1. Order on the Registrar's application dated 28th August, 1974, for leave to amend the application under Section 10(a)(iii) of the Monopolies and Restrictive Trade Practices Act.
2. This is an application by the Registrar for leave to amend his original application under Section 10(a)(iii) of the Monopolies and Restrictive Trade Practices Act (hereinafter for the sake of brevity referred to as " the main application "). In para. 1 of the main application the Registrar has averred that the respondent was engaged in the manufacture of leather, rubber and canvas footwear. It is further averred that the respondent buys footwear manufactured by small-scale entrepreneurs and markets the same through its own retail and wholesale outlets. It is averred that, in addition, the respondent has also entered into arrangements with some manufacturers of PVC foot-wear. The Registrar has also further averred that the respondent marketed the footwear under the brand names of " B.S.C. " or " Bata " and that there was no difference in quality between the goods sold under the two trade marks. The Registrar has also set out the different modes of marketing of goods under the two brand names.
3. While the Registrar has in the main application alleged that the respondent bought footwear manufactured by small-scale entrepreneurs and marketed the same through its own retail and wholesale outlets and that, in addition, the respondent had entered into arrangement with some manufacturers of PVC footwear, the Registrar has not stated that such buying of footwear manufactured by small-scale entrepreneurs and marketing the same amounted to any restrictive trade practice. He has also not asked for any relief in respect of such buying and selling.
4. In the application for amendment the Registrar states that he has since gone into the agreements, arrangements and understandings entered into or arrived at between the respondent and the different manufacturers whose products are purchased and marketed by the respondent under the brand names of " Bata " or " B.S.C. " and that they reveal that the respondent is indulging in restrictive trade practices which have been set out in the application. The Registrar has also set out in the application legal contentions showing how such practices amount to restrictive trade practices. He has also sought relief in respect of these restrictive trade practices.
5. The application is opposed by the respondent on various grounds. The first ground argued by Mr. Sen on behalf of the respondent is that the Commission has no power or jurisdiction to grant leave to any party to amend its pleadings. Mr. Sen invited our attention to Section 12 of the Monopolies and Restrictive Trade Practices Act which sets out the powers of a civil court under the Code of Civil Procedure which the Commission shall have. The powers so set out do not include Order 6 of the Code of Civil Procedure. Mr. Sen argued that Section 12 excluded the application of Order 6 of the Code of Civil Procedure to the Commission. We are afraid this argument is misconceived. It is true that Section 12 by itself does not make the provisions of Order 6 of the Code of Civil Procedure applicable to the Commission, but it does not exclude the application of these provisions if the Commission has otherwise the power to make them applicable. Sections 18 and 66 of the Monopolies and Restrictive Trade Practices Act confer power on the Commission to make Regulations for regulating the procedure and conduct of its business and for the efficient performance of its functions under the Act. Under the provisions of sections 18 and 66 the Commission has, on 29th June, 1974, issued the Monopolies and Restrictive Trade Practices Commission Regulations, 1974, which came into force on July 13, 1974. Regulation 72(2) provides that the Commission may at any time or stage of the proceedings allow any party to alter or amend, inter alia, his pleadings. In our opinion, an application made by the Registrar under Section 10(a)(iii) is a pleading and would fall under the provisions of Regulation 72(2) and the Commission would have the power and jurisdiction at any stage of the proceedings to allow the Registrar to amend the application. Mr.
Sen also contended that as an application or complaint under Section 10 was not expressly mentioned in Regulation 72(2) it could not be amended. We are afraid this contention is not correct. In our opinion if such complaint or application is a pleading it will fall under Regulation 72(2). Mr. Sen also invited our attention to the provisions of Regulation 77 which by reference makes certain provisions of the Code of Civil Procedure applicable to the proceedings before the Commission. Order 6 of the Code of Civil Procedure is not one of those provisions. Mr. Sen contended that this also indicated that the application of Order 6 or a provision corresponding to it would be excluded from any Regulations that the Commission might make. We are afraid we cannot accept this contention also. Although the provisions of Order 6, Civil Procedure Code, had not been made applicable, Regulation 72 in terms provides that the Commission might at any time or stage of the proceedings allow amendment of any pleadings. We are, therefore, of the opinion that we have the jurisdiction to consider the present, application for amendment.
6. The second contention taken by Mr. Sen is that the application of the Registrar for amendment is not verified as required under Regulation 57. This, in our opinion, is not a fatal objection. We have granted leave to the Registrar to verify the application. The Registrar has verified the application and the objection, in our opinion, does not survive.
7. The third objection is on merits. Mr. Sen has contended that the proposed amendment seeks to introduce new and distinct cause of. action and would change the very character of the main application. It is true that the Registrar has not in the main application asked for any relief in respect of the restrictive trade practices, now alleged, but the main application does contain a reference to the alleged practices of buying goods from small-scale manufacturers and marketing them under the trade names of the respondent. All the material facts are in the possession of the person against whom restrictive trade practices are alleged and not in the possession of the Registrar. The Registrar says that he has since gone into the agreements, arrangements and understandings between the respondent and the small-scale manufacturers and finds that certain restrictive trade practices are in existence in respect of such agreements, etc. The Registrar states that this information was received by him subsequent to the filing of the main application. We are of the view that once facts leading to these restrictive practices are averred in the main application no injustice will be done if the facts are sought to be amplified or particulars given and relief sought. The pleadings in this matter are just closed and it is an early stage of the proceedings. There is no question of limitation involved. The Registrar can file a separate application in case of the restrictive trade practices sought to be added. It will prevent multiplicity of proceedings and save the parties costs if the amendment is allowed. In fact, allowing the amendment will be in the interest of both the parties. There is no question of changing the character of the main application. There is merely a question of seeking relief in respect of restrictive trade practices which have been averred in the main application but of which no particulars were offered. The amendment application is a result of subsequent events and in our opinion in the interest of justice the amendment ought to be allowed. This case is covered by two judgments of the Supreme Court in the case of L.J. Leach & Co. v. Jardine Skinner and Co., AIR 1957 SC 357 and the case of Pirgonda Hongonda v. Kalgonda Shidgonda, AIR 1957 SC 363.
8. The fourth and the last objection is that the agreements, arrangements and understandings referred to in para. 4 of the application for amendment are no longer in existence as they have been discontinued and there is, therefore, no issue before us and consequently amendment ought not to be allowed. It would appear to us that the very fact of discontinuance of the agreements, arrangements and understandings will be an issue before us. Apart from this, Section 37 of the Monopolies and Restrictive Trade Practices Act provides that the Commission may inquire into restrictive trade practices whether the practices arise from an agreement or not. If a practice has been established by an agreement it may be that the agreement has come to an end by efflux of time or discontinuance, but the practice established by agreement or arrangement may continue. What the Commission would inquire into is the practice. It is, therefore, not correct to say that the cause of action has come to an end or that there is no issue between the parties which shall have to be tried by us. We are, therefore, unable to accept this contention also.
9. In the result, the application for amendment is allowed. The Registrar has already filed the amended application along with his application for allowing the amendment. This will be taken on file. The respondent will file his further statement of the case within 4 weeks from to day. The Registrar will be at liberty to file his rejoinder within 2 weeks thereafter. Cost of the present application will be costs in the proceedings. The Registrar's application dated the 19th August, 1974, for directions is stood over to 22nd November, 1974.