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TMI Blog2018 (9) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... facie case or it wants some clarification on any particular aspect of the matter/issue, it seeks a preliminary conference and invites the complainant/information or other person as is considered necessary for the preliminary conference (Regulation 17 of the 2009 regulations). Thereafter, CCI can pass an order under Section 26(1) briefly stating the reasons for forming an opinion regarding existence of a prima facie case warranting DG’s investigation - the steps outlined in Section 26 are amplified in the procedure mandated by Regulation 20 and 21, which requires participation by “the parties” in the event a report after DG’s inquiry, which is likely to result in an adverse order, under Sections 27-34 of the Act. Consequently Cadila’s argument that a specific order by CCI applying its mind into the role played by it was essential before the DG could have proceeded with the inquiry, is rejected. Rejection of Recall Application - Is the impugned judgment correct in upholding as sound CCI’s finding rejecting the recall application, (based on grounds of fraud, res judicata and/or no cause of action)? - Held that:- Settlement or disposal of individual or some cases might not be determina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Ms. Shreya Singh, Mr. Manan Shishodia and Ms.Aakansha Kaul, Advocates for R-1/CCI. S.RAVINDRA BHAT, J. 1. The present appeal is directed against a judgment and order dated 09.03.2018 of a learned Single Judge of this court. The impugned judgment upheld the orders dated 16.01.2018 and 17.01.2018 passed by the first Respondent i.e. Competition Commission of India (hereinafter "CCI"). The CCI's orders were passed on the two review/recall applications and application for cross examination filed by the first Appellant (hereafter "Cadila"). The applications filed by Cadila sought recall of the CCI's order dated 17.11.2015 under Section 26(1) of the Competition Act, 2002 ("the Act" hereafter). Those directions regard were that "in the course of investigation, if involvement of any other party is found, the DG shall investigate the conduct of such other parties who may have indulged in such contravention". 2. Cadila's review/recall application was preferred on 8th September 2017. Two subsequent reminder applications were also filed by Cadila on 08.11.2017 and 29.11.2017. By the CCI's order of 12.12.2017, Cadila was directed to urge on the merits of the review/recall application at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or appointment of stockists. It was alleged that Dayabhai Patel a partner in Apna Dawa Bazar, is also partner in RMA. 6. On 26.08.2015, CCI took cognizance of the information, by an order and called upon RMA to explain its case on 30.09.2015. It is alleged that none of the writ petitioners were informed about this or called for hearing. Cadila alleged that it received balance payment of ₹ 3,25,000/- (for the order dated 09.07.2015) on 24.09.2015. Cadila stated that it fulfilled the order by supplying the drugs needed to RMA between 26-29.09.2015. On 30.09.2015, RMA appeared before the CCI. The CCI passed an order dated 17.11.2015 under Section 26 (1) of the Act directing the DG to investigate the role of certain opposite parties for the alleged contravention (of the Act). Consequently, the DG issued notice to Cadila under Section 36 (2) read with Section 41 (2) of the Act with direction to furnish certain information on or before 29.01.2016. Cadila, after seeking some extension, submitted a partial reply to the DG's notice on 05.02.2016 providing all the information and documents (except one, which was submitted on 11.02.2016). A further notice was issued by DG on 25.04.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file an appropriate application/submissions before the respondent CCI. On 11.08.2017 Cadila received certified true copies of the documents. In these circumstances, on 08.09.2017 it filed the application seeking review/recall of the order under Section 26(1) order. On 12.12.2017 the hearing of the matter was rescheduled by the CCI to 16-17.01.2018. On 08.01.2018, Cadila moved an application before CCI under Section 36 (2) read with Section 41 (2) of the Act and the CCI General Regulations, 2009 seeking cross examination of Nayan Raval Dayabhai Patel (both partners of RMA) and Jashvant P Patel, President of the Federation. On 08.01.2018 Cadila filed a common reply to the investigation report submitted by the DG to the CCI complying with this direction. On 16.01.2018 Cadila appeared before CCI and made oral submissions with respect to its review/recall application and the application seeking cross examination. 