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Law of Competition - Case Laws
Showing 21 to 40 of 341 Records
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2024 (11) TMI 940
Contravention of provisions of Section 4 of Competition Act, 2002 - abuse of dominant position - it is alleged that Google is granting exclusive access to Truecaller to share private contact information of the users with everyone while prohibiting other apps from doing the same - HELD THAT:- The Commission has perused the rival submissions of the Informant and Google. Based on the experiment run by the Informant, it appears that users have voluntarily provided the contact details data to Truecaller. Therefore, the allegations of the Informant that Truecaller is engaging in ‘unauthorised publishing’ or that Google has allowed any preferential access to Truecaller do not appear to be substantiated.
The Commission is of the view that the allegation of the Informant remains unsubstantiated and despite sufficient opportunity, the Informant has not provided any evidence to prima facie establish that Google is according either preferential treatment to Truecaller or resorting to discriminatory practises by allowing access to user’s contact data to Truecaller while denying the same to the competing applications.
The Commission finds that no prima facie case of contravention of the provisions of Section 4 of the Act is made out against Google in the instant matter. Accordingly, the Information is ordered to be closed forthwith in terms of the provisions contained in Section 26(2) of the Act. Consequently, no case for grant for relief(s) as sought under Section 33 of the Act arises and the said request is also rejected.
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2024 (11) TMI 939
Violation of Sections 3 and 4 of the Competition Act, 2002 - spreading false rumours in the market about the changes in prices by issuing rate cards with lower rates than those of suppliers which ultimately is having an adverse effect on the sellers and customers - HELD THAT:- The Commission notes that the Informant has levelled allegations against 5 OPs with the apprehension that they would collectively abuse their dominant position in future. The Commission observes that it is a settled position that the provisions of the Act do not provide for inquiry into the cases of joint/collective dominance. In view thereof, no case of contravention under Section 4 of the Act is made out.
As regards alleged violation of provisions of Section 3 of the Act, the Commission, having considered the evidence submitted by the Informant viz FIR dated 23.06.2023 and two newspaper articles, notes that, prima-facie, the said evidence does not point towards alleged cartelization by the OPs. The Commission further notes that in the facts and circumstances of the present case, it is not getting established that spreading alleged false rumours/ misinformation is the result of cartelisation or are resulting into cartelisation as there are multiple buyers and sellers in the market and the price of the commodity is determined by way of negotiation on a day-to-day basis.
The Commission is of the opinion that there exists no prima facie case and the Information filed is directed to be closed forthwith under Section 26(2) of the Act. Consequently, no case for grant of relief as sought under Section 33 of the Act arises and the same is also rejected.
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2024 (11) TMI 938
Contravention under Section 19(1) (a) of the Competition Act, 2002 - fraudulent conduct leading to recovery proceedings against the property of the Informant - HELD THAT:- The Commission is of the view that the above facts and circumstances do not involve any competition issue, and resultantly, does not warrant scrutiny from the perspective of the Act.
Given the facts and circumstances of the present case, the Commission finds that no prima facie case of contravention of the provisions of the Act is made out against the OPs. Accordingly, the information is ordered to be closed forthwith in terms of the provisions contained in Section 26(2) of the Act.
Consequently, no case for grant for relief(s) as sought under Section 33 of the Act arises and the said request is rejected.
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2024 (11) TMI 937
Contravention of the provisions of Section 4 of Competition Act, 2002 - delisting of plugins from the plugin’s directory maintained by WordPress - abuse of dominant position - HELD THAT:- It is noted that the wordpress.org is primarily a CMS services which simplifies website development for non- technical users by providing pre-built templates, plugins, and a user-friendly interface for adding, editing, and organizing content and enables them to manage website content easily by reducing the need for extensive coding. Traditional website design and development agencies, as well as in-house website building and management teams, could also be considered to be competing with CMS providers - first relevant product market in the present case could be market for provision of Content Management Software (CMS). Furthermore, India may be considered as relevant geographic market. Accordingly, the primary relevant market in the present matter is the market for provision of Content Management Software (CMS) in India.
In relation to dominance of WordPress within this market, the OP has submitted that WordPress.org is a leading directory for listing WordPress plug-ins, but not the only directory. The Plug-in Directory on WordPress.org is considered as one of the more reliable sources for downloading plug-ins because of the rigorous review each plug- in submitted to the Plug-in Directory has to go through. Further, based on the available information, it is noted that WordPress Plugin Directory hosts around 60000 plugins while other directories have significantly less number of plugins. Therefore, it appears that WordPress is a dominant player in this relevant market.
