ORDER
G.R. Luthra, J. (Chairman)
1. The present application under Section 12A of the Monopolies and Restrictive Trade Practices Act, 1969, for issue of temporary ad interim injunction has been filed along with an application under Section 36B(c) of the Monopolies and Restrictive Trade Practices Act.
2.
The facts as emerged out of the application of the Director-General (I & R) are as follows :
Respondent is a contractor who supplies butter to the District Hospital, Kottayam, Kerala State, for the consumption of in patients of the hospital. Dr. M.A. Pillai, Resident Medical Officer of the said hospital, filed a complaint with the Director-General to the effect that patients of the hospital were complaining that the quality of the butter being supplied to them was inferior inasmuch as it did not have any taste, colour and smell as was contained in normal butter, that he sent more than fifty samples to the Regional Analytical Laboratory, Kakanad, Cochin, who gave evasive reports in his words “Sample received in spoiled condition and hence rejected”, and that, therefore, it was necessary that correct analysis of the butter be got done and further action taken, if it was found to be adulterated. On receipt of a sample of the butter from Dr. M. A. Pillai, the same was sent to the office of the Public Analyst, Food Laboratory, Delhi Administration, Alipur Road, Delhi-110054, who reported that the sample of butter was adulterated as the same contained foreign fat other than milk fact and that the fat contents were 88.15% only. The butter was found to be adulterated and was not of that quality which it was represented to be by the respondent ; she became guilty of indulgence in unfair trade practice within the meaning of Clauses (i) and (vi) of Sub-section (1) of Section 36A and also Sub-section (4) of that section.
3. The Director-General prays for starting an enquiry under Section 36B of the Monopolies and Restrictive Trade Practices Act and for passing the necessary order. By way of application under Section 12A, he prays for issue of a temporary injunction restraining the respondent from carrying on the unfair trade practice of supplying adulterated, spurious and unwholesome butter to the consumers and patients of the hospital till the conclusion of the enquiry. The Director-General also prays for issuing ex parte injunction so as to avoid defeating the very purpose of the injunction.
4. We have heard the Director-General. The application is supported by a copy of the complaint of Dr. M.A. Pillai. He has clearly stated in the complaint that he sent more than fifty samples to the Regional Analytical Laboratory, Kakanad, Cochin, but the authorities of that Laboratory, being in league with the respondent, gave very evasive reports that the sample was in spoiled condition and did not, therefore, admit of analysis. The Director-General has also placed on record a copy of the report dated December 16, 1986, of Mrs. M. Srivastava, Deputy Public Analyst, belonging to the office of the Public Analyst Food Laboratory, Alipur Road, Delhi. It is stated in the report that the butter contained 88.15% of fat only and that it was adulterated because it contained fat other than milk fat.
5. We are cognisant of the fact that in view of Rule 3 of Order XXXIX of the Code of Civil Procedure read with Section 12(2) of the Monopolies and Restrictive Trade Practices Act, a notice should be given to the respondent before issuing a temporary injunction unless the delay will defeat the very purpose of injunction. In the present case, it is obvious that the butter being adulterated should not be supplied to in-patients of the hospital as well as to other consumers so as to avoid deleterious effect and injury to health. According to Section 12A, injunction can be issued if it is required to curb any unfair or restrictive trade practice which is likely to affect prejudicially the public interest. In the present case, it is prima facie apparent that if the supply of adulterated butter is allowed, there will be prejudicial effect on the health of all the consumers of the same including the in-patients of the aforesaid hospital. Under these circumstances, it is absolutely necessary to issue an ex parte interim injunction as prayed for. We, therefore, issue temporary injunction re-straining the respondent from supplying adulterated, unwholesome, spurious or sub-standard butter to any one including the District Hospital, Kottayam, Kerala, or to its in-patients till further orders.
6. A copy of this order, a copy of the application under Section 12A and a copy of the application under Section 36B(c) along with annexures be sent to the respondent for showing cause on January 13, 1986, as to why the injunction should not be made absolute till the conclusion of the enquiry.
7. A copy of the injunction order, copies of both the applications of the Director-General along with their annexures be also sent to the Chief Secretary, Government of Kerala, Trivandrum, for information and necessary action. Such copies be also sent to the District Hospital, Kottayam, Kerala.
8. As required by Rule 3, Order XXXIX, Civil Procedure Code, copies of both the applications of the Director-General along with annexures be sent to the respondent by the Director-General by registered post and affidavit be filed that the same have been sent.
9. It is made clear that whatever has been mentioned above is only with a view to decide the application under Section 12A and will not prejudice the decision on merits of the enquiry being held under Section 36D of the Monopolies and Restrictive Trade Practices Act.