2015 PLP 764 (CLD)

SHAUKAT AZIZ SIDDIQUI, J.

Instant appeal has been preferred under section 20 of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, against the order dated 4-5-2007, passed by the respondent Authority, whereby appellant has been burdened with fine of Rs. 1,00,000 with direction to provide certain information regarding its business within fifteen days.

2. Brief facts relevant for disposal of instant F.A.O. are that the appellant/Messrs Polyfine Chempharma (Pvt.) Ltd. is an undertaking as defined under section 2(1)(m) of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970. Respondent authority asked the appellants to supply a copy of its distributorship/ dealership agreement executed by it with its distributors/dealers along with a copy of annual audited accounts for the year ended in 2006, vide letter dated 20-11-2006. In response thereto Chartered Accountants of the appellant/Undertaking, vide letter dated 14-12-2006 submitted that the appellant is a pharmaceutical company regulated by the Ministry of Health and the provisions of the above said Ordinance are not applicable to them. Thereafter, through different letters both the parties reiterated their stance on the issue. However, a show cause notice was served on the appellant by the respondents on 7-2-2007 for non-provision of requisite information which was required to be answered in writing by 22-2-2007. In response appellant's counsel, vide letter dated 13-2-2007 stated that the respondent Authority was established for the check and balance of the stocks of undertakings, to control the prices of products, to discourage the monopoly of any industry in the market, and requested that he be educated as to whether his stance was right or not. It was further informed through the said letter that appellant/undertaking has no Distributors as it was selling its products from the factory gate. In response to the appellant/undertaking's letter dated 13-2-2007, respondent Authority again apprised the appellant that they are required to provide the requisite information under section 21 of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, as it comes within the functions of the Authority as defined in the Ordinance ibid. Later, respondent Authority, in order to resolve the matter, fixed date for hearing on 26-4-2007 and issued hearing notice to the appellants. Appellant's counsel, vide letter dated 14-4-2007, informed the respondents that audited financial statements and Power of Attorney of the appellant have already been sent to them and on matter regarding confirmation and clarification concerning registration, appellants have written letter to the CBR House, Islamabad. On the fixed date of hearing, appellant's counsel appeared before the Authority and argued the case. Ultimately, authority after considering the facts and submission of the appellant's counsel concluded that default to provide requisite information, timely was wilful and imposed a penalty of Rs.1,00,000 upon appellant and further directed to provide the requisite information within fifteen days and in case of default thereof action was also stated to be initiated under section 19(2) of the above said Ordinance.

3. Learned counsel for the appellant submitted that all the requisite data along with paper of disconnection of business were provided to the respondents and appellant has also described its way of business but respondents through impugned order again asked for further information from the appellant/undertaking. Learned counsel further submitted that the respondents has failed to deal with the material legal issue involved in the matter as agitated by appellant/undertaking, despite the fact that they were repeatedly informed that the provisions of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, are not applicable to appellant/Undertaking due to dilapidated conditions and for the reason that appellant's business was at the verge of closing. Learned counsel added that the remarks about the appellant's counsel contained in para 9 of the impugned order are without any reason thus sending of the matter to Pakistan Bar Council is also not tenable in the eyes of law. Learned counsel prayed for setting aside the impugned order as being illegal, void and nullity in the eyes of law.

4. On the other hand, learned counsel for the respondents while vehemently supporting the impugned order submitted that same has been passed while keeping in mind the factual as well as legal position. Moreover, clearly fault is on the part of appellant as despite repeated opportunities provided to them for submission of requisite information they failed to do so and kept on reiterating their unlawful stance that the respondents were not empowered to call for requisite information rather legal position was that the powers in this regard were vested in the respondents under section 21 of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970. Learned counsel in support of his contentions placed reliance on the case-law reported as Kohat Cement Company Ltd. v. Monopoly Control Authority, Islamabad, etc. (2004 CLD 868) and prayed for dismissal of the Appeal.

5. I have heard the learned counsel for the parties and perused the impugned order as well as relevant record with their able assistance.

6. For disposal of instant appeal section 21 of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 is of some significance, therefore, same is reproduced herein below:- "

21. Notwithstanding anything contained in any other law for the time being in force, the Authority may, by general or special order, call upon any person for the time being responsible for the conduct of the affairs of an undertaking to furnish periodically or as and when required any information concerning the activities of the undertaking, including information relating to its organization, business, trade practices, management and connection with any other undertaking, which the Authority may consider necessary or useful for the purposes of this Ordinance." The plain reading of above said section clearly indicates that Respondent Authority is empowered to requisition certain information as asked for from the appellant and said provisions are applicable on the appellant, as admittedly appellant is an undertaking, whereas, instead of providing the requisite information at the first instance appellant kept on pressing their rigid and unlawful stance that the above said provisions of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, are not applicable to them. Perusal of the record also reveals that a reasonable opportunity was provided to the appellants for complying with the directions of respondent Authority and legal position was time and again clarified to them by respondents but no heed was paid to it. As far as remarks regarding the appellant's counsel before the respondent Authority, mentioned in the impugned order and referring the matter to the Pakistan Bar Counsel is concerned, this Court refrains itself from giving any finding regarding that as the matter relates to a factual controversy concerning conduct of learned counsel before the respondent Authority, and has no direct nexus with the matter in hand. Moreover, same is now before the Pakistan Bar Council where the learned counsel will definitely be provided ample opportunity to explain his point of view.

7. In my estimation respondents have passed the impugned order keeping in mind all the pros and cons of the matter as well as legal position and have acted strictly in accordance with law. Resultantly, instant F.A.O is hereby dismissed. MMZ/17/Isl. Appeal dismissed.