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Law of Competition - Case Laws
Showing 121 to 140 of 341 Records
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2021 (5) TMI 580
Sanction of Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013, and other applicable provisions of the Companies Act, 2013, read with Companies (Compromises, Arrangements And Amalgamation) Rules, 2016 - HELD THAT:- From a perusal of the material brought on record, it appears that the Scheme of Amalgamation is fair, reasonable and is not detrimental to the Members or Creditors or contrary to public policy. Further, as per the Petition, the Scheme in question will enable in enhancing the brand value, having a larger net worth base, greater borrowing capability and increasing competitive edge over competitors and the management to consolidate business of both Transferor and enable future growth and more efficient treasury management, etc. On a consideration of the facts of the case as mentioned in the preceding paragraphs, which are not being elaborated here to avoid duplication and repetition, we are satisfied that the procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the Scheme of Amalgamation, as approved by the Boards of Transferor Companies and the Transferee Company, is hereby sanctioned.
The Scheme of Amalgamation is hereby sanctioned - application allowed.
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2021 (4) TMI 1385
Examination of WhatsApp's 2021 Update to its Terms and Privacy Policy - Violation of Section 4 of Competition Act, 2002 - directing the Director General of the respondent no.1 to cause an investigation to be made into the WhatsApp 2021 Update to its Terms and Privacy Policy - whether the respondent no.1 should, in deference to the petitions pending before the Supreme Court and before this Court, not have taken suo moto cognizance and directed an investigation to be made by the Director General?
HELD THAT:- In the present case, the issue as to whether the 2016 Update/2021 Update announced by WhatsApp in any manner infringes upon the Right of Privacy of the users guaranteed under Article 21 of the Constitution of India is pending adjudication before the Supreme Court and this Court. The question regarding the 2016 Update/2021 Update not giving an option to opt-out is also an issue before the Supreme Court and this Court. However, the same cannot necessarily mean that during the pendency of those petitions, the respondent no.1 is completely denuded of the jurisdiction vested in it under the Competition Act, 2002 or that it must necessarily await the outcome of such proceedings. Therefore, it is not a question of lack of jurisdiction of the respondent no. 1, but rather one of prudence and discretion.
It must be remembered that any finding by the respondent no. 1 on any of the issues would always be subject to the findings of the Supreme Court or of this Court in and would be binding on the respondent no. 1. Such is the case in every proceeding before the respondent no. 1. Nevertheless, while such issues are being determined by the Supreme Court or by the High Court, it cannot be stated that the respondent no.1 has to necessarily await the outcome of such proceedings before acting further under its own jurisdiction. The respondent no.1 has to proceed within its own jurisdiction, applying the law as it stands presently. In this regard, it is noted that the submission of the learned ASG appearing for the respondent no. 1 that the scope of inquiry before the respondent no. 1 is not confined only to the issues raised before the Supreme Court or before this Court, but is much vaster in nature.
Similarly, in P. Sudhakar Rao & Ors. vs. U. Govinda Rao & Ors. [2013 (7) TMI 1231 - SUPREME COURT], the Supreme Court observed that the pendency of a similar matter before a larger Bench did not prevent the Supreme Court from dealing with the issue on merit.
As far as the submission of Facebook on its impleadment in the investigation is concerned, the same is only stated to be rejected. A reading of the Impugned Order passed by the respondent no.1 itself shows that Facebook shall be an integral part of such investigation and the allegations in relation to sharing of data by Whatsapp with Facebook would necessarily require the presence of Facebook in such an investigation.
There are no merit in these present petitions. The same are dismissed.
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2021 (3) TMI 1469
Permission to make oral submissions in proceedings under Section 19 of the Competition Act, 2002 - HELD THAT:- Without going into the merits of the matter and without going into the legal issues raised by the respondent in this writ petition, the following directions are issued :
i) The petitioner is permitted to submit his oral submissions through video conferencing through his counsel on 19.03.2021 at 11.00 a.m.
ii) The respondent is directed to pass final orders after considering the oral submissions as well as the documentary evidence placed by the petitioner before the respondent.
Petition disposed off.
