{"id":195119,"date":"2003-04-08T00:00:00","date_gmt":"2003-04-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-pawan-hans-ltd-vs-union-of-india-and-anr-on-8-april-2003"},"modified":"2018-01-31T14:00:48","modified_gmt":"2018-01-31T08:30:48","slug":"ms-pawan-hans-ltd-vs-union-of-india-and-anr-on-8-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-pawan-hans-ltd-vs-union-of-india-and-anr-on-8-april-2003","title":{"rendered":"M\/S. Pawan Hans Ltd vs Union Of India And Anr on 8 April, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. Pawan Hans Ltd vs Union Of India And Anr on 8 April, 2003<\/div>\n
Author: B Kumar<\/div>\n
Bench: Brijesh Kumar, B.N. Srikrishna.<\/div>\n
           CASE NO.:\nAppeal (civil)  4149 of 1995\n\nPETITIONER:\nM\/s. Pawan Hans Ltd.\n\nRESPONDENT:\nUnion of India and Anr.\n\nDATE OF JUDGMENT: 08\/04\/2003\n\nBENCH:\nBrijesh Kumar & B.N. Srikrishna.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
BRIJESH KUMAR, J.\n<\/p>\n
\t\tThis is an appeal preferred by the complainant
\nM\/s.Pawan Hans Ltd. against the order of the Monopolies
\nand Restrictive Trade Practices Commission (for short ‘the
\nCommission’), New Delhi rejecting the complaint preferred
\nagainst the respondent no.2- M\/s.Lokhandwala Construction
\nIndustries Ltd. (hereinafter to be referred to as ‘respondent’
\nonly) under Section 10 of the Monopolies and Restrictive
\nTrade Practices Act  (for short ‘the Act’) for inquiry.\t The
\norder refusing to initiate inquiry proceedings under Section
\n10(a)(i) of the Act has been dismissed as per  the majority
\nopinion of the Commission.\n<\/p>\n
\t\tThe complainant – M\/s.Pawan Hans Ltd. needed
\nsome flats for its employees at Bombay and for that purpose
\nissued a tender notice in Times of India dated 4.5.1991 in
\nresponse whereof the respondent Lokhandwala Construction
\nIndustires Ltd. made an offer for sale of 40 flats at Kandiwali,
\nBombay.\t The respondent, it is said, had also offered to sell
\nsome more flats in Green Meadows.  Negotiations,  in regard
\nto the above flats, started  between the parties.  Offers and
\nrevised offers were exchanged between them.  Apart from
\nother conditions it is said to be agreed that price of the flat
\nwould be at the rate of 780 per sq.ft. of the saleable area.  It
\nis also said to have been given out that the respondent
\nwould be able to complete the construction within 12 months
\nof receiving the letter of intent along with the first instalment.
\nAs against the advance payments which were to be made by
\nthe complainant, the respondent is said to have agreed to
\nfurnish bank guarantee on  release of the amount by the
\ncomplainant.  The offer was valid up to 31.8.1991.
\nFurther correspondence, however,  ensued raising the
\nquestion regarding costs as quoted which also said to have
\nincluded  the cost of bank guarantee.  The validity of the
\noffer was extended up to 31.12.1991.  The complainant is
\nalso said to have issued confirmation letter of intent dated
\n7.1.1992  for purchase of 40 flats.  They had also written for
\nproviding bank guarantee towards 5% of the total
\nconsideration by January 25, 1992.  But it appears that there
\nhas been one or the other query from either side regarding
\nfurnishing of the bank guarantee etc.  It is said that the
\nrespondent had again by letter dated 10.4.1992 asked for
\nsome more time to provide bank guarantee.  The
\ncomplainant also furnished a draft Memorandum of
\nUnderstanding to the respondent on 16.3.1992.  Certain
\nchanges are said to have been suggested by the respondent
\nin regard to furnishing of the bank guarantee.\tAccording to
\nthe complainant though the respondent had agreed to
\nfurnish unconditional bank guarantee regarding the advance
\nrelease of amount by the complainant but by letter dated
\n18.5.1992 they wanted waiver of that condition.\t  Ultimately
\nthe Memorandum of Understanding was not signed,\t nor
\nbank guarantee was furnished by the respondent.
