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TMI Blog2020 (8) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... ree Respondents by the Applicant/ FCI claiming compensation under Section 53N(1) of the Competition Act, 2002 (for short the 'Act'). 2. The Learned Counsel for the Applicant submits that an 'aggrieved entity' can file a compensation claim for the losses suffered due to the anticompetitive behaviour of an entity and that in the present case, the Respondents were found to have violated Section 3(3) of the Act by the Hon'ble Competition Commission of India (for short the 'CCI'), as per order dated 23.04.2012. The said finding became final, as per order of Hon'ble Supreme Court of India dated 08.05.2017. 3. The Learned Counsel for the Applicant brings it to the notice of this Tribunal that as against the 1st Respondent, the quantifiable loss suffered by the Applicant is as under: - Quantity Purchased kg. Actual purchase Price for FCI per unit INR/kg Actual Cost of Procurement for FCI INR Cost of Production as per CCI Order INR/ kg Competitive Selling Price per unit assuming 10% Profit margin INR/kg Total Cost to FCI at Competitive Prices INR Difference in Actual Cost & Competitive Cost in FCI INR EXCEL CROP LTD. (2009) 2,20,000 386 8,49,20,000 260.16 286.17 6,29,57,400 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 31.03.2010 to 31.03.2018 18,98,70,828 3. Total Amount after Compound Interest 25,86,08,078 4. Litigation Cost 22,92,063 5. Filing Cost of present Application 3,00,000 Total Amount of Quantified Compensation Claimed against the Respondents 26,12,00,141 8. The Learned Counsel for the Applicant points out that the total compensation claimed against the Respondents is Rs. 26,12,00,141/- and that the Applicant has paid a sum of Rupees three lakhs towards the fees payable in terms of Rule 4 of the Competition Appellate Tribunal (Form and Fee for Filing an Appeal and Fee for Filing Compensation Applications) Rules, 2009. 9. The Learned Counsel for the Applicant contends that the Respondent Nos.1 to 3 take a plea that the Compensation Application filed by the Applicant centers around the assumption that Section 53N of the Act requires the existence of either the former Competition Appellate Tribunal (COMPAT)/ National Company Law Appellate Tribunal or the Competition Commission of India's order. Further, the stand of the Respondents is that since the orders of CCI dated 12.04.2012 and the order of COMPAT dated 29.10.2013 had merged into the judgment of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpensation, especially in cases where the CCI and the Appellate Tribunal do not find a contravention, but the Supreme Court finds a contravention." 13. The Learned Counsel for the Applicant contends that the Act does not prescribe a Limitation period for projecting an application under Section 53N of the Act and that under the earlier Monopolies and Restrictive Trade Practices Act, 1969, three years was considered to be a reasonable period of limitation. Indeed, it is the Applicant's submission that the period of Limitation is to be counted from the date of receipt of Hon'ble Supreme Court judgment dated 08.05.2017 and in this regard the Applicant places reliance on the judgment of the Hon'ble Supreme Court 'Union of India v. West Coast Paper Mills Limited - (2004) 2 SCC 747', (special page 754), wherein at paragraphs 15 and 16 it is observed as under :- "15. Even in relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally disposed of by the court of appeal. 16. The starting point of limitation for filing a suit for the purpose of recovery of the excess amount of freight illegally realis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations with necessary filing fees and in the alternative it is willing to pay the differential filing fees also, if the same is permitted by this Tribunal. 18. According to the Learned Counsel for the Applicant, it being a public Body, operates entirely on public funds and the compensation it claims is also for the 'public purpose'. Also, the stand of the Applicant is that the foundation of the compensation claim under Section 53N of the Act is the findings of contravention by delinquent enterprise and when the delinquent enterprise assails the decision of the Hon'ble Tribunal in an Appeal under Section 53T of the Act, there is a chance that the Hon'ble Supreme Court may allow the Appeal, set aside the findings of violation and exonerate the delinquent enterprise. Moreover, in the event of this Tribunal adjudicating a compensation claim and awards damages to the claimant, before the disposal of main Appeal by the Hon'ble Supreme Court, there is a possibility/ chance that the entire foundation of the compensation claim may become an infructuous one and non-est in Law. Therefore, it is the forceful plea of the Appellant that every time a delinquent enterprise challenges the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated earlier, when the claim was made for indemnifying the losses suffered from the Corporation, it was clear to the parties about the futility of awaiting any longer for collecting such amounts from the foreign bank. In those circumstances, the claim, if at all was to be made, ought to have been made within a reasonable time thereafter. What is reasonable time to lay a claim depends upon the facts of each case. In the legislative wisdom, three years' period has been prescribed as the reasonable time under the Limitation Act to lay a claim for money. We think that period should be the appropriate standard adopted for computing reasonable time to raise a claim in a matter of this nature. For this reason also we find that the claim made by the respondent ought to have been rejected by the Commission." 