Holding

The respondent's conduct does not constitute a restrictive trade practice under the MRTP Act, and the appeal is dismissed.

Summary

Mis. Pawan Hans Ltd. sought flats for its employees and entered negotiations with Mis. Lokhandwala Construction Industries Ltd. over price and the requirement of an unconditional bank guarantee. The parties could not agree on the guarantee clause, the Memorandum of Understanding was never signed and the deal collapsed. Pawan Hans alleged that the respondent’s refusal to furnish the guarantee and subsequent sale of the flats at a lower price constituted a "restrictive trade practice" under Section 2(o)(ii) of the Monopolies and Restrictive Trade Practices Act, 1969, seeking an inquiry and damages. The MRTP Commission dismissed the complaint, holding it was merely a breach of contract, not a restrictive trade practice. On appeal, the Supreme Court affirmed that for conduct to fall within the definition of a restrictive trade practice it must prevent, distort or restrict competition or manipulate price/conditions to impose unjustified costs on consumers, which was absent here. Consequently, the appeal was dismissed.

Issues considered

Whether the respondent's conduct amounts to a "restrictive trade practice" under Section 2(o)(ii) of the Monopolies and Restrictive Trade Practices Act, 1969.
Whether the MRTP Commission had jurisdiction to entertain a complaint based solely on a breach of contractual conditions.
Whether a mere failure to agree on a bank guarantee can be treated as manipulation of price or conditions of delivery within the meaning of the Act.

Legislation cited

Monopolies and Restrictive Trade Practices Act, 1969s. 10(a)(i), s. 12(A), s. 2(o), s. 33

Subjects

Restrictive trade practiceMonopolies and Restrictive Trade Practices ActCompetition lawBreach of contractBank guaranteePrice manipulationCivil suitSupreme Court

Judgment

\ MIS. PAWAN HANS LTD. A
V.

UNION OF INDIA AND ANR.

APRIL 8, 2003

[BRIJESH KUMAR AND B. N. SRIKRISHNA, JJ. ] B

Monopolies and Restrictive Trade Practices Act, 1969:

Ss. 2(o) and JO(a)(i)- 'Restrictive trade practices '-Deal for sale/
purchase of flats between complainant and construction-company could not C
be finalised-Complainant filing application before Monopolies and Restrictive
Trade Practices Commission for initiating inquiry proceedings against the
construction company-Held, in order to fall within the term 'restrictive trade
practices' the conduct ofparty complained against should be such which may
have the effect ofpreventing, distorting or restricting competition in any manner D
which may tend to obstruct flow of capital into the stream of production or
may bring about manipulation of prices or conditions of delivery resulting in
imposition on consumers unjustified costs or restrictions-Instant case would
not fall within the ambit of s. 2(o)(i) or (ii).

The appellant-company required certain number of flats for its E
employees and for that purpose invited tenders. The respondent-
. construction company offered to sell the required number of flats to the
appellant-company at a specified price. Some difference of opinion
occurred between the parties regarding the manner in which the bank
guarantee was to be furnished and ultimately the Memorandum of F
Understanding could not be signed. Consequently, neither any advance
payment was released by the appellant-company nor any bank guarantee
was furnished by the respondent; and the deal fell through.

The appellant filed a complaint against the respondent before the
Monopolies and Restrictive Trade Practices Commission, alleging that G
though the respondent had agreed to furnish unconditional bank guarantee
regarding the advance release of amount but later wanted waiver of that
condition; that the respondent in order to cause wrongful gain to itself
and wrongful loss to the complainant backed out and did not sign the
Memorandum of Understanding; and that the respondent wanted to take
443 H
444 SUPREME COURT REPORTS [2003) 3 S.C.R.

