IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : MRTP W.P.(C) 8107/2005. Judgment reserved on : August 10, Date of Decision : August 22, 2006

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : MRTP W.P.(C) 8107/2005 Judgment reserved on : August 10, 2006 Date of Decision : August 22, 2006 GUJRAT AMBUJA CEMENTS LTD....Petitioner. Through S/Shri A.N.Haksar, Senior Advocate with U.A.Rana, Arvind Kumar & Ranjan, Advocates. versus THE MRTP COMMISSION & OTHERS... Respondents Through Mr. O.P.Dua, Senior Advocate with Ms. Babita Shah for respondent No.3. S/Shri Rajiv Shakdhar, Senior Advocate with U.A. Rana & Arvind Kumar for respondent No.5. Mr. Mukesh Kumar for respondent No.8. Mr. Bharat Sangal with Ms. Vijayshree for respondent No.9. Ms. Ritu Bhalla & Mr. Dhruv Dewan for respondent No.12. Dr. Manmohan Sharma for Mr. Pramod B. Agrawala for respondent No.13. CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE DR. JUSTICE S. MURALIDHAR DR. S. MURALIDHAR J. 1. This writ petition challenges the orders dated and passed by the Monopolies & Restrictive Trade Practice Commission, New Delhi (hereafter 'MRTP Commission') in RTPE No. 21 of By the first impugned order dated the MRTP Commission rejected an application filed by the petitioner under Section 12 of the Monopolies and Restrictive Trade Practices Act, 1969 (Act) read with Regulation 65 of the MRTP Regulations (hereafter 'Regulations') challenging the admissibility of the affidavit of evidence filed on behalf of the complainants in RTPE No. 21of By the second impugned order dated the MRTP Commission ordered that the

2 admissibility and evidentiary value of a certain document referred to in the crossexamination of the complainant's witness, would be considered at the time of the final hearing, in light of the answers given by the witness during the cross- examination. Apart from challenging these two orders, the petitioner has, in this writ petition, also sought a direction to the MRTP Commission to first determine the issue of admissibility of the documents appended to the affidavit of evidence of the witness of the complainant. 2. We have heard the submissions of Mr. A.N.Haksar, Senior Advocate for the petitioner, Mr.Rajiv Shakhdar, Senior Advocate for Respondent No.5 and Shri O.P.Dua, Senior Advocate for Respondent No.3/complainant and other counsel appearing for the various parties. 3. The facts in brief are that Mr.Sarabjit S.Mokha and Mr. Naresh Grover, Respondents 3 and 4 herein, filed a complaint being RTPE No.21 of 2001 before the MRTP Commission under Section 10(a)(i) and Section 36B(a) read with Sections 33(1)(d) and Section 2(o)(ii) of the Act. The complaint stated that the petitioner herein and certain other companies, who are in the business of manufacture and sale of cement, had formed a cartel for fixing the prices of cement and were indulging in restrictive and unfair trade practices in violation of the provisions of the Act. On the MRTP Commission directed a notice of enquiry to be issued on the said complaint. On the MRTP Commission framed the issues arising in the enquiry and granted liberty to the complainants(respondent Nos. 2 and 3 herein) to file a list of witnesses, affidavits of evidence and supporting documents. On an affidavit of evidence was filed by Mr. Naresh Grover, one of the original complainants. The documents sought to be relied upon by the complainants were an unsigned Minute dated and copies of certain newspaper reports. On a further affidavit of evidence on behalf of complainants was filed by one Mr. Dhruv Kumar Lallubhai Desai and copies of the said affidavit were furnished to the petitioner herein. 4. Thereupon the petitioner herein filed an application under Section 12 of the Act read with Regulations 65 and 68 of the Regulations on , objecting to the affidavit of evidence on the following grounds: (i) The verification of the affidavit was not in accordance with the Order 19 Rule 3 of CPC since it did not state which part of the affidavit was based upon the personal knowledge of the deponent and which part was based on record. (ii) The originals of certain documents enclosed with the affidavit of evidence had not been tendered along with the affidavit. Therefore, the affidavit of evidence was based on hearsay and hence inadmissible. 5. By the impugned order dated the MRTP Commission rejected the above application observing that since the procedure outlined in Regulation 68 of the Regulations required admission and denial of documents by the parties before the designated officer of the MRTP Commission, that procedure could not be by-passed by the petitioners herein by filing an application for a decision on the admissibility of evidence even before the said procedure was gone through. However, the MRTP Commission held that admissibility of certain documents would be considered at the time of cross-examination of the witness for the complainant. As regards non-production of