21. The Learned Counsel for the Applicant cites the decision of Hon'ble Supreme Court in 'G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore - (1988) 2 SCC 142' (at special page 143), wherein it is observed as under: - "The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) that even when the Legislature has not specified any statutory time limit, the claim has to be filed within reasonable time. The Court further held what is reasonable time to lay claim depends upon the facts of each case. In the Legislative wisdom three years period has been prescribed to lay a claim for money. The Court observed that the period of three years is reasonable time to raise a claim in a matter of this nature. The claim which has been sought by the petitioner is in the nature of a money claim and on the analogy of Corporation Bank's case (supra), the claim ought to have been filed within statutory period of three years. The Commission has correctly appreciated the ratio of the Corporation Bank. It was also submitted by the Counsel for the respondent that the Commission has been consistently following the ratio of Corporation Bank in similar cases for several years." 24. The Learned Counsel for the Applicant contends that in a case where the CCI does not find a contravention after the completion of the investigation by the Director General (DG), it passes an order exonerating an enterprise under Section 26(6) of the Act. Later, in an 'Appeal' under Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs' also clearly mentions that Section 53N of the Act, as currently framed, does not contemplate the filing of a 'Compensation Application' after the order of the Hon'ble Supreme Court and has proposed an amendment to permit a 'Compensation Application' arising from the Hon'ble Supreme Court's order. 29. The Learned Counsel for the 1st Respondent contends that a Compensation Application under Section 53N of the Act cannot be filed after an order of the Appellate Tribunal merges into an order of Hon'ble Supreme Court. In this connection, the Learned Counsel for the 1st Respondent brings it to the notice of this Tribunal that when the present Compensation Application was filed on 11.07.2019 before this Tribunal, neither the findings of the Commission, nor the order of the Appellate Tribunal were in existence because of the fact that the order of the CCI dated 23.04.2012 had merged with the order dated 29.10.2013 of the earlier COMPAT. Further, the order dated 29.10.2013 of the COMPAT, in turn had merged into the final judgment dated 08.05.2017 of the Hon'ble Supreme Court. 30. The Learned Counsel for the 1st Respondent refers to the decision of Hon'ble Supreme Court in 'Sangeeta Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law." 33. The Learned Counsel for the 1st Respondent refers to the decision of Hon'ble Supreme Court 'S.S. Rathore vs. State of MP - (1989) 4 SCC 582' (at special page 589), wherein at paragraph 14 it is observed as under: - "14. The distinction adopted in Mohammad Nooh case [AIR 1958 SC 86 : 1958 SCR 595] between a court and a tribunal being the appellate or the revisional authority is one without any legal justification. Powers of adjudication ordinarily vested in courts are being exercised under the law by tribunals and other constituted authorities. In fact, in respect of many disputes the jurisdiction of the court is now barred and there is a vesting of jurisdiction in tribunals and authorities. That being the position, we see no justification for the distinction between courts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Statutory Tribunal to hear election petitions under the Representation of the People Act, 1951, its jurisdiction is limited and further its powers are wholly the creature of the statute under which it is conferred with the power to hear election pettions. (c) In the decision 'Khoday Distilleries Ltd. & Ors. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal - (2019) 4 SCC 376' (at special page 378 and 379) wherein it is observed and held as under:- "The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution of the Supreme Court may reverse, modify or affirm the judgment, decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of the petition for special leave to appeal. The doctrine of merger can ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph No.26 observed as under: - "26. Shri Billimoria argued in terms of the doctrine of casus omissus. According to him, there was a need for supplying the casus omissus particularly in Section 53A(1)(a). We do not agree. It is a time tested law that the courts are reluctant to supply the words to the legal provisions. That can be done only in few exceptional circumstances like the legal provision being rendered absurd or being rendered meaningless in the absence of the words which is sought to be added. We do not think that there is such a situation in the present appeals. We have pointed out that the Apex Court has closed the issue on that count and we cannot therefore venture to supply some different interpretation or supply any word to the aforementioned provision." (g) In the decision of 'M.P. Steel Corporation v. Commissioner of Central Excise - (2015) 7 SCC 58' (at page 58) it is held that even though provisions of Section 14 of the Limitation Act, 1963 apply only to Courts proper i.e. courts as understood in the strict sense of being part of the Judicial Branch of the State, but principles underlying Section 14, which