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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 ..... 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. 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 released by the Applicant for purchasing Aluminum Phosphate Tablet (ALP) for the period 2009-10 - As a matter of fact, the Hon ble Commission found that the Respondents had cartelised in respect of the two tenders for purchase of ALP Tablets released by the Applicant for the period from 2009-10 and 2011-12 and also it was found out that the Respondent had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 2,19,62,600 EXCEL CROP LTD. (2011) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss suffered by Applicant: ₹ 57,79,000/- 6. It is averred in the Compensation Application by the Applicant at paragraph 9.20 that taken cumulatively ₹ 6,87,37,250/- is the loss caused by the three ALP manufacturers. The Applicant at paragraph 9.21 of the Application claims 18% interest annually on the sum of ₹ 6,87,37,250/- commencing from the period 2009-2010, i.e., from 31.03.2010 to till 31.03.2018, which comes to ₹ 25,86,08,078/-. A sum of ₹ 22,92,063/- towards litigation cost and legal fees is claimed by the Applicant. The cost of filing fee is claimed at ₹ 3,00,000/-. 7. The breakup total sum claimed by the Applicant in the Compensation Application is as follows: - Serial No. Particulars Amount (INR) 1. Quantified loss suffered by the Applicant 6,87,32,250 2. Compound Interest at the rate of 18% p.a. from 31.03.2010 to 31.03.2018 18,98,70,828 3. Total Amount after Compound Interest 25,86,08,078 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3N(3) of the Act and then pass its orders. In fact, contention of the Applicant is that the ingredients of Section 53N of the Act do not mandate the existence of an order of the Competition Commission of India or the Competition Appellate Tribunal and all it requires is that a Claimant s cause of action should come into being on account of an earlier CCI or COMPAT order. 12. The Learned Counsel for the Applicant refers to Section 53N(2) of the Act and submits that the phrase if any , which specifies that Compensation Application can be filed even if the CCI does not find a violation but the COMPAT/ the Hon ble Tribunal finds a breach. Therefore, it is the submission of the Applicant s side that the contention of the Respondents that an order of CCI or COMPAT must legally be in existence, is an unfounded one. The Learned Counsel for the Applicant to lend support to his view point refers to paragraph 11.2 of the Competition Law Review Committee Report 2019, which is as under: - 11.2 The Committee noted that Section 53N currently does not allow application for compensation claims to be filed post determination of appeal by the Supreme Court. This may prejudice parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Limitation Act, 1963 not only applies to the Civil Procedure Code but also to the Special Acts. As a matter of fact, Article 137 constitutes a Residuary Article pertaining to Applications . As such it can be safely and securely be said that Article 137 will apply to the Civil Procedure Code or in respect of any other special statute. What Article 113 of the Limitation Act, 1963 relates to suit, the Article 137 of the Limitation Act, pertains to Application . 16. The Learned Counsel for the Applicant cites the decision of Hon ble Supreme Court in Sonic Surgical v. National Insurance Company Ltd. (2010) 1 SCC 135 and contends that it is a settled principle of Law that Courts must avoid absurd interpretations. 17. The Learned Counsel for the Applicant submits that the instant Compensation Application (AT) No.01 of 2019 filed by the Applicant/ FCI relates to common orders passed by the CCI and erstwhile COMPAT and the Hon ble Supreme Court and the lis concerned in those orders was common and interlinked and on that basis only a single Application was filed. In this connection, the Learned Counsel for the Applicant informs this Tribunal that the Applicant/ FCI is wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Hon ble Supreme Court in Corporation Bank v. Navin J. Shah (2000) 2 SCC 628 (at special page 635), wherein at paragraph 12 among other things, it is observed as under: - .The difficulties in realisation of the amounts due from the consignee also became clear at the time when the claim was made before the Corporation and the claim had been made as early as on 19-12-1982. The petition before the Commission was filed on 25-9- 1992 that is clearly a decade after a claim had been made before the Corporation. A claim could not have been filed by the respondent at this distance of time. Indeed at the relevant time there was no period of limitation under the Consumer Protection Act to prefer a claim before the Commission but that does not mean that the claim could be made even after an unreasonably long delay. The Commission has rejected this contention by a wholly wrong approach in taking into consideration that the foreign exchange payable to