The Commission is of the view that WordPress.org is justified in taking appropriate action against any developer found non-compliant with the prescribed standards and regulations. It is also noted that guidelines have not been applied in a discriminatory manner and around 35 developers including the Informant have been permanently banned from WordPress.org for repeated violation of the Guidelines. Therefore, the conduct of the Opposite Party does not appear to be either unfair or discriminatory.
The Commission finds that no prima facie case of contravention of the provisions of Section 4 of the Act is made out against the Opposite Party in the instant matter. Accordingly, the Information is ordered to be closed forthwith in terms of the provisions contained in Section 26(2) of the Act. Consequently, no case for grant for relief(s) as sought under Section 33 of the Act arises and the said request is also rejected.
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2024 (11) TMI 936
Contravention of Section 3(4) read with Section 3(1) of the Competition Act, 2002 - non-marketing of patented dietary supplement sold under the brand name ‘Protestin’ due to the alleged non-cooperation of the Opposite Parties - prayer for free and fair marketing from all premises including specified areas (MNCs, private hospitals, West Bengal Fair Price Shop etc.) and others (non-specified premises) - HELD THAT:- The Commission has perused certain emails sent by the Informant to several entities including some Opposite Parties and is of the view that these emails appear to have been sent for the purpose of soliciting business for his product and do not reveal existence of any agreement or arrangement as envisaged under the provisions of Section 3(4) of the Act. The Commission is of the considered view that in absence of any apparent anti-competitive conduct, the decision of purchase or sale of a product and quantity thereof is driven by the commercial considerations of the market players. Therefore, it may not be desirable for the Commission to intervene in such cases where anti-competitive behaviour is not discernible.
The Commission observes that no such agreement has been shown to exist between the Opposite Parties that may be held to be anti-competitive in terms of the provisions of Section 3(4) of the Act. Accordingly, the Commission is of the view that there does not appear to be contravention of Section 3(4) read with Section 3(1) of the Act and the matter be closed under Section 26(2) of the Act forthwith. Consequently, no case for grant of reliefs as sought under Section 33 of the Act arises.
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2024 (11) TMI 935
Contravention of provisions of Section 3 and 4 of the Competition Act, 2002 - forcible transfer of entity from one form/type of organization structure to another - HELD THAT:- The primary grievance of the Informant appears to be emanating from a circular/letter No. NABL/ANCMT/2023/01/22-03 dated 22.03.2023, issued by NABL, directing its accredited CABs which are under proprietorship form to align with any of the following forms of entity by 30.12.2023 i.e., One Person Company, Limited Liability Partnership, Company, Society/Trust, Government. It is stated that most of the CABs are micro and small enterprises in India as it is easier to establish these labs under sole proprietorship firms and migrating these labs under any other forms will pose many challenges and it may not be economically viable for the small and medium entrepreneur to survive. This has been alleged by the Informant to be violative of Section 4(2)(c) of the Act.
The Commission, vide order dated 22.08.2023 passed under Section 26(2) of the Act in Case No. 12 of 2023, had inter-alia, held that there was no reason to intervene with the impugned circular, as the same was mandating a structure which a laboratory had to follow if it wished to seek accreditation services from NABL. Accordingly, there is no reason for the Commission to re-examine the contents of the impugned circular from the competition perspective in the instant matter.
With regards to alleged violation under Section 3 of the Act, the Commission notes that the Informant has neither referred to any particular agreement nor provided any document which could suggest existence of anti-competitive agreement in the matter.
The Commission is of the prima facie view that no case is made out against NABL in respect of either Section 3 or 4 of the Act. Accordingly, the Information filed is directed to be closed forthwith under Section 26(2) of the Act. Consequently, no case for grant of reliefs as sought under Section 33 of the Act arises.
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2024 (11) TMI 934
Contravention of provisions of Section 3 and 4 of the Competition Act, 2002 - unilateral changes in allotment of housekeeping staff and increase in Monthly Maintenance Charges - abuse of dominant position - whether the Opposite Parties fall in the category of ‘enterprise’? - HELD THAT:- In the present matter, since Opposite Parties are undertaking commercial activities, they squarely fall under the ambit of ‘enterprise’ in terms of Section 2(h) of the Act. Thereafter, an appropriate relevant market, as per Section 2(r) of the Act which comprises of relevant product market and relevant geographic market, is required to be delineated. The next step is to assess the dominance of Opposite Party in the relevant market so delineated, in terms of the factors enumerated under Section 19(4) of the Act. Once the dominance of Opposite Party is established, the final step is to analyze the allegations pertaining to abuse of dominance in terms of provisions of Section 4 of the Act.