11. Under cover of letter dated 08.02.2018, Cadila received CCI's orders dated 16-17.01.2018 rejecting its applications for review/recall and rejection of the application seeking cross examination. Cadila approached this court, under Article 226 of the Constitution. Its writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings against officers or executives of such a company cannot be initiated. All the grounds urged by Cadila were rejected by the learned single judge, who dismissed its writ petition. Cadila has therefore appealed to this court. Contention of parties 14. Cadila's learned senior counsel Mr. Krishnan Venugopal argued that the order by CCI regarding prima facie satisfaction under Section 26(1) is unsustainable and not in accordance with the provisions of the Competition Act and the various decisions of the Supreme Court and this Court. The exercise of excessive jurisdiction by the DG vitiates the entire proceedings. Given that CCI rejected the application for 'review/ recall', those issues have to be adjudicated by this Court (and not the CCI or the Appellate Court). Drawing heavily from observations of the Supreme Court in Excel Crop Care Ltd v Competition Commission of India 2017 (8) SCC 47, it was argued that there is sufficient basis in that decision to say that whereas an initial order covering a few issues relating to anti-competitive practices of a particular period against one party can lead to valid investigation into similar, later actions against the same au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not before CCI (at the time of final hearing) or Appellate Court (even at a later stage). The DG's notice dated 19.01.2016 (received on 27.01.2016) - to supply information is vitiated. It is also clarified that CCI, by its order had not formed a prima facie opinion (and consequently not passed a prima facie order under 26(1) of the Competition Act) against Cadila. Thus, DG's action in proceeding to investigate and go beyond the order under Section 26(1) of the Competition Act, if accepted by the CCI (as a routine/correct practice), would be foreclosed before CCI during the final arguments. 17. Emphasizing that the impugned orders of the CCI amount to negating this court's judgment in Google which authorized a substantive right to seek 'review/ recall', counsel submitted that unless it is interfered with, Cadila would be seriously prejudiced. It is submitted that the said judgment confers valuable rights on a party arrayed as subject to investigation and proceedings under the Act and entitles it to approach the CCI to take a "second look" and recall its order under Section 26 (1) if needed, in the following circumstances: a) where treating the allegations in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be overlooked in competition law cases. The COMPAT also held that in the cases relating to chemist and druggists' associations and pharma companies (for allegations relating to non-supply of medicines), there cannot be a violation of Section 3(1) of the Competition Act. 19. It is submitted that Nayan Raval and Dayabhai Patel are or were one-time partners in RA, ADC and RMA. It was submitted that the informant failed to disclose the said facts to the CCI and that they have filed information (with same allegations) in Case Nos.97/2013 and 72/2014 with the CCI earlier. It is clear that these individuals (Nayan Raval and Dahyabhai Patel) are using different entities to indulge in frivolous, vexatious litigation against the same set of parties. 20. Learned senior counsel argued that the CCI wholly disregarded that these individuals are abusing the process of law and using the form of the partnership firm to play around with its jurisdiction without any regard to truth and fair play. In this context, it is urged that suppression of material facts amounts to fraud on the CCI. Elaborating on this aspect, it was argued that RMA's mala fides was amplified by the fact that it misled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exist (which it does not), the same would neither fall within Section 3(3) or Section 3(4) of the Competition Act (and not constitute a contravention of the Competition Act). 23. It was next argued by learned senior counsel that it is clear that the individuals (Nayan Raval and Dayabhai Patel) were using different entities to indulge in frivolous, vexatious litigation against the same set of parties (pharmaceutical companies and associations of chemists and druggists in Gujarat). The present case satisfies all the ingredients of res judicata as revealed by the following: a) Matters in issue in the case at hand must have been directly and substantially in issue in the former case; Case No.97/2013 and Case No.68/2015 substantially involve the issue of alleged anti-competitive practice of mandatory NOC for appointment of stockiest being undertaken by certain association of chemists and druggists in Gujarat. b) As to the parties in the present case and the former case must be the same, or claiming under some common party, it is argued that Case No.97/2013 and Case No.68/2015 were filed by Nayan Raval (under different partnership firms). Case No.72/2014 was filed by Dahyabhai Pate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved that a contravention has been committed by a company. 25. Counsel submitted that CCI also arbitrarily declined Cadila's plea for opportunity of cross-examination of certain witnesses (Mr. Nayan Raval, Mr.Dayabhai Patel and Mr.Jasvant Patel) who gave oral testimony against it. The CCI's reasoning is inconsistent with the recognized purpose of cross-examination and its importance as acknowledged by the Supreme Court, this court and the COMPAT (whose directions are binding on CCI). In this context, it is highlighted that it is a settled principle that any subordinate court is required to follow the law as laid-down by the superior court, and not following the law as settled by the superior court amounts to judicial impropriety. The same has also been decided by Supreme Court in the Competition Commission of India v. Steel Authority of India Ltd. 2010 (10) SCC 744. 