GIRISH CHANDRA GUPTAversusM/S UTTAR PRADESH INDUSTRIAL DEVELOPMENT CORPORATION LTD. & ORS.

                   [2012] 11 S.C.R. 287


             GIRISH CHANDRA GUPTA                              A
                          v.
  MIS UTTAR PRADESH INDUSTRIAL DEVELOPMENT
            CORPORATION LTD. & ORS.
           (Civil Appeal No. 8920 of 2012)
                  DECEMBER 11, 2012.                           B

    [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

   MONOPOLIES     AND           RESTRICTIVE         TRADE
PRACTICES ACT, 1969:                                           C
    s. 12-8 - Power of MRTP Commission to award
compensation - Compensation applications dismissed by the
Competition Appellate Tribunal on the ground that the
appellants had not initiated separate proceedings either uls   D
10 ors. 368 of the Act - Held: The powers vested in the MRTP
Commission under sub-s. (3) of s. 128 are independent of its
powers uls 10 and s. 368 - Impugned orders of the
Competition Appellate Tribunal are set aside - Applications
directed to be decided on merits.
                                                               E
     The appellants filed two compensation applications
uls 128 of the Monopolies and Restrictive Trade Practices
Act, 1969 (MRTP Act) before the Monopolies and
Restrictive Trade Practices Commission (MRTP
Commission). On coming into force of the Competition F
Act, 2002, the said applications stood transferred to the
Competition Appellate Tribunal. The respondents raised
preliminary objections to the maintainability of the
applications on the ground that the appellants had not
initiated separate proceedings before the MRTP G
Commission either uls 10 ors. 368 of the MRTP Act
alleging unfair trade practices by the respondents and in
the absence of any such separate proceedings, the
compensation applications were not maintainable. The
                            287                  ~        H
   288      SUPREME COURT REPORTS          (2012] 11 S.C.R.


A Competition Appellate Tribunal, accordingly, dismissed
  the applications.

         Allowing the appeals, the Court

       HELD: 1.1. The MRTP Commission has been vested
B with the powers under sub-s. (3) of s 128 of the MRTP
  Act to make an inquiry to the allegations of monopolistic
  or restrictive or unfair trade practice made in the
  application filed under sub-s. (1) of s. 128 and to
  determine the amount of compensation realizable from
C the undertaking or the owner thereof, or, as case may be,
  from the other person, towards loss or damage caused
  to the applicant by reason of any monopolistic or
  restrictive, or unfair trade practice carried on by such
  undertaking or other person. These powers vested in the
D MRTP Commission under sub-s. (3) of s. 128 are
  independent of its powers u/s 10 and s. 368. [para 11)
  [297-D-F]

       1.2. In fact, s.128 was introduced in the MRTP Act by
E Act 30 of 1984 as an independent remedy for a claimant 1
  in addition to a suit that he may file to claim any loss or
  damage that he may suffer by reason of any monopolistic
  or restrictive or unfair trade practice as would be clear
  from sub-s.(4) of s. 128. There is no reference at all ins.
F 128 to the provisions of either s. 10 or s. 368, and if
  Parliament intended that the power of the MRTP
  Commission to award compensation u/s 128 was to be
  dependent on the exercise of power of MRTP
  Commission either u/s 10 or u/s 368, Parliament would
  have made this intention clear in the language of some
G provision in s.128. There is also no reference in either s.
  10 or in s.368 to ·any of the provisions of s. 128 and if
  the Parliament intended to make ss. 10, 128 and 368
  interdependent, there would have been some indication
  of this intention of Parliament ins. 10 or ins. 368. Thus,
H the Competition Appellate Tribunal clearly erred in
    GIRISH CHANDRA GUPTA v. U. P. INDL. DEV.               289
              CORPORATION LTD.
coming to the conclusion that interdependence of the              A
provisions of s. 10 ors. 368 with s.128 cannot be lost
sight of and in the absence of a separate proceeding
alleging unfair, monopolistic or restrictive trade practice,
an application for compensation uls 128 is not
maintainable. [para 12] [297-G-H; 298-A-E]                        B

     1.3. The impugned orders of the Competition
Appellate Tribunal are set aside. It will be open to the
respondents to raise a plea before the Competition
Appellate Tribunal that the appellants have not made out
any case of monopolistic or restrictive trade practice or         C
unfair trade practice in terms of s.128 of the MRTP Act
and if such plea is raised it will be decided by the
Competition Appellate Tribunal on its own merits
following the decision of this Court in the case of Saurabh
Prakash. [para 13] [298-F-G]                                      D

     Mis Pennwalt (/) Ltd. & Anr. v. Monopolies and Restrictive
Trade Practices Commission & Ors. AIR 1999 Delhi 23; and
R. C. Sood And Co. (P.) Ltd. & Ors. v. Monopolies and
Restrictive Trade Practices Commission & Anr. 1996 Vol.86         E
Company Cases 626 Delhi - approved.