With regard to the relevant geographic market, the Commission has taken into consideration the location of the project, which is in Kannamangala, Taluka-Devanahalli, Bengaluru, Karnataka. This location falls within the Bangalore Metropolitan Region. It may be noted that the conditions of competition within the Bangalore Metropolitan Region on account of level of development, cost of real estate, connectivity to state capital, transport facilities, regulatory authorities, local/municipal laws etc. can be distinguished from other neighbouring areas. In view of the same, the Commission is of the view that the relevant geographic market in the instant matter be considered as ‘Bangalore Metropolitan Region’.
The Commission is of the prima facie view that the relevant market in the present case would be ‘the market for provision of services for development and sale of apartment to cater to the needs of senior citizens in Bangalore Metropolitan Region.’
The Commission is of the opinion that there exists no prima facie case and the Information filed is directed to be closed forthwith under Section 26(2) of the Act. Consequently, no case for grant of reliefs as sought under Section 33 of the Act arises and the same is also rejected.
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2024 (11) TMI 933
Contravention of provisions of the Competition Act by chess associations leading to suspension of a member for organizing an unauthorized tournament - primary grievance of the Informant in the present matter is that he was suspended from playing chess, arbitering and organizing tournaments as he organized an allegedly unauthorized friendly match on 19.08.2018 at Kamaraj Somasundari school at Arumuganeri between Tiruchendur and Thoothukudi chess teams - HELD THAT:- The Commission, upon consideration of the Information, notes that the case appears to be in the nature of disciplinary proceedings initiated by the Opposite Parties against the Informant in the capacity of his being the Joint Secretary of TDCA and organizing an allegedly unauthorized inter-taluk chess tournament, which was not in accordance with the regulations issued by TDCA and TNSCA. Prima facie, this does not appear to raise any competition concern under the provisions of the Competition Act, 2002.
The Commission notes that no case of contravention of provisions of the Act warranting an investigation into the matter is made out and the matter is directed to be closed forthwith under Section 26(2) of the Act. Consequently, there is no case for grant of interim relief under Section 33 of the Act.
The Secretary is directed to communicate to the Informant, accordingly.
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2024 (11) TMI 932
Seeking interim relief in terms of the provisions contained in Section 33 of the Competition Act, 2002 - contravention of the provisions of Section 4 of the Act - HELD THAT:- One of the fundamental principles for granting interim relief is the requirement for a clear nexus between the relief sought and the issues under investigation or in dispute. The Commission in the instant matter has directed investigation on select issues as against varied allegations made by the three Informants. Therefore, the relief sought must correspond to the issues outlined for the investigation. A plain reading of the interim relief prayers when juxtaposed with the issues on which investigation has been directed, reveals that there are various interim relief prayers in respect of which there is no corresponding direction for investigation viz. interim relief prayer relating to collection of data, UI/UX interface, etc. Therefore, no relief can be granted in respect of the same.
While it is essential to ensure a level playing field and protect competition within the app store market, any measures taken should be proportionate and carefully crafted to minimize unintended consequences and preserve the overall integrity and functionality of the platform ecosystem. Based on the foregoing, the Commission is of the view that the Informants have not been able to demonstrate a case in their favour for grant of interim relief for complete restraint on Google from collection of its fee.
The Commission is further of the view that the Informants have also failed to meet the necessary criteria for grant of interim relief as propounded by the Hon’ble Supreme Court. The Informants have not been able to project any higher level of prima facie case warranting a positive direction as sought for by the Informants at the interim stage. The Informant has also not been able to demonstrate as to how the impugned conduct would result in irreparable harm that cannot be remedied through monetary compensation. The Commission is also not persuaded that balance of convenience lies in favour of the Informants.
The Commission is of the considered opinion that no case whatsoever has been made out by the Informants which warrants grant of interim relief. Resultantly, the applications stand dismissed.
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2024 (11) TMI 931
Contravention of provisions of Section 3 of the Competition Act, 2002 - Cartelization in a tender process - HELD THAT:- The Commission observes that the documents, prima-facie, do not substantiate the allegations of collusion/cartelisation in the facts and circumstances of the present case, as raised by the Informant. The Commission notes that the material furnished by the Informant does not prima-facie, point to bid rigging or collusive bidding in contravention of provisions of Section 3(3)(d) read with Section 3(1) of the Act by the Opposite Parties.
The Commission notes that no case of contravention of provisions of Sections 3 of the Act warranting an investigation into the matter is made out and the matter is directed to be closed forthwith under Section 26(2) of the Act.
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2024 (10) TMI 1467
Principle of res judicata - Department of Expenditure (DOE) is an 'enterprise' under Section 2(h) of the Competition Act, 2002 - Office Memorandum (OM) issued by DOE constitutes an agreement under Section 3(4) and Section 3(1) of the Act or not - HELD THAT:- The issue as to whether the Respondent No. 2 is an enterprise and OM 1 is an agreement has already been decided by the Respondent No. 1 in case no. 39 of 2010 decided on 15.09.2010 holding that neither the Respondent No. 2 is an enterprise within the meaning of Section 2(h) nor OM1 is an agreement between Respondent No. 2, 3 and 4.
