In the matter of show cause notice issued to MS KAYMU.PK

Pakistan

14.03.2018

MRTP/ Competition Laws

When law required a thing to be done in a particular manner, same must be done accordingly, and, if prescribed procedure was not followed, it was assumed that, it had not been legally done

In facts of present case, 'Complainant' filed a complaint with Commission for alleged violations of Section 10 of Competition Act, 2010/Act. Complainant alleged that, he ordered a wrist watch from Respondent's website, which, when delivered, was in a poor condition and was very different as compared to the one shown in product description on website. Complainant further purported that, Respondent, on website, affirmed to be mediator in case of a dispute, however in actuality, it withdrew from responsibility of resolving dispute appropriately.

In order to assess allegations levelled in Complaint, competent authority initiated an enquiry which was concluded vide Enquiry Report dated 19th December 2016. Based upon conclusion and recommendations of Enquiry Report, competent authority approved initiation of proceedings under Section 30 of Act. Accordingly, SCN was issued. Present Order shall dispose of proceedings arising out of Show Cause Notice issued by Competition Commission of Pakistan to M/s. Kaymu.pk (`Kaymu' or `Respondent') for prima facie violation of Section 10 (2) (a) and (b) read with Section 10 (1) of Act.

Proceedings were initiated on a complaint filed by Mr. Umair. Consumer was user of a good or beneficiary of services and did not include a person who obtained such goods for resale or for any commercial purpose or was rendering services. Legislature in its wisdom had excluded consumers from any other legal entity which was engaged in provision of goods or services. Complainant had approached Commission as a consumer and not as an undertaking. Competent authority also initiated enquiry on aforesaid complaint under Section 37 (2) of Act. Commission was not empowered under Section 37 (2) of Act to proceed with an enquiry on complaint of consumer, rather, legislature in all its wisdom had categorically outlined that, complaint was to be filed either by 'undertaking' or `registered association of consumers'. Commission was empowered to initiate an enquiry into any matter relevant to provisions of Act, either suo moto or upon a reference made to it by Federal Government in accordance with Section 37(1) of Act.

In M/s Nawabsons Laboratories (Private) Limited vs. Government of Puniab and others, wherein Honourable Court had held that, "when a law required a particular thing to be done in a particular manner, it could only be done in that manner and in no other manner, particularly when it might affect rights of a person". Complainant was a consumer and complaint was not filed on behalf of any registered association of consumers. Since, a consumer did not fall within purview of definition of `undertaking', hence, initiation of enquiry under Section 37(2) of Act on basis of complaint in question was in fact violative of express provisions of law. For initiation of enquiry, any complaint filed with Commission must satisfy criteria laid down in express provision of law.

When law required a thing to be done in a particular manner, same must be done accordingly, and, if prescribed procedure was not followed, it was assumed that, it had not been legally done. Enquiry in instant matter in not in line with sub-section (2) of Section 37 of Act, and accordingly, no proceedings under Section 30 of Act could be initiated, therefore, both Enquiry Report and SCN were set-aside. However, complaint remanded back to Registrar, who shall place complaint before Commission within thirty days from date of Order. Present Order shall not preclude Commission from authorizing conduct of de-novo enquiry in instant matter in accordance with law.

Tags : Enquiry Initiation Powers Commission

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