| 2.  Definitions.   In  this Act, unless the context otherwise requires, -   (a)  “agreement” includes any arrangement or understanding, whether or not it is  intended that such agreement shall be enforceable (apart from any provision of  this Act) by legal proceedings;   (b)  “Commission” means the Monopolies and Restrictive Trade Practices Commission  established under section 5;   (c) 1[“Director  General” means the Director General of Investigation and Registration  appointed under section 8, and includes any Additional, Joint, Deputy or  Assistant Director General of Investigation and Registration appointed under  that section;]   2[(d)  “dominant undertaking” means - 3[  * * * ] (iii)  an undertaking which, by itself or along with inter-connected undertakings  produces, supplies, distributes or otherwise controls not less than one-fourth  of the total goods that are produced, supplied or distributed in India or any  substantial part thereof; or   (iv)  an undertaking which provides or otherwise controls not less than one-fourth of  any services that are rendered in India or any substantial part thereof.]   Explanation  II : Where any goods 4[ * *  * ] are the subject of different forms of production, supply,  distribution or control, every reference in this Act to such goods shall be  construed as reference to any of those forms of production, supply, distribution  or control, whether taken separately or together or in such groups as may be  prescribed.   2[Explanation  III : The question as to whether any undertaking, either by itself or along with  inter-connected undertakings, produces, supplies, distributes or controls  one-fourth of any goods or provides or controls one-fourth of any services may  be determined according to any of the following criteria, namely, value, cost,  price, quantity or capacity of the goods or services.]   5[Explanation  IV : In determining, with reference to the features specified 6[in  sub-clause (iii) sub clause (iv)], as the case may be, the question as to  whether an undertaking is or is not a dominant undertaking, regard shall be had  to -   (i)  the average annual production of the goods, or the average annual value of the  services provided, by the undertaking during the relevant period; and   (ii)  the figures published by such authority as the Central Government may, by  notification, specify, with regard to the total production of such goods made,  or the total value of such services provided, in India or any substantial part  thereof during the relevant period.]   5[Explanation  V : In determining the question as to whether an undertaking is or is not a  dominant undertaking in relation to any goods supplied, distributed or  controlled in India, regard shall be had to the average annual quantity of such  goods supplied, distributed or controlled in India by the undertaking during the  relevant period.   Explanation  VI : For the purposes of this clause, “relevant period” means the period of  three calendar years immediately preceding that calendar year which immediately  precedes the calendar year in which the question arises as to whether an  undertaking is or is not a dominant undertaking.]   7[Explanation  VII : Where goods 4[ * * * ] produced in India by  an undertaking have been exported to a country outside India, then the goods so  exported shall not be taken into account in computing for the purposes of this  clause -   (i)  the total goods 8[ * * * ] that are produced in  India by that undertaking; or   (ii)  the total goods 8[  * * * ] that are produced, supplied or distributed in India or any  substantial part thereof;] 9[(da)  “financial institution” means, -   (i)  a public financial institution specified in or under section 4A of the Companies  Act, 1956 (1 of 1956);   (ii)  a State Financial, Industrial or Investment Corporation;   (iii)  the State Bank of India or a subsidiary bank as defined in the State Bank of  India (Subsidiary Banks) Act, 1959 (38 of 1959);   (iv)  a nationalised bank, that is to say, a corresponding new bank as defined in  clause (d) of section 2 of -   (i)  the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of  1970); or   (ii)  the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40  of 1980);   (v)  the General Insurance Corporation of India established in pursuance of the  provisions of section 9 of the General Insurance Business (Nationalisation) Act,  1972 (57 of 1972);   (vi)  the Industrial Reconstruction Corporation of India; or   (vii)  any other institution which the Central Government may, by notification, specify  in this behalf;]   5[(e)  “goods” means goods as defined in the Sale of Goods Act, 1930 (3 of 1930),  and includes, -   (i)  products manufactured, processed or mined in India;   10[(ii)  shares and stocks including issue of shares before allotment;]   (iii)  in relation to goods supplied, distributed or controlled in India, goods  imported into India;]   (ee)  Omitted by the MRTP (Amdt.) Act, 1991, w.e.f. 27-9-1991;   9[(ef)  “group” means a group of -   (i)  two or more individuals, association of individuals, firms, trusts, trustees or  bodies corporate (excluding financial institutions), or any combination thereof,  which exercises, or is established to be in a position to exercise, control,  directly or indirectly, over any body corporate, firm or trust; or   (ii)  associated persons.   