A benefit of the enhanced price of the flats. The case of the respondent was
that there was no agreement between the parties with regard to bank
guarantees since the respondent never agreed to furnish unconditional
bank guarantee; that the complainant had itself corrected the draft of
Memorandum of Understanding which never attained the stage of
B agreement; and that the complainant, if at all, could file a civil suit for
specific performance of agreement, but no case of restrictive trade
practices was made out. The Commission by a majority opinion dismissed
the complaint holding that it was only a case of breach of condition of
contract, if at all, and would not fall within the ambit of s. 2(o)(ii) of the
Monopolies and Restrictive Trade Practices Act,1969. Aggrieved, the
C complainant filed the present appeal.

Dismissing the appeal, the Court

HELD: I.I. Jn order to fall within the term "restrictive trade
practice" as defined in s. 2(o) of the Monopolies and Restrictive Trade
D Practices Act,1969 the conduct of party complained against should be such
which may have the effect of preventing, distorting or restricting,
competition in any manner which may tend to obstruct flow of capital into
the stream of production or may bring about manipulation of prices or
conditions of delivery resulting in imposition on the consumers unjustified
costs or restrictions. Any conduct or violation of a condition of a contract
E between two parties not resulting in such consequences cannot amount to
restrictive trade practice. In the instant case, no such facts have been
averred which may be said to have constituted restrictive trade practice
on the parts of the respondent. 1450-F, G; 452-GI

F 1.2. The complainant wanted unconditional bank guarantee whereas
the respondent was not agreeable for the same and could validly suggest
modification of that condition in the Memorandum of Understanding for
providing bank guarantee on progressive payment and performance basis;
and if on that point the negotiations broke and the transaction fell through,
the case would not fall within the ambit ofs. 2(o)(i) or (ii) of the Act. Even
G if it is assumed that the contract had been completed without signing of
Memorandum of Understanding or any agreement, then too, it would be
nothing more than a mere breach of a condition of an agreement which
may, if at all, give rise to filing of a civil suit, for enforcing that condition
of the contract, or in damages, or as it may be found to lie according to
H the law. 1451-A-CI
PA WAN HANS LTD. v. U.0.l. [BRIJESH KUMAR, J.] 445

1.3. After negotiations with the complainant failed, the respondent A
sold the flats at a lower price to others. There is no allegation that the
respondent had demanded or expected higher priced from the
complainant. It is also not the case of the complainant that respondent
created such a situation which could compel the complainant to purchase
the flats from the respondent to the detriment of the complainant. Thus B
the complaint cannot be said to be covered under s. 2(o)(ii) of the Act.
[452-C-D; 451-DI

Haridas Exports v. All India Float Glass Manufacturer's Association
and Ors., [20021 6 SCC 600; Mahindra and Mahindra ltd v. Union of India
and Anr., [197912 SCC 529 and Te/co v. Registrar of the Restrictive Trade C
Agreement, [19771 2 SCC 55, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4149of1995.

From the Judgment and Order dated 16.12.1994 of the M.R.T.P.
Commission, New Delhi in R.T.P. E. No. 122192 and I.A. No. 72 of 1992. D
V.N. Ganpule, Arvind Kumar, Ashish Middha, Ms. Poonam Prasad and
Mrs. Laxmi Arvind for the Appellant.

Ashok H. Desai, Kailash Vasdev and Narula A. Mariarputham for
Mis. Arputham Aruna & Co. for the the Respondents. E
Ms. Shashi Kiran, S.N. Terdol and Sandeep Bhalla for the Respondent
for Union of India.

The Judgment of the Court was delivered by
F
BRIJESH KUMAR, J. This is an appeal preferred by the complainant-
Mis. Pawan Hans Ltd. against the order of the Monopolies and Restrictive
Trade Practices Commission (for short 'the Commission'), New Delhi rejecting
the complaint preferred against the respondent no. 2- Mis. Lokhandwala
Construction Industries Ltd. (hereinafter to be referred to as 'respondent'
only) under Section I 0 of the Monopolies and Restrictive Trade Practices G
Act (for short 'the Act') for inquiry. The order refusing to initiate inquiry
proceedings under Section I O(a)(i) of the Act has been dismissed as per the
majority opinion of the Commission.