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2021 (3) TMI 1460
Abusing of dominant position in launching their payment app services - contravention of the provisions of Section 4 of Competition Act, 2002 - HELD THAT:- It is noted that Section 4 of the Act proscribes abuse of dominance by an entity commanding dominant position in relevant market. Thus, delineation of relevant market is essential to define the boundaries of the market to ascertain dominance and for analysing the alleged abusive conduct. Recently, the Commission had an occasion to examine the relevant market in the context of business practices of WhatsApp and Facebook in Harshita Chawla case wherein an Information was filed before the Commission alleging inter alia contravention of the provisions of Section 4 of the Act against WhatsApp and Facebook for abusing their dominant position in launching their payment app services.
The Commission concluded that WhatsApp is dominant in the relevant market for OTT messaging apps through smartphones in India. As such, in light of the said holding of the Commission in Harshita Chawla case, there is no occasion to separately and independently examine the issue of relevant market and dominance of WhatsApp therein, when there is no change in the market construct or structure since the passing of the said order in August, 2020 and announcing of the new policy by WhatsApp on January 04, 2021 – which itself seems to emanate out of the entrenched dominant position of WhatsApp in the said relevant market, as detailed in this order.
In VINOD KUMAR GUPTA VERSUS WHATSAPP INC. [2017 (6) TMI 1399 - COMPETITION COMMISSION OF INDIA (LB)], the fact that WhatsApp provided an option to its users to ‘opt out’ of sharing user account information with ‘Facebook’ within 30 days of agreeing to the updated terms of service and privacy policy was a critical consideration in deciding against the alleged contravention by WhatsApp. As against this, the new privacy policy has removed the ‘opt out’ option given to the users and the users have now to mandatorily agree to sharing of their personalised data by WhatsApp with Facebook Companies and further the policy envisages data collection which appears to be unduly expansive and disproportionate.
The Commission is of prima facie opinion that the ‘take-it-or-leave-it’ nature of privacy policy and terms of service of WhatsApp and the information sharing stipulations mentioned therein, merit a detailed investigation in view of the market position and market power enjoyed by WhatsApp. The Commission has also taken note of the submission of WhatsApp that 2021 Update does not expand WhatsApp’s ability to share data with Facebook and the said update intends to provide users with further transparency about how WhatsApp collects, uses and shares data. The veracity of such claims would also be examined during the investigation by the DG.
On a careful and thoughtful consideration of the matter, the conduct of WhatsApp in sharing of users’ personalised data with other Facebook Companies, in a manner that is neither fully transparent nor based on voluntary and specific user consent, appears prima facie unfair to users. The purpose of such sharing appears to be beyond users’ reasonable and legitimate expectations regarding quality, security and other relevant aspects of the service for which they register on WhatsApp - The impugned conduct of data-sharing by WhatsApp with Facebook apparently amounts to degradation of non-price parameters of competition viz. quality which result in objective detriment to consumers, without any acceptable justification. Such conduct prima facie amounts to imposition of unfair terms and conditions upon the users of WhatsApp messaging app, in violation of the provisions of Section 4(2)(a)(i) of the Act.
The impugned data sharing provision may have exclusionary effects also in the display advertising market which has the potential to undermine the competitive process and creates further barriers to market entry besides leveraging, in violation of the provisions of Section 4(2)(c) and (e) of the Act. As per the 2021 update to the privacy policy, a business may give third-party service provider such as Facebook access to its communications to send, store, read, manage, or otherwise process them for the business. It may be possible that Facebook will condition provision of such services to businesses with a requirement for using the data collected by them. The DG may also investigate these aspects during its investigation.
The Commission is of the considered opinion that WhatsApp has prima facie contravened the provisions of Section 4 of the Act through its exploitative and exclusionary conduct, as detailed in this order, in the garb of policy update. A thorough and detailed investigation is required to ascertain the full extent, scope and impact of data sharing through involuntary consent of users - the Commission directs the Director General (DG) to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act. The Commission also directs the DG to complete the investigation and submit the investigation report within a period of 60 days from the receipt of this order.
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2021 (1) TMI 1139
Seeking approval of Resolution Plan - Section 30(6) and 31 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Resolution Plan is in accordance with Section 30 and 31 of the Code and also complies with the requirement of Regulations 38 and 39 of CIRP Regulations - Resolution Plan approved by the CoC with the required majority satisfies all the criteria required for approval of Resolution Plan by the Adjudicating Authority.