advance cause of justice, will apply to appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be argued that the period of limitation will start not from the first date of commission of default, but will start from the last date of the commission of default if the nature of the default committed by the respondents is continuous in nature. We have deliberately stated the facts above along with the dates of the correspondence which went on between the parties stretching maximum in favour of the complainant. We do not find any justification as to how the non-return of collaterals could be complained of only in 2007 when admittedly the collateral securities were refused for the first time in somewhere in the year 1993 and when the bank ultimately returned the collaterals in March 2001. As regards the nonrefund of XOS charges, we have already found that the complainant has not shown any rule under which he was entitled to the refund, thus there is a complete justification on the part of the respondent bank not to return collaterals. There is no question of limitation as any action in that behalf could not be possible. In the result, we come to the conclusion that the complaint as well Compensation Application under Section 12-B are not maintainable. They are dismissed." (j) In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 53N of the Act is not an 'Independent proceeding' and that a Compensation Application may be filed only after the order of CCI or the Appellate Tribunal determines that a violation of the Act had taken place. 42. The Learned Counsel for the 1st Respondent urges before this Tribunal that the instant Compensation Application is to be dismissed because of the fact that the Applicant has come before this Tribunal with 'unclean hands'. 43. The Learned Counsel for the 2nd Respondent contends that the Competition Commission of India passed an order (under Section 27 of the Act) against the Respondents on 23.04.2012, which was partially upheld by the former COMPAT on 29.10.2013. In fact, the COMPAT while confirming the violation of Section 3(3)(d) of the Act against the Respondents, distinguished the quantum of penalty on the basis of 'relevant turnover' and thus, the Limitation period to file Compensation Application by the Applicant commenced from 29.10.2013. Apart from that the Hon'ble Supreme Court on 08.05.2017 upheld the COMPAT's decision, which is beyond 28.10.2016, i.e., limitation period to file the Compensation Application. 44. It is the version of the 2nd Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a single Application claiming compensation against multiple parties. At this stage, the Learned Counsel for the 3rd Respondent projects an argument that the language used in Section 53N of the Act makes it clear that an application can only be filed against 'single enterprise' and not against 'three enterprises', as has been done by the Applicant in the instant case. 50. The Learned Counsel for the 3rd Respondent contends that the Applicant had misled this Tribunal by making payment of Rupees thee lakhs lakhs in terms of Rule 4 of the Competition Appellate Tribunal (Form and Fee for Filing an Appeal and Fee for Filing Compensation Applications) Rules, 2009, as against the payment of Rupees three lakhs per application per Respondent. In this connection, the Learned Counsel for the 3rd Respondent submits that the Applicant during the argument had accepted the lapse on its part and offered to make an additional payment of Rupees six lakhs, so as to ensure that its application is not dismissed on this ground alone. Furthermore, the Act and the Rule 4 of the Competition Appellate Tribunal (Form and Fee for Filing an Appeal and Fee for Filing Compensation Applications) Rules, 2009 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 SCC 694 (paras 21 and 22)' and 'Ram Parshotam Mittal and Others v. Hotel Queen Road Pvt. Ltd. and Others - (2019) SCC OnLine SC 699 (para 64)'. 55. Yet another argument advanced on behalf of the 3rd Respondent is that it is a settled Law that a jurisdiction can be conferred only by a statute or legislative function and a Court/ Tribunal cannot derive jurisdiction apart from the statute. 56. The Learned Counsel for the 3rd Respondent cites the decision in'Uber India Systems Pvt. Ltd. v. CCI & Ors. - (2019) 8 SCC 697' (at special page 700) wherein at paragraph 5 and 6 it is observed as under: - "5. There are two important ingredients which Section 4(1) itself refers to if there is to be an abuse of dominant position: (1) the dominant position itself. (2) its abuse. "Dominant position" as defined in Explanation (a) refers to a position of strength, enjoyed by an enterprise, in the relevant market, which, in this case is the National Capital Region (NCR), which: (1) enables it to operate independently of the competitive forces prevailing; or (2) is something that would affect its competitors or the relevant market in its favour. 6. Given the allegation made, as extracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a mere perusal of the ingredients of the said Section unerringly point out that the said Section does not contemplate a Limitation period for projecting an 'Application'. It is an axiomatic principle in Law that when no time limit is prescribed, based on the 'Doctrine of Laches' the relevant proceedings ought to have been filed within a reasonable period of time and that failure to do so results in serious prejudice and harm to the concerned party and adversely affects the ability of the said party to defend itself. 