   Saurabh Prakash vs. DLF Universal Ltd. 2006 (9) Suppl.
          =
SCR 625 2007 (1) SCC 228 - referred to.

                     Case Law Reference:                          F
  2006 (9) Suppl. SCR 625        referred to        para 3
  AIR 1999 DELHI 23              approved           para 4
  1996 Vol.86 Company            approved           para 6
                                                                  G
  cases 626 Delhi
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8920 of 2012.

    From the Judgment & Order dated 20.5.2011 of the              H
    290       SUPREME COURT REPORTS               [2012] 11 S.C.R.


A   Competition Appellate Tribunal, New Delhi in CA. No. 11 O of
    1997.

                                 WITH

    C.A. No. 8921 of 2012.
B
         Siddharth Bhatnagar, Pawan Kumar Banasal, T. Mahipal,
    Alex Joseph, Manoj V. George, K. Gireesh, Mohd. lrshad Hanif,
    Purvish Jitendra Malkan, Kiran Suri, S.J. Amith, Rakesh
    Uttamchandra Upadhyay for the appearing parties.
C         The Judgment of the Court was delivered by
          A.K. PATNAIK, J. 1. Leave granted.
          2. The facts very briefly in these two appeals are that the
    appellants filed compensation applications C.A. No.110 of
D   1997 and C.A. No.126 of 2008 under Section 12B of the
    Monopolies and Restrictive Trade Practices Act, 1969 {for
    short 'the MRTP Act') before the Monopolies and Restrictive
    Trade Practices Commission {for short 'the MRTP
    Commission') constituted under the MRTP Act. By Section
E   66(1) of the Competition Act, 2002, the MRTP Act was
    repealed and the MRTP Commission was dissolved. Section
    66(3) of the Competition Act, 2002 provided that all cases
    pertaining to monopolistic trade practices or restrictive trade
    practices pending before the MRTP Commission shall, on the
F   commencement of the Competition {Amendment) Ordinance,
    2009, stand transferred to the Competition Appellate Tribunal
    constituted under the Competition Act, 2002 and shall be
    adjudicated by the Appellate Tribunal in accordance with the
    provisions of the MRTP Act as if the MRTP Act had not been
    repealed. Consequently, the two compensation applications
G   filed by the appellants stood transferred to the Competition
    Appellate Tribunal. Before the Competition Appellate Tribunal,
    the respondents in the two appeals raised preliminary
    objections to the maintainability of the compensation
    applications filed by the appellants. They contended that the
H   appellants had not initiated separate proceedings either under
   GIRISH CHANDRA GUPTA v. U. P. INDL. DEV.                291
      CORPORATION LTD. [A.K. PATNAIK, J.]
Section 10 or under Section 368 of the MRTP Act alleging           A
unfair trade practices by the respondents and in the absence
of any such separate proceedings initiated by the respondents
before the MRTP Commission, the compensation applications
of the appellants under Section 128 of the MRTP Act were not
maintainable.                                                      B
     3. This preliminary question raised by the respondents was
also raised in C.A. No.108 of 2005 filed by Info Electronics
System Ltd. against Sutran Corporation and the Competition
Appellate Tribunal by its order dated 29.03.2011 passed in C.A.
No.108 of 2005 (Info Electronics System Ltd. v. Sutran C
Corporation) held, relying on a judgment of this Court in
Saurabh Prakash v. DLF Universal Ltd. [(2007) 1 SCC 228],
that in the absence of separate proceedings alleging unfair,
monopolistic or restrictive trade practice, an application for .
compensation under section 128 of the MRTP Act is nof D
maintainable and accordingly dismissed C.A. No.108 of 2005.
Following the aforesaid order dated 29.03.2011 in C.A. No.108
of 2005, the Competition Appellate Tribunal also dismissed
C.A. No.126 of 2008 on 26.04.2012 and C.A. No.110 of 1997
on 20.05.2011 filed by the appellants in the Civil Appeals E
before us. Aggrieved, the appellants have filed these appeals.
      4. Mr. Siddharth Bhatnagar, learned counsel for the
appellant in the Civil Appeal arising out of S.L.P. (C) No.28463
of 2011, submitted that this Court has not held in Saurabh
Prakash v. DLF Universal Ltd. (supra), on which the                F
Competition Appellate Tribunal has placed reliance, that in the
absence of any separate proceedings either under Section 10
or Section 368 of the MRTP Act, an application for
compensation under Section 128 of the MRTP Act is not
maintainable. He submitted that a reading of Section 128 of        G
the MRTP Act rather shows that an independent proceeding
under Section 128 of the MRTP Act for compensation can be
initiated by an applicant. He relied on the decision in Mis
Pennwalt (/) Ltd. & Anr. v. Monopolies and Restrictive Trade
Practices Commission & Ors. [AIR 1999 DELHI 23] in which,          H
    292      SUPREME COURT REPORTS               [2012] 11 S.C.R.