The Resolution Applicant, on taking control of the Corporate Debtor, shall ensure compliance of all applicable law for the time being in force - the Resolution Applicant shall take over the Corporate Debtor with all its assets and liabilities as per terms of the approved Resolution Plan. If any relief concerning any identified liability of the Corporate Debtor is required, then that needs to be specifically mentioned and sought for in the Resolution Plan.
On approval of the Resolution Plan as sought by the Resolution Professional, this Bench hereby discharges the Resolution Professional from duties of the RP by submitting all the records maintained by him to the Insolvency and Bankruptcy Board of India as provided under the Insolvency and Bankruptcy Code, 2016 and the Regulations thereunder - Resolution Applicant shall, pursuant to the Resolution Plan approved under Sub-Section (1) of Section 31, obtain necessary approval required under any law for the time being in force within a period of one year from the date of approval of the Resolution Plan by this Tribunal under Sub-Section (1) of Section 31 or within such period as provided for in such law, whichever is later.
The resolution plan is approved - moratorium declared.
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2021 (1) TMI 986
Scheme of amalgamation - seeking dispensation of meetings of the Equity Shareholders of the Applicant Companies, meetings of unsecured creditors of Transferor No.3 and Transferee - Applicant Companies - seeking dispensation of secured creditor of the Transferee pursuant to the receipt of the individual consent affidavits consenting to the scheme - seeking waiver of right to attend the meeting of equity shareholders and unsecured creditors and consent of the secured creditor, for the purpose of considering and if thought fit, approving, with or without modification - sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- The Applicant Companies shall in compliance with subsection (5) of section 230 and Rule 8 of the Companies (CAA) Rules, 2016, send a notice of meetings under subsection (3) of section 230 read with Rule 6 of the Companies (CAA) Rules, 2016 in Form No. CAA.3, along with a copy of the Scheme of Amalgamation, explanatory statement and the disclosures mentioned under Rule 6, wherever applicable, to (i) Central Government through the Regional Director, North Western Region, (ii) Registrar of Companies, (iii) concerned Income Tax Authorities, and (iv) the Official Liquidator (in case of First Applicant Company, the Transferor Company) stating that the representations, if any, to be made by them shall be made within a period of 30 days from the date of receipt of such notice, failing which it shall be presumed that they have no objection to make on the proposed Scheme of Amalgamation. The aforesaid statutory authorities, who desire to make any representation under sub-section (5) of section 230 shall send the same to this Tribunal within a period of 30 days from the date of receipt of such notice, failing which it shall be deemed that they have no representation to make on the proposed Composite Scheme of Arrangement.
Considering the consent affidavits as received from the equity shareholders, unsecured creditors of the Transferor No.2 and Transferee and secured creditor's consent of the Transferee and upon waiving their individual rights for attending the meeting for considering and if thought fit with or without modification the scheme of amalgamation and considering the certificate of Chartered Accountant and all the consents are in order and hence the meeting of the equity shareholders of all the Companies are dispensed with.
Application allowed.
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2021 (1) TMI 721
Scheme of merger and Amalgamation - seeking the dispensation of meeting of all the shareholder and creditors of all the petitioner companies as all the shareholders and creditors of the applicant/transferor companies as well as applicant/transfree company for the proposed scheme of merger and amalgamation - section 230-232 of the Companies Act, 2013 - HELD THAT:- On perusal of the record it is found that there are no Secured Creditors in the Transferor Company No. 1 and 2, hence, no need of convening a meeting of the secured creditors of Transferor Company No. 1 and 2.
The meetings of share holders of the applicant companies no. 1, 2 and 3 Companies shall be held on 10.10.2020 at 1:00 P.M., 2:00 PM and 3: 00 A.M. respectively at registered office of transfree company i.e. at Plot no. 5520, Road No. 55 GIDC, Sachin Surat or through video conferencing for the purpose of considering and if, thought fit, approving, with or without modification(s), the Scheme of Arrangement - the meetings of the unsecured creditors of applicant company no. 2 and applicant/transfree company no. 3 shall be held on 10.10.2020 at 4:00 PM and 5:00 PM respectively at registered office of transfree company i.e. at Plot no. 5520, Road No. 55 GIDC, Sachin Surat or through video conferencing for the purpose of considering and if, thought fit, approving, with or without modification(s), the Scheme of Arrangement.
