Restrictive and unfair trade practice findings require statutory ingredients and supporting evidence; unsupported conclusions were set aside and remitted.

Restrictive trade practice under the Monopolies and Restrictive Trade Practices Act requires a practice having the actual or probable effect of preventing, distorting or restricting competition; in the absence of material showing such effect, the finding and consequential direction to file an affidavit were unsustainable and were set aside. Unfair trade practice requires proof of a misleading or deceptive representation and cogent evidence of unfairness in the sale or supply of services; without examination of the contractual terms and necessary findings on evidence, the conclusion could not stand and was also set aside. The Commission's orders were quashed and the matters remitted for fresh adjudication after both sides were given an opportunity to adduce evidence.

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Issues: (i) whether the finding that the appellant had indulged in restrictive trade practice under section 2(o)(ii) of the Monopolies and Restrictive Trade Practices Act, 1969 and the consequential direction to file an affidavit were sustainable; (ii) whether the finding that the appellant had indulged in unfair trade practice under section 36A(1)(i) and (vi) of the Monopolies and Restrictive Trade Practices Act, 1969 was sustainable.

Issue (i): whether the finding that the appellant had indulged in restrictive trade practice under section 2(o)(ii) of the Monopolies and Restrictive Trade Practices Act, 1969 and the consequential direction to file an affidavit were sustainable.

Analysis: A restrictive trade practice under section 2(o) requires a trade practice having the effect, actual or probable, of preventing, distorting or restricting competition. The clause relied on by the Commission could not be read in isolation, because liability arises only where the practice affects competition in the manner contemplated by the definition. On the facts, there was no material showing that the appellant had prevented or restricted competition, or that the alleged conduct was per se restrictive in nature.

Conclusion: The finding of restrictive trade practice and the consequential direction were unsustainable and were set aside in favour of the appellant.

Issue (ii): whether the finding that the appellant had indulged in unfair trade practice under section 36A(1)(i) and (vi) of the Monopolies and Restrictive Trade Practices Act, 1969 was sustainable.

Analysis: An unfair trade practice under section 36A requires examination of the representation made, its misleading character, the surrounding terms and conditions, and cogent evidence showing that the practice was unfair or deceptive for the purpose of promoting the sale or supply of services. The Commission had not examined the relevant contractual terms or recorded proper findings on the necessary evidence. Mere delay in delivery or enhancement of cost, without more, was insufficient to conclude that the statutory ingredients were made out.

Conclusion: The finding of unfair trade practice was unsustainable and was set aside in favour of the appellant.

Final Conclusion: The Commission's orders were quashed and the matters were sent back for fresh adjudication in accordance with law after giving both sides an opportunity to adduce evidence.

Ratio Decidendi: A finding of restrictive or unfair trade practice cannot stand unless the statutory ingredients are established on relevant evidence, including the effect on competition for restrictive trade practice and the misleading or deceptive character of the representation for unfair trade practice.

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