The complainant - Mis. Pawan Hans Ltd. needed some flats for its H
employees at Bombay and for that purpose issued a tender notice in Times
446 SUPREME COURT REPORTS [2003] 3 S.C.R.

A of India dated 4.5.1991 in response whereof the respondent Lokhandwala
Construction Industries Ltd. made an offer for sale of 40 flats at Kandiwall,
Bombay. The respondent, it is said, had also offered to sell some more flat~
in Green Meadows. Negotiations, in regard to the above flats, started between
the parties. Offers and revised offers were exchanged between them. Apart
B from other conditions it is said to be agreed that price of the flat would be
at the rate of 780 per sq. ft. of the saleable area. It is also said to have been
given out that the respondent would be able to complete the construction
within 12 months of receiving the letter of intent along with the first instalment.
As against the advance payments which were to be made by the complainant,
the respondent is said to have agreed to furnish bank guarantee on release of
C the amount by the complainant. The offer was valid up to 31.8.1991.
Further correspondence, however, ensued raising the question regarding
costs as quoted which also said to have included the cost of bank guarantee.
The validity of the offer was extended up to 31.12.1991. The complainant is
also said to have issued confirmation letter of intent dated 7.1.1992 for
D purchase of 40 flats. They had also written for providing bank guarantee
towards 5% of the total consideration by January 25, 1992. But it appears
that there has been one or the other query from either side regarding furnishing
of the bank guarantee etc. It is said that the respondent had again by letter
dated I 0.4.1992 asked for some more time to provide bank guarantee. The
E complainant also furnished a draft Memorandum of Understanding to the
respondent on 16.3.1992. Certain changes are said to have been suggested by
the respondent in regard to furnishing of the bank guarantee. According to
the complainant though the respondent had agreed to furnish unconditional
bank guarantee regarding the advance release of amount by the complainant
but by letter dated 18.5.1992 they wanted waiver of that condition. Ultimately
F the Memorandum of Understanding was not signed, nor bank guarantee was
furnished by the respondent. Resultantly the deal fell through. According to
the complainant the respondent avoided the agreement without any lawful
cause but with a view to enhance the prices of the flats. It is further alleged
in the complaint that the respondent in order to cause wrongful gain to itself
G and wrongful loss to the complainant had backed out to sign the Memorandum
of Understanding. It is averred in the complaint " ..... the respondent wants to
take benefit of the enhanced prices of the flats. Had the respondent not
assured the complainant to furnish the bank guarantee, the complainant would
have negotiated with some other builder for purchase of the flats". According
to the complainant, the respondent exercised pressure upon the complainant
H to pay the enhanced prices.
PAWANHANSLTD v.U.0.1.[BRIJESHKUMAR,J.] 447

The case of the complainant on the basis of the facts indicated above A
in a nut-shell is that the respondent manipulated conditions of rendering
services with a view to cause unjustified cost increase to the detriment of the
complainant attracting Section 2( o)(ii) of the Act. Hence a prayer was made
to institute an inquiry and pass an appropriate order including award of costs/
damages so that government agencies like the complainant and others are
prevented from being cheated by adopting the restrictive trade practices by B
the respondent. An application for interim injunction was also filed under
Section l 2(A) of the Act.

The case of the respondent is that there was no agreement whatsoever
between the parties for the bank guarantee for the flats in the building C
'Reviera '. The complainant had itself corrected the draft of Memorandum of
Understanding and made the counter-suggestions which never attained the
stage of agreement between the parties. There has throughout been only
negotiations, offers and counter offers. It was also indicated that the
complainant could not be allowed to plead mistake by oversight as a ground
of enforcing term of unconditional bank guarantee which was never agreed D
to between the parties. Some other pleas also seem to have been raised but
suffice it to mention that one of them being that the complainant if at all
could file a civil suit for specific performance of the agreement etc. but no
case of restrictive trade practice is made out merely on the allegation of
refusal by the respondent to enter into an agreement with a term of E
unconditional bank guarantee. It was also pleaded that the case does not fall
within the purview of Section 2(o) or Section 33 of the Act.