Various directions regarding the meetings, issued - application allowed.
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2020 (12) TMI 1319
Maintainability of suit - Emergency Arbitrator lacks legal status under Part I of the A&C Act and thus coram non judice - conflation of the FRL SHA, FCPL SHA and FCPL SSA, Amazon seeks to exercise 'Control' on FRL which is forbidden under the FEMA FDI Rules - tortious interference is made out by FRL or not - Whether the present suit is prima facie maintainable? - HELD THAT:- Challenge of FRL to the EA order is not on merits and no declaration for the EA order being invalid or illegal on merits is sought from this Court. Case of the FRL is that since Amazon is trying to enforce and act upon the EA order before the Statutory Authority/Regulators and as the Emergency Arbitrator is a coram non-judice, this Court can go into the validity of the same to the extent asserted in the present suit. In the present suit, the cause of action pleaded by FRL is the tortuous interference by Amazon in its lawful transaction and to determine the ingredients of the said cause of action, i.e. whether use of 'unlawful means' is being resorted by Amazon, this Court is required to return a finding - this Court is of the considered opinion that prima facie the present suit cannot be held to be not maintainable on the two grounds urged by Amazon, that is, that the EA order cannot be challenged in the present proceedings and secondly, that the grounds urged by FRL before this Court have already been urged and considered by the Emergency Arbitrator.
Whether the Emergency Arbitrator lacks legal status under Part I of the A&C Act and thus coram non judice? - HELD THAT:- It is now well settled that party autonomy is the backbone of arbitration. The courts in India have given due importance to the concept of party autonomy, and have further given full effect to the choice of the parties with respect to all three laws involved in an arbitration agreement, subject to the public policy of India and the mandatory provisions of the A&C Act - In the present case, the parties have expressly chosen the SIAC Rules as the curial law governing the conduct of arbitration proceedings. The said Rules are self sufficient to govern the proceedings under arbitration at every stage. The Courts in such cases would uphold the express choice of the parties subject to the public policy of India and the mandatory provisions of the A&C Act.
The Indian law of arbitration allows the parties to choose a procedural law different from the proper law, and this Court finds that there is nothing in the A&C Act that prohibits the contracting parties from obtaining emergency relief from an emergency arbitrator. An arbitrator’s authority to act is implied from the agreement to arbitrate itself, and the same cannot be restricted to mean that the parties agreed to arbitrate before an arbitral tribunal only and not an Emergency Arbitrator.
This court arrives at the conclusion that Firstly, the parties in an international commercial arbitration seated in India can by agreement derogate from the provisions of Section 9 of the A&C Act; Secondly, in such a case where parties have expressly chosen a curial law which is different from the law governing the arbitration, the court would look at the curial law for conduct of the arbitration to the extent that the same is not contrary to the public policy or the mandatory requirements of the law of the country in which arbitration is held; Thirdly, inasmuch as Section 9 of the A&C Act along with Sections 27, 37(1)(a) and 37(2) are derogable by virtue of the proviso to Section 2(2) in an International arbitration seated in India upon an agreement between the parties, it cannot be held that the provision of Emergency Arbitration under the SIAC rules are, per se, contrary to any mandatory provisions of the A&C Act. Hence the Emergency Arbitrator prima facie is not a coram non judice and the consequential EA order not invalid on this count.
Whether the Resolution dated 29th August, 2020 of FRL is void or contrary to any statutory provision? - HELD THAT:- Case of FRL is that its Board Resolution dated 29th August, 2020 does not violate any provision of the FRL's Article of Association or any provision of law and that the same is in compliance with the fiduciary duty owed by FRL to its stakeholder, which averments have not been seriously disputed by Amazon except contending that the Board Resolution dated 29th August, 2020 is in breach of FCPL SHA and FRL SHA. The resolution being in breach of the FRL SHA and FCPL SHA is distinct from the resolution being void or contrary to any statutory provision or contrary to the Articles of Association of FRL.