Reserve Bank of India was still due and, therefore, the claim is alive. The claim of the respondent is from the Bank. At any rate, as stated earlier, when the claim was made for indemnifying the losses suffered from the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed within the meaning of Article 58. The order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant s appeal was dismissed on August 31, 1966. The 60 days time spent for complying with the requirement of notice under Section 80 of the Code was available to the plaintiff in addition to the period of three years. Counting the date from the date of the appellate order, the suit would be within time. There is no justification for the distinction between courts and tribunals being appellate or revisional authorities in regard to the principle of merger as was done as in Mohammad Nooh case. Powers of adjudication ordinarily vested in courts are being exercised under the law by tribunals and other constituted authorities. 23. Apart from the above, the Learned Counsel for the Applicant relies on the decision of Hon ble Delhi High Court in M.S. Shoes East Ltd. v. M.R.T.P. Commission and Ors. (2003) SCC OnLine Del 988 wherein at paragraph 29 it is observed: - 29. Their Lordships of the Supreme Court aptly observed in the Corporation Bank (supra) that even when the Legislature has not specified any statutory time lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Act do have powers to regulate their own procedure etc. 26. The Learned Counsel for the Applicant submits that just because an Applicant has filed the present single Compensation Application, the same cannot be dismissed and he refers to a decision Bachhaj Nahar V. Nilima Mandal (2008) 17 SCC 491 and puts forward a plea that issues not raised in the pleadings cannot be ushered in at an argument stage. 27. Lastly, it is the submission of Learned Counsel for the Applicant that the Applicant/ public Body claims compensation because it was overcharged by the Respondents and only for a public purpose, the compensation is sought for. 28. The Learned Counsel for the 1st Respondent submits that Section 53N of the Act does not mention about the possibility of filing of a Compensation Application arising from an order of Hon ble Supreme Court in an Appeal against order of the Appellate Tribunal. Moreover, it is the plea of the 1st Respondent that the Competition Law Review Committee Report dated 26.07.2019 submitted to the Ministry of Corporate Affairs also clearly mentions that Section 53N of the Act, as currently framed, does not contemplate the filing of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view. 42. To merge means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68.) 44. To sum up, our conclusions are: (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a court/tribunal inherently lacks jurisdiction, acquiescence of a party equally should not equally be permitted to perpetrate and perpetuate defeating of the legislative animation. The court cannot derive jurisdiction apart from the statute. A decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication or rights, the remedy has to be sought only under the provisions of that Act and the common law court has no jurisdiction. The law does not permit any court/tribunal/ authority/ forum to usurp jurisdiction on any ground whatsoever in case such an authority dos not have jurisdiction on the subject-matter. (b) In the decision of Hon ble Supreme Court P. Malaichami v. M. Andi Ambalam and Ors. (1973) 2 SCC 170 at page 170, it is held that even in the case of constitutional Court like the High Court, when it causes a Statutory Tribunal to hear election petitions under the Representation of the People Act, 1951, its jurisdiction is limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... language of Section 53-A(1)(a) is clear and the statute does not demand that one should substitute or or read that word interchangeably for achieving the object of the Act. On the contrary, the objective of the Act is more than clear that the legislature intended to provide a very limited right to appeal. It is always expected of the court to apply plain rule of constitution rather than trying to read the words into the statute which have been specifically omitted by the legislature. Right to appeal is a creation of statute and it does require application of rule of plain construction. Such provision should neither be construed too strictly nor too liberally. The principle of appeal being a statutory right and no party having a right to file appeal except in accordance with the prescribed procedure is now well settled. (f) In M/s Jindal Steel Power Limited vs. Competition Commission of India Ors. and M/s. Prints India v. Springer (India) Pvt. Ltd. , the Competition Appellate Tribunal in Appeal No.45 of 2012 with I.A. No.210 of 2012 on 03.04.2013 at paragraph No.26 observed as under: - 26. Shri Billimoria argued in terms of the doctrine of casus omissus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch may be in force. Such provision cannot