MALINI N.SHAH vs HINDUSTAN DOMESTIC OIL AND GAS CO. (BOMBAY) LTD.

APPLICANT, Ms. Malini N. Shah has filed an application under Section 12-B of the MRTP Act, 1969 (the Act for brief) stating that in response to an advertisement issued by the respondent, M/s. Hindustan Domestic Oil and Gas Co. (Bombay) Ltd., she applied, in the prescribed application form, for appointment as a Chief Distributor for imported kerosene oil and was appointed as such for the area of Kanpur city. It has been further stated that she obtained the application form for Rs. 500/- and sent a demand draft of Rs. 5,000/- as security deposit alongwith her application. It has been mentioned that she gave Rs. 5,000/- as additional security deposit and Rs. 65,000/- as advance against the supply of kerosene oil as demanded by the respondent and the respondent issued receipts Nos. 9109 and 9201 dated 29.11.1993 and 29.11.1993 respectively. A certificate appointing the applicant as the authorised Chief Distributor was also issued by the respondent and an agreement dated 29.11.1993 was entered into by the applicant and the respondent. Thereupon the applicant obtained a licence for storage of kerosene oil and also complied with other statutory requirements. It has been further stated that the applicant also employed additional staff, made arrangements for a storage tank as well as a laboratory equipped with testing equipments etc. It has been further mentioned that the applicant also incurred expenditure on sales promotion activities including issuing of advertisements in the local newspapers.

THE grievance of the applicant is that although advance payment had been made, the respondent supplied the imported kerosene oil from Bombay after 6 to 8 months of the agreement in three lots between April-June, 1994. It has been complained that the respondent, thereafter, did not make supply for almost a year and after a lot of correspondence and several personal visits, the respondent arranged supplies from a third party based in Calcutta, namely, Bharat Fuel Company Ltd. and no supplies were made either directly from Bombay or any other source after October, 1995. It has been alleged that the respondent neither refunded the security amount nor the balance amount of Rs. 31,888/- despite repeated requests and as a result, the applicant had to close down its business of sale of imported kerosene oil and also suffered heavy loss of goodwill and reputation. THE applicant has claimed compensation of Rs. 2,73,000/- for investments made in fixed assets viz., storage tank, laboratory equipment and salary and wages of staff employed for this business activity, sales promotion expenses, damage to goodwill and reputation and loss of profit as well as refund of security deposit and advance, with interest. A notice in respect of the compensation appliation was sent to the respondent. In reply, it has been stated by the respondent that the supplies of kerosene oil were made to the applicant whenever demand for the same was received from Bombay and Calcutta. The balance amount of Rs. 31,000/- is however, disputed by the respondent stating that the consignment of 12000 litres of kerosene oil was supplied @ Rs. 5.90 per litre plus sales tax and not @ Rs. 3/- per litre as claimed by the applicant and it is the applicant who has to pay Rs. 8,121.60 to the respondent. It has also been stated in the reply that the applicant has created a dispute with regard to payment of Rs. 30,000/- to Mr. Bhatia on behalf of the respondent and asked for refund of Rs. 65,510/- whereas there was a credit balance of Rs. 65,510/- only.

On the completion of pleadings, the following issues were framed : (i) Whether the respondent has been or is indulging in the restrictive trade practices as alleged in the appli-cation ? (ii) If so, whether such practices have been or are prejudicial to public interest or affecting the interests of the consumer/consumers generally ? (iii) Whether any loss or damage has been caused to the applicant due to suh practices and whether the applicant is entitled to any compensation. (iv) Relief, if any.

IT was agreed by the parties that they will be filing only affidavit of evidence and counter affidavit of evidence. Despite several opportunities, the Advocate for the respondent did not appear for addressing arguments. However, the submissions made by the learned Advocate for the applicant have been considered and the relevant record has been perused. IT is not disputed or denied that the respondent issued an advertisement for appointment of chief distributors of imported kerosene oil. IT is also not disputed that the applicant was appointed a distributor and that the applicant paid the requisite security deposit as well as advance of Rs. 65,000/- against supply of kerosene oil. IT is also not disputed that no supplies were made to the applicant after October, 1995. It seems that the dispute is with regard to the amount which is to be refunded to the applicant and also the claim for compensation. While the applicant has claimed refund of Rs. 31,888/-, the respondent has stated that an amount of Rs. 8,121/- is recoverable from the applicant. The contention of the respondent is that no expenditure was incurred by the applicant on additional facilities for storage and distribution or laboratory equipment as the applicant when applying for distributorship had claimed that it already had such facilities. Likewise, there is a dispute with regard to payment of Rs. 30,000/- stated to have been made by the applicant to Mr. Bhatia, which is denied by the respondent. It thus appears that there is an acute dispute with regard to claim and counter claim by the parties and it is not feasible or even advisable to go into the dispute arising from claim and counter claim of payment. For settling these claims and for resolution of disputes arising from such claims, the parties should approach a Civil Court of competent jurisdiction. The Commission can only go into complaints of adoption of and indulgence in unfair/restrictive trade practices and compensation claimed on the basis the charge of such trade practices. In the present case, it appears that the parties have a dispute of a civil nature and the dispute resolves around payments and would require production of evidence at length and this evidence can be led before a Civil Court. At any rate, the dispute is of a civil nature and, therefore, outside the purview of this Commission. It has been held by Their Lordships of the Supreme Court in the case of Bharathi Knitting Co. v. DHL World Wide Express, Courier Division of Air Freight Ltd., reported in AIR 1996 Supreme Court 2508. It has been ruled therein that in a case where there is an acute dispute of facts, necessarily the parties have to be referred to a Civil Court established under the CPC and appropriate civil law to have the claim decided between the parties.

IN view of the above discussion, we are of the opinion that the dispute with regard to payment and other facts would necessitate adducing of evidence by both the parties and the appropriate Forum for that is a Civil Court. Since the parties are being referred to a Civil Court, we do not think it necessary to go into the issues raised in the pleadings. There is no order as to costs on the facts and in the circumstances of the case. C.A. disposed of.