One of the Members of the Commission, namely Shri N. C. Gupta,
after detailed discussion, arrived at the following conclusions in paragraph 15
of his order holding that the complaint is not maintainable. Paragraph 15 of F
the order of Shri N. C. Gupta is quoted below :

(i) The negotiations between the parties did not result into a
concluded contract and as such there has been no agreement
between the parties.
(ii) No money whatsoever was paid or advanced by the complainant G
by way of consideration or otherwise in continuation or
furtherance of the negotiations for purchase of the flats.
(iii) After the negotiations broke down, the flats were sold by the
Respondent to various persons as per details furnished by the
Respondent for valuable consideration and therefor<- the legal H
448 SUPREME COURT REPORTS [2003] 3 S.C.R.

A rights of the subsequent purchasers in the property have come
into being; and therefore no order whatsoever can be passed
without adjudicating upon the rights of such persons and making
them the parties to the proceedings.
(iv) The flats were sold by the respondent to those purchasers at the
B same price at which negotiations for sale of the flats to the
complainant were in progress. Therefore, there is no question of
any restriction, limitation or distortion of competition or any
manipulation on the part of the Respondent in terms of Section
2(o) of the MRTP Act.
C (v) There is no plea before us about any alleged restrictive trade
practice in terms of Section 33 of the Act. The plea, whatsoever,
is confined to the alleged practice in terms of Section 2( o) of the
Act.
(vi) Assuming without admitting that any right accrued in favour of
D the complainant as a result of such negotiations the same is a
right of a civil nature and the proper remedy, if any, is by way
of civil suit. The Commission has no jurisdiction in the matter."

According to the other Hon 'ble Member of the Commission, at the
initial stage it is only to be examined as to whether there was a prima facie
E case against the respondent for institution of a regular inquiry under the
provisions of the Act or not. Considering the facts of the case, it has been
observed that it was only on 18th May, 1992 that the respondent had
approached the applicant to consider the modification in the terms relating to
bank guarantee for the full value of the flat based on progressive payment
plus a performance guarantee. But for the condition relating to guarantee, the
F respondent was prepared to sign the Memorandum of Understanding. The
respondent had also given out that the applicant could send its confirmation
within seven days and that the work which had already commenced would
be completed and they would be able to handover the possession by May 15,
1993. No letter of confirmation was received. Hence the respondent wrote
G another letter on June I, 1992 in reference to earlier letter dated May 18,
1992 saying that since the period of two weeks had already elapsed and no
confirmation of modification in the condition relating to bank guarantee was
received, it would be presumed that modification was not accepted, in the
circumstances it was not possible to execute the memorandum of
understanding. Thereafter the respondent started selling the flats on June 8,
H 1992 at the rate of Rs. 650 per sq. ft. The learned Member then observed that --
PA WAN HANS LTD. v. U.0.1. [BRIJESH KUMAR, J.] 449

the above conduct of the respondent was suspicious as there could be no A
occasion to start selling the flats from June 8, 1992 without waiting for any
reply from the applicant and that too at lesser price whereas agreed price to
sell to the applicant was at the rate of Rs. 800 or Rs. 780 per sq. ft. In the
opinion of the learned Member, the respondent had manipulated the condition
of delivery of flat to the applicant in such a manner as to impose unjustified

- costs or restriction on applicant. The case, therefore, prima facie would
squarely be covered under Section 2(o)(ii) of the Act. Therefore, it would be
a fit case for inquiry.
B