A after examining the provisions of Sections 10, 368 and other
  provisions of the MRTP Act, the Delhi High Court has held that
  the proceedings under Section 128 of the MRTP Act are not
  dependent on proceedings under Section 1O or 368 of the
  MRTP Act and that a preliminary inquiry as envisaged in
9 Section 11 or Section 36C is not a condition precedent to the
  maintainability of the claim under Section 128 of the MRTP Act.
       5. Mr. Rakesh Uttamchandra Upadhyay, learned counsel
  for the respondents in the Civil Appeal arising out of SLP(C)
  No.28463 of 2011, on the other hand, submitted that a claim
C for compensation under Section 128 of the MRTP Act cannot
  be decided without an inquiry either under Section 10 or under
  Section 368 of the MRTP Act. He submitted that the view taken
  by the Competition Appellate Tribunal that without a proceeding
  either under Section 10 or Section 368 of the MRTP Act a
D claim for compensation under Section 128 of the MRTP Act
  was not maintainable is, therefore, correct. He further submitted
  that the case of the, respondent U.P. Industrial Development
  Corporation Limited in C.A. No.110 of 1997 was that the
  grievance of the appellant did not relate to any unfair trade
E practice but relates to a breach of contract and such a claim
  for compensation cannot be entertained under Section 128 of
  the MRTP Act.
        6. Mr. Alex Joseph, learned counsel for the appellants in
  the Civil Appeal arising out of S.L.P. (C) No.17380 of 2012,
F submitted that the Delhi High Court in yet another decision in
  R. C. Sood And Co. (P.) Ltd. & Ors. v. Monopolies and
  Restrictive Trade Practices Commission & Anr. [1996 Vol.86
  Company cases 626 Delhi] has held that it is not necessary
  that the MRTP Commission should first inquire or investigate
G into the allegations of monopolistic, restrictive and unfair trade
  practices carried on by any person or undertaking under
  Section 10, Section 368 or Section 37(1) of the MRTP Act
  before issuing notice in the application filed under Section 128
  of the MRTP Act and sub-section (3) of Section 128 of the
H MRTP Act clearly shows that the MRTP Commission is
    GIRISH CHANDRA GUPTA v. U. P INDL. DEV.                   293
       CORPORATION LTD. [A.K. PATNAIK, J.]
required to make an inquiry into the allegations set out in the       A
application filed under sub-section (1) of Section 128 and only
after making such an inquiry pass an order directing the owner
of the undertaking or the person who has indulged in
monopolistic, restrictive and unfair trade practice, to make
payment to the applicant of the amount determined by the              B
MRTP Commission.
     7. Mrs. Kiran Suri, learned counsel for the respondent in
the Civil Appeal arising out of S.L.P. (C) No.17380 of 2012,
submitted that the jurisdiction of the .MRTP Commission is
based on a finding of unfair trade practice and such finding can      C
only be recorded under Section 368 of the MRTP Act. She
submitted that Section 11 of the MRTP Act empowers the
Director General to make an inquiry and there is no mechanism
of inquiry in Section 128 of the MRTP Act. She vehemently
argued that Section 128 of the MRTP Act, therefore, cannot            D
be read as an independent Code.
      8. We have considered the submissions of the learned
counsel for the parties and we find that in Saurabh Prakash v.
DLF Universal Ltd. (supra) this Court was called upon to
decide whether the MRTP Commission had jurisdiction to                E
entertain an application under Section 128 of the MRTP Act
when no case of indulgence in unfair trade practice or
restrictive trade practice was made out and this Court held that
the power of the MRTP Commission to award compensation
is restricted to a case where loss or damage had been caused          F
as a result of monopolistic or restrictive or unfair trade practice
but it had no jurisdiction where damage is claimed for mere
breach of contract. In the aforesaid decision in Saurabh
Prakash v. DLF Universal Ltd. (supra) on which reliance has
been placed by the Competition Appellate Tribunal in the              G
impugr1ed orders, this Court did not at all consider the question
whether an application under Section 128 of the MRTP Act
was maintainable without initiation of separate proceedings
either under Section 10 or under Section 368 of the MRTP Act.
     9. The decision of the Division Bench of the Delhi High          H
    294        SUPREME COURT REPORTS                [2012] 11 S.C.R.


