BEFORE THE MRTP COMMISSION 

H. D. Pithawala and Dr. V. K. Aggarwal, Advocates, for the petitioner. 

O. P. Dua, Senior Advocate and A. Dipankar, Advocate, for the respondent. 

ORDER 

The applicant/complainant has moved one complaint application under section 10(a)(i) and under section 36B(a) of the Monopolies and Restrictive Trade Practices Act, 1969, charging the respondent with adoption of and indulgence in restrictive and unfair trade practices within their respective meanings contained therein. The applicant/complainant has also taken out an application under section 12A thereof for an interim relief for stay of levy of service charge from consumers. 

It is not necessary to set out in detail the facts giving rise to this proceeding for the simple reason that the facts are not much in dispute. The respondent runs a restaurant, inter alia, providing food articles to its customers. It levies service charge at 9 per cent. of the bill on customers who consume food in the restaurant premises. The question is whether such charge can be levied on consumers. 

It cannot be gainsaid that a restaurant is meant to provide, inter alia, food items to its customers. For that purpose, a restaurant has to engage certain persons like waiters, cooks and the like as employees for providing such services to its customers. This is expected in the case of a restaurant providing food products to its customers in the restaurant premises itself. It would have been a different position if a restaurant provides a kind of buffet service and a service to customers using the table space for consumption of food and ordered through waiters or the like employees engaged by the restaurant. A kind of buffet service would involve a sort of self-service. A customer might not be required to avail of services of waiters or the like for bringing food to the table for consumption. If there is no such buffet type service, a restaurant is supposed to provide services inter alia of food items to the customers on table for consumption. In that view of the matter, we think that, no service charge for the purpose could be levied as the restaurant will have otherwise to pay salaries to its waiters or the like employees. We are therefore of the view that the applicant/complainant has been able to establish her prima facie case for the purpose of the interim relief application. 

That however brings us to the question of the balance of convenience. We are of the prima facie view that the balance of convenience would tilt more in favour of the respondent than in favour of the applicant/complainant for the simple reason that, as transpiring from the reply, the practice of levying service charge for consumption, inter alia, of food items in the restaurant premises has been in vogue for the last several years and that too by practically all good restaurants. It has been stated in the reply that it is so mentioned in the menu card also. The respondent has also stated in para. 6 of the reply that the levy of service charge is a commercial decision taken by hotels and restaurants. Whether or not this would amount to cartelisation would be a subject-matter for consideration as and when this issue crops up before this Commission. With the reply the respondent has annexed certain bills of restaurants to show levy of service charge. These bills are also from some good restaurants. In that view of the matter, grant of an interim relief at this stage would practically stop the practice which has been in vogue for the last several years with several similarly situated restaurants and hotels. In case the respondent succeeds on logical conclusion of the proceeding, the loss suffered by it on account of stay against levy of service charge will not be compensated in any form. As against this, in case the respondent fails in the proceeding on its logical conclusion, this commission can certainly make appropriate orders as the service charge as reflected in the bill given to customers would be reflected in accounts maintained by such restaurant. In this view of the matter, we think that the balance of convenience tilts in favour of the respondent rather than in favour of the applicant/complainant at this stage. 

In view of our aforesaid discussion, we are of the opinion that no interim relief at this stage can be granted against levy of service charge by and on behalf of the respondent. 

In the result, the interim relief application fails. It is hereby rejected, however, with no order as to costs on the facts and in the circumstances of the case.