2022 (8) TMI 330 - AT - Companies Law

Contravention of any of the provisions of Section 3 and/or 4 of the Act, causing an investigation into the matter or not - existence of an agreement/ arrangement between the parties is a sine qua non or not - HELD THAT - It is found that neither informant was competent nor the present appeal was competent to be taken note of. Since both the proceeding were contrary to statutory provisions particularly in violation of Section 35 and Section 53-S of the Act respectively, apart from its dismissal on the ground of non-maintainability of the Information Petition or the present Appeal, the role of Mr. Sumit Jain also appears to be doubtful. During the hearing of the Appeal Mr Jain accepted that he is neither advocate, chartered accountant, company secretary nor cost accountant. Even then pretending to be counsel, he has filed the present appeal as well as information before the CCI. In such view of the matter particularly on the ground that the Appellant has misled the CCI as well as this Tribunal regarding his actual entity i.e. a proprietorship agency, there is no need to examine the Appeal on merit. With a view to preserve sanctity of the court proceeding and confidence of the public in the system, simply dismissal of this Appeal may not serve the purpose. Further to prevent recurrence of such activity, while dismissing the appeal it is appropriate to impose cost on the appellant. The Appeal stands dismissed with imposition cost of Rs.1 lakh on the appellant. The Appellant will deposit the cost of Rs.1 lakh with Delhi High Court Legal Services Committee within twenty days from today and will submit the proof of depositing the same with the Registrar of this Tribunal. In case of non-depositing of cost, as indicated above, the Registrar of this Tribunal will proceed in accordance with law for non-complying the orders of this Tribunal.

Summary

Issues Involved:
1. Alleged contravention of Section 3 and 4 of the Competition Act, 2002.
2. Autonomy of procurers in setting terms for procurement.
3. Market dominance and relevant market definition.
4. Misrepresentation by the appellant regarding his status.
5. Unauthorized representation by Mr. Sumit Jain.

Issue-wise Detailed Analysis:

1. Alleged contravention of Section 3 and 4 of the Competition Act, 2002:
The appellant filed an Information Application under Section 19(1)(a) of the Competition Act, 2002, alleging that the National Accreditation Board for Testing and Calibration Laboratories (NABL) had formed exclusive supply agreements (ESAs) with various opposite parties (OPs), in violation of Section 3(4)(b) of the Act. The appellant claimed that these agreements required suppliers to obtain testing or accreditation services exclusively from NABL-accredited labs. However, the Competition Commission of India (CCI) found no prima facie case of contravention of Sections 3 and 4, noting that there was no evidence of any agreement or arrangement between NABL and the OPs to establish an exclusive arrangement.

2. Autonomy of procurers in setting terms for procurement:
The CCI emphasized that procurers have the autonomy to decide the terms and conditions for procurement based on their specific requirements. The Commission noted that the terms and conditions set by the OPs in their Tender/Notices/Guidelines/Expression of Interest/Letters were within their discretion and did not indicate any undue preference or exclusive arrangement favoring NABL. The CCI reiterated that the autonomy of procurers to specify procurement requirements is inherent and should be respected, provided it complies with relevant procurement rules and does not result in unfair or discriminatory practices.

3. Market dominance and relevant market definition:
The appellant delineated separate relevant markets for each OP, claiming that each OP was dominant in its respective market. However, the CCI found that the appellant did not provide sufficient data or information to support the claim of market dominance. The Commission observed that each OP operated in a varied and wider market, and the goods/services procured by the OPs were also available for procurement by other public and private sector entities. Consequently, the CCI concluded that it was not necessary to define the precise relevant market for each OP or assess their dominance individually.

4. Misrepresentation by the appellant regarding his status:
The Tribunal raised concerns about the appellant's status, as the appellant filed the Information Application and the appeal in his individual capacity, despite running a proprietorship agency of accreditation. The Tribunal noted that the appellant misled both the CCI and the Tribunal by not disclosing his actual entity. The Tribunal highlighted that the appellant's misrepresentation affected the fee structure for filing the Information Application, as different fees apply based on the entity's status and turnover.

5. Unauthorized representation by Mr. Sumit Jain:
The Tribunal discovered that Mr. Sumit Jain, who filed the Information Application and the appeal on behalf of the appellant, was not an advocate, chartered accountant, company secretary, or cost accountant. Mr. Jain falsely represented himself as counsel for the appellant, violating Sections 35 and 53-S of the Competition Act, 2002, which prescribe who can represent parties before the CCI and the Appellate Tribunal. The Tribunal found Mr. Jain's unauthorized representation to be a serious lapse and noted that he impersonated himself as counsel for the appellant.

Conclusion:
The Tribunal dismissed the appeal on the grounds of non-maintainability due to the appellant's misrepresentation and unauthorized representation by Mr. Sumit Jain. The Tribunal imposed a cost of Rs. 1 lakh on the appellant, to be deposited with the Delhi High Court Legal Services Committee within twenty days. The Tribunal directed the Registrar to take appropriate steps against Mr. Sumit Jain and ensure future compliance with Section 53-S of the Act. The CCI was also advised to remain vigilant against unauthorized representation in Information Applications.