It is pertinent to mention that the Hon’ble Supreme Court in CCI Vs. Co-Ordination Committee of Artists and Technicians of W.B. Film and Television and Ors. [2017 (3) TMI 1692 - SUPREME COURT] has held that the Department of Expenditure, Ministry of Finance, Government of India, cannot be considered or regarded as an enterprise in terms of Section 2(h) of the Act, 2002 in relation to the Office Memorandum dated 24.03.2006.
Thus, it is very well proved that the Appellant has approached the Respondent No. 1 by filing second information on the same facts and circumstances against the same opposite parties with the same prayer which has already been declined in the first information filed by the Appellant and the order of the CCI was tested and upheld by the Appellate Authority when the appeal of the Appellant was dismissed and no further appeal by the Appellant was carried to the Hon’ble Supreme Court which seal the fate of the Appellant in so far as this litigation is concerned.
In this view of the matter the salutary principle / legal maxim that nemo debet lis vexari pro una et eadem causa would spring in to the action that no man should be vexed twice for the same cause which has been adjudicated in the present case by the Appellant because even if it is presumed that the economic activities are dynamic, as stated by the Appellant, the fact remains that the two courts have already held that the Respondent No. 2 is not an enterprise and OM1 is not an agreement inviolation of Section 3(4) of the Act, therefore, these issues cannot be reagitated and the court cannot be called upon to decide the same by passing a lengthy judgment and the wasting time which may be used for disposal of a genuine case, therefore, the present appeal is found without any merit.
Appeal dismissed.
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2024 (10) TMI 1328
Maintainability of the appeals - right to contest an appeal against its order determining tariff for aeronautical services before TDSAT - Whether AERA has a right to contest an appeal against its order determining tariff for aeronautical services before TDSAT, and then consequently prefer an appeal against the order of TDSAT before this Court under Section 31 of the AERA Act? - Even if AERA does not have a right to contest an appeal against its order determining tariff for aeronautical services before TDSAT, does it have a right to prefer an appeal against the order of TDSAT before this Court in terms of Section 31 of the AERA Act?
HELD THAT:- The judicial principle that a judicial or quasi-judicial authority must not be impleaded as a party to an appeal against its order is premised on two reasons, both rooted in constitutional philosophy. The first reason is that with the impleadment of the judicial or quasi-judicial authorities as respondents, they will be required to justify their decision before the Appellate Court. This is contrary to the established principle that Judges only speak through their judgments. Any dilution of this principle would lead to a situation where every judicial authority would be called upon to justify their decisions in the Court of appeal. This would break down the entire edifice of the judicial system.
The exercise of power by Authorities and Tribunals was described as “quasi-judicial’ to ensure that the principles of natural justice were complied with. However, with the evolution of the doctrine of fariness and reasonableness, all administrative actions (even if there is nothing ‘judicial (or adjudicatory)’ about them) are required to comply with the principles of natural justice. The evolution of the fairness doctrine has transcended many boundaries. Thus, the reason for which the expression ‘quasi-judicial’ came into vogue is no longer relevant. Neither are the tests to identify them because the functions of an authority no more need to have any semblance to ‘judicial functions’ for it to act judicially (that is, comply with the principles of natural justice).
AERA has a statutory duty to regulate tariff upon a consideration of multiple factors to ensure that airports are run in an economically viable manner without compromising on the interests of the public. This statutory role is evident, inter alia, from the factors that AERA must consider while determining tariff and the power to amend tariff from time to time in public interest - It is interested not in a personal capacity. Its interest lies in ensuring that the concerns of public interest which animate the statute and the performance of its functions by AERA are duly preserved. Thus, AERA is a necessary party in the appeal against its tariff order before TDSAT and it must be impleaded as a respondent.
It does not confer that power to any party expressly. There are three ways in which provisions dealing with statutory appeal are drafted. First, the provision may not prescribe who can file an appeal such as Section 31 of the AERA Act. Second, the provision may provide that an appeal may be preferred by a ‘person aggrieved’ such as under the Electricity Act 96, the Major Port Authorities Act 2021, the Securities and Exchange Board of India Act 1992 and the Pension Fund Regulatory and Development Authority Act 2012. The third category is where the statute confers ‘any party’ with the right to file an appeal as under the Companies Act 2013.100 With respect to the first of the three categories, at a minimum the parties to the appeal before first appellate body (in this case TDSAT) will have a right to file an appeal before this Court. AERA can file an appeal under Section 31 in view of conclusion that it is a necessary party in the appeals against the tariff orders issued by it.