26. Mr. Samar Bansal, counsel for CCI argues that the impugned judgment is sound and does not call for interference. Opposing Cadila's pleas that CCI should have first formed a prima facie opinion against it under Section 26(1) as a precursor for directing the DG to investigate the parties including it and that CCI c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) read with Section 41(2) of the Competition Act. The second notice was issued to Cadila by the DG on 25 April 2016. It was submitted that on 05.5.2016, DG issued summons under Section 36(2) read with Section 41(2) of the Competition Act for personal appearance to (1) Mr.Suryakant Dwivedi, Dy.GM-Distribution of Zydus Cadila (2) Mr. Dilesh Gajjar, Manager (Warehouse), Rimi. It was stated that on 26.05.2016, Dilesh Gajjar, (employee of Rimi) deposed before the DG. On 6.6.2016 Mr.Suryakant Dwivedi (Manager OP-30/Cadila) was deposed by the DG. Mr.Bansal submitted that on 08.08.2017, first hearing took place before the CCI. Cadila was granted time to file reply to DG's report (by 08.09.2017). On the next date, i.e. 08.09.2017 Cadila filed its application for review/recall of order under section 26(1). The CCI under these circumstances, by its order of 12.12.2017, directed that the review/recall application shall be taken up at the time of final arguments. On 08.01.2018 Cadila filed its reply to the DG's report along with application for cross examination. Submissions were made on 16.01.2018 on the review/recall application as well as application for cross examination. It is emphasized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government or a State Government or a statutory authority or on its own knowledge or information received under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter: Provided that if the subject matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information. (2) Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (3) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission. (4) The Commission ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of oral hearings when granted, and times of its inquiry. (2) The Commission shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of1908), while trying a suit/in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872(1 of 1872),requisitioning any public record or document or copy of such record or document from any office; (f) dismissing an application in default or deciding it ex parte; (g) any other matter which may be prescribed. (3) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Commission shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in investigating into any contravention of the provisions of this Act or any rules or regulations made thereunder. (2) The Director General shall have all the powers as are conferred upon the Commission under sub-section (2) of section 36. (3) Without prejudice to the provisions of sub-section (2), sections 240 and 240A of the Companies Act, 1956 (1 of 1956), so far as may be, shall apply to an investigation made by the Director General or any other person investigating under his authority, as they apply to an inspector appointed under that Act. Explanation.-- For the purposes of this section, (a) the words "the Central Government" under section 240 of the Companies Act, 1956(1 of 1956) shall be construed as "the Commission"; (b) the word "Magistrate" under section 240A of the Companies Act, 1956(1 of 1956) shall be construed as "the Chief Metropolitan Magistrate, Delhi" The powers of the CCI and DG, which are co-extensive, with respect to matters that are the subject matter of investigation, are spelt out in Regulation 41 of the Competition Commission of India (General) Regulations, 2009 ("the 2009 regulations"), which reads as follows: 41. Taking of evidence. - (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r agree in writing as proved; (h) presume that any document purporting to be a certified copy of any record of any authority, court or government of any country not forming part of India as genuine and accurate, if the document purports to be certified in any manner which Is certified by any representative of the National Government of such country to be the manner commonly in use in that country for the certification of copies of such records, including certification by the Embassy or the High Commission of that country in India. (i) admit such documents including electronic records in evidence as may be considered relevant and material for the proceedings. (3) Subject to the provision of sub-regulation (2), the following sections of the Indian Evidence Act, 1872 (1 of 1872), in so far as they are applicable to the matters relating to, - (a) section 22-A -when oral admission as to contents of electronic records are relevant; (b) section 47-A - opinion as to digital signature when relevant; (c) section 65-B - admissibility of electronic records; (d) section 67-A - proof as to digital signature; (e) section 73-A - proof as to verification of digital signature; (f) sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the merits and de-merits of the allegations in the information. If after examining the contents of the reference or information, the Commission finds that the material produced along with it is not sufficient for forming an opinion about the existence or otherwise of a prima facie case or it wants some clarification on any particular aspect of the matter/issue, it seeks a preliminary conference and invites the complainant/information or other person as is considered necessary for the preliminary conference (Regulation 17 of the 2009 regulations). Thereafter, CCI can pass an order under Section 26(1) briefly stating the reasons for forming an opinion regarding existence of a prima facie case warranting DG's investigation. 