2022 (12) TMI 1153 - HC - Companies Law

Abuse of dominant position - scope of CCI s (Respondent No.1) power and jurisdiction under S.26(1) of the Act, 2002vis- -vis the scope of interference by High Court under Article 226 of Constitution of India - whether the order dated 03.10.2019 passed by Respondent No. 1 forming a prima facie opinion regarding existence of abuse of dominant position is liable to be set aside as similar reliefs were claimed by Respondent No.2 in W.P. No. 13298 of 2019 and the same is pending before this Court? - HELD THAT - An order passed under S.26(1) of the Act, directing investigation by the Director General is an administrative order passed only to determine whether the allegations made by the informant under S.19 (1) of the Act, about possible violations of competition law are true. Once information is received under Section 19(1) of the Act, CCI, based on the material produced by the informant has to form a prima facie opinion regarding the possible competition law violations. It is relevant to note that while forming a prima facie opinion, CCI has to only determine if the allegations along with the material produced are taken to be true, will that result in breach of competition law. CCI cannot determine the legality or correctness of the allegations by going into the merits of the case. It only has to see whether the allegations, prima facie, constitute violation of competition law. It is also relevant to note that the scope of interference of High Courts under Article 226 of the Constitution of India, in an order passed directing investigation under Section 26(1) is extremely limited. CCI and the authorities under the Act, 2002 are well equipped to conduct investigation and possess expertise in the said field. High Courts cannot interfere with such investigation unless there is an abuse of process and prima facie it appears that the investigation was marred by mala fides. A same cause of action may have reliefs under different areas of law and the party aggrieved by the same can invoke both remedies. For instance, remedy for fraud is available under civil law which may include a claim of money and under criminal law the said fraud can be prosecuted under IPC. Similarly, a party may claim damages for defamation under tort law and also initiate criminal proceedings under S.499 of IPC. Therefore, it cannot be said that Respondent No. 2 could not have approached CCI with concerns of abuse of dominant position of Petitioner No. 1. The other contentions raised by the Petitioners that CCI/Respondent No. 1 delineated the relevant market, the share of and participation of the parties in the downstream and upstream market erroneously cannot be decided at the preliminary stage when investigation is yet to be completed. The said grounds can be raised by the Petitioners at an appropriate stage if it is found that they are guilty of abusing their dominant position. At this stage when matter is yet to be investigated, this Court cannot consider disputed questions of facts. The writ petition is dismissed.

Summary

Issues Involved:
1. Jurisdiction of the Competition Commission of India (CCI) under Section 26(1) of the Competition Act, 2002.
2. Interference by the High Court under Article 226 of the Constitution of India.
3. Alleged abuse of dominant position by the Petitioner.
4. Procedural fairness and principles of natural justice.

Detailed Analysis:

1. Jurisdiction of the Competition Commission of India (CCI) under Section 26(1) of the Competition Act, 2002:

The Petitioners argued that CCI could not exercise its jurisdiction as similar reliefs were claimed in W.P. No. 13298 of 2019. The High Court clarified that CCI's order under Section 26(1) is an administrative order based on a prima facie opinion, which does not determine any rights or obligations of the parties. The Court referred to the Supreme Court's decisions in SAIL, Excel Corp. Care Ltd., and Bharti Airtel Ltd., which held that such orders are preliminary and do not entail civil consequences. Therefore, CCI was within its jurisdiction to direct an investigation based on the information received.

2. Interference by the High Court under Article 226 of the Constitution of India:

The High Court emphasized that its scope of interference under Article 226 is extremely limited. It can only interfere if the investigation is marred by mala fides or abuse of process. The Court referred to the Karnataka High Court's decision in Flipkart Internet Pvt. Ltd. v. CCI, which likened the interference to quashing an FIR under Section 482 of Cr.P.C. The Court concluded that there was no prima facie evidence of abuse of process or mala fides in the CCI's order directing the investigation.

3. Alleged abuse of dominant position by the Petitioner:

Respondent No. 2 alleged that Petitioner No. 1 abused its dominant position by denying market access, ousting Respondent No. 2 from the market, leveraging its position to favor Petitioner No. 2, and creating a monopolistic environment. CCI's order dated 03.10.2019 noted that Petitioner No. 1 was in a dominant position in the upstream market and prima facie abused this position to exclude Respondent No. 2 from the downstream market. The Court found that CCI had sufficient grounds to direct an investigation based on these allegations.

4. Procedural fairness and principles of natural justice:

The Petitioners contended that the CCI's order was passed without granting them an opportunity of hearing, violating principles of natural justice. The Court rejected this argument, citing the Supreme Court's decision in SAIL, which held that at the stage of ordering an investigation, parties are not entitled to a notice or hearing. The Court also dismissed the Petitioners' claim that the order was erroneous due to the exclusion of certain market data, stating that these issues could be raised at a later stage if the investigation found the Petitioners guilty.

Conclusion:

The High Court dismissed the writ petition, stating that the CCI's order directing an investigation was administrative and based on a prima facie opinion, which does not warrant interference at this stage. The interim order dated 16.10.2019 was vacated, and the Director General was directed to complete the investigation in accordance with the law.