The appeals filed by AERA against orders of TDSAT under Section 31 of the AERA Act are maintainable. The Registry shall list the matters before the Regular Bench for adjudication of the appeals on merits.
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2024 (10) TMI 836
Contravention of Sections 3(3)(c) and 3(3)(d) r/w Section 3 (1) of the Competition Act, 2002 - guilty of bid rigging and cartelisation in a Tender process initiated by SBI Infra Managemnt Solutions Pvt. Ltd. (SBIIMS) - whether the penalty imposed on Appellant No.1 is proportionate to the offence and whether it meets the criteria laid down in Excel Crop Care Ltd. vs CCI [2017 (5) TMI 542 - SUPREME COURT]?
HELD THAT:- The CCI has made the reference to the Excel Crop Care Ltd. vs CCI in its order and mentions that the principle of proportionality as laid down by Hon’ble SC was in the context of multi- product companies only. The CCI noted that in the present matter the OPs are engaged in the business of supply of printed advertising/ marketing material which includes signages. It is not possible to classify different types of signages in multiple products in terms of Hon’ble SC’s Judgmemnt in Excel Crop rather the signages constitute different varieties of the same product. The CCI also differentiated that the contention of the OPs that turn over derived from impugned tender alone should be considered is in the teeth of Excel Crop Care.
In the present case the appellant is main business is that of signage and the other items of turn over relates to the same business activity. Such artificial distinction in segmental turn over cannot be accepted. It is also seen that CCI has taken a very lenient view while levying Monetary Penalties upon the OPs most of whom are MSMEs. The Section 27 of the Act provides for Penalty upto 10% of the average of the turnover or income, as the case may be, for the last 3 preceedings financial years, but the CCI taking a lenient view has only imposed penalty of 1% of the average and average of their relavant turnover for the 3 financial years i.e. 2015-16 to 2017-18.
The CCI has passed a well considered order in the instant case which has been upheld in two separate appeals by this Tribunal. In one of the matter Hon’ble Supreme Court has dismissed the appeal and in another matter no appeal was preferred so the order has attained finality.
There are no merit in the present appeal and the same is hereby dismissed.
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2024 (9) TMI 709
Abuse of dominant position - belated challenge to orders - change of status from 'participant' to 'opposite party'.
Whether the challenge to orders dated 01.11.2019 and 26.08.2020 are belated and whether the Writ Petitions suffer from laches? - HELD THAT:- There is no delay in filing of these Writ Petitions, since one of the impugned orders have been provided to the petitioner only very proximate to the filing of the Writ Petitions. A copy of order dated 01.11.2019 was supplied to the petitioner under cover of letter dated 14.09.2020. At that juncture, the stand of the respondents had been that the role of the petitioner as a participant was only in the capacity of a ‘third party'.
Since a copy of order dated 26.08.2020 has been supplied only on 01.03.2024, the petitioner was unaware that the furnishing of order dated 01.11.2019 was on account of the upgradation of its status. Thus, the participation of the petitioner in the proceedings does not either militate against the present challenges or amount to acquiescence thereof. Importantly, a photostat copy of order dated 26.08.2020 has been supplied to the petitioner only 01.03.2024 and the present writ petitions have been filed on 07.03.24. There is thus no delay in the petitioner approaching this Court.
Whether the change of status of the petitioner from ‘participant’ to ‘party’/’opposite party’ in the reference is material and whether it is contrary to the provisions of law and the procedure contemplated under the Act and connected Regulations? - HELD THAT:- An entity is entitled to know the status under which its presence and participation is sought in statutory proceedings. The application of the statutory provisions and connected Regulations, their consequences, as well as available protections would vary depending on the status of the party. Thus, unless a party is aware as to the specific provision under which its involvement is sought and obtained, it would be in the dark as to the measures available to it under the law.
There are serious consequences to an order passed by the Commission under Section 27 of the Act whereunder it may direct any enterprise found guilty of abuse of dominant position, to discontinue from, and not re-enter such agreement. It may also impose penalties as it may deem fit, upto 10% of the average turnover or income for the last three preceding financial years when the entity is found to have abused its dominant position.
In the present case, a reference has been made by R6 on the basis of which the DG would directed to investigate the matter. The powers of the DG under Section 41 thus stand triggered. Section 41 provides for the powers to investigate similar to the powers under Section 136(2) conferred on the Commission.
