{"id":245017,"date":"2001-07-03T00:00:00","date_gmt":"2001-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/eskay-enterprises-and-anr-vs-ravish-infusion-ltd-on-3-july-2001"},"modified":"2018-07-26T14:57:33","modified_gmt":"2018-07-26T09:27:33","slug":"eskay-enterprises-and-anr-vs-ravish-infusion-ltd-on-3-july-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/eskay-enterprises-and-anr-vs-ravish-infusion-ltd-on-3-july-2001","title":{"rendered":"Eskay Enterprises And Anr. vs Ravish Infusion Ltd. on 3 July, 2001"},"content":{"rendered":"
Monopolies and Restrictive Trade Practices Commission<\/div>\n
Eskay Enterprises And Anr. vs Ravish Infusion Ltd. on 3 July, 2001<\/div>\n
Bench: R Anand, R Sudhir<\/div>\n<\/p>\n
<\/pre>\n
ORDER <\/p>\n
  R.K. Anand, Member   <\/p>\n
 1. The applicant, Eskay Enterprises as represented by Shri Vijay Deepak, partner, has made an application under Section 12B of the MRTP Act, 1969 (the Act for brief) charging the respondent, Ravish Infusion Ltd. with adoption of and indulgence in unfair and restrictive trade practices and alleging therein, that the respondent is engaged in the manufacture and distribution of IV fluids and to market its product, it entered into an agreement with the applicant and pursuant thereto, appointed the applicant its C & F Stockist for East, South and part of Central Delhi. It has been further stated that the agreement was for a period of two years with effect from 31st March, 1995 and the applicant was required to deposit a sum of Rs. 10,00,000\/- with the respondent as security deposit which was to earn interest (c) 15%. The details of the payments made to the respondent pursuant to the agreement have been indicated in the compensation application. It has been further stated that all the payments were made through cheques except the amount of Rs. 2,25,000\/- which was paid in cash and in lieu thereof, a receipt was issued by the respondent. The grievance of the applicant is that the respondent did not start commercial production even after two years of the date of entering into the above agreement and although the respondent issued three cheques of the total amount of Rs. 1,90,605\/- with its letter dated 16.3.1995 by way of payment of interest on the security deposit in terms of Clause 3 of the aforesaid agreement, the cheques were not honoured when presented to the State Bank of India for encashment and the advice received from the Bank was “Not arranged”. It has also been alleged that the cheques were again presented and the same were again returned by the Bank with the remarks “payment stopped by the drawer”. In the above compensation application registered as C.A. 126\/1997 the applicant has not only claimed refund of the security deposit with interest accruing on it but also compensation for the loss of business suffered due to non supply of I V fluids by the respondent, amounting to Rs. 20,20,000\/- in all.\n<\/p>\n
 2. Likewise another application under Section 12B of the Act, against the same respondent, has been filed by the applicant, Shri O.P. Aggarwal, partner on behalf of Prakash Medical Agencies alleging therein that pursuant to an agreement entered into with the respondent, he had deposited Rs. 5,00,000\/- for appointment as a C & F Stockist of the respondent for certain areas of South Delhi. In this application which has been registered as C.A. 432\/1997, it has been stated that the respondent issued a cheque No. 155019 dated 15.2.1996, drawn on Goa State Cooperative Bank, of Rs. 47,542\/- towards payment of interest, on the security deposit, in terms of Clause 3 of the aforesaid agreement, but the cheque when presented for encashment was returned by the Bank with the remarks “funds insufficient”. In this application also, while seeking refund of the security deposit with interest, compensation for loss of business has been claimed, totalling a sum of Rs. 19,52,500\/-. As these two compensation applications arise from the same cause of action involving the same respondent, the same are being taken up together, for disposal, by this single common order.\n<\/p>\n
 3. A notice in respect of each of the two applications was issued to the respondent. The respondent filed a reply to the C.A. 126\/1997 and denied the charge of adoption of unfair and restrictive trade practices but no reply was filed in C.A. 432\/1997. The respondent also made an application under Section 34 of the Arbitration Act in C.A. 126\/1997 stating that in terms of Clause 9 of the agreement entered into by the applicant with the respondent, disputes between the parties were required to be referred to an Arbitrator and, therefore, the present proceedings were not maintainable.\n<\/p>\n
 4. On completion of pleadings in C.A. 126\/ 1997, the following issues were framed.\n<\/p>\n
 (1)   Whether this application under Section 12B of the MRTP Act is not maintainable ?\n<\/p>\n
 (2)   Whether the respondent has been indulging in unfair trade practices as alleged ?\n<\/p>\n
 (3)   Whether the respondent has also been indulging in restrictive trade practices as alleged ?\n<\/p>\n
 (4)   Whether any loss or injury or damage has been caused to the applicant on account of these alleged unfair and restrictive trade practices ?\n<\/p>\n
 (5)   Whether the applicant is entitled to the compensation claimed ?\n<\/p>\n
 (6)   Relief, if any.\n<\/p>\n
 5. The applicant in C.A. 126\/1997 produced Shri Vijay Deepak as a witness who was cross-examined by the respondent’s Advocate, Mr. Vinod Sethi. Although several opportunities were given to the respondent, no oral evidence was adduced on its behalf. However, an affidavit of evidence of Shri Vishve Kumar Chawla, Managing Director of the respondent Company was filed. But the witness did not appear for his examination despite several opportunities and the respondent’s Advocate also stopped appearing after 28.7.1999 and on 18.4.2000 Mr. Delep Goswami, Advocate appeared for the first time on behalf of the respondent in this case. As in the meantime neither the respondent’s Advocate, nor an authorised representative appeared on 11.1.2000 and 15.2.2000, the respondent was set ex parte. It may be mentioned here that though the respondent had been set ex parte, when Mr. Delep Goswami appeared on behalf of the respondent, not only two adjournments were granted at his request, he was also allowed to address final arguments but he also stopped appearing after 22.11.2000. As a result, ex parte arguments were heard in this case.\n<\/p>\n