A Court in Mis Pennwalt (/) Ltd. & Anr. v. Monopolies and
  Restrictive Trade Practices Commission & Ors. (supra) and
  the decision of the learned Single Judge of the Delhi High Court
  in R. C. Sood And Co. (P.) Ltd. & Ors. v. Monopolies and
  Restrictive Trade Practices Commission & Anr. (supra), cited
B before us by the learned counsel for the appellants, however,
  hold that an application for compensation under Section 12B
  of the MRTP Act was maintainable without any proceeding
  being initiated under Section 10 or Section 36B of the MRTP
  Act We have perused the aforesaid two decisions of the
c Division Bench and the learned Single Judge of the Delhi High
  Court and in our considered opinion the Division Bench as well
  as the learned Single Judge of the Delhi High Court have
  correctly interpreted the provisions of Sections 10, 12B and
  36B of the MRTP Act.
D        10. Sections 10, 12B and 36B of the MRTP Act are
    extracted hereinbelow:
          "10. Inquiry into monopolistic or restrictive trade
          practices by Commission - The Commission may inquiry
          into -
E
          (a) any restrictive trade practice -
          (i) upon receiving a complaint of facts which constitute such
          practice from any trade association or from any consumer
          or a registered consumers' association, whether such
F         consumer is a member of that consumers' association or
          not, or
          (ii) upon a reference made to it by the Central Government
          or a State Government, or
G         (iii) upon an application made to it by the Director General,
          or
          (iv) upon its own knowledge or information;
          (b) any monopolistic trade practice, upon a reference made
          to it by the Central Government or upon an application
H
GIRISH CHANDRA GUPTA v. U. P. INDL. DEV.             295
   CORPORATION LTD. [A.K. PATNAIK, J.]
made to it by the Director General or upon its own         A
knowledge or information.
128. Power of the Commission to aw.ard
compensation. - (1) Where, as a result of the monopolistic
or restrictive, or unfair trade practice, carried on by any
undertaking or any person, any loss or damage is caused B
to the Central Government, or any State Government or any
trader or class or traders or any consumer, such
government or, as the case may be, trader or class of
traders or consumer may, without prejudice to the right of
such government, trader or class of traders or consumer C
to institute a suit for the recovery of any compensation for
the loss or damage so caused, make an application to the
Commission for an order for the recovery from that
undertaking or owner thereof or, as the case may be, from
such person, of such amount as the Commission may D
determine, as compensation for the loss or damage so
caused.
(2) Where any loss or damage referred to in sub-section
(I) is caused to numerous persons having the same interest,
one or more of such persons may, with the permission of E
the Commission, make an application, under that sub-
section, for and on behalf of, or for the benefit of, the
persons so interested, and thereupon the provisions of rule
8 of Order I of the First Schedule to the Code of Civil
Procedure, 1908 (5 of 1908), shall apply subject to the F
modification that every reference therein to a suit or decree
shall be construed as a reference to the application before
the Commission and the order of the Commission thereon.
(3) The Commission may, after an inquiry made into the G
allegations made in the application filed under sub-section
(1 ), make an order directing the owner of the undertaking
or other person to make payment, to the applicant, of the
amount determined by it as realisable from the undertaking
or the owner thereof, or, as the case may be, from the other
                                                             H
    296       SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A         person, as compensation for the loss or damage caused
          to the applicant by reason of any monopolistic or
          restrictive, or unfair trade practice carried on by such
          undertaking or other person.
          (4) Where a decree for the recovery of any amount as
B         compensation for any loss or damage referred to in sub-
          section (I) has been passed by any court in favour of any
          person or persons referred to in sub-section (1 ), or, as the
          case may be, sub-section (2), the amount, if any, paid or
          recovered in pursuance of the order made by the
c         Commission under sub-section(3) shall be set off against
          the amount payable under such decree and the decree
          shall, notwithstanding anything contained in the Code of
          Civil Procedure, 1908 (5 of 1908), or any other law for the
          time being in force, be executable for the balance, if any,
D         left after such set off.
           368. Inquiry into unfair trade practices by
           Commission - The Commission may inquire into any
          ·unfair trade practice, -
E         (a) upon receiving a complaint of facts which constitutes
          such practice from any trade association or from any
          consumer or a registered consumers' association, whether
          such consumer is a member of that consumers' association
          or not; or
F         (b) upon a reference made to it by the Central Government
          or a State Government; or
          (c) upon an application made to it by the Director General;
          or
G         (d) upon its own knowledge or information."
      11. On a reading of sub-section (1) of Section 128 of the
  MRTP Act, it will be clear that where, as a result of the
  monopolistic or restrictive, or unfair trade practice, carried on
  by any undertaking or any person, any loss or damage is
H caused to the Central Government, or any State Government
    GIRISH CHANDRA GUPTA v. U. P: INDL. DEV.               297
       CORPORATION LTD. [A.K. PATNAIK, J.]
  or any trader or class or traders or any consumer, such A
 government or, as the case may be, trader or class of traders
 or consumer may make an application to the MRTP
 Commission for an order for the recovery from that undertaking
 or owner thereof or, as the case may be, from such person, of
 such amount as the MRTP Commission may determine, as 8
 compensation for the loss or damage so caused. Sub-section
  (3) of Section 128 of the MRTP Act further provides that the
  MRTP Commission may, after an inquiry made into the
  allegations made in the application filed under sub-section (1 ),
 make an order directing the owner of the undertaking or other C
 person to make payment, to the applicant, of the amount
 determined by it as realisable from the undertaking or the owner
 thereof, or, as case may be, from the other person, as
 compensation for the loss or damage caused to the applicant
 by reason of any monopolistic or restrictive, or unfair trade D
 practice carried on by such undertaking or other person. Thus,
 the MRTP Commission has been vested with the powers under
sub-section (3) of Section 128 of the. MRTP Act to make an
 inquiry to the allegations of monopolistic or restrictive or unfair
trade practice made in the application filed under sub-section
 (1) of Section 128 of the MRTP Act and to determine the E
amount of.compensation realizable from the undertaking or the
owner thereof, or, as case may be, from the other person,
towards loss or damage caused to the applicant by reason of
any monopolistic or restrictive, or unfair trade practice carried
on by such undertaking or other person. These powers vested F
in the MRTP Commission under sub-section (3) of Section 128
of the MRTP Act are independent of its powers under Section
10 and Section 368 of the MRTP Act.
     12. In fact, Section 128 was introduced in the MRTP Act
by Act 30 of 1984 as an independent remedy for a claimant in      G
addition to a suit that he may file to claim any loss or damage
that he may suffer by reason of any monopolistic or restrictive
or unfair trade practice as would be clear from sub-section (4)
of Section 128 quoted above. There is no reference at all in
                                                                  H
    298      SUPREME COURT REPORTS                [2012] 11_ S.C.R.