In the present case, a report dated 17.08.2020 has been furnished by the DG which has not been furnished to the petitioner. Sub-section (4) provides for the Commission to forward a copy of the report referred to in sub-section (3) and (3B) to the parties concerned. The term used in Section 26(4) is ‘parties’. Since a copy of the report u/s 26(3) has not been furnished to the petitioner, it is clear that it is still being treated on par with a third party to the proceedings. This is despite the updation in status exparte to contesting party, under order dated 26.08.2020 furnished to the petitioner in 2024 - In the present case, a report dated 17.08.2020 has been furnished by the DG which has not been furnished to the petitioner. Sub-section (4) provides for the Commission to forward a copy of the report referred to in sub-section (3) and (3B) to the parties concerned. The term used in Section 26(4) is ‘parties’. Since a copy of the report u/s 26(3) has not been furnished to the petitioner, it is clear that it is still being treated on par with a third party to the proceedings. This is despite the updation in status exparte to contesting party, under order dated 26.08.2020 furnished to the petitioner in 2024.
This Court is of the view that the petitioner ought to have been given notice prior to impleadment as a party and the satisfaction of the authority as to the justification for such impleadment ought to have been made out by way of a speaking order.
Petition dismissed.
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2024 (8) TMI 998
Approval of the Scheme of Arrangement for the revival of the Corporate Debtor under section 230 read with Section 66 of the Companies Act, 2013 and Regulation 2-B of the IBBI (Liquidation Process) Regulations 2016 - whether Regulation 37(1) and (2) of the LODR would apply to the Scheme submitted by the Liquidator under Section 230 of the Companies Act read Regulation 2B of the Liquidation Process Regulations?
HELD THAT:- SEBI has chosen to exempt the requirement of seeking NOC from stock exchanges for any restructuring proposal by way of a resolution plan under Section 31 of the Code. This is in accordance with the principle the CIRP process under the Code must be carried out in a time-bound manner under the supervision of one authority i.e. the Ld. NCLT.
Pertinently, when the amendment was carried out, the concept of schemes of arrangement for revival of companies in liquidation was not statutorily recognized under the Code. There was no specific provision under the Code or under the Liquidation Process Regulations that permitted such a scheme of revival. Admittedly, schemes for revival of companies in liquidation was prevalent under the old Companies Act, 1956 and had been recognized by the Hon’ble Supreme Court in MEGHAL HOMES (P.) LTD. VERSUS SHREE NIWAS GIRNI KK. SAMITI [2007 (8) TMI 447 - SUPREME COURT]. However, it was not clear as to whether the same would also apply to a company undergoing liquidation under the Code.
Thus, it can be safely stated that when SEBI carried out the amendment to various regulations including the LODR in May 2018, it did not have in its contemplation the concept of a scheme for compromise or arrangement for revival of a company in liquidation.
The scheme in question in the present matter is akin to a Resolution Plan under Section 31 of the Code and it complies with the requirement of Resolution Plan under Section 30(2) of the Code and Regulation 37 and 38 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. The scheme contemplates full payment of CIRP and liquidation cost, dues of workmen, payment of settlement value to creditors, extinguishment of all liabilities filed or not filed/admitted or not admitted, ouster of the erstwhile promoters, inducting of the acquirers as new promoters, constitution of monitoring committee, payment of EMD and performance security etc. - The Courts have time and again held that every effort must be made to revive the business of the company as the same is in the interest of all the stake holders.
Admittedly till date no objection has been raised by BSE on the merits of the Scheme, which offers Rs. 52.3 Crore for the Corporate Debtor (i.e. 3 times offers made by way of rejected resolution plans and higher than liquidation value of the Corporate Debtor). Further, the Stock Exchange has the opportunity to place before Ld. NCLT its objections, if any, to the Scheme of Arrangement in response to the notice issued to it prior to final approval of the scheme.
The Impugned Order dated 4th April 2024 is set aside - prior NOC from stock exchanges under Regulation 37(1)(2) of the LODR is not required for schemes for revival of companies undergoing liquidation under the Code - Appeal allowed.
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2024 (7) TMI 321
Bid-rigging in tenders invited by the Department of Agriculture, Government of Uttar Pradesh for soil sample testing - contravention of provisions of Section 3 (1) r/w Section 3 (3) (d) of Competition Act 2022 - HELD THAT:- M/s Toyfort along with other bidders namely M/s Austere System Pvt. Ltd. and M/s Fimo Info Solutions Pvt. Ltd., colluded to rig bids in the 2017 soil testing tenders of Meerut and Jhansi Divisions.
It has also been established beyond doubt that the submission of bids by M/s Toyfort in the 2017 soil testing tenders of Meerut and Jhansi divisions were the cover bids in support of M/s Austere System Pvt. Ltd., so that the tender is not cancelled due to lack of participation. Had they not participated these bids would have been cancelled due to insufficient participation in tenders, as there were only 3 bids for Jhansi and 4 bids for Meerut.