 6. In C.A. 432\/1997, no reply was filed and as the respondent was not represented by an Advocate\/authorised representative, it was set ex parte on 29.5.1998. However, on an application made by Mr. Vinod Sethi, Advocate on behalf of the respondent, the order of 29.5.1998 setting the respondent ex parte was recalled and the respondent was given an opportunity to contest the proceedings and file a reply to the applicant’s compensation application. But, the respondent did avail of the opportunity and did not contest the proceeding. Virtually, in both the cases, no oral evidence on behalf of the respondent has been led.\n<\/p>\n
 7. It is not disputed or denied in both the cases that the amounts by way of security deposit were received from the applicants (Rs. 10,00,000\/- in C.A. 126\/1997 and Rs. 5,00,000\/- in C.A. 432\/1997). It is also not denied that in both the cases, the applicants were appointed C & F Stockists to market the products (I V Fluid) of the respondent. Again in both the cases, the cheques issued by the respondent towards payment of interest on the security deposits were dishonoured. It is also not in dispute that the respondent failed to start production of I V fluids and, therefore, was unable to supply IV fluids to the applicants who had been appointed C & F stockists. It is also in evidence that the respondent made a false, deceptive and misleading representation that it was going to set up a manufacturing unit for the production of IV fluids and for that purpose had appointed the applicants as its C & F stockists and accepted security deposits. The respondent also signed agreements with the applicants and accepted security deposits and was required to pay interest @ 15% on these deposits. It is also in evidence that the cheques were dishonoured and no payment whether of the security deposit or of the interest amount was made to the applicants. In fact, the conduct of the respondent shows that it made a false, deceptive and misleading representation and it had no intention of paying either the interest amount or giving refund of the security deposits. Thus, the charge of unfair trade practices within the meaning of Section 36A(1) of the Act has been fully substantiated, in both the cases, against the respondent. The respondent has made false and deceptive promises, has entered into an agreement with the applicants, accepted security deposits but failed to supply IV fluids or refund the security deposits and pay interest @ 15% accruing thereon.\n<\/p>\n
 8. In C.A. 126\/1997 the respondent’s application under Section 34 of the Arbitration Act, stating that there is an arbitration clause in the agreement, entered into by the applicant with the respondent, and in terms thereof, the applicant should have recourse to arbitration, for settlement of the dispute, is not tenable. We have already, on the basis of the facts of the case, as transpiring from the evidence brought on record, come to the conclusion that a case of unfair trade practices adopted by and on behalf of the respondent has been made out in both the cases. Clearly, provisions of Section 36A(1) of the Act are attracted in these two cases. Moreover, under Section 4(1) the provisions of the MRTP Act are in addition to and not in derogation to any other law for the time being in force.\n<\/p>\n
 9. We have already held that the respondent is guilty of adoption of and indulgence in unfair trade practices and accordingly, we direct the respondent to refund the amount of security deposit of Rs. 10,00,000\/- in C.A. 126\/1997 with interest amount to be calculated at the rate of 15% with effect from April, 1995 when the payment was made till date the actual refund is made. We also award an amount of Rs. 2,00,000\/- as compensation for loss of business as claimed by the applicant. We consider the amount of Rs. 2,00,000\/- as reasonable considering the investment made by the applicant in marketing the I V fluids proposed to be supplied by the respondent. The details are given by the applicant in the compensation application.\n<\/p>\n
 10. Similarly, in C.A. 432\/1997 the respondent is directed to refund the security deposit of Rs. 5,00,000\/- and pay interest @ 15% for the entire period the amount has remained with the respondent i.e. from the date the payment was received by it till the date of its refund and also Rs. 1,50,000\/- as compensation for loss of business. We need not repeat here that the amount of Rs. 1,50,000\/- is considered to be reasonable for the above mentioned reasons. The respondent is directed to comply with the order in both these cases within six weeks from the date of pronouncement of the order. A copy each of the order may be placed in the two CA files bearing Nos. 126\/1997 as well as 432\/1997.<\/p>\n","protected":false},"excerpt":{"rendered":"
Monopolies and Restrictive Trade Practices Commission Eskay Enterprises And Anr. vs Ravish Infusion Ltd. on 3 July, 2001 Bench: R Anand, R Sudhir ORDER R.K. Anand, Member 1. The applicant, Eskay Enterprises as represented by Shri Vijay Deepak, partner, has made an application under Section 12B of the MRTP Act, 1969 (the Act for brief) […]<\/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":[1],"tags":[],"class_list":["post-245017","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nEskay Enterprises And Anr. vs Ravish Infusion Ltd. on 3 July, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/eskay-enterprises-and-anr-vs-ravish-infusion-ltd-on-3-july-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Eskay Enterprises And Anr. vs Ravish Infusion Ltd. on 3 July, 2001 - 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