34. In this case, the complaints were Case No.97/2103, Case No. 68/2015, Case No.68/2014, Case No.71/2014 and Case No.72/2014. The first order under Section 26 (1) was issued on 28.02.2014 in Case No.97/13 (by RA). This resulted in an order holding the respondents guilty of abuse of dominant power, by order dated 04.01.2018. The complainant in this case was Nayan Raval - as ex-partner of RA. A common prima facie order was made for Case Nos.66/14, 71/14 and 72/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislative intent of dealing with the matters related to contravention of the Act, expeditiously and even in a time bound programme. Keeping in view the nature of the controversies arising under the provisions of the Act and larger public interest, the matters should be dealt with and taken to the logical end of pronouncement of final orders without any undue delay. In the event of delay, the very purpose and object of the Act is likely to be frustrated and the possibility of great damage to the open market and resultantly, country's economy cannot be ruled out." The Supreme Court then ruled that the order directing investigation or inquiry was not a quasi judicial one, but an administrative one: "28. As already noticed, in exercise of its powers, the Commission is expected to form its opinion as to the existence of a prima facie case for contravention of certain provisions of the Act and then pass a direction to the Director General to cause an investigation into the matter. These proceedings are initiated by the intimation or reference received by the Commission in any of the manners specified under Section 19 of the Act. At the very threshold, the Commission is to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, which must be construed in their plain language and without giving it undue expansion." The Supreme Court, however, stated that though not adjudicatory, the order under Section 26 (1) must show application of mind: "….In the backdrop of these determinants, we may refer to the provisions of the Act. Section 26, under its different Sub-sections, requires the Commission to issue various directions, take decisions and pass orders, some of which are even appealable before the Tribunal. Even if it is a direction under any of the provisions and not a decision, conclusion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be the subject matter of inquiry when it was not referred to in the communication of the FCI or order of the CCI. The COMPAT has rejected this contention holding that Section 26(1) is wide enough to cover the investigation by the DG, with the following discussion: "28. As per the Sub-section (1) of Section 26, there can be no doubt that the DG has the power to investigate only on the basis of the order passed by the Commission Under Section 26(1). Our attention was also invited to Sub-section (3) of Section 26 under which the Director-General, on receipt of direction under Sub-section (1) is to submit a report of its findings within such period as may be specified by the Commission. The argument of the parties is that if on the relevant date when the Commission passed the order, even the tender notice was not floated, then there was no question of Direction General going into the investigation of that tender. It must be noted at this juncture that Under Section 18, the Commission has the duty to eliminate practices having adverse effect on competition and to promote and sustain competition. It is also required to protect the interests of the consumers. There can be no disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the letter is clear enough to show that the complaint was not in respect of a particular event or a particular tender. It was generally complained that Appellants had engaged themselves in carteling. The learned Counsel Shri Virmani as well as Shri Balaji Subramanian are undoubtedly correct in putting forth the argument that this information did not pertain to a particular tender, but it was generally complained that the Appellants had engaged in the anticompetitive behaviour. When we consider the language of the order passed by the CCI under Section 26(1) dated 23.04.2012 the things becomes all the more clear to us. The language of that order is clearly broad enough to hold, that the Director General was empowered and duty bound to look into all the facts till the investigation was completed. If in the course of investigation, it came to the light that the parties had boycotted the tender in 2011 with preconcerted agreement, there was no question of the DG not going into it. We must view this on the background that when the information was led, the Commission had material only to form a prima facie view. The said prima-facie view could not restrict the Director General, if he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete information or facts relating to the pattern of behaviour that infects the marketplace. Its only window is the information given to it. Based on it, the DG is asked to look into the matter. During the course of