In the present case, the appellant was acting as a member of the cartel and was providing cover bid for the successful bidder Austere Systems. In view of peculiar facts and circumstances of the present case, where almost all bidders for soil testing are first time bidders and relevant turnover of firms from the aforesaid business is NIL, the concept of relevant turnover in such cases would not be correct, as it would lead to NIL penalty and allow the parties involved to go scot-free. Hence, the Commission’s approach of taking the total turnover for computation and imposition of penalty is agreed upon. At the same time considering the fact that the Appellant was in a supporting role in this cartel, by providing the cover bids, the penalty in such cases should be less than for those in the main role.
The order of the Commission in respect of holding the appellant guilty under Section 3(3)(c) and 3(3)(d) read with section 3(1) and order passed under Section 27(a) regarding cease-and-desist order are upheld - the penalty under Section 27 (b) is reduced to 3% of average annual turnover for last 3 years, instead of 5% as imposed by the commission.
Application disposed off.
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2024 (6) TMI 136
Cartelisation and Bid-rigging in tenders invited by the Department of Agriculture, Government of Uttar Pradesh for soil sample testing - Contravention of Sections 3(3)(c) and 3(3)(d) r/w Section 3 (1) of Competition Act, 2002.
Whether the Opposite Parties have directly or indirectly rigged/ manipulated the tenders of soil testing issued by the Department of Agriculture, Government of Uttar Pradesh, in various regions for the year 2017 and 2018, by indulging in bid rigging, collusive bidding and sharing of market, resulting in contravention of provisions of Section 3(3)(c) and 3(3)(d) read with Section 3(1) of the Act? - HELD THAT:- The Commission took a view that Delicacy Continental colluded with Austere Systems to rig the soil testing tenders of 2018 for Saharanpur and Meerut divisions - The Commission noted that only three bidders, namely, Austere Systems, Yash Solutions and Delicacy Continental, had submitted bids in the 2018 Meerut and Saharanpur tenders. From the above, the Commission notes that there was an arrangement/ agreement between the said three entities to manipulate the process of bidding in the soil testing tenders of 2018.
The Commission agreed with the findings of the DG that Austere Systems, under an arrangement/understanding with rival company Yash Solutions, had geographically allocated the soil testing tenders issued by the Department of Agriculture, Government of Uttar Pradesh, in 2017 and 2018 by not bidding in each other's allocated regions and by submitting supporting bids in favour of each other.
If the Opposite Parties are found to have contravened the provisions of Sections 3(3)(c) and 3(3)(d) read with Section 3(1) of the Act, then who are the persons in charge thereof and responsible for the conduct of business of the respective enterprises under Section 48 of the Act? - HELD THAT:- The Commission found the present case fit for imposition of penalty, under the provisions contained in Section 27(b) of the Act under the aforesaid Section the Commission may impose such penalty upon the contravening parties as it may deem fit, which shall be not more than ten percent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreement - The commission noted that the twin objectives behind the imposition of penalty are. (a) to reflect the seriousness of the infringement, and (b) to ensure that the threat of penalties will deter the infringing undertakings from indulging in similar conduct in the future. Therefore, the quantum of penalty imposed must correspond to the gravity of the offence, and the same must be determined after having due regard to the mitigating and aggravating circumstances of the case.
Penalty - HELD THAT:- In the present case, the appellant was acting as a member of the cartel and was providing cover bid for the successful bidder Austere Systems. In view of peculiar facts and circumstances of the present case, where almost all bidders for soil testing are first time bidders and relevant turnover of firms from the aforesaid business is NIL, the concept of relevant turnover in such cases would not be correct, as it would lead to NIL penalty and allow the parties involved to go scot-free. Hence, the Commission’s approach of taking the total turnover for computation and imposition of penalty agreed upon. At the same time considering the fact that the Appellant was in a supporting role in this cartel, by providing the cover bids, the penalty in such cases should be less than for those in the main role.
The order of the Commission in respect of holding the appellant guilty under Section 3(3)(c) and 3(3)(d) read with section 3(1) and order passed under Section 27(a) regarding cease-and-desist order are upheld - The penalty under Section 27 (b) is reduced to 3% of average annual turnover for last 3 years, instead of 5% as imposed by the commission.
Application disposed off.
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2024 (5) TMI 1
Interest on the penalty amount - for the period when the initial order was stayed - demand on the ground that Respondent/CCI could not have directed payment of interest on the penalty amount without following the procedure laid down under the Competition Commission of India (Manner of Recovery of Monetary Penalty) Regulations, 2011 - HELD THAT:- It is pertinent to mention that the amount of interest which is stipulated in the notice is the amount that is stipulated in Regulation 5 of the 2011 Regulations. Regulation 5 also specifically states that if the amount specified in the demand notice is not paid within the period specified then interest is leviable. It is further fortified that the demand notice also stipulates that the amount has to be paid within 30 days of the receipt of the demand notice under Form-I. These provisions are, therefore, completely mandatory.