\nResultantly  the deal fell through.   According to the
\ncomplainant the respondent avoided the agreement without
\nany lawful cause but with a view to enhance the prices of the
\nflats.\tIt is further alleged in the complaint that the
\nrespondent in order to cause wrongful gain to itself and
\nwrongful loss to the complainant had backed out to sign the
\nMemorandum of Understanding.  It is  averred in the
\ncomplaint “the respondent wants to take benefit of the
\nenhanced prices of the flats.  Had the respondent not
\nassured the complainant to furnish the bank guarantee, the
\ncomplainant would have negotiated with some other builder
\nfor purchase of the flats”.  According to the complainant, the
\nrespondent exercised pressure upon the complainant to pay
\nthe enhanced prices.\n<\/p>\n
\t\tThe case of the complainant on the basis of the
\nfacts indicated above in a nut-shell is that the respondent
\nmanipulated conditions of rendering services with a view to
\ncause unjustified cost increase to the detriment of the
\ncomplainant attracting Section 2(o)(ii) of the Act.  Hence a
\nprayer was made to institute an inquiry and pass an
\nappropriate order including award of costs\/damages so that
\ngovernment agencies like the complainant and others are
\nprevented from being cheated by adopting the restrictive
\ntrade practices by  the respondent.  An application for interim
\ninjunction was also filed under Section 12(A) of the Act.
\n\t\tThe case of the respondent is that there was no
\nagreement whatsoever between the parties for the bank
\nguarantee for the flats in the building\t ‘Reviera’.  The
\ncomplainant had itself corrected the draft of Memorandum of
\nUnderstanding and made the counter-suggestions which
\nnever attained the stage of agreement between the parties.
\nThere has throughout been only negotiations, offers and
\ncounter offers.\t It was also indicated that the complainant
\ncould not be allowed to plead mistake by oversight as a
\nground of enforcing term of unconditional bank guarantee
\nwhich was never agreed to between the parties.\tSome other
\npleas also seem to have been raised but suffice it to mention
\nthat one of them being that the complainant if at all could file
\na civil suit for specific performance of the agreement etc. but
\nno case of restrictive trade practice is made out merely on
\nthe allegation of refusal by the respondent to enter into an
\nagreement with a term of unconditional bank guarantee.\tIt
\nwas also pleaded that the case does not fall within the
\npurview of Section 2(o) or Section 33 of the Act.
\n\t\tOne of the Members of the Commission, namely
\nShri N.C.Gupta, after detailed discussion, arrived at the
\nfollowing conclusions in paragraph 15 of his order holding
\nthat the complaint is not maintainable.\t Paragraph 15 of the
\norder of Shri N.C.Gupta is quoted below :\n<\/p>\n
“i)\tThe negotiations between the parties did not
\nresult into a concluded contract and as such
\nthere has been no agreement between the
\nparties.\n<\/p>\n
ii)\tNo money whatsoever was paid or advanced
\nby the complainant by way of consideration
\nor otherwise in continuation or furtherance of
\nthe negotiations for purchase of the flats.\n<\/p>\n
iii)\tAfter the negotiations broke down, the flats
\nwere sold by the Respondent to various
\npersons as per details furnished by the
\nRespondent for valuable consideration and
\ntherefore the legal rights of the subsequent
\npurchasers in the property have come into
\nbeing; and therefore no order whatsoever can
\nbe passed without adjudicating upon the
\nrights of such persons and making them the
\nparties to the proceedings.\n<\/p>\n
iv)\tThe flats were sold by the respondent to
\nthose purchasers at the same price at which
\nnegotiations for sale of the flats to the
\ncomplainant were in progress.\t Therefore,
\nthere is no question of any restriction,
\nlimitation or distortion of competition or any
\nmanipulation on the part of the Respondent in
\nterms of Section 2(o) of the MRTP Act.\n<\/p>\n
v)\tThere is no plea before us about any alleged
\nrestrictive trade practice in terms of Section
\n33 of the Act.\tThe plea, whatsoever,  is
\nconfined to the alleged practice in terms of
\nSection 2(o) of the Act.\n<\/p>\n
vi)\tAssuming without admitting that any right
\naccrued in favour of the complainant as a
\nresult of such negotiations the same is a right
\nof a civil nature and the proper remedy, if
\nany, is by way of civil suit.  The Commission
\nhas no jurisdiction in the matter.”\n<\/p>\n
\tAccording to the other Hon’ble Member of the
\nCommission,  at the initial stage it is only to be examined as
\nto  whether there was a prima facie case against the
\nrespondent for institution of a regular inquiry\t  under the
\nprovisions of the Act or not.  Considering the facts of the
\ncase,  it has been observed that it was only  on 18th May,
\n1992 that  the respondent had approached the applicant to
\nconsider the modification in the terms relating to bank
\nguarantee for the full value of the flat based on progressive
\npayment plus a performance guarantee.  But for the
\ncondition relating to guarantee, the respondent was
\nprepared to sign the Memorandum of Understanding.  The
\nrespondent   had also given out that the applicant could send
\nits confirmation within seven days and that the work which
\nhad already commenced would be completed and they
\nwould be able to handover the possession by May 15, 1993.
