TMI Blog2001 (10) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 - N. SANTOSH HEGDE AND P. VENKATARAMA REDDI, JJ. Aditya Narain, Ms. Vandana Chugh and Rajan Narain for the Appellant. T.L.V. Iyer, Y.P. Mahajan and S.N. Terdol for the Respondent. ORDER Santosh Hegde, J. - This is a statutory appeal under section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 ( the Act ) preferred against the order of cease and desist passed on 24-4-1991 under section 37(1) of the Act by the Monopolies and Restrictive Trade Practices Commission ( the Commission ). 2. The Commission instituted a suo motu enquiry under section 10( a )( iv ) of the Act vide order dated 11-12-1987 against the appellant alleging 3 specific violations of the Act. Since the first two charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified costs on the parents of the students undergoing studies in the school. After hearing the parties, the Commission held in regard to the third charge that the non-payment of interest on the refundable security is prima facie objectionable and is a restrictive trade practice within the meaning of section 2( o )( ii ) inasmuch as it brings about manipulation of prices so as to impose on the consumers unjustified costs and not paying interest on the refundable security is prejudicial to public interest. Therefore, the Commission passed the impugned order. In this appeal, it is contended on behalf of the appellant that collection of refundable deposit without payment of interest is a general practice obtaining in all public schools an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest which, assuming it to be true not by any stretch of imagination, constitute restrictive trade practice within the meaning of section 2( o )( ii ). 5. The appellant also strongly placed reliance on two judgments of this Court in Mahindra Mahindra Ltd. v. Union of India [1979] 2 SCC 529, which was followed by a subsequent judgment of this Court in Rajasthan Housing Board v. Smt. Parvati Devi [2000] 6 SCC 104 1 . 6. On behalf of the respondent, it is contended that this argument presently placed for our consideration in this appeal was not raised by the appellant before the Commission, therefore, the same should not be permitted for the first time in this appeal. 7. We are not impressed with this argument addres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the material available on record, it is the case of the appellant that this is a practice which is adopted by almost all public schools and by adopting this practice of collecting refundable security deposit without payment would not in any manner be a restrictive practice, hence, the Commission could not have come to a contrary conclusion so as to attract the provisions of section 2( o )( ii ) or section 37(1). We find considerable force in this argument. This Court in the case of Rajasthan Housing Board, (supra) while considering the applicability of section 2( o )( ii ), following the earlier decision of this Court in Mahindra Mahindra Ltd. (supra) held that in the absence of any evidence to hold that the appellant (in that ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of trade. Whenever, therefore, a question arises before the Commission or the Court as to whether a certain trade practice is restrictive or not, it has to be decided not on any theoretical or a priori reasoning, but by inquiring whether the trade practice has or may have the effect of preventing, destroying or restricting competition. This inquiry obviously cannot be in vacuum but it must depend on the existing constellation of economic facts and circumstances relating to the particular trade. The peculiar facts and features of the trade would be very much relevant in determining whether a particular trade practice has the actual or probable effect of diminishing or preventing competition and in the absence of any material showing these f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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