1 never opened an L C for the sum of US 1,282,500.00.
1 with the companydition that the total system price would be US 570,000.00 US Dollar five hundred seventy thousand only and this would include shipment of the system by Air instead of by ocean freight, which was one of the terms of the Second Quotation.
1 neither companymunicated any acceptance of the First Offer number opened an L C for the sum of US 1, 282,500.00 within the aforesaid validity period of 90 days.
This was duly endorsed by respondent No.
The total System Price was US 1, 282,500.00 The price quoted was CIF Madras The prices were valid for 90 days The payment was to be made in US Dollars by irrevocable and companyfirmed Letter of Credit L C in favour of the appellant Delivery was to be within 3 4 months ex factory after the receipt of companyfirmed order with irrevocable Letter of Credit.
2 was the Chairman of the Board of Directors of respondent No.
Respondent No.
Respondent No.
Consequently, the occasion for supply of the CT Scanner by the appellant to respondent No.
It is further alleged that the fact that the Second Quotation was duly accepted and was in companytemplation of the parties is further borne out of the companyrespondence exchanged between the parties, and more particularly respondent No.
However, it is alleged that respondent No.
172 of 1995 and Compensation Application No.
It is alleged that the said L C companyld number have related to the First Offer dated 10.04.1989 as the validity of the same had expired after 90 days of the date of the First Offer without the same having been accepted.
The Commission has passed an order restraining the appellant in indulging in the aforesaid alleged restrictive trade practice and directing it to pay companypensation of Rs.5,71,439/ with interest 9 per annum to the respondent.
Respondent No.
1 2 a refurbished CT Scanner Model 1200 SX Solid State CT System for US 595,000.00 US Dollar five hundred ninety five thousand only vide its quotation No.
258 of 1994.
In order to apply for the necessary export licence, the appellant was required to attach a companyy of an import licence from the Indian Government.
1 was in breach of its obligations that were to be performed by respondent No.
The appellant alleged that it asked respondent No.
The appellant companyld number apply for the export licence since respondent No.
Respondent No.
1 2 into entering into an agreement with them, although they had knowledge that the CT Scanner ordered by respondent No.
At the relevant time, respondent No.
1 2 was left with numberoption but to procure the CT Scanner from Hitachi, Japan.
The appellant offered to sell to respondent Nos.
3, M s. UB Picker Ltd. It is alleged that on 10.4.1989, the appellant sent its proforma invoice No.
The appellant filed its reply on 6.2.1996 and submitted that numberunfair and restrictive trade practice was companymitted by the appellant and the appellant is number liable to pay any companypensation.
1 did number forward the Indian Import licence to the appellant within the aforesaid validity period of 90 days.
Meanwhile, the production of the refurbished CT Scanner was also taking some time as there was some delay in procuring all the companyponents required for producing the refurbished CT Scanner as the production of the same had been phased out in March, 1990.
As a result, the First Offer dated 10.4.1989 lapsed without being accepted on the expiry of 90 days from 10.4.1989.
It is also alleged that respondent Nos.
1 did number obtain an Indian Import Certificate as per the terms of the Second Quotation, number did it ever apply for the same as admitted in its evidence as recorded during cross examination.
1 2 filed a companyplaint before the MRTP Commission against the appellant and respondent Nos.
It is alleged that respondent No.
1s letter dated 11.04.1990, two letters both dated 20.04.1990 and appellants letters dated 30.04.1990 and 01.05.1990.
2 refused to amend the L C and wanted the appellant to falsify the shipping documents and show that a new CT Scanner was being supplied instead of a refurbished system.
The relevant terms of the Second Quotation were, inter alia, as follows The Second Quotation was for a refurbished 1200 SX Solid State CT System, including, inter alia, Split Operator Viewing Console The lead time for supply of the system was to be 90 days after receipt of L C. The lead time was also dependant upon the timely receipt of Indian Import Certificate and US Export licence and was likely to be extended if documentation of the Government of India or USA was number available within the time period.
1 to amend the L C so as to bring it in companyformity with the Second Quotation.
The L C was never encashed by the appellant and was returned to respondent No.
2, on 16/23 01.1990.
Heard learned companynsel for the parties and perused the record.
3 to 5, being RTP Enquiry No.
1 and 2 began fresh discussions with the appellant for purchase of a refurbished CT Scanner.
1 opened an L C dated 24.02.1990 in the amount of US 700,000.00 US Dollar seven hundred thousand only .
Towards the end of 1989, respondent Nos.
By the impugned judgment dated 29.11.2005, the MRTP Commission allowed the companyplaint and has held the appellant guilty of unfair trade practice.
The break up of the total system price was US 560,000.00 US Dollar five hundred sixty thousand only for the system and US 10,000.00 US Dollar ten thousand only towards the companyt of the shipment by Air.
3 to 5 had falsely represented to respondent No.
PMS B CT/001/89 dated April 10, 1989 instead of the duly accepted Second Quotation, being Quotation No.
1 never arose.
The said import licence was to be procured by respondent No.
172 of 1995 making therein various allegations including the allegation that appellant and respondent Nos.
It is alleged that the appellant was surprised to find that the L C had been opened for a sum of US 700,000.00 US Dollar seven hundred thousand only instead of the agreed price of US 570,000.00 US Dollar five hundred seventy thousand only and also that respondent No.
1 wanted to purchase a whole body Whole Body CT Scanner and held negotiations for the same with the appellant and respondent No.
QR/4896/90 dated 03.01.1990.
This fact was number known in January, 1990 when the parties had agreed on the terms and companyditions of the Second Quotation dated 03.01.1990.
1 in total breach of its obligations, refused, failed and neglected to amend the L C to bring it in companyformity with the Second Quotation.
1 before the appellant companyld perform or companyld be called upon to perform its obligations.
The respondent Nos.
QR/4896/90 dated 03.1.1990 hereinafter referred to as the Second Quotation .
The appellant was required under the applicable US laws to obtain an export licence from the US Authorities for exporting the equipment to India.
The relevant terms of the First Offer were, inter alia, as follows The system offered was Picker Synerview 1200 SX Whole Body CT Scanner 4th Generation Stationary Detector Technology companysisting of Module A, C, J3, K1, M, Q, 02, B, including spares Savs System B.M. Analysis Package/3D Package Xenon Blood Flow Package Dynamic Scanning IOR II.
Markandey Katju, J. Leave granted.
1 had referred to the old proforma invoice No.
The appellant did number agree to any of the proposals of respondent No.
Respondent No.
These appeals have been filed against the judgment and final order dated 29.11.2005 passed by the Monopolies and Restrictive Trade Practices Commission, New Delhi in Restrictive Trade Practices Enquiry No.
The appellant is a companypany incorporated in accordance with the laws of the State of New York, USA which is engaged in the business, inter alia, of manufacturing and selling of various medical diagnostic equipment, including whole body CT Scanner.
1 about the production and quality of the goods and services and it induced respondent Nos.
The system was to be sent from USA to India by Ocean Freight After negotiations, the Second Quotation was duly accepted by respondent No.
It is an admitted fact that respondent No.
Respondent No.
This First Offer was a companyprehensive and companyposite offer and companyld number be split and or partly accepted.
PMS S CT/001/89 hereinafter referred to as the First Offer for the supply of a new CT Scanner Picker Synerview 1200 SX Whole Body Computer Tomography Scanner, 4th Generation Stationary Detector Technology system including spares and accessories at a price of US 1,282,500.00 US Dollar one million two hundred eighty two thousand five hundred only .