63. In fact, the Competition Act, 2002 does not either by reference or in comparison provide for any period of Limitation for the purpose of filing an Application before COMPAT to adjudicate a case for compensation arising from the findings of the CCI or from the orders of COMPAT or under Section 42A or 53Q(2). It is not in dispute that the Applicant had sent the Information through letter dated 04.02.2011 under Section 19(1) of the Act to the Hon'ble Commission alleging 'anti-competitive behavior' on the part of the three Respondents and another. Further, the Applicant had alleged that the Respondents had acted and resorted in a manner in regard to the tenders relea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er' of the relevant business, i.e., business of Aluminum Phosphate Tablet (ALP). When the Respondents and the Hon'ble Commission projected their Appeals before the Hon'ble Supreme Court by assailing the findings of the COMPAT, the Hon'ble Supreme Court upheld the decision of the erstwhile COMPAT in totality. 67. It may not be out of place for this Tribunal to significantly point out that in the decision 'Uma Shankar Sharma v. The State of Bihar & Anr. - AIR 2005 Patna 94' wherein a Decree Holder being aggrieved by the impugned order challenged the same in Second Appeal, which resulted into a Decree passed by the Hon'ble High Court, the Decree of the Court below merges with the judgment and Decree in Second Appeal and it was held that the period of Limitation under Article 136 of the Limitation Act, 1963 is to be counted from the date of judgment in Second Appeal. 68. Further, when a 'Decree' of the Trial Court having merged with the Decree of the 'Appellate Court', it is observed that the starting point of limitation for an Application in regard to an execution of Decree is the date of Appellate Court's Decree and not the date of Trial Court Decree as per decision in 'Baba Balbir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication (AT) No.01 of 2019 being filed against the Respondents claiming compensation in a single application, against all the three enterprises, it is to be pointed out that Section 53N, no doubt speaks of filing of an application by Central Government or State Government or a 'Local Authority' or any enterprise or any person to make an application to the Appellate Tribunal to adjudicate on claim for compensation that may arise from the findings of the Commission or under Section 42-A or under sub-section (2) of Section 53-Q of the Act and to pass order for the recovery of compensation from any enterprise for any loss or damage shown to have been suffered etc., inasmuch as the 'cause of action' involved in the present 'lis' relates to the common orders passed by the Competition Commission of India, COMPAT and the Hon'ble Supreme Court, it can safely and squarely be said that 'litigation' involved in these orders was common and viewed in that perspective, the filing of single application viz, the present Compensation Application (AT) No.01 of 2019 is not fatal and to put it more precisely, the said Application is maintainable in Law. 73. In regard to the plea taken that on the cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi. (2)(i) The amount of fee payable in respect of appeal and compensation application made to the Appellate Tribunal shall be as follows:- APPEAL Amount of penalty imposed Amount of fees payable 1. Less than twenty thousand rupees : Rs. 1,000 2. Twenty thousand or more rupees but less than one lakh : Rs. 2,500 3. One lakh or more rupees : Rs. 2,500 plus Rs. 1,000 for every additional one lakh of penalty or fraction thereof, subject to a maximum of Rs. 3,00,000. COMPENSATION APPLICATION Amount of compensation claimed Amount of fees payable 1. Less than one lakh rupees : Rs. 1,000 2. More than one lakh rupees : Rs. 1,000 plus Rs. 1,000 for every additional one lakh of compensation claimed or fraction thereof, subject to a maximum of Rs. 3,00,000. (ii) Amount of fee payable in respect of any other appeal against a direction or decision or order of the Commission under the Act shall be rupees ten thousand only. (3) The Tribunal may, to advance the cause of justice and in suitable cases, waive payment of fee or portion thereof, taking into consideration the economic condition or indigent circumstances of the petitioner or appellant or ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents' side. 76. In view of the foregoing qualitative and quantitative upshot of discussions and also this Tribunal taking into account of all the facts and circumstances of the present case in a conspectus fashion, comes to a resultant conclusion that in the present case, the 'cause of action' firstly arose from the decision of the CCI's order dated 23.04.2012, which was later affirmed by the COMPAT on 29.10.2013 and attained finality by means of the Hon'ble Supreme Court judgment dated 08.05.2017 (Civil Appeal No.2480 of 2014, with Civil Appeal Nos. 53-55 of 2004, Civil Appeal No.2874 of 2014 and Civil Appeal No 2922 of 2014) and also this Tribunal taking note of yet another fact that the Compensation Application (AT) No.01 of 2019 was filed on 11.07.2019 (within two years and two months from 08.05.2017) of Hon'ble Supreme Court judgment, the said Application having been filed within less than three years' reasonable period (especially when the Competition Act, 2002 does not speak of limitation period for filing of an application under Section 53N of the Act), the said application is perfectly maintainable in Law, under Section 53N of the Act. As such, the contra plea taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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