be stretched to infer adoption of the Limitation Act for the purpose of regulating the varied and numerous powers and functions of the authorities under the Electricity Act, 2003. In this context it is relevant to keep in view that the State Commission or the Central Commission have been entrusted with large number of diverse functions, many being administrative or regulatory and such powers do not invite the rigours of the Limitation Act. (i) In the order dated 04.01.2013 in M/s. Rangi International v. The Bank of India and Ors. Compensation Application No.86 of 2007 (UTPE No.160 of 2007) wherein at paragraph 13, it is observed as under: - 13. The learned counsel for complainant has not brought to our notice any pronouncement by any Court, including the Hon ble Supreme Court of India, whereby the complainant was absolved from the responsibility of explaining the delay except in saying that the act is silent about the limitation. The learned counsel has not been able to show us any authority on the question. It is then tried to be argued that the period of limitation will start not from the first date of commission of default, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission of India s order on 23.04.2012. Moreover, it is the stand of the 1st Respondent that a Compensation Application cannot be filed after the expiration of a reasonable period of three years from the date of Appellate Tribunal s order. 39. The Learned Counsel for the 1st Respondent comes out with an argument that the West Coast Case cited by the Applicant has no application to the facts of the present case because of the fact that the provision of the Railway Act, 1890 (as amended by the Amendment Act of 1948) are not in pari materia. 40. The Learned Counsel for the 1st Respondent vehemently submits that the scheme of Section 53N of the Act does not permit the filing of a single Compensation Application against more than one enterprise because it uses the term enterprise and not enterprises , which unambiguously reveal the intention of Parliament that separate applications are to be filed against each enterprise when claiming compensation under Section 53N of the Act. 41. The Learned Counsel for the 1st Respondent submits that a Compensation Application under Section 53N of the Act is not an Independent proceeding and that a Compensation Application may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tock Exchange of India (MSEI), had filed a Compensation Application (under Section 53N of the Competition Act) before the former COMPAT, while an Appeal was pending before the Hon ble Supreme Court and later transferred to this Tribunal. 48. The Learned Counsel for the 2nd Respondent submits that the Hon ble Supreme Court in National Stock Exchange of India Ltd. vs. Competition Commission of India and Anr. (Civil Appeal No.8974 of 2014) on 12.02.2018 had stayed the damages proceedings and this Tribunal adjourned the damages proceedings sine-die as per order dated 08.03.2018. Therefore, it is the clear cut stand of the 2nd Respondent that the present Applicant is well within its rights to apply for compensation before the Appellate Tribunal even when the matter was appealable and is pending before the Hon ble Apex Court. 49. The Learned Counsel for the 3rd Respondent submits that the Compensation Application (AT) No.01 of 2019 filed by the Applicant is not maintainable and is to be dismissed because of the reason that Section 53N of the Act does not permit filing of a single Application claiming compensation against multiple parties. At this stage, the Learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority of India (2010) 10 SCC Page 744 . 54. The Learned Counsel for the 3rd Respondent refers to the Applicant s placing on reliance upon the interim orders passed by this Tribunal in (i) Crown Theatre vs. Kerala Film Exhibitors Federation; (ii) Metropolitan Stock Exchange of India vs. National Stock Exchange of India Ltd.; and (iii) Maharashtra State Generation Power Co. Ltd. vs. Nair Coal Services Ltd. Ors. and submits that it has been done by the Applicant with a view to invoke the jurisdiction of this Tribunal and further that all the three interim orders referred to by the Applicant were in an application filed prior to the determination of an Appeal by the Hon ble Supreme Court, which is in accordance with Law enumerated under the Act. Furthermore, it is the stand of the 3rd Respondent that interim orders cannot be read as laying down any proposition of law and they do not have any precedent value as per decision in State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha (2009) 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 advanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as set aside and the matter was remanded to the Commission for issuance of a direction to the Director General under Section 26(1) for conducting an Investigation. 