To claim that the Board Resolution of FRL dated 29th August, 2020 is void, Amazon also contends that consent of FCPL as required under the FRL SHA has not been taken in this regard. However, FRL has placed on record the letter dated 29th August, 2020, signed on behalf of both FRL and FCPL wherein FCPL has granted its approval for the transaction between FRL and Reliance. During the course of arguments, learned counsel for FRL contested the letter dated 29th August, 2020 claiming that the same is not accompanied by a statement of truth based on affidavit, however, since arguments in the application have been heard finally at the ad interim stage, both parties have filed documents without filling the necessary affidavits, which the parties will be required to in the suit, while completing the pleadings.
This Court is of the opinion that the Board Resolution dated 29th August, 2020 of FRL is prima facie neither void nor contrary to any statutory provision nor the Articles of Association of FRL.
Whether by conflation of the FRL SHA, FCPL SHA and FCPL SSA, Amazon seeks to exercise 'Control' on FRL which is forbidden under the FEMA FDI Rules? - HELD THAT:- A conflated reading of the Clause-4.1 (iv) of the FCPL SHA and Clause-4.1 of the FRL SHA would show that vide the FCPL SHA a control was created even on the voting rights of the promoters of FCPL in relation to their decisions as shareholders of FRL so as to enable the approval of any and every resolution necessary or desirable to give effect to FCPL SHA and FRL SHA and likewise to ensure that no resolution of FRL is passed which is not in accordance with the FCPL SHA and/or FRL SHA. Even Clause-4.1 of the FRL SHA correspondingly provides for an obligation on every person representing as a shareholder of FRL, to exercise any power to vote or cause the power to vote to be exercised at any meeting of the shareholders so as to enable the approval of any and every resolution necessary or desirable to give full effect to the FRL SHA and to ensure that no resolution which is not in accordance with FRL SHA is passed.
The rights granted to Amazon by conflation of the two Shareholders Agreements are prima facie disproportionate to the actual shareholding of Amazon and by camouflaging of words, the extensive rights held by Amazon by the provisions of the inter se agreements set out above, cannot be masked as mere protective rights so as to fall beyond the test of ‘control’ - this Court is prima facie of the opinion that the conflation of the three agreements i.e. FRL SHA, FCPL SHA and FCPL SSA besides creating protective rights in favour of Amazon for its investments also transgress to 'control' over FRL requiring government approvals and in the absence thereof are contrary to FEMA FDI Rules.
Whether prima facie a case for tortious interference is made out by FRL? - HELD THAT:- The tort of unlawful interference in a contract, also referred to as ‘tortious interference’ and ‘causing loss by unlawful means’ forms a species of economic torts and has since decades been a subject of judicial and academic debate - thus, existence of a contract, interference wherein is alleged is a sine qua non for the tort of inducement. Contention on behalf of Amazon is that no such contract between FRL and Reliance has been placed on record hence FRL's suit for tortious interference is not maintainable. The two fold submission of Amazon in this regard is that firstly, the resolution of FRL dated 29th August, 2020 is void and secondly FCPL has not granted its consent which was required by FRL before proceeding with the transaction and in any case the said document has not seen the light of the day.
Whether FRL is entitled to an interim injunction? - HELD THAT:- The trinity of the principles for grant of interim injunction i.e. prima facie case, irreparable loss and balance of convenience are required to be tested in terms of principles as noted above. Since this Court has held that prima facie the representation of Amazon based on the plea that the resolution dated 29th August, 2020 of FRL is void and that on conflation of the FCPL SHA and FRL SHA, the 'control' that is sought to be asserted by Amazon on FRL is not permitted under the FEMA FDI Rules, without the governmental approvals, this Court finds that FRL has made out a prima facie case in its favour for grant of interim injunction. However, the main tests in the present case are in respect of "balance of convenience" and "irreparable loss". Even if a prima facie case is made out by FRL, the balance of convenience lies both in favour of FRL and Amazon.