Explanation  : For the purposes of this clause -   (I)  a group of persons who are able, directly or indirectly, to control the policy  of a body corporate, firm or trust, without having a controlling interest in  that body corporate, firm or trust, shall also be deemed to be in a position to  exercise control over it;   (II)  “associated persons” -   (a)  in relation to a director of a body corporate, means -   (i)  a relative of such director, and includes a firm in which such director or his  relative is a partner;   (ii)  any trust of which any such director or his relative is a trustee;   (iii)  any company of which such director, whether independently or together with his  relatives, constitutes one-fourth of its board of directors;   (iv)  any other body corporate, at any general meeting of which not less than  one-fourth of the total number of directors of such other body corporate are  appointed or controlled by the director of the first mentioned body corporate or  his relative, whether acting singly or jointly;   (b)  in relation to the partner of a firm, means a relative of such partner and  includes any other partner of such firm; and   (c)  in relation to the trustee of a trust, means any other trustee of such trust;   (III)  where any person is an associated person in relation to another, the latter  shall also be deemed to be an associated person in relation to the former;]   (f)  “India” means, for the purposes of this Act, the territories to which this  Act extends;   [Clause  (ff) & (fff)   omitted by Act No. 58 of 1991, w.e.f. 27th. September, 1991] (g)  “inter-connected undertakings” means two or more undertakings which are  inter-connected with each other in any of the following manner, namely :-   (i)  if one owns or controls the other.   (ii)  where the undertakings are owned by firms, if such firms have one or more common  partners.   5[(iii)  where the undertakings are owned by bodies corporate, -   (a)  if one body corporate manages the other body corporate, or   (b)  if one body corporate is a subsidiary of the other body corporate, or   (c)  if the bodies corporate are under the same management, or   (d)  if one body corporate exercises control over the other body corporate in any  other manner;]   (iv)  where one undertaking is owned by a body corporate and the other is owned by a  firm, if one or more partners of the firm, -   (a)  hold, directly or indirectly, not less than fifty per cent of the shares,  whether preference or equity, of the body corporate, or   (b)  exercise control, directly or indirectly, whether as director or otherwise, over  the body corporate,   (v)  if one is owned by a body corporate and the other is owned by a firm having  bodies corporate as its partners, if such bodies corporate are under the same  management, 11[  * * * ]   (vi)  if the undertakings are owned or controlled by the same person or 12[by  the same group],   (vii)  if one is connected with the other either directly or through any number of  undertakings which are inter-connected undertakings within the meaning of one or  more of the foregoing sub-clauses.   13[Explanation  1] : For the purposes of this Act, 14[two  bodies corporate], shall be deemed to be under the same management, -   (i)  if one such body corporate exercises control over the other or both are under  the control of the same group or any of the constituents of the same group; or   (ii)  if the managing director or manager of one such body corporate is the managing  director or manager of the other; or   (iii)  if one such body corporate holds not less than 15[one-fourth] of  the equity shares in the other or controls the composition of not less than 15[one-fourth] of  the total membership of the board of directors of the other; or   (iv)  if one or more directors of one such body corporate constitute, or at any time  within a period of six months immediately preceding the day when the question  arises as to whether such bodies corporate are under the same management,  constituted 16[(whether  independently or together with relatives of such directors or the employees of  the first mentioned body corporate) one-fourth of the director of the other; or]   (v)  if the same individual or individuals belonging to a group, while holding  (whether by themselves or together with their relatives) not less than 15[one-fourth] of  the equity shares in one such body corporate also hold (whether by themselves or  together with their relatives) not less than 15[one-fourth] of  the equity shares in the other; or   (vi)  if the 5[same body  corporate or bodies corporate belonging to a group, holding, whether  independently or along with its or their subsidiary or subsidiaries, not less  than 15[one-fourth] of the equity shares] in one  body corporate, also hold not less than one-fourth of the equity shares in the  other; or   (vii)  if not less than 15[one-fourth] of  the total voting power 17[in  relation to] each of the two bodies corporate is exercised or  controlled by the same individual (whether independently or together with his  relatives) or the same body corporate (whether independently or together with  its subsidiaries); or   (viii)  if not less than 15[one-fourth] of  the total voting power 17[in  relation to] each of the two bodies corporate is exercised or  controlled by the same individuals belonging to a group or by the same bodies  corporate belonging to a group, or jointly by such individual or individuals and  one or more of such bodies corporate; or   (ix)  if the directors of the one such body corporate are accustomed to act in  accordance with the directions or instructions of one or more of the directors  of the other, or if the directors of both the bodies corporate are accustomed to  act in accordance with the directions or instructions of an individual, whether  belonging to a group or not.   