1. In this application, the respondents have prayed firstly that notice dated the 11th October, 1973, issued against them under Regulation 7 of the Restrictive Trade Practices (Enquiry) Regulations, 1970, be discharged ; and, in the alternative, they should be furnished certain particulars. The prayer with regard to discharge of the notice is not seriously pursued, but the prayer for particulars has been argued with considerable emphasis.
2. These proceedings were started by the Commission on its own information under the provisions of Section 10(a)(iv) of the Monopolies and Restrictive Trade Practices Act. The first charge is that the respondents are indulging in the practice of exclusive dealership. What is meant is that the respondents have appointed dealers who, they insist, shall not stock or sell competitive products manufactured by other producers. Mr. Desai for the respondents is satisfied with this clarification of the first charge.
3. The second charge is that the respondents are manipulating their handling and storage charges from State to State and from year to year or during parts of the same year in respect of a particular State, not because there is a change in the actual expenses, but merely with a view to prevent, distort or restrict competition. Mr. Desai has invited our attention to a judgment of the Privy Council in Bharat Dharma Syndicate Ltd. v. Harish Chandra, AIR 1937 PC 146 and a judgment of the Supreme Court in which the Privy Council judgment has been followed.
The Supreme Court's judgment is Union of India v. Pandurang Kashinath More, AIR 1962 SC 630. The proposition is that an allegation of misconduct must be precise and not vague. What Mr. Desai wants is instances of manipulation of handling and storage charges from State to State.
In our opinion, the charge itself is fairly precise and is not vague.
This is not the stage of disclosing evidence. The facts leading to the charge are in the possession of the respondents themselves and, if the allegations are true, they would be found from their own books of accounts. If they are not true, they could be denied by the respondents in their statement of the case. What the respondents are charged with is that they do not charge handling and storage charges in the several States of India in each year or sometimes during parts of the same year on the basis of change in the actual cost but for ulterior purpose for manipulating prices. The allegation is that the change in storage and handling charges is not based on the actual cost but storage and handling charges are increased or decreased in order to charge higher or lower prices either for running the competitor out of business or for charging as much as the market can bear. The respondents could themselves prepare a statement for the last five years of the changes in storage and handling charges in the several States of India at several times during the period and justify to the Commission that the changes were based on the reduction or increase in the actual cost or expenditure. If this cannot be justified on that basis, it would lead to certain inferences which may or may not justify the charge of manipulation at the hearing. We do not think any further particulars are necessary at this stage.
4. This application is also premature because there is a stage under Regulations 24 and 26 of the Restrictive Trade Practices (Enquiry) Regulations, 1970, at which particulars could be asked for. But as the application has been made now, we thought it would be better to dispose of the same at this stage and not leave it to a subsequent stage. We have, therefore, not dismissed it on preliminary grounds of its being premature but we have disposed of it on merits.
5. Time for filing the statement of the case is extended by three weeks from the date of this order.