It would be a matter of trial after parties have led their evidence or if decided by any other competent forum to determine whether the representation of Amazon that the transaction between FRL and Reliance being in breach of the FCPL SHA and FRL SHA would outweigh the plea of FRL in the present suit. Further in case Amazon is not permitted to represent its case before the statutory authorities/Regulators, it will suffer an irreparable loss as Amazon also claims to have created preemptive rights in its favour in case the Indian law permitted in future. Further there may not be irreparable loss to FRL for the reason even if Amazon makes a representation based on incorrect facts thereby using unlawful means, it will be for the statutory authorities/Regulators to apply their mind to the facts and legal issues therein and come to the right conclusion. There is yet another aspect as to why no interim injunction can be granted in the present application for the reason both FRL and Amazon have already made their representations and counter representations to the statutory authorities/regulators and now it is for the Statutory Authorities/Regulators to take a decision thereon. Therefore, this Court finds that no case for grant of interim injunction is made out in favour of the FRL and against Amazon.
The present application is disposed off, declining the grant of interim injunction as prayed for by FRL, however, the Statutory Authorities/Regulators are directed to take the decision on the applications/objections in accordance with the law.
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2020 (12) TMI 1257
Scheme of Amalgamation - seeking holding, convening and dispensation with various meetings - sections 230-232 of the Companies Act, 2013 read with Companies (Compromise, Arrangement and Amalgamations) Rules, 2016 - HELD THAT:- Various directions regarding holding, convening and dispensation with various meetings issued - directions regarding issuance of various notices also issued.
The scheme is approved - application allowed.
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2020 (12) TMI 1091
Approval of Scheme of Arrangement - Sections 230 to 232 of Companies Act, 2013, R/w Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 - HELD THAT:- In his report, the Regional Director, MCA has concluded that the Scheme appears to be fair, reasonable and not detrimental against the Members or Creditors or contrary to public policy and the same can be approved. The issue of CIN has been satisfactorily explained. The minor discrepancy has occurred due to the year of incorporation and year of transfer only, and would not come in the way of sanction of the Scheme of Arrangement. It appears that the Scheme will enable better control and visibility over the resources of the dormant entities, since pursuant to the merger they shall be consolidated into the Resulting Company and will help in reducing the costs and efforts involved in performing statutory compliances for multiple entities, etc. Hence, the Scheme appears to be guided by commercial expediency. On a consideration of the facts, which are not elaborated again here to avoid duplication and repetition, we are satisfied that the procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the Scheme of Arrangement, as approved by the Boards of both the Transferor Company and the Resulting Company, is hereby sanctioned.
The scheme is sanctioned - application allowed.
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2020 (12) TMI 957
Approval of Scheme of Amalgamation - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- In his report, the Regional Director, MCA has submitted that the Scheme appears to be fair, reasonable and is not detrimental against the Members or Creditors or contrary to public policy and the same can be approved. Replies have also been furnished in respect of the observations of the Income tax Department and the Competition Commission of India. As per the Petition, the Scheme in question will help in bringing valuable synergies in the operations, in scaling up the business of the undertaking of the Transferor Company resulting in expanding the reach and business base and would enable the Companies concerned to rationalize and streamline their management and finances and will pave better and more productive, economical control and running of the operations, etc.
We are satisfied that the procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the Scheme of Amalgamation, as approved by the Boards of both the Transferor and Transferee Companies, is hereby sanctioned, as prayed - Scheme is sanctioned - application allowed.
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2020 (12) TMI 621
Anti-competitive conduct - resale price maintenance - anti-competitive practices between drivers Ola and Uber - allegation that they entered into price-fixing agreements in contravention of section 3(1) read with section 3(3)(a) of the Act, and engaged in resale price maintenance in contravention of section 3(1) read with section 3(4)(e) of the Act - HELD THAT:- Given the context of the Act in which the CCI and the NCLAT deal with practices which have an adverse effect on competition in derogation of the interest of consumers, it is clear that the Act vests powers in the CCI and enables it to act in rem, in public interest. This would make it clear that a “person aggrieved” must, in the context of the Act, be understood widely and not be constructed narrowly, as was done in Adi Pherozshah Gandhi [1970 (8) TMI 86 - SUPREME COURT]. Further, it is not without significance that the expressions used in sections 53B and 53T of the Act are “any person”, thereby signifying that all persons who bring to the CCI information of practices that are contrary to the provisions of the Act, could be said to be aggrieved by an adverse order of the CCI in case it refuses to act upon the information supplied. By way of contrast, section 53N(3) speaks of making payment to an applicant as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II of the Act, having been committed by an enterprise.
