Mr. S.K. Parthasarathy, Member—A Notice of Enquiry (NOE) was issued to Super Engineering Corporation, Bombay and KDMR Services, Baroda on 2.8.1994 under Section 36-A of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act) on the basis of a complaint filed by Monarch Photocomp and Printers, Baroda that the respondents have indulged in unfair trade practices.

2. The facts of the case as contained in the complaint may be briefly summed up as follows :

Respondent No. 2 is a distributor and only agent in Gujarat for the machinery manufactured by respondent No. 1. In the year 1989, the respondents represented to the complainant that their off-set printing machine “Super Stallon-15” can print with maximum speed of 6,000 IPH with minimum paper size of 7” x 5”. The respondent No. 1 had issued a pamphlet indicating the salient features. The complainant made a total payment of Rs. 1,74,275/- and took delivery of the machine at Baroda after inspecting the same at Bombay. Though the complainant pointed out that the performance of the machine was not satisfactory at the time of inspection at Bombay, it took delivery of the machine as it had reasons to believe that rectification in all respects might have been carried out. Since the performance of the machine was not satisfactory, the complainants approached the President of Baroda Master Printers Association and the President of the Gujarat Printers Association to use their good offices and intervene. As a result, a tripartite meeting was held at Bombay on 25th November, 1989. It was decided that the machine would be sent to Bombay by the complainant for repairs and respondent No. 1 should give satisfactory trial of the machine and the machine should give a printing speed of 3,000 IPH. The respondent No. 1 thereafter asked for Rs. 6,660/- as a rectification charges and also stated that Rs. 500/- per month as occupancy charges for storage of the machine would be levied. The complainant filed a complaint with the State Consumer Redressal Commission at Ahmedabad. During the proceedings in the State Consumer Redressal Commission, the respondent agreed for a satisfactory trial of the machine at Baroda at its own cost. Since respondent No. 1 wanted the complainant to pay the octroi charges at Baroda, the complainant did not accept delivery of the machine which was sent by respondent No. 1 from Bombay at Baroda. The complaint of the complainant was dismissed by the State Commission for want of jurisdiction. The complainant has alleged before the Commission that respondents have indulged in unfair trade practices.

3. Respondent No. 1 filed a reply to the NOE in which the following main points have been made :

(1) The State Consumer Redressal Commission at Ahmedabad dismissed the complaint, firstly, because the complaint was not a “consumer” under Consumer Protection Act and also because the nature of the dispute between the parties was such that it could be satisfactorily tried only by a Civil Court. The National Consumers Disputes Redressal Commission dismissed the appeal of the complainant. These facts were concealed by the complainant.

(2) No representation/claim was made by the respondent to the complaint with regard, to the speed of the machine. The machine was demonstrated and the complainants approved it before purchase. The specification of the machine and the terms and conditions of the transactions was specifically mentioned in the purchase order dated 3.12.1989.

(3) The respondent had not released any brochure, advertisement or pamphlet before the complainant ordered for the purchase of the machine.

(4) There was no manufacturing defect in the machine. The complainant had installed the machine in open area exposed to wind and rain and adverse weather conditions and did not employ a trained printer and thus mismanaged the running of the machine.

(5) In the tripartite meeting held on 25.11.1989 the complainant had voluntarily signed minutes of the meeting befor