that inquiry, based on that solitary complaint or information, facts leading to pervasive practises that amount to abuse of dominant position on the part of one or more individuals or entities might unfold. At this stage, the investigation is quasi inquisitorial, to the extent that the report given is inconclusive of the rights of the parties; however, to the extent that evidence is gathered, the material can be final. Neither is the DG's power limited by a remand or restricted to the matters that fall within the complaint and nothing else. Or else, the Excel Crop Care would not have explained the DG's powers in broad terms: ("if other facts also get revealed and are brought to light, revealing that the 'persons' or 'enterprises' had entered into an agreement that is prohibited by Section 3 which had appreciable adverse effect on the competition, the DG would be well within his powers to include those as well in his report….If the investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult in an adverse order, under Sections 27-34 of the Act. Consequently Cadila's argument that a specific order by CCI applying its mind into the role played by it was essential before the DG could have proceeded with the inquiry, is rejected. 39. The next question relating to a facet of the same issue is whether given that an order requiring production of materials or cooperate in the inquiry is of such a nature that some form of fair procedure in the nature of hearing is necessary. Cadila's reliance on Rohtas Industries and Barium Chemicals is, in the opinion of this court, irrelevant given the facts of this case. Granted, administrative orders should be reasoned; however, where they trigger investigative processes that are not conclusive, having regard to the clear enunciation in SAIL, that notice is inessential, accepting the argument, that inquiry would harm the market or commercial reputation of a concern, would be glossing over the law in SAIL. Moreover, the Rohtas Industries related to the affairs of a company, which implicated its internal management. Allowing inquiry, even an innocuous one, without application of mind, is a different proposition altogether from acting on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Kumar v State of Haryana 2013 (16) SCC 293. Finally, Google went on to state: "19. However having said that, we are not to be understood as conveying that in every case in which CCI has ordered investigation without hearing the person/enterprise complained/referred against, such person/enterprise would have a right to apply for review/recall of that order. Such a power though found to exist has to be sparingly exercised and ensuring that the reasons which prevailed with the Supreme Court in SAIL (supra) for negating a right of hearing to a person are not subverted. 20. Such a power has to be exercised on the well recognized parameters of the power of review/recall and without lengthy arguments and without the investigation already ordered being stalled indefinitely. In fact, it is up to the CCI to also upon being so called upon to recall/review its order under Section 26(1) of the Act to decide whether to, pending the said decision, stall the investigation or not, as observed hereinabove also. The jurisdiction of review/recall would be exercised only if without entering into any factual controversy, CCI finds no merit in the complaint/reference on which investigation had been o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) cited in Google was a case where the original power was exercised plainly and manifestly contrary to the rules (an adverse confidential report of which review was sought after over 9 years, was entertained by an officer incompetent to do so; the Government set it at naught). That was a case of nullity of the original order. Similarly, the cases cited in Google (R.R.Verma v Union of India 1980 (3) SCC 402 and S. Nagaraj v State of Karnataka 1993 (Supp 4) SCC 595) cannot be read divorced from their context. In RR Verma the court had stated "We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results." The court was then concerned with Rule 3 of the All India Services (Conditions of Service Residuary matters) Rules, which empowered the Government to by "order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such extent and subject to such exceptions and conditions, as it may consider necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew's case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. 15 It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clauses Act has been explained." 45. The decisions relied on in Google in the context of exercise of power under Article 226 (of judicial review by the High Courts) or under Section 482 (inherent power of the High Court) in the opinion of this court again are inapt, because they talk of the power of High Courts and not of the same tribunal or forum which is divested of the power of substantive review or recall of its orders. 