When the CCI performs inquisitorial, as opposed to adjudicatory functions, the doors of approaching the CCI and the appellate authority, i.e., the NCLAT, must be kept wide open in public interest, so as to subserve the high public purpose of the Act.
Coming now to the merits, we have already set out the concurrent findings of fact of the CCI and the NCLAT, wherein it has been found that Ola and Uber do not facilitate cartelization or anti-competitive practices between drivers, who are independent individuals, who act independently of each other, so as to attract the application of section 3 of the Act, as has been held by both the CCI and the NCLAT.
Appeal dismissed.
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2020 (12) TMI 596
Approval of scheme of amalgamation - sections 230-232 of the Companies Act, 2013 - applicant is seeking dispensation of the meeting of the Equity Shareholders, Secured Creditors and Unsecured Creditors, and Applicant Transferee Company is seeking dispensation of Secured Creditors and appropriate directions for holding and convening of meeting of Equity Shareholders and Unsecured Creditors in respect of the Scheme of Amalgamation of Parsec Enterprises Private Limited - HELD THAT:- Various directions regarding the holding and convening of various meetings issued - directions regarding issuance of various notices also issued.
The scheme is approved - application allowed.
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2020 (12) TMI 500
Approval of Scheme of Arrangement - Sections 230 to 232 of the Companies Act, 2013, and other applicable Provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- From a perusal of the material brought on record, it appears that the Scheme of Arrangement is fair, reasonable and is not detrimental to the Members or Creditors. The Scheme has not been opposed by the RD. As per the ROC, there are no prosecutions, complaints, technical scrutiny/ inspections pending against the Petitioner Companies. Further, as per the Petition, the Scheme in question will enable a focussed and concentrated approach; maximize opportunities for strategic partnership; help in fundraising and future growth; help in expansion and take advantage of market opportunities; induct new investors and reorganise its capital structure etc. Hence, the Scheme appears to have been framed for commercial expediency and in the interest of the Petitioner Companies and all stakeholders.
A Scheme of Arrangement proposed by a Company for commercial expediency and in its commercial wisdom cannot ordinarily be interfered with and has to be sanctioned if the relevant provisions of the Companies Act, 2013 are met and no prejudice is caused to any of the stakeholders. The Board of Directors of the both Demerged as well as the Transferee Company have in their respective meeting held on 16.09.2020 approved and adopted the Scheme of Arrangement. The other requisite stakeholders have given their consent. However, it is a settled position of law that any sanction to a Scheme of Arrangement under the extant provisions of Companies Act, does not imply waiver of any liability or legal action for violation of the provisions of any Statute or the Rules made thereunder, or to prevent any statutory authority from initiating action for any such violation.
The procedure specified in sub-sections (1) and (2) of Section 232 of the Companies Act, 2013 has been complied with, and hence the Scheme of Arrangement, as approved by the Boards of the Petitioner Companies, can be sanctioned - Application allowed.
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2020 (12) TMI 286
Approval of the Scheme of Merger - Section 230 to 232 and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- In view of absence of any objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal, sanctions the Composite Scheme of Arrangement, annexed as Annexure "A7" with the Company Petitions as well as the prayer made therein.
Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with law, against the persons concerned and directors and officials of the petitioners.
While approving the Scheme, it is clarified that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other charges, if any payment is due or required in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically required under any law - Petition allowed.
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2020 (11) TMI 1119
Contravention of various provisions of Section 4 of Competition Act, 2002 - locus of the Informant to file the present Information - Relevant Market and Dominance of Google - Allegations under Section 4 - Abuse of Dominant Position - Exclusivity Regarding Mode of Payment for Purchase of Apps and In-App Purchases (IAPS) - Pre-installation and prominence of Google Pay on Android Smartphones - Search manipulation and Bias by Google in favour of Google Pay - Prominent placement of Google Pay on the Play Store - Exclusivity Requirement Imposed by Google Resulted in Unfair Terms Being Imposed on Users.
HELD THAT:- The Commission is of the prima facie view that the Opposite Parties have contravened various provisions of Section 4 of the Act. These aspects warrant a detailed investigation.