\nNo letter of confirmation was received.\t Hence the
\nrespondent wrote another letter\t on June 1, 1992 in
\nreference to earlier letter dated May 18, 1992 saying that
\nsince the period of two weeks had already elapsed and no
\nconfirmation of modification in the condition relating to bank
\nguarantee was received,\t  it would be presumed that
\nmodification was not accepted,\tin the circumstances it was
\nnot possible to execute the memorandum\tof understanding.
\nThereafter the respondent started selling the flats on June 8,
\n1992 at the rate of Rs. 650\/- per sq. ft.   The learned
\nMember then observed that the above conduct of the
\nrespondent was suspicious  as there could be no occasion to
\nstart  selling the flats from June 8, 1992 without waiting for
\nany reply from the applicant and that too at lesser price
\nwhereas agreed price to sell to the applicant was at the rate
\nof Rs.800\/-  or Rs,780\/- per sq. ft.   In the opinion of the
\nlearned Member, the respondent had manipulated the
\ncondition of delivery of flat to the applicant in such a manner
\nas to impose unjustified costs or restriction on applicant.
\nThe case, therefore, prima facie would squarely be covered
\nunder Section 2(o)(ii) of the Act.   Therefore, it would be a fit
\ncase for inquiry.\n<\/p>\n
The order of the Commission, however, was
\ndelivered by the Chairman of the Commission Justice A.N.
\nVerma. He agreed with the view expressed by Shri N.C.
\nGupta and held that the complaint was liable to be
\ndismissed.  It was only a case of    breach of condition of
\ncontract, if at all,  and would not fall within the ambit of
\nSection 2(o)(ii) of the Act.  It has been observed as follows:-
\n“A distinction must, in my view, be drawn between
\na mere refusal of non-fulfilment of a contractual
\nobligation simplicitor without having any overtones
\nof preventing or distorting competition in any
\nmanner and one involving a conscious and
\ncalculated manipulation of prices or conditions of
\ndelivery in such a manner as to impose unjustified
\ncosts or restrictions on the consumer, and, of
\ncourse, gaining some advantage for itself.   It is
\nonly the latter class of the cases which falls within
\nthe mischief of the provision of clause (ii) of
\nSection 2(o) of the MRTP Act.”\n<\/p>\n
The learned Chairman, thereafter, considered the meaning
\nof the word ‘manipulation’ and took note of the definition in
\nBlack’s Law Dictionary,\t which has been quoted as follows:-
\n“The aptest definition I could lay my hands on is
\nthat to be found in Black’s Law\t Dictionary (Sixth
\nEdition) in which manipulation is stated  to mean :-\n<\/p>\n
\tManipulation:- Series of transaction involving
\nthe buying or selling of a security for the purpose
\nof creating a false or misleading appearance of
\nactive trading or to raise or depress the price to
\ninduce the purchase or sale by others.\tSuch acts
\nare prohibited by Sec. 10(b) of the Securities
\nExchange Act of 1934, 15 U.S.C.A 781 j\tSee also
\nWash sale.\n<\/p>\n
Term as used in provision in Securities Exchange
\nAct of 1934 (15 U.S.C.A 78n (e) prohibiting use of
\nmanipulative practices in tender offers\t cannotes
\nconduct designed to deceive or defraud investors
\nby controlling or artificially affecting price of
\nsecurities.  Schreiber v. Burlington Northern. Inc.