Explanation  II : If a group exercises control over a body corporate, that body corporate and  every other body corporate, which is a constituent of or controlled by, the  group shall be deemed to be under the same management.   Explanation  III : If two or more bodies corporate under the same management hold, in the  aggregate, not less than one-fourth equity share capital in any other body  corporate, such other body corporate shall be deemed to be under the same  management as the first mentioned bodies corporate.   Explanation  IV : In determining whether or not two or more bodies corporate are under the  same management, the shares held by 18[financial  institutions] in such bodies corporate shall not be taken into  account.   Illustration   Undertaking  B is inter-connected with undertaking A and   Undertaking C is inter-connected with undertaking B.   Undertaking C is inter-connected with undertaking A; if  Undertaking D is inter-connected with undertaking C,   Undertaking D will be inter-connected with undertaking B and   Consequently with undertaking A; and so on. [Explanation  omitted by Act No. 30 of 1984, w.e.f. 1st. August, 1984.] [Clause  (gg) omitted by Act No. 58 of 1991, w.e.f. 27th. September, 1991] (h)  “member” means a member of the Commission :   (i)  “monopolistic trade practice” means a trade practice which has, or is likely  to have, effect of, -   (i) 19[maintaining  the prices of goods or charges for the services] at an unreasonable  level by limiting, reducing or otherwise controlling the production, supply or  distribution of goods 4[ *  * * ] or the supply of any services or in any other manner.   (ii)  unreasonably preventing or lessening competition in the production, supply or  distribution of any goods or in the supply of any services,   (iii)  limiting technical development or capital investment to the common detriment or  allowing the quality of any goods produced, supplied or distributed, or any  services rendered, in India to deteriorate;   20[(iv)  increasing unreasonably, -   (a)  the cost of production of any goods; or   (b)  charges for the provision, or maintenance, of any services;   (v)  increasing unreasonably, -   (a)  the prices at which goods are, or may be, sold or re-sold, or the charges at  which the services are, or may be, provided; or   (b)  the profits which are, or may be, derived by the production, supply or  distribution (including the sale or purchase) of any goods or by the provision  of any services;   (vi)  preventing or lessening competition in the production, supply or distribution of  any goods or in the provision or maintenance of any services by the adoption of  unfair methods or unfair or deceptive practices;]   5[(j)  “notification” means a notification published in the Official Gazette;   (ja)  “owner”, in relation to an undertaking, means an individual, Hindu undivided  family, body corporate or other association of individuals, whether  incorporated or not, or trust (whether public or private or whether religious or  charitable) who or which owns or controls, the whole or substantially the whole  of such undertaking, and includes any associated person who is a constituent of  a group and who has the ultimate control over the affairs of such undertaking;]   (k)  “prescribed” means prescribed by rules made under this Act;   (l)  “price”, in relation to the sale of any goods or to the performance of any  services, includes every valuable consideration, whether direct or indirect, and  includes any consideration which in effect relates to the sale of any goods or  to the performance of any services although ostensibly relating to any other  matter or thing;   21[(ll)  “produce” includes manufacture and all its grammatical variations and  cognate expressions shall be construed accordingly;]   (m)  “register” means the register kept by the 22[Director  General] under section 36;   23[(n)  “registered consumers’ association” means a voluntary association of  persons registered under the Companies Act, 1956 (1 of 1956), or any other law  for the time being in force which is formed for the purpose of protecting the  interests of consumers generally and is recognised by the Central Government as  such association on an application made in this behalf in such form and such  manner as may be prescribed;]   (o)  “restrictive trade practice” means a trade practice which has, or may have,  the effect of preventing, distorting or restricting competition in any manner  and in particular, -   (i)  which tends to obstruct the flow of capital or resources into the stream of  production, or   (ii)  which tends to bring about manipulation of prices, or conditions of delivery or  to affect the flow of supplies in the market relating to goods or services in  such manner as to impose on the consumers unjustified costs or restrictions;   (p)  “retailer”, in relation to the sale of any goods, includes every person,  other than a wholesaler, who sells the goods to any other person; and in respect  of the sale of goods by a wholesaler, to any person for any purpose other than  re-sale, includes that wholesaler; [Clause  (q) omitted by Act No. 58 of 1991, w.e.f. 27th. September, 1991] (r)  “service” means service 4[  * * * ] which is made available to potential users and includes the  provision of facilities in connection with 24[banking,  financing, insurance, 25[chit fund, real estate], transport,  processing], supply of electrical or other energy, boarding or lodging or  both, entertainment, amusement or the purveying of news or other information,  but does not include the rendering of any service free of charge or under a  contract of personal service.   