The Commission directs the Director General ('DG') to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act. The Commission also directs the DG to complete the investigation and submit the investigation report within a period of 60 days from the date of receipt of this order.
The Commission notes the submissions dated 31.07.2020 moved by the Informant wherein it is inter alia claimed that the role of the Informant in the proceedings before the Commission is limited and therefore Google does not have any right to cross-examine the Informant or to challenge the locus of the Informant. In this regard, the Commission finds the claim of the Informant that Google cannot cross-examine the Informant, as thoroughly misconceived. The issue of cross-examination of the Informant will be decided by the DG at the appropriate stage and the Informant will have no immunity from cross-examination in the event it is considered appropriate by the DG. Needless to add, any refusal by the Informant to subject itself to cross-examination would forfeit the 'limited' rights of the Informant to participate in the proceedings before the DG and the Commission.
The Secretary is directed to send a copy of this order along with the Information and other material available on record to the Office of the DG forthwith.
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2020 (11) TMI 625
Invitation of bids for tender - qouting of double price - Section 53 B of the Competition Act, 2002 - HELD THAT:- The CCI has found that the Appellant failed to define or suggest relevant market. It found it is neither necessary nor feasible to delineate the relevant market in the absence of requisite data on record particularly in the light of market emerging out of RSDOs reply which CCI received. The CCI deciphered that apart from the Opposite Party (Respondent No. 2) there are at least four other major global players in the market for rolling stock mounted GPR for Ballast Inspection in India. The Order as reproduced names of the other players.
The Appellant is trying to put the burden on CCI to find out the relevant market instead of itself defining or suggesting relevant market with prima facie material. Apart from this, the order of CCI shows that there are other players available in the market. There is no material shown that the Appellant had approached the other players - no case is made out to entertain the Appeal.
The Appeal is dismissed without admitting the same.
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2020 (11) TMI 516
Sanction of Amalgamation Scheme - sections 230 to 232 of the Companies Act, 2013 read with rule 15(1) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- It has been stated by the Regional Director that, on a consideration of the materials on record, the scheme of amalgamation appears to be fair, reasonable and is not detrimental against the members or creditors or contrary to public policy and the same can be approved.
In his report, the Regional Director, MCA has concluded that the scheme appears to be fair, reasonable and not detrimental against the members or creditors or contrary to public policy and the same can be approved. The scheme in question will enable consolidation of all companies indirectly and jointly held by the HMK group and RR group, and helps in streamlining operations, reducing overheads, administrative, and other expenditure and achieving operational rationalization, organizational efficiency and optimal utilization of resources in the interest of shareholders, etc. On a consideration of the facts of the case as mentioned in the preceding paragraphs, which are not elaborating here again to avoid duplication and repetition, we are satisfied that the procedure specified in sub- sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the scheme of amalgamation, as approved by the boards of both the transferor company and the transferee company, is hereby sanctioned, as prayed.
Application allowed.
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2020 (11) TMI 297
Termination of Contract - Appellant claimed that it had taken orders for supply of KAMCO products from the farmers but KAMCO failed to supply the machinery and it suffered losses - HELD THAT:- Reasoning of CCI appears to be well founded. It appears to be a dispute between manufacturer and authorised dealer which is tried to be converted into a competition case. The CCI has already considered the table which is being relied on by the Learned Counsel for the Appellant and has come to the conclusion that there is no abusive conduct established. No dominance as such has been found. The Ld. CCI has rightly referred to the agreement which is at Page 49 of this Appeal, which includes termination clause - It appears to be a contractual dispute between the parties which is being tried to be converted into a competition case. We do not find that it is a case made out for interference under the Competition Act, 2002.
Appeal dismissed.
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2020 (10) TMI 1110
Sanction of scheme of amalgamation - sections 230 to 232 and other applicable provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- As per the petition, the scheme in question will help in optimum and efficient utilization of resources either in the form of assets and sharing of ancillary facilities, benefit by obtaining synchronization of synergies, etc. - the procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and that the scheme of amalgamation can be sanctioned.
The scheme of amalgamation (as annexed with this petition) is hereby sanctioned and the appointed date of the scheme shall be April 1, 2019.
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