\n472 U.S. 1, 4, 105 S. Ct. 2458, 2461, 86 L. Ed. 2nd
\n1″.\n<\/p>\n
In the above background,  the Chairman also observed that
\nthere was no reason to disbelieve the explanation of the
\nrespondent declining to furnish unconditional bank
\nguarantee in view of their previous experience with the
\napplicant in regard to the flats in Green Meadows.  He found
\nthat there was no question of manipulation on the part of the
\nrespondent in refusing to furnish the unconditional bank
\nguarantee.\n<\/p>\n
\tWe feel it would be appropriate to  peruse the definition
\nof the word ‘restrictive trade practice’ as defined under the
\nAct. It reads as follows:-\n<\/p>\n
 “Section 2(o)\t“Restrictive trade practice”
\nmeans a trade practice which has, or may have
\nthe effect of preventing, distorting or restricting,
\ncompetition in any manner and in particular,<\/p>\n
(i)\twhich tends to obstruct the flow of
\ncapital or resources into the stream of
\nproduction, or<\/p>\n
(ii)\twhich tends to bring about manipulation
\nof prices, or conditions of delivery or to
\naffect the flow of supplies in the market
\nrelating to goods or services in such
\nmanner as to impose on the consumers
\nunjustified costs or restrictions.”\n<\/p>\n
From the definition quoted above it is evident that the
\nconduct of party complained against should be such which
\nmay have the effect of preventing , distorting\tor restricting,
\ncompetition in any manner which may tend to obstruct flow
\nof capital into the stream of production or may bring about
\nmanipulation of prices or conditions of delivery resulting in
\nimposition  on the consumers unjustified costs or restrictions.
\nAny conduct or violation of a condition of a contract between
\ntwo parties not resulting    in the consequences enumerated
\nabove, obviously cannot amount to restrictive trade practice.
\nIn the case in hand the negotiations took place between two
\nparties regarding sale and purchase of flats in\t “Reviera”.
\nRight from the initial stage there seems to have been some
\ndifferences between the parties in relation to furnishing of
\nthe  bank guarantee. In that regard letters were also
\nexchange between them.\tThe applicant wanted
\nunconditional bank guarantee  whereas the respondent was
\nnot agreeable for the same and wanted modification of that
\ncondition as suggested in the Memorandum of
\nUnderstanding for providing bank guarantee on progressive
\npayment and performance basis.\tOn failure to reach to any
\nconsensus, the respondent wrote back that, in such a
\nsituation, it was not possible to execute memo of
\nunderstanding.\tThis is how the negotiations fell through and
\nthe contract could not be completed. Even for the sake of
\nargument, it is accepted that the  contract had been
\ncompleted without signing of Memorandum of Understanding
\nor any agreement, then too, it would be nothing more than a
\nmere breach of a condition of an agreement which may, if at
\nall, give rise to  filing of a civil suit, for enforcing that
\ncondition of the contract, or in damages, or as it may be
\nfound to lie according to the law.\n<\/p>\n
On facts, it is there on the record that the flats
\nwere sold by the respondent at a lower price as compared to
\nthe price which was being negotiated between the parties.
\nThere is no averment of facts to substantiate the allegation
\nin the complaint that respondent wanted to extract higher
\nprice from the applicant to benefit itself or to cause harm to
\nthe applicant.\tIt is not understandable in what manner the
\ncomplaint of the appellant was covered under Section 2(o)(ii)
\nof the Act.  It cannot be said that the conduct of the
\nrespondent was designed or manipulated in a manner   so
\nas to gain some\t advantage or profit  to itself and to impose
\nunjustified costs or restrictions on the applicant.  The facts
\ndo not indicate any devious method adopted by the
\nrespondent which could be resulted in its own advantage
\nand to the disadvantage of the other.  It has been observed
\nby the Commission that the respondent had the unpleasant
\nexperience of furnishing unconditional bank guarantee, in
\nrelation to the sale of flats in “Green Meadows”. Instead  of
\nunconditional bank guarantee, they only wanted it to be
\nbased on progressive payment and performance guarantee.