46. This court is of the opinion that though there are serious concerns which should caution exercise of power by the CCI in terms of the Google Inc, it cannot be termed as per in-curium. It would be sufficient to remember that these serious limitations exist with respect to exercise of a substantive power of recall, which can be justifiably used in rare circumstances where the fraud is egregious and does not involve a detailed hearing or where the mistake is of the kind covered by Section 38. The power of judicial review exists where the authority or tribunal acts in excess of its power (illegality) or transgresses procedural regulations, is unfair or tainted with mala fides. Therefore this court holds that the impugned order which held that Google has no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detailing the evidence collected by the DG against them and now, they ought to argue the matter on merits rebutting the evidence collected against them rather than filing belated applications seeking review/recall of the prima facie Order. 12. Further the argument of the Applicants that the Informant has committed a fraud by placing an order for supply of medicines upon the applicants on the same date and getting a demand draft prepared for filing information before the Commission, though sounds attractive, does not necessarily indicate mala fide on the part of the Informant. Further, the fact of the Informant not disclosing supply of drugs/medicines by the Applicants to it in the preliminary conference held at the Commission on 30.09.2015 cannot be relied upon to attribute mala fide on the part of the Informant. Though the Applicants have alleged that the Informant received supplies on 29.09.2015 the Informant's counsel contended that the invoice vide which supplies were made is dated 30.09.2015. In the Commission's opinion, all these are questions of merits and the Applicants are at liberty to argue on these before the Commission while rebutting the evidence collected by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record… To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law." 48. This court notices that in the present case, Cadila filed a 110 page, 216 paragraph recall application which not only dealt with complicated questions of law, but called for analysis of detailed facts. Therefore, the rejection on the merits of Cadila's recall application is not erroneous. 49. The last point on this issue is the question of res judicata. Here, the court notices that Grasim Industries was a case where the court had ruled that even though there might be an infirmity in the CCI's approach regarding the initiation of proceedings, the material gathered by DG can be treated as information. Therefore, that in a given case, a decision is rendered may not be conclusive of the matter in entirety; complaints and grievances regarding abuse of dominance have an inherently anti-competiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminating statement by any of the witnesses mentioned in its application, is necessary or expedient to be allowed. The Commission thus, rejects the crossexamination requests made by Cadila Healthcare Ltd." This court notices that the CCI had earlier, in the order, noted that a party can reasonably request for cross examination of individuals whose testimony can adversely affect it and that it has to consider the applications made in such cases, by exercise of discretion. 51. Cadila's argument that its request was turned down without adequate reasons, in this court's opinion is justified. Regulation 41(5) of the 2009 regulations provides as follows: "(5) If the Commission or the Director General, as the case may be, directs evidence by a party to be led by way of oral submission, the Commission or the Director General, as the case may be, if considered necessary or expedient, grant an opportunity to the other party or parties, as the case may be, to cross examine the person giving the evidence." This court is of the opinion that the discretion, which is undoubtedly vested with the CCI to permit or refuse cross examination of a witness, is to be exercised judiciously. The reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that contravention and shall be liable to be proceeded against and punished accordingly. Explanation.-For the purposes of this section,- a) "company" means a body corporate and includes a firm or other association of individuals; and b) "director", in relation to a firm, means a partner in the firm." 53. The question sought to be agitated was urged before another single judge in Pran Mehra vs. Competition Commission of India and Another (Writ Petitions No. 6258/ 2014, 6259/ 2014 and 6669/ 2014) when the court held as follows: "6.... I am in agreement with the submissions of Mr. Chandhiok that there cannot be two separate proceedings in respect of the company (i.e. VeriFone) and the key-persons as the scheme of the Act, to my mind, does not contemplate such a procedure. The procedure suggested by Mr.Ramji Srinivasan is both inefficacious and inexpedient. As in every such matter, including the proceedings under Section 138of the Negotiable Instruments Act, 1881 (in short N.I. Act), a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SCC 352(on the other hand), explained the decision in C.V. Parekh (supra) by a two judge bench of the Court which held that the company alone or the person in-charge of and responsible for the conduct of business of the company alone, may be prosecuted for the acts of the company as there is no statutory requirement that such person cannot be prosecuted unless the company is also arraigned as an accused with him. In Aneeta Hada (supra) it was held, inter alia, as follows: "58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be sit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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