A Section 128 of the MRTP Act to the provisions of either Section
  10 or Section 368 of th~ MRTP Act and if Parliament intended
  that the power of the MRTP Commission to award
  compensation under Section 128 of the MRTP Act was to be
  dependent on the exercise of power of MRTP Commission
8 either under Section 10 or under Section 368 of the MRTP Act,
  Parliament would have made this intention clear in the language
  of some provision in Section 128 of the MRTP Act. There is
  also no reference in either Section 1O or in Section 368 of the
  MRTP Act to any of the provisions of Section 128 of the MRTP
c Act and if the parliament intended to make Sections 10, 128
  and 368 of the_MRTP Ad interdependent, there would have
  been some indicaticrn of this intention of Parliament in Section
  10 or in Section 368 qf the MRTP Act. In the absence of any
  such indication of this intention of Parliament to make the
  provisions of Section 128 of the MRTP Act dependent on
0
  initiation of an inquiry or proceeding under Section 10 or
  Section 368 of the MRTP Act, the Competition Appellate
  Tribunal clearly erred in coming to the conclusion that
   interdependence of the provisions of Section 10 or Section 368
E with Section 128 cannot be lost sight of and in the absence of
  a separate proceeding allegi~g unfair, monopolistic or
   restrictive trade practice, an application for compensation
  under Section 128 of the MRTP Act is not maintainable.
       13. We, therefore, set aside the impugned orders of the
F Competition Appellate Tribunal, but leave it open to the
  respondents to raise a plea before the Competition Appellate
  Tribunal that the appellants have not made out any case of
  monopolistic or restrictive trade practice or unfair trade practice
  in terms of Section 128 of the MRTP Act and if such plea is
G raised it will be decided by the Competition Appellate Tribunal
  on its own merits following the decision of this Court in Saurabh
  Prakash v. DLF Universal Ltd. {supra). The appeals are
  allowed. There shall be no order as to costs.

    R.P.                                          Appeals allowed.
H