\nWe may refer to a decision reported in 2002 (6) SCC p. 600,
\nHaridas Exports Vs. All India Float Glass Manufacturer’s
\nAssociation and Ors., more particularly to observation made
\nin paragraph 42 of the Judgment, which reads as follows: –
\n“Section 2(u) does state that “trade practice”
\nmeans any practice relating to the carrying on of
\nany trade then it adds that such a trade practice
\nwould include anything done by any person which
\ncontrols or affects the price charged by, or the
\nmethod of trading of, any    trader or any class of
\ntraders.  The Act and the aforesaid section, in
\nparticular, is, therefore, concerned specifically with
\nthe incidence of the restrictive trade practice within
\nIndia which in Section 2(o)(i) refers to the
\nobstruction to the flow of capital or resources into
\nthe stream of production, while Section 2(o)(ii)
\ntalks of manipulation of prices or conditions of
\ndelivery or to affect the flow of supplies in the
\nmarket but which must be such as to impose on
\nthe consumers unjustified costs or restrictions. To
\nput it differently, mere manipulation of prices or
\nconditions of delivery would not be a restrictive
\ntrade practice\tunder Section 2(o)(ii) unless it is
\ndone in such a manner so as to impose on the
\nconsumers unjustified costs or restrictions.
\nLowering of prices cannot be regarded as
\nimposing on the consumers unjustified costs or
\nrestrictions.”\n<\/p>\n
(Emphasis supplied)<\/p>\n
In the case in hand, admittedly, after negotiations failed,  the
\nrespondent had sold the flats at a lower price to others.  It is,
\nthus, clear that no undue advantage was sought to be
\nextracted by respondent by dropping the matter, much less
\nfrom the applicant.  There is no allegation that the
\nrespondent had demanded or expected higher price from the
\ncomplainant. It is also not the case of the complainant that
\nthe respondent created such a situation which could compel
\nthe complainant to purchase the flats from the respondents
\non respondent’s term to the detriment of the complainant.
\nThe applicant  could also not compel the respondent to sign
\nthe Memorandum of Understanding on applicant’s\town
\nterms.\t The respondent could validly suggest a change in
\ndraft\t Memorandum   of    Understanding    sent   by\t     the
\ncomplainant and if on that point the negotiations broke and
\nthe transaction fell through the case would not fall within  the
\nambit of Section 2(o)(i) or (ii) of the Act.   We may observe
\nthat the view taken on the point by the Chairman commends
\napproval.  Yet another decision on the point that  may be
\nreferred to is reported in 1979 (2) SCC page 529, Mahindra
\nand Mahindra Ltd. Vs. Union of India Anr.,  as also   Telco
\nVs. Registrar of the Restrictive Trade Agreement  (1977 (2)
\nSCC page 55) observing that in absence of relevant and
\nproper facts, mere use of words\t as used in the provision,
\nwould not be of any help and it would not constitute
\nrestrictive trade practice.  In the present case we find that no
\nsuch facts have been averred which may be said to have
\nconstituted restrictive trade practice on the part of the
\nrespondent.\n<\/p>\n
\t\tIn view of the discussion held above, the appeal
\nlacks merit and it is accordingly dismissed with costs.\n<\/p>\n
 +
\n5 7165\t2000
\n5 7706-7711 2002
\n5 439-442 2002<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. Pawan Hans Ltd vs Union Of India And Anr on 8 April, 2003 Author: B Kumar Bench: Brijesh Kumar, B.N. Srikrishna. CASE NO.: Appeal (civil) 4149 of 1995 PETITIONER: M\/s. Pawan Hans Ltd. RESPONDENT: Union of India and Anr. DATE OF JUDGMENT: 08\/04\/2003 BENCH: Brijesh Kumar & B.N. Srikrishna. JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-195119","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. 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