UNDER SECTION 26(2) OF THE COMPETITION ACT, 2002

1. The present information has been filed under section 19 of the Competition Act, 2002 by M/s. Best Xerox Centre through its sole proprietor Smt. Sunder Jain (hereinafter referred as informant) against Xerox Modi India Limited (hereinafter referred as OP) for alleged abuse of its dominant position by unilaterally changing the terms of arbitration agreement between them.

2. The Brief facts of the case are as follows:

2.1 The informant purchased a Xerox machine priced Rs. 8,05,800 from the erstwhile Modi Xerox Co. Ltd., in 1997. The grievance of the informant is that the condition regarding the appointment of arbitrator and the venue of arbitration was changed by the OP in its Full Service Maintenance Agreement (FSMA) on 11.12.1997 as compared to the conditions mentioned in proforma invoice/ sale invoice dated 30.09.1997 and 21.11.1997.

2.2 The terms regarding the arbitration clause as per the proforma/sale invoice dated 30.09.1997 and 21.11.1997 are as under:

"In the event of any dispute or difference arising between the parties pertaining or arising under this contract, the same shall be referred to the arbitration of a board of arbitrators compromising one nominee each of MX and the customer and an umpire to be appointed by the arbitrators before entering upon the reference. The venue of such arbitration shall be head office of MX, presently at Hemkunt Tower, 98, Nehru Place, New Delhi-110019."

While amended clauses of FSMA are as under:

"In the event of any dispute or difference arising between the parties pertaining or relating to this Agreement, the same shall be referred to the arbitration of a sole arbitrator appointed by the Chairman of the board of directors of MX or by a person designated/authorized by him. All proceedings of such arbitration shall be governed by the Arbitration & Conciliation Act, 1996 or any amendments thereof The venue of such arbitration shall be the head office of MX, presently at Hemkunt Tower, 98 Nehru Place, New Delhi-110019".

"Only the Courts at Delhi shall have exclusive jurisdiction to adjudicate any disputes between the parties arising from this agreement."

2.3 It is alleged that the opposite party has thus misused its dominant position which is apparent from comparing the conditions of arbitration given in the proforma/sale invoice and the FSMA. The informant alleges that at the time of selling the machine, the opposite party deliberately incorporated very liberal terms to lure the consumer into purchasing the machine but at the time of signing of service agreement the opposite party incorporated very restrictive terms so as to discourage the consumer from raising dispute relating to after sales service.

2.4 It is alleged that the opposite party held a monopoly in the market of Xerox machines. The informant alleged that opposite party's technical service engineer and spare parts were not available in the open market and the consumer had no option but to accept whatever conditions the opposite party put in the FSMA. The said Full Service Maintenance Agreement was for the maintenance, repair and/or replacement of worn out parts as and when required and for providing consumables free of cost. In lieu thereof opposite party takes per copy charge. These charges were based on the readings recorded in the meter installed in the machine. The opposite party allegedly enhanced the said service charges from time to time as per market price index.

2.5 As per the informant, the controversy had arisen in year 2000 when the opposite party did not provide satisfactory service as per its own terms and conditions while the informant had paid full annual service charges. As a result, the informant had to suffer irreparable loss. As per the informant, various litigations are pending between the informant and the opposite party with regard to the above dispute for the last ten years.

2.6 The informant has prayed for following relief;

(i)The OP may be penalized for unf