered, the complainant is awarded compensation by way of refund of the booking amount of Rs. 25,000/- with interest at the rate of 12% per annum from the date of deposit. The respondents are directed to comply with this order and file an affidavit of compliance within six weeks from the date of the pronouncement of the order. Complaint disposed of.