The order of the Commission, however, was delivered by the Chairman
of the Commission Justice A. N. Verma. He agreed with the view expressed C
by Shri N. C. Gupta and held that the complaint was liable to be dismissed.
It was only a case of breach of condition of contract, if at all, and would not
fall within the ambit of Section 2(o)(ii) of the Act. It has been observed as
follows:-

"A distinction must, in my view, be drawn between a mere refusal of D
non-fulfilment of a contractual obligation simplicitor without having
any overtones of preventing or distorting competition in any manner
and one involving a conscious and calculated manipulation of prices
or conditions of delivery in such a manner as to impose unjustified
costs or restrictions on the consumer, and, of course, gaining some
advantage for itself. It is only the latter class of the cases which falls E
within the mischief of the provision of clause (ii) of Section 2(o) of
the MRTP Act. "

The learned Chairman, thereafter, considered the meaning of the word
'manipulation' and took note of the definition in Black's Law Dictionary,
which has been quoted as follows:-
F

"The aptest definition I could lay my hands on is that to be found in
Black's Law Dictionary (Sixth Edition) in which manipulation is stated
to mean :-

Manipulation:- Series of transaction involving the buying or selling G
of a security for the purpose of creating a false or misleading
appearance of active trading or to raise or depress the price to induce
the purchase or sale by others. Such acts are prohibited by Sec. I O(b)
of the Securities Exchange Act of 1934, 15 U.S.C. A 781 j See also
---- Wash sale. H
450 SUPREME COURT REPORTS [2003] 3 S.C.R.

A Term as used in provision in Securities Exchange Act of 1934 (15 U.
S.C.A 78n (e) prohibiting use of manipulative practices in tender
offers cannotes conduct designed to deceive or defraud investors by
controlling or artificially affecting price of securities. Schreiber v.
Burlington Northern, Inc. 472 U.S. I, 4, 105 S. Ct. 2458, 2461, 86
L.Ed. 2nd I".
B
In the above background, the Chairman also observed that there was no
reason to disbelieve the explanation of the respondent declining to furnish
unconditional bank guarantee in view of their previous experience with the
-
applicant in regard to the flats in Green Meadows. He found that there was
C no question of manipulation on the part of the respondent in refusing to
furnish the unconditional bank guarantee.

We feel it would be appropriate to peruse the definition of the word
'restrictive trade practice' as defined under the Act. It reads as follows:-

"Section 2(o) "Restrictive trade practice" means a trade practice
D which has, or may have the effect of preventing, distorting or
restricting, competition in any manner and in particular,
(i) which tends to obstruct the flow of capital or resources into the
stream of production, or
E (ii) which tends to bring about manipulation of prices, or conditions
of delivery or to affect the flow of supplies in the market relating
to goods or services in such manner as to impose on the consumers
unjustified costs or restrictions. "

From the definition quoted above it is evident that the conduct of party
F complained against should be such which may have the effect of preventing,
distorting or restricting, competition in any manner which may tend to obstruct
flow of capital into the stream of production or may bring about manipulation
of prices or conditions of delivery resulting in imposition on the consumers
unjustified costs or restrictions. Any conduct or violation of a condition of a
contract between two parties not resulting in the consequences enumerated
G above, obviously cannot amount to restrictive trade practice. In the case in
hand the negotiations took place between two parties regarding sale and
purchase of flats in "Reviera". Right from the initial stage there seems to
have been some differences between the parties in relation to furnishing of
the bank guarantee. In that regard letters were also exchange between them.
1-1 The applicant wanted unconditional bank guarantee whereas the respondent
PAW AN HANS LTD. v. U.0.1. [BRIJESH KUMAR, J.] 451

was not agreeable for the same and wanted modification of that condition as A
suggested in the Memorandum of Understanding for providing bank guarantee
on progressive payment and performance basis. On failure to reach to any
consensus, the respondent wrote back that, in such a situation, it was not
possible to execute memo of understanding. This is how the negotiations fell
through and the contract could not be completed. Even for the sake of

- argument, it is accepted that the contract had been completed without signing
of Memorandum of Understanding or any agreement, then too, it would be
B

' nothing more than a mere breach of a condition of an agreement which may,
if at all, give rise to filing of a civil suit, for enforcing that condition of the
contract, or in damages, or as it may be found to lie according to the law.

