(June 1, 2001) 2001 (TLS)124990

2001-DLT-93-412 :: 2001-AD (Del)-4-978

NESTLE INDIA LIMITED Vs. UNION OF INDIA

ANIL DEV SINGH

( 1 ) THE Director General, Investigation and Registration, filed an application under section 36b (c) of the Monopolies and Restrictive Trade Practices Act, 1969 (for short "the MRTP Act ) before the Monopolies and Restrictive Trade Practices Commission (for short the Commission ) on 19/5/1988 with the allegation that the petitioner company, formerly known as Food Specialities Ltd, issued an advertisement in the Tribune dated 4/4/1988 announcing the holding of a contest under the caption nescafe-Shake-take a cool break contest for promoting sale of Nescafe Coffee and as per the terms of the advertisement each single entry was required to be accompanied by a innerseal of a Nescafe 50 gms jar or any empty 50 gms refill pack thereof.

( 2 ) PURSUANT to the application, the Commission on 7/7/1988 issued a notice under Regulation 58 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1974 (for short "the Regulations ) to the petitioner calling upon it to comply with the requirements of Regulations No. 11, 57, 65, 67 and 84a in case it wished to be heard in the proceedings. The notice also stated that the petitioner had prima facie indulged in an unfair trade practice within the meaning of section 36a (3) (b) of the MRTP Act thereby causing loss or injury to the consumers. The petitioner being aggrieved of the aforesaid notice has filed the instant writ petition.

( 3 ). It is not disputed that apart from the bald statement contained in the notice that the petitioner indulged in an unfair trade practice within the meaning of section 36a (3xb) of the MRTP Act resulting in loss or injury to the consumers, there was, however, no reference to any evidence in support thereof indicating such a loss or injury to the consumers. The notice was not accompanied by any material substantiating the allegation.

( 4 ) AT this stage, it will be convenient to set out section 36a of the MRTP Act, as it stood at the relevant time, to the extent it has a bearing on the issue in question.

"36a- Definition of unfair trade practice.- In this Part, unless the context otherwise requires, "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, adopts one or more of the following practices and thereby causes loss or injury to the consumers of such goods or services, whether by eliminating or restricting competition or otherwise, namely :- (1) the practice of making any statement, whether orally or in writing or by visible representation which, - xx xx xx (2 ). . . . . . . . (3) permits - (a ). . . . . . . (b) the conduct of any contest, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest. xx xx xx "

( 5 ) ON a reading of the aforesaid provision, it appears to us that before a trade practice can be dubbed as an unfair Trade Practice , there should be material or evidence to show that the consumer suffered loss or injury due to the adoption of the trade practice for promoting sale, use or supply of any goods or for the provision of any services. The notice in question was not accompanied by any material in support of the allegation that holding of nescafe-shake-take a cool break contest caused loss or injury to the consumers. The charge that the petitioner was called upon to answer gave no details on the basis of which the same was made. Only saying that a trade practice. had caused loss and injury was not enough. The material in support thereof was also required to be furnished to the person against whom the charge was levelled. Merely affording an opportunity to the notice to file a reply to the notice under regulation 58 of the Regulations would be an empty formality in case the noticee is not furnished with