The Apex Court in SRI MOHAN WAHI VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2001 (3) TMI 4 - SUPREME COURT] while considering on the power to impose interest on the delayed payment of penalty amount, has observed 'once the demand ceased to exist and the fact was brought to the notice of the Tax Recovery Officer by the assessee, the former should have cancelled the recovery certificate and, therefore, with effect from that date till the date of refund, the interest should be paid by revenue.'
The interest can be levied only in a manner provided by the statute. Further, the Hon’ble Apex Court in a number of Judgments has held that when there is a power, coupled with duties, to do a thing in a particular way it should be done in that way only and other modes are forbidden.
The Impugned Order is set aside inasmuch as it levies interest on the delayed payment of penalty amount from 10.12.2018 till the date of payment - Petition allowed.
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2024 (4) TMI 1194
Google Group of Companies acting as Payment Aggregators (PAs) or not - violation of the Payment and Settlement Systems Act, 2007 (PSS Act) and RBI Guidelines - expedition of adjudication process regarding the complaint filed by the petitioners - grant of interim relief to prevent delisting from the Google Play Store pending adjudication - HELD THAT:- The Google Play services have made out a reasonably satisfactory prima facie case of charging only "service charges for hosting the Applications like Hoichoi (petitioner no.1)?? when the said Apps earn money by using the platform provided by Google. It only provides user of the online platform across devices for the purpose of hosting developers and App operators. There is nothing palpable or ex facie evident to clinch beyond reasonable doubt that Google acts as PA by handling end-to-end payment mechanisms from merchants to customers. Displaying various payments Apps on its platform including respondent no.6, which is an accredited body incorporated in India as a PA, does not make Google itself or its group of companies other than respondent no.6 a PA per se.
The discussion is only for the purpose of ascertaining whether the petitioners have made out such palpable and ex-facie case which is evident at the first glance that the Google group of companies are operating as PAs without being accredited/registered to do so on Indian soil - However, the above discussion shows that the issues raised are at best arguable and are to be decided by the RBI, which is the designated regulatory and adjudicatory authority under the PSS Act which has its own ecosystem for dealing with contraventions of the said Act. Even the Competition Act provides fora which have already been approached and the petitioners have submitted to the jurisdiction of the CCI. Hence, it would be absolutely premature for the writ court to enter into the merits of the self-same issues and pass interim orders as per prayers (f) and (g) of the writ petition.
There is no cause of action disclosed to support the apprehension that RBI will sit indefinitely over the matter. The 12 weeks? time sought by the RBI is sufficiently reasonable in the opinion of this Court, considering the intricate issues involved and the enquiries to be made as well as the hearing to be afforded to the concerned parties, even leaving alone the required detailed examination of the agreements between the parties and the modalities of operation of the concerned group of companies. Thus, there is no scope of interference in any manner, at least at the present juncture.
Application dismissed.
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2024 (4) TMI 176
Anti-competitive agreements - Cartelisation - allegation is that appellant wrongly clubbed with members of the Cartel without any application of mind by the Commission - contravention of the provisions of Section 3(3)(a), 3(3)(c) and 3(3)(d) read with Section 3(1) of the Competition Act - HELD THAT:- In STATE OF MAHARASHTRA VERSUS KAMAL AHMED MOHAMMED VAKIL ANSARI & ORS. [2013 (3) TMI 731 - SUPREME COURT] it was held in a proceeding under the Competition Act, the strict rules of evidence are not applicable. Admittedly, all the statements are made by witnesses who were the authors/recipients of the emails and have confirmed their interaction with each other. Admittedly the appellant had never challenged the correctness of statements made by the other members and never sought a permission to cross examine them. All the evidence has been construed holistically by the Commission before giving its justification. The oral statements and the email are completely consistent with each other. Moreso in view of the very definition of cartelisation in Section 2(c ) of the Act, even an attempt to rig a bid is sufficient to attract the provision.
In alleged anti-competitive conduct in the Beer Market in India, suo Motu Case No.6 of 2017 and in Federation of Corrugated Box Manufacturers of India etc, Case No.24 of 2017, it has clearly been held in bid rigging cases mere exchange of information is sufficient to attract the provisions of the Act. The Appellant argued it had never sent any such email and only ‘received’ such emails and mere ‘receipt’ of the emails does not amount to ‘exchange’ of emails, is not acceptable. The appellant continuously ‘received’ emails for over five years without any protest and never requested the cartel to stop sending such emails to it. This itself indicates a meeting of mind. More importantly, the evidence shows all the parties had access to the user name and password to the email id [email protected], hence it cannot be concluded the appellant was never a part of the Cartel.
The appeal and all pending applications are dismissed.
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