On facts, it is there on the record that the flats were sold by the
c
respondent at a lower price as compared to the price which was being
negotiated between the parties. There is no averment of facts to substantiate
the allegation in the complaint that respondent wanted to extract higher price
from the applicant to benefit itself or to cause harm to the applicant. It is not
understandable in what manner the complaint of the appellant was covered D
under Section 2(o)(ii) of the Act. It cannot be said that the conduct of the
respondent was designed or manipulated in a manner so as to gain some
advantage or profit to itself and to impose unjustified costs or restrictions on
the applicant. The facts do not indicate any devious method adopted by the
respondent which could be resulted in its own advantage and to the E
disadvantage of the other. It has been observed by the Commissi0n that the
respondent had the unpleasant experience of furnishing unconditional bank
guarantee, in relation to the sale of flats in "Green Meadows". Instead of
unconditional bank guarantee, they only wanted it to be based on progressive
payment and performance guarantee. We may refer to a decision reported in
[2002] 6 SCC p. 600, Haridas Exports v. All India Float Glass Manufacturer's F
Association and Ors., more particularly to observation made in paragraph 42
of the Judgment, which reads as follows: -

"Section 2(u) does state that "trade practice" means any practice
relating to the carrying on of any trade then it adds that such a trade
practice would include anything done by any person which controls G
or affects the price charged by, or the method of trading of, any
trader or any class of traders. The Act and the aforesaid section, in
particular, is, therefore, concerned specifically with the incidence of
the restrictive trade practice within India which in Section 2(o)(i)
refers to the obstruction to the flow of capital or resources into the H
452 SUPREME COURT REPORTS [2003) 3 S.C.R.

A stream of production, while Section 2( o)(ii) talks of manipulation of
prices ur conditions of delivery or to affect the flow of supplies in the
market but which must be such as to impose on the consumers
unjustified costs or restrictions. To put it differently, mere manipulation
of prices or conditions of delive1y would not be a restrictive trade
practice under Section 2(o)(iij unless it is done in such a manner so
B as to impose on the consumers unjustified costs or restrictions.
lowering ofprices cannot be regarded as imposing on the consumers
unjustified costs or restrictions. "
(Emphasis supplied)
-
C In the case in hand, admittedly, after negotiations failed, the respondent had
sold the flats at a lower price to others. It is, thus, clear that no undue
advantage was sought to be extracted by respondent by dropping the matter,
much less from the applicant. There is no allegation that the respondent had
demanded or expected higher price from the complainant. It is also not the
case of the complainant that the respondent created such a situation which
D could compel the complainant to purchase the flats from the respondents on
respondent's term to the detriment of the complainant. The applicant could
also not compel the respondent to sign the Memorandum of Understanding
on applicants' own terms. The respondent could validly suggest a change in
draft Memorandum of Understanding sent by the complainant and if on that
E point the negotiations broke and the transaction fell through the case would
not fall within the ambit of Section 2(o)(i) or (ii) of the Act. We may observe
that the view taken on the point by the Chairman commends approval. Yet
another decision on the point that may be referred to is reported in [1979] 2
SCC page 529, Mahindra and Mahindra ltd. v. Union of India and Anr., as
also Te/co v. Registrar of the Restrictive Trade Agreement, [1977] 2 SCC
F page 55 observing that in absence of relevant and proper facts, mere use of
words as used in the provision, would not be of any help and it would not
constitute restrictive trade practice. In the present case we find that no such
facts have been averred which may be said to have constituted restrictive
trade practice on the part of the respondent.

G In view of the discussion held above, the appeal lacks merit and it is
accordingly dismissed with costs.

R.P. Appeal dismissed.