R.K. Anand, Member
1. An application under Section 13(2) of the MRTP Act, 1969 has been filed on behalf of the petitioner seeking review of the order dated the 9th July, 1998 passed in RTPE 21/98. It has been stated that the default and delay on the part of the petitioner due to which the complaint was dismissed was unintentional and bona fide and that the complaint was with regard to the negligence and failure of the respondent to negotiate the documents and to recover the money from a foreign bank resulting in holding up of the goods of the applicant/ complainant worth Rs. 55 lakhs approximately, in the United States. It has been further stated that on the 9th July, 1998, the petitioner was not represented by its Managing Director and also due to the pre-occupation of its Advocate, Mr. R. Tikku had engaged Mr. N.N. Aggarwal, Advocate to appear before the Commission in the RTPE 21/98 but on that date Mr. Aggarwal fell sick while on his way to the Commission and did not appear when the case was taken up and the complaint was dismissed as not maintainable on the ground that prima facie no case of restrictive trade practices under Section 2(o) and other provisions of the Act had been made out. Another ground for passing the order was that the respondent's Advocate had stated that a sum of Rs. 5 crores approximately was due from the petitioner and that it was a dispute pertaining to debt recovery. It has been stated that there is an error apparent on the face of the record and has resulted in miscarriage of justice, and therefore, the order may be reviewed and the complaint restored.
2. I have heard the learned Advocate Mr. N.N. Aggarwal, for the applicant/complainant and Mr. Neeraj Kaul, Advocate for the respondent and also perused the order passed on the 9th July, 1998. It may be stated at the outset that the case was listed for arguments on the issuance of NOE as is clear from the Commission's order which was passed on 12th May, 1998 in the presence of Mr. Vijay Zaveri, Advocate who appeared for Mr. R. Tikku, Advocate for the applicant/complainant and Mr. Neeraj Kaul, Advocate for the respondent. In other words, on the 9th July, 1998 the case was to be taken up for arguments on issuance of NOE as well as for consideration of the interim relief application. Perusal of the order passed on the 9th July, 1998 will unmistakably reveal that Mr. R. Tikku, Advocate for the applicant/complainant had not been appearing and adjournments had been sought repeatedly on the ground of his pre- occupation with other cases in the High Court, and adjournments were allowed at the request of the Advocate Mr. Zaveri.
3. It may also be highlighted that on the 9th July, 1998 again Mr. Zaveri appeared for Mr. R.Tikku and made the same request for an adjournment on the same ground that Mr. R.Tikku was not available as he was busy in the High Court. However, the case was passed over and was taken up when the Advocate for the respondent appeared. It was at that time that Mr. Zaveri stated that he wanted to withdraw from this case. As repeated adjournments had been given on earlier occasions and since on that date Mr. Zaveri's request for an adjournment was not allowed, Mr. Zaveri, as an after-thought, made the statement that he wanted to withdraw from this case. It may also be pointed out that at no stage, Mr. Zaveri mentioned that Mr. N.N. Aggarwal had been engaged in place of Mr. R. Tikku. Ordinarily, either a proxy Counsel or a junior Advocate of the Advocate on record appears when the latter is unable to attend the hearing, and asks for an adjournment. Mr. Zaveri has been appearing regularly before the Commission as Mr. R. Tikku's junior and should have in the very beginning, when the case was called, stated that Mr. Aggarwal would be representing the applicant/complainant and that Mr. Aggarwal would not be able to attend the hearing due to his personal difficulty. It is worthy of note that Mr. Zaveri had been regularly appearing for the applicant/complainant on previous dates of hearing on 7.1.1998, 29.1.1998, 12.5.1998 and again on 9.7.1998. There was no way the Commission could divine that Mr. N.N. Aggarwal had been engaged by the applicant/ complainant in place of Mr. R. Tikku or that he fell sick and was unable to attend the hearing.
4. It is also noteworthy that the statement regarding withdrawal from the case was not made when the case was taken up but just at the time when adjournment was not allowed and the final order was about to be passed. It has also to be borne in mind that the interests of respondent have also to be safeguarded and the complainant or his Advocate cannot be allowed to cause unnecessary and avoidable delay in the disposal of the case and what is even a more relevant consideration is that undue harassment to the respondent or his Advocate should not be allowed to be caused. It is in this context that it was recorded in the order of the 9th July, 1998 that no adjournment would be allowed and unnecessary delay in dispensing justice should be avoided as justice delayed was tantamount to denial of justice.
5. Coming to merits of the case, it was pointed out by the learned Advocate for the respondent that the respondent had to recover an amount of Rs. 5 crores and that a debt recovery case was pending before the Debt Recovery Tribunal. It was also pointed out that the appropriate remedy for the applicant/ complainant would be to approach a Civil Court of competent jurisdiction. It was also submitted that there were no restrictive trade practices involved in recovering the debt from the applicant/complainant and the complaint was not maintainable. Keeping in view the submissions made by the learned Advocate for the respondent and on the basis of the perusal of relevant record, it was concluded that no prima facie case under Section 2(o) read with Section 37 and Section 10A(1) and Section 36A (i), (ii) and (iv) had been made out and therefore, the complaint was not maintainable.
6. Again after hearing the arguments addressed by Mr. N.N. Aggarwal and Mr. Neeraj Kaul, on behalf of the applicant/complainant and respondents respectively, the conclusion arrived at on the 9th July, 1998 is reinforced. No error apparent on the face of the record has been highlighted. It is also not disputed that the respondent has fil
Please Login To View The Full Judgment!
ed a suit for recovery of its dues from the applicant/complainant and the same is pending before the Debt Recovery Tribunal. The appropriate remedy for the applicant/complainant is a civil suit as was observed earlier more so in the light of the order of a Division Bench of the Commission passed in RTPE No. 244/97 (Review Application) on the 1st September, 1998. It has been held therein that the Commission is precluded from exercising its jurisdiction over a banking company qua its banking business by virtue of Section 4(2) of the MRTP Act, 1969. The order passed on the 9th July, 1998 therefore, does not call for any review. The review application is accordingly rejected. R.A. dismissed.