26[Explanation  : For the removal of doubts, it is hereby declared that any dealings in real  estate shall be included and shall be deemed always to have been included within  the definition of “service”;]   (s)  “trade” means any trade, business, industry, profession or occupation  relating to the production, supply, distribution or control of goods and  includes the provision of any services;   (t)  “trade association” means a body of persons (whether incorporated or not)  which is formed for the purpose of furthering the trade interests of its members  or of persons represented by its members;   (u)  “trade practice” means any practice relating to the carrying on of any  trade, and includes -   (i)  anything done by any person which controls or affects the price charged by, or  the method of trading of, any trader or any class of traders,   (ii)  a single or isolated action of any person in relation to any trade;   5[(v)  “undertaking” means an enterprise which is, or has been, or is proposed to  be, engaged in the production, storage, supply, distribution, acquisition or  control of articles or goods, or the provision of services, of any kind, either  directly or through one or more of its units or divisions, whether such unit or  division is located at the same place where the undertaking is located or at a  different place or at different places.   Explanation  I : In this clause, -   (a)  “article” includes a new article and “service” includes a new service;   (b)  “unit” of “division”, in relation to an undertaking includes, -   (i)  a plant or factory established for the production, storage, supply,  distribution, acquisition or control of any article or goods;   (ii)  any branch or office established for the provision of any service.   Explanation  II : For the purposes of this clause, a body corporate, which is, or has been,  engaged only in the business of acquiring holding, underwriting or dealing with  shares, debentures or other securities of any other body corporate shall be  deemed to be an undertaking   Explanation  III : For the removal of doubts, it is hereby declared that an investment  company shall be deemed, for the purposes of this Act, to be an undertaking;   (x)  “wholesaler”, in relation to the sale of any goods, means a person who sells  the goods, either in bulk or in large quantities, to any person for the purposes  of re-sale, whether in bulk or in the same or smaller quantities;]   (y)  words and expressions used but not defined in this Act and defined in the  Companies Act, 1956 (1 of 1956), have the meanings respectively assigned to them  in that Act. Note: 1. Substituted  for the words "Director means the Director of Investigation appointed under  section 8" by Act No. 30 of 1984, w.e.f. 1st. August, 1984. 2. Substituted  by Act No. 30 of 1982, w.e.f. 18th. August, 1982. 3.   Clauses (i) and (ii) omitted by Act No. 58 of 1991, w.e.f. 27th. September,  1991. 4.   The words "of any description" omitted by Act No. 58 of 1991, w.e.f.  27th. September, 1991. 5. Substituted  by Act No. 30 of 1984, w.e.f. 1st. August, 1984. 6.   Substituted for the words, brackets and figures "in sub-cl. (ii), (iii) or  (iv)" by Act No. 58 of 1991, w.e.f. 27th. September, 1991. 7.   Inserted by Act 60 of 1980, w.e.f. 13th. October, 1980. 8.   Words "of that description" omitted by Act No. 58 of 1991, w.e.f.  27th. September, 1991. 9. Inserted  by Act No. 30 of 1984, w.e.f. 1st. August, 1984. 10. Substituted  by the MRTP (Amendment) Act, 1991, w.e.f. 27th. September, 1991. 11. The  words "within the meaning of the said s. 70" omitted by Act No. 41 of  1974, w.e.f. 1st. February, 1975. 12. Substituted  by Act No. 30 of 1984, for the words "group of persons", w.e.f. 1st.  August, 1984. 13. Inserted  by Act No. 41 of 1974, w.e.f. 1st. February, 1975. 14.   Substituted for the words "two undertakings owned by bodies corporate"  by Act No. 30 of 1984, w.e.f. 1st. August, 1984. 15.   Substituted by Act No. 30 of 1984, for the words "one-third". 16. Substituted  for the words and bracekts "(whether independently or together with the  relatives of such directors) one-third of the directors of the other; or"  by Act No. 30 of 1984. 17. Substituted  by Act No. 30 of 1984, for the words "with respect to any matter relating  to". 18.   Substituted by Act No. 30 of 1984, for the words "public financial  institutions", w.e.f 1st. August, 1984. 19.   Substituted by Act No. 30 of 1984, for the words "maintaining prices",  w.e.f. 1st. August, 1984. 20. Inserted  by Act No. 30 of 1984, w.e.f. 1st. August, 1994. 21. Inserted  by Act No. 30 of 1982, w.e.f. 18st. August, 1982. 22.   Substituted for the words "Registrar" by the MRTP (Amendment) Act,  1984, w.e.f. 1st. August, 1984. 23. Inserted  by Act 74 of 1986, w.e.f. 1st. June, 1987. 24.   Substituted by Act No. 30 of 1984, for the words "banking, insurance,  transport", w.e.f. 1st. August, 1984. 25.   Inserted by Act No. 58 of 1991, w.e.f. 27th. September, 1991. 26.   Substituted for the words "sells the goods to any person for the purpose of  resale" by Act No. 30 of 1984, w.e.f. 1st. August, 1984. |