TaxTMI 
TaxTMI 
2004 (4) TMI 303
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.... the agreement a printing machine was sold to the respondent No. 1 by the appellant. The machine was shipped by the appellant from Germany to Mumbai on 16th June 1994. It was off-loaded at Mumbai on 5th August, 1994 and cleared by the respondent No. 1 from the customs warehouse on 22nd April, 1997. 4. In November, 1997 the respondent No. 1 filed two applications before the Commission viz. Unfair Trade Practices Enquiry (UTPE) No. 388 of 1997 in effect complaining of unfair trade practices by the appellant and the respondent No. 2 relating to the supply of the printing machine. Compensation Application (CA) No. 383 of 1997 was filed claiming over Rs. 13 crores towards the cost of the machine, customs duty paid by respondent No. 1 on the machine interest on the cost and customs duty and damages. However, UTPE No. 388 of 1997 was withdrawn in August 1999. 5. The appellant had raised objections to the Commission's jurisdiction to entertain the respondent's application for compensation. The first ground was that the parties had agreed that the applicable law in the event of any dispute would be German Law. It was also agreed that disputes between the parties should be resolved either ....
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....clusion of legal proceedings under the Rules of Conciliation and Arbitration of the International Chamber of Commerce in Paris by a court of arbitration composed of three arbitrators appointed under such Rules. As long as no recourse to arbitration has been made the contracting parties shall be free to bring an action at the competent court of law at the place of the defendant's party's registered office." 9. Undoubtedly when the parties have agreed on a particular forum, the Courts will enforce such agreement. This is not because of a lack or ouster of its own jurisdiction by reason of consensual conferment of jurisdiction on another court, but because the Court will not be party to a breach of an agreement. Such an agreement is not contrary to public policy nor does it contravene section 28 or section 23 of the Contract Act. This has been held in Hakam Singh v. Gammon (India) Ltd. AIR 1971 SC 740, A.B.C. Laminart (P.) Ltd. v. A.P. Agencies 1989 (2) SCC 163 and Modi Entertainment Network v. W.S.G. Cricket (P.) Ltd. 2003(4) SCC 341, 351. The decision of the Delhi High Court in Rajendera Sethia v. Punjab National Bank AIR 1991 Delhi 285 relied on by the Commission which holds to th....
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.... (vii )gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that it is not based on an adequate proper test thereof : Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence; (viii)makes to the public a representation in a form that purports to be - (I)a warranty or guarantee of a product or of any goods or services; or (II)a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result. If such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;" 12. In the case of an unfair trade practice as invoked by the respondent No. 1 the object of inquiry is a statement which is a false representation of the kind specified in clauses (i), (ii ) or (iii) of sub-section (1) of section 36A or is an advertisement of the kind specified in clause (vii) or (viii) thereof. The state....
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.... complained of must have taken place in this country. This has also been held in Haridas Exports v. All India Float Glass Manufacturers Association 2002 (6) SCC 600. 16. The appellant has relied on Haridas Exports also to contend that if the sale or supply in respect of which complaint is made had taken place outside India then the Commission would not have the jurisdiction to proceed with the complaint. In that case the complaint alleged was a restrictive trade practice and related to the sale and import of goods (float glass) into India at predatory prices. It was found that the sale by the foreign manufacturers of the goods had taken place outside India. It was in that context that the Court held : ". . . If the float glass was ready and available, then being ascertained goods the sale would be regarded as having taken place where the goods existed at the time of sale i.e. in Indonesia. If the glass had to be manufactured and was not readily identifiable, then the sale would take place outside India when the goods are appropriated to the contract by the foreign exporter. Here the appropriation would take place in Indonesia when the glass is earmarked and exported to India. In ....
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.... the Commission felt it was not necessary to be considered at that stage. 21. The Commission erred in holding that the respondent No. 2 was 'admittedly' the Indian Agent of the appellant in view of the fact that the assertion of the respondent No. 1 to that effect has been specifically controverted in the counter affidavit of the appellant. But then it certainly is not an issue which could be determined without taking evidence. The Commission would have to enquire into the question whether the respondent No. 2 was in fact involved in the capacity of the appellant's agent as alleged by the respondent No. 1. If it is so found the appellant may be said to carry on business in India, thus, giving the Commission the necessary jurisdiction to determine the respondent No. 1's complaint. 22. Even if it be found that the respondent No. 2 was not the agent of the respondent No. 1, the question would still remain to be determined on evidence as to whether the alleged representations were made and if so, whether the representations were falsified by the actions of the appellant. In this case there is also an allegation by the respondent No. 1 relating to the carrying out of repairs to the ma....
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....t. 24. This Court after considering the definition of 'goods', 'trade', 'trade practice' and sections 14 and 33 came to the conclusion that the 'effect doctrine' would apply provided that the 'effect' amounted to a restrictive trade practice in India : "Even if an agreement is executed outside India or the parties to the agreement are not in India and agreement may not be registerable under section 33, being an outside-India agreement, nevertheless, if any, restrictive trade practice, as a consequence of any such outside agreement, is carried out in India then the Commission shall have jurisdiction under section 37(1) in respect of that restrictive trade practice if it comes to the conclusion that the same is prejudicial to the public interest. The counsel for the respondents is right in submitting that if the effect of restrictive trade practices came to be felt in India because of a part of the trade practice being implemented here the MRTP Commission would have jurisdiction. This 'effect doctrine' will clothe the MRTP Commission with jurisdiction to pass an appropriate order even though a transaction, for example, which results in exporting goods to India at predatory price, ....