(1) 1*[Every agreement falling within one or more of the following categories shall be deemed, for the purposes of this Act, to be an agreement relating to restrictive trade practices and shall be subject to registration] in accordance with the provisions of this Chapter, namely:-
(a) Any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought;
(b) Any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods;
(c) Any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person;
(d) Any agreement to purchase or sell goods or to tender for the sale or purchase of goods only at prices or on terms or conditions agreed upon between the sellers or purchasers;
(e) Any agreement to grant or allow concessions or benefits, including allowances, discount, rebates or credit in connection with, or by reason of, dealings;
(f) Any agreement to sell goods on condition that the prices to be charged on re-sale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged;
(g) Any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal of the goods;
(h) Any agreement not to employ or restrict the employment of any method, machinery or process in the manufacture of goods;
(i) Any agreement for the exclusion from any trade association of any person carrying on or intending to carry on, in good faith the trade in relation to which the trade association is formed;
(j) Any agreement to sell goods at such prices as would have the effect of eliminating competition or a competitor;
2*[(ja) Any agreement restricting in any manner, the class or number of wholesalers, producers or suppliers from whom any goods may be bought;
(jb) Any agreement as to the bids which any of the parties thereto may offer at an auction for the sale of goods or any agreement whereby any party thereto agrees to abstain from bidding at any auction for the sale of goods;]
(k) Any agreement not herein before referred to in this section which the Central Government may, 3*[by notification], specify for the time being as being one relating to a restrictive trade practice within the meaning of this sub-section pursuant to any recommendation made by the Commission in this behalf;
(l) Any agreement to enforce the carrying out of any such agreement as is referred to in this sub-section.
(2) The provisions of this section shall apply, so far as may be, in relation to agreements making provision for services as they apply in relation to agreements connected with the 4*[production, storage, supply], distribution or control of goods.
(3) No agreement falling within this section shall be subject to registration in accordance with the provisions of this Chapter if it is expressly authorised by or under any law for the time being in force or has the approval of the Central Government or if the Government is a party to such agreement.
(1) The Central Government shall, 1*[by notification], specify a day (hereinafter referred to as the appointed day) on and from which every agreement falling within section 33 shall become registrable under this Act:
Provided that different days may be appointed for different categories of agreements.
(2) Within sixty days from the appointed day, in the case of an agreement existing on that day, and in the case of an agreement made, after the appointed day, within sixty days from the making thereof, there shall be furnished to the 2*[Director General] in respect of every agreement falling within section 33, the following particulars, namely:-
(a) The name of the persons who are parties to the agreement; and
(b) The whole of the terms of the agreement.
(3) If at any time after the agreement has been registered under this section, the agreement is varied (whether in respect of the parties or in respect of the terms thereof) or determined otherwise than by flux of time, particulars of the variation or determination shall be furnished to the 2*[Director General] within one month after the date of the variation or determination.
(4) The particulars to be furnished under this section in respect of an agreement shall be furnished-
(a) In so far as the agreement or any variation or determination of the agreement is made by an instrument in writing, by the production of the original or a true copy of that agreement; and
(b) In so far as the agreement or any variation or determination of the agreement is not so made, by the production of a memorandum in writing signed by the person by whom the particulars are furnished.
(5) The particulars to be furnished under this section shall be furnished by or on behalf of any person who is a party to the agreement or, as the case may be, was a party thereto immediately before its determination, and where the particulars are duly furnished by or on behalf of any such person, the provisions of this section shall be deemed to be complied with on the part of all such persons,
Explanation I.-Where any agreement subject to registration under this section relates to the 3 [production, storage, supply], distribution or control of goods or the performance of any services in India and any party to the agreement carries on business in India, the agreement shall be deemed to be an agreement within the meaning of this section, notwithstanding that any other party to the agreement does not carry on business in India.
Explanation II.-Where an agreement is made by a trade association, the agreement for the purposes of this section shall be deemed to be made by all persons who are members of the association or represented thereon as if each such person were a party to the agreement.
Explanation III.-Where specific recommendations, whether express or implied, are made by or on behalf of a trade association to its members, or to any class of its members, as to the action to be taken or not to be taken by them in relation to any matter affecting the trade conditions of those members, this section shall apply in relation to the agreement for the constitution of the association notwithstanding any provision to the contrary therein as if it contained a term by which each such member and any person represented on the association by any such member agreed with the association to comply with those recommendations and any subsequent recommendations affecting those recommendations.
(1) For the purposes of this Act, the 1*[Director General] shall keep a register in the prescribed form and shall enter therein the prescribed particulars as regards agreements subject to registration.