3 originals, the MRTP Commission held that the failure to do so by the complainants might result in an adverse inference being drawn against them. When the witness was in the witness box he could certainly be asked about the lacunae in the verification of the affidavit. The MRTP Commission was of the view that the application was premature since the stage of considering the admissibility of evidence had not been reached. 6. Eleven months later, in the course of the cross-examination of the witness for the complainant before the MRTP Commission, one of the senior counsel for the petitioners before us again raised the point regarding the admissibility of the Minutes of , which was a document appended to the affidavit of the evidence of the complainant. The MRTP Commission by the second impugned order dated recorded the objections raised by the petitioners herein as well as the fact that the questions put to the witness in respect of the said document and the anwers thereto by the witness were on record. The MRTP Commission held that the admissibility or evidentiary value of the Minutes and other similar documents would be considered at the time of final arguments, in the light of the answers given by the witness during the cross-examination. The MRTP Commission then proceeded to fix further dates for the cross- examination of the witness. 7. The submissions of the learned counsel for the petitioner and the cement companies including Respondent No.5 are as under: (i)the MRTP Commission was bound to decide the preliminary issue of admissibility of the evidence adduced by the complainant, before going ahead with the enquiry. The entire case of the complainant before the MRTP Commission was based either on inadmissible evidence or hearsay and by not ruling on the admissibility of such evidence, the MRTP Commission had permitted a futile exercise to be undertaken. (ii) The petitioners herein was bound to raise an objection as to admissibility of the evidence at the first available opportunity, and having so raised it, the MRTP Commission was obliged to rule on the said objection. (iii) Although, in the first impugned order dated the MRTP Commission had observed that it would consider the issue of admissibility of the evidence at the time of cross-examination of the witness, when the objection was again raised at the subsequent stage, the MRTP Commission postponed the decision thereon to the stage of final hearing. Counsel for the petitioners placed reliance on the judgment of the Hon'ble Supreme Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple (2003) 8 SCC 752 to contend that the MRTP Commission was obliged in law to first decide the issue of admissibility of the evidence. 8. Shri O.P.Dua, learned senior counsel _or the complainants/ Respondents 2 and 3, on the other hand, pointed out that even after the order dated the crossexamination of the complainant's witness had initially been undertaken by counsel for the petitioners without demur before the MRTP Commission, i.e. on , and It is only when the witness stood firm that the petitioners herein decided to again bring up the issue of admissibility of the evidence at the hearing on Therefore, the attempt clearly was to delay the proceedings. Mr. Dua also pointed out that the cross-examination of the complainant's witness Shri Naresh Grover by two of the

4 cement companies including the petitioner herein, was concluded on It continued on , on behalf of yet another company. The tactics of the petitioner and other companies became evident from the fact that one witness was cross- examined for a period of more than one year and five months. Mr. Dua submitted that the present proceedings were an abuse of the process of the Court. 9. Having perused the record of the case and considering the submissions of the counsel it appears to us that the MRTP Commission was justified in rejecting the application moved by the petitioner herein for a ruling of the admissibility of the evidence, at the stage of cross-examination of the witness for the complainants. As rightly pointed out by the MRTP Commission, the question of admissibility of the evidence can well be considered after all the answers in the cross-examination of the witnesses have come on record. The failure to append an appropriate verification to the complainant's affidavit, the failure to produce the original documents and the reliance on hearsay can all be raised at the appropriate stage when the MRTP Commission considers the evidentiary value of the deposition of the witness for the complainants. 10. We do not understand the judgment of the Hon'ble Supreme Court in R.V.E. Venkatachala Gounder (supra) to support the plea of the petitioner that the MRTP Commission was bound to first rule on the objection raised by the petitioner as to the admissibility of the evidence produced by the complainants. While its true that in the said decision there is a discussion of the stages where such an objection might be taken, there is nothing to indicate that such objection must be decided as soon as it is raised. In this connection the following passage in the R.V.E. Venkatachala Gounder case may be noticed (SCC p.764) '' Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular of insufficient. In the first case, merely because a document has been marked as ''an exhibit'', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about_the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the

