17.12 For the violation of Section 3(3)(b), it must be established that there exists an agreement, practice carried on or, decision taken by an any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provisions of services, which result in effects mentioned in clauses (a) to (d) of sub-section (3) of section 3 of the Act. These include acts that limit or control production, supply, markets, technical development, investment or provision of service s. The word association has not been defined under the Act or the Companies Act, 1956. Resorting once again to the accepted linguistic meaning of the word, as per concise Oxford Dictionary an association means “a group of people organized for joint purpose”. In the instant case, the Indian Banking Association (IBA) can be said to be an association of banks but there is no evidence on record which leads us to conclude that IBA has adopted the practice or taken a decision in the matter. The practice of charging prepayment penalty cannot be said to be a concerted decision of all the Banks/HFCs as all of them have not started charging prepayment penalty at one point of time. HDFC and LICHF are charging prepayment penalty since 1993 and 1995 respectively. The other Banks/HFCs started charging prepayment penalty after many years. It is noted that all HFCs are not members of IBA, which is an association of banks. Even out of the 150 plus member banks of IBA, the investigation covered only 12. There is no evidence on record Page 152 of 170