(2) The 1*[Director General] shall provide for the maintenance of a special section of the register for the entry or filling in that section of such particulars as the Commission may direct, being-
(a) Particulars containing information, the publication of which would, in the opinion of the Commission, be contrary to the public interest;
(b) Particulars containing information as to any matter being information the publication of which, in the opinion of the Commission, would substantially damage the legitimate business interests of any person.
(3) Any party to an agreement required to be registered under section 35 may apply to the 2*[Director General]-
(i) For the agreement or any part of the agreement to be excluded from the provisions of this Chapter relating to the registration on the ground that the agreement or part thereof has no substantial economic significance, or
(ii) For inclusion of any provision of the agreement in the special section, and the 1*2*[Director General] shall dispose of the matter in conformity with any general or special directions issued by the Commission in this behalf.
3*[PART B UNFAIR TRADE PRACTICES
36A - Definition of unfair trade practice
In this Part, unless the context otherwise requires, ''unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any good or for the provision of any services, 4*[adopts any unfair method or unfair or deceptive practice including any of the following practices], namely:-
(1) The practice of making any statement, whether orally or in writing or by visible representation which,-
(i) Falsely represents that the goods are of a particular standard, quality, 5*[quantity,] grade, composition, style or mode;
(ii) Falsely represents that the services are of a particular standard, quality or grade;
(iii) Falsely represents any re-built, second-hand, renovated, re-conditioned or old goods as new goods;
(iv) Represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) Represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) Makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(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 is not based on an adequate or 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;
(ix) Materially misleads the public concerning the price at which a product or like products or goods or services, have been, or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
(x) Gives false or misleading facts disparaging the goods, services or trade of another person.
Explanation.-For the purposes of clause (1), a statement that is-
(a) Expressed on an article offered or displayed for sale, or on its wrapper or container, or
(b) Expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale, or
(c) Contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by the person who had caused the statement to be so expressed, made or contained:
(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business and the nature of the advertisement.
Explanation.-For the purpose of clause (2), "bargain price" means-
(a) A price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or
(b) A price that a person who reads, hears, or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;
(a) The offering of gifts, prizes or other items with the intention of not providing them as offered or creating the impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole,
(b) The conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest.
(4) Permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the rise of injury to the person using the goods.
(5) Permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale, or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services.
36B - Inquiry into unfair trade practices by Commission
The Commission may inquire into any unfair trade practice,-
(a) Upon receiving a complaint of facts which constitutes such practice 6*[from any trade association or from any consumer or a registered consumers' association, whether such consumer is a member of that consumers' association or not]; or
(b) Upon a reference made to it by the Central Government or a State Government;
(c) Upon an application to it by the Director General; or
(d) Upon its own knowledge or information.
36C - 7*Investigation by Director General before an issue of process in certain cases
The Commission may, before issuing any process requiring the attendance of the person against whom an inquiry (other than an inquiry upon an application by the Director General) may be made under section 36B, by an order, require the Director General to make, or cause to be made, a preliminary investigation in such manner as it may direct and submit a report to the Commission, for the purpose of satisfying itself that the matter requires to be inquired into.]
Section 36D - Powers which may be exercised by the Commission inquiring into an unfair trade practice
(1) The Commission may inquire into any unfair trade practice which may come before it for inquiry and, if, after such inquiry, it is of opinion that the practice is prejudicial to the public interest, or to the interest of any consumer or consumers generally, it may, by order direct that-
(a) The practice shall be discontinued or shall not be repeated; 8[***]
(b) Any agreement relating to such unfair trade practice shall be void or shall stand modified in respect thereof in such manner as may be specified in the order;
9*[(c) Any information, statement or advertisement relating to such unfair trade practice shall be disclosed, issued or published, as the case may be, in such manner as may be specified in the order.]
(2) The Commission may, instead of making any order under this section, permit any party to carry on any trade practice, if it so applies and takes such steps within the time specified by the Commission as may be necessary to ensure that the trade practice is no longer prejudicial to the public interest or to the interest of a consumer or consumers generally, and in any such case, if the Commission is satisfied that necessary steps have been taken within the time so specified, it may decide not to make any order under this section in respect of that trade practice.
(3) No order shall be made under sub-section (1) in respect of any trade practice which is expressly authorised by any law for the time being in force.
36E - Power relating to restrictive trade practices may be exercised or performed in relation to unfair trade practices
Without prejudice to the provisions of section 12A, section 12B and section 36D, the Commission, Director General or any other person authorised in this behalf by the Commission or Director General, may exercise, or perform, in relation to any unfair trade practice, the same power or duty which it or he is empowered, or required, by or under this Act to exercise, or perform, in relation to a restricted trade practice.]
This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice in India abroad regarding their individual legal, civil criminal issues or consult one of the experts online.