5 question of admissibility then and there; and secondly,in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.'' (emphasis supplied) 11. The highlighted portion of the above decision only indicates that the Court may rule on the objection as soon as it is raised, and not that it must. That is entirely up to the Court or Tribunal before whom the trial or enquiry is taking place. That element of discretion must be permitted to the Court or Tribunal concerned since the presiding officer is in the best position to decide whether a ruling on the evidence is required to be given then and there or at a later stage. The facts and circumstances of the case, the nature of evidence, the conduct of the parties will all be relevant factors to be considered by the Court. 12. The exercise to determine the admissibility of certain documents should not constitute a trial within a trial and unduly delay the final hearing and decision of the matter. In other words, a Court or a Tribunal, which has already commenced the witness action, should be free to decide whether or not it should take up the question of deciding the admissibility of evidence, even before the witness action concludes. Unless the refusal to determine such an issue is ostensibly perverse and would defeat the ends of justice, the High Court in exercise of its supervisory powers under Article 227 of the Constitution of India, ought not to lightly interfere with a decision of the concerned Court or Tribunal. 13. The question of proceedings before a Court or Tribunal getting protracted on account of intermittent challenges at interlocutory stages also requires to be considered by the High Court while exercising its supervisory jurisdiction under Article 227 of the Constitution. The Hon'ble Supreme Court in Bipin Shantilal Panchal v. State of Gujrat (2001) 3 SCC 1 has cautioned against the practice of Courts deciding objections as to admissibility of evidence or documents as soon as they are raised. The Hon'ble Supreme Court emphasised the need to have a flexible approach in such matters. It observed (SCC, p.5): ''13. It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallourt of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material

6 in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, _hen realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. 14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence ) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. '' 14. In instant case we are of the view that since the witness, whose evidence is being asailed on the ground that it is based on hearsay or that the affidavit of evidence has not been verified properly, has himself been cross-examined for over 17 months, by the counsel for the petitioner, all possible questions touching upon the veracity of the complainant's evidence must have already been put to the witness by now. The answers given during the extensive cross-examination of the witness would certainly help assessing the tenability of the objections of the petitioner to the evidence of the complainants. In the circumstances, we are satisfied that instant case is not one where the orders of the MRTP Commission declining to give a preliminary ruling of admissibility of the evidence ought to be interfered with. We find nothing in the impugned orders that can be characterised as being perverse or defeating the ends of justice. 15. Mr. Rajiv Shakhdhar, learned senior counsel for Respondent No.5 submitted that the cement companies would like to dispel the impression that they are unnecessarily delaying in proceeding before the MRTP Commission. He assured that they would fully co-operate in the expeditious disposal of the enquiry pending before the MRTP

7 Commission. He accordingly requested that directions may be issued for a time-bound disposal of the enquiry. We consider this request to be a reasonable one. 16. While we are not inclined to interfere with the impugned orders of the MRTP Commission, we would request the Commission to complete the remaining part of the enquiry pending before it at its early convenience and in any event not later than six months from the date of the receipt of a certified copy of this order. 17. With above observations, the Writ Petition is dismissed with no orders as to costs. A certified copy of this order may be sent by the Registry to Registrar of the MRTP Commission within a week from today. Sd/- S. MURALIDHAR, J Sd/- MUKUL MUDGAL, J

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