59. The Learned Counsel for the 3rd Respondent submits what applies to civil suit has no bearing on a statutory Tribunal and the reliance placed by the Applicant on the decision of Hon ble Supreme Court Union of India v. West Coast Paper Mills (2004) 2 SCC page 747 is a misplaced one. 60. The Learned Counsel for the 3rd Respondent contends that when an Appeal under Section 53T of the Act is pending before the Hon ble Supreme Court, there was no stay except payment of penalty amount and there is no fetter for this Tribunal to proceed further. 61. This Tribunal has heard the Learned Counsel appearing for the Applicant and the Respondents and noticed their contentions on the issue of maintainability of the Compensation Application (AT) No.01 of 2019. 62. It is to be pertinently pointed out that the Section 53N of the Act speaks of Awarding compensation and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period 2009-10 and 2011-12 and maintained the COMPAT s decision on the aspect of penalty. It is not in dispute that these findings had attained finality. 65. The Applicant has filed the instant Compensation Application (AT) No.01 of 2019 seeking compensation from the Respondents for a sum of ₹ 26,12,00,141/- in terms of Section 53N of the Competition Act, 2002. 66. The Compensation Application (AT) No.01 of 2019 was filed by the Applicant on 11.07.2019. In the instant case, earlier the CCI passed the order on 03.04.2012 (under Section 27 of the Competition Act, 2002) and rendered a finding that the Respondents had violated Section 3 of the Act etc. It was also found out that the Respondents had consistently overcharged the Applicant and their conduct had led to the losses being incurred by the Applicant. It is quite evident that the erstwhile COMPAT on 29.10.2013 passed an order affirming the findings of the CCI. In regard to the issue of turnover the COMPAT observed that the penalty would be based solely on the turnover of the relevant business, i.e., business of Aluminum Phosphate Tablet (ALP). When the Respondents and the Hon ble Commission projected the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be blamed for any laches. In fact, the plea of laches cannot be put against the Applicant by any means. If one is to reckon the period of limitation from the date of Hon ble Supreme Court judgment of 08.05.2017 in the present case, then the Compensation Application (AT) No.01 of 2019 having been filed by the Applicant on 11.07.2019 is not hit by the plea of limitation. 71. To put it differently, when the order of COMPAT dated 29.10.2013 was under challenge before the Hon ble Supreme Court in appeal proceedings and when the original order of CCI dated 23.04.2012, which was affirmed by COMPAT on 29.10.2013 and finally the same attained finality with the judgment of Hon ble Supreme Court in Appeal on 08.05.2017, it is crystal clear that the Compensation Application (AT) No.01 of 2019 (being a money claim) filed on 11.07.2019 (in the absence of any fixed time limit) is well within a reasonable period of three years time and no laches can be attributed on the part of the Applicant in this regard. 72. Coming to the aspect of the Compensation Application (AT) No.01 of 2019 being filed against the Respondents claiming compensation in a single application, against all the thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court against the order dated 29.10.2013 through Civil Appeal No.53-55 of 2014 praying that penalty was to be imposed on the entire turn over of Respondents. Viewed from any angle, the Applicant being public Body and claiming compensation from the Respondents cannot be said by any stretch of imagination that they have approached this Tribunal with unclean hands . 74. It transpires that the Applicant in Compensation Application (AT) No.01 of 2019 had paid fee of Rupees three lakhs in regard to its claim for compensation from the Respondents. At this juncture, it is useful for this Tribunal to make a relevant mention of Rule 4 of the Competition Appellate Tribunal (Form and Fee for Filing an Appeal and Fee for Filing Compensation Applications) Rules, 2009, which reads as under: - 4. Fee. (1) Every memorandum of appeal and compensation application shall be accompanied with a fee provided in sub-rule(2) and such fee may be remitted in the form of demand draft drawn in favour of Pay and Accounts Officer, Ministry of Corporate Affairs, payable at New Delhi. (2)(i) The amount of fee payable in respect of appeal and compensation application made to the Appellate Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Tribunal (Form and Fee for Filing an Appeal and Fee for Filing Compensation Applications) Rules, 2009. For deficit payment of necessary filing fee under any Rule or for that matter any deficit Court fees either before a Tribunal or a Court of Law, an Application cannot be rejected or being thrown out at the threshold and an opportunity necessarily has to be provided to the concerned Applicant to rectify/cure the defect pertaining to the said deficit filing fee/Court fee, as the case may be, in the considered opinion of this Tribunal. Hence, if the Office of the Registry finds that the Applicant/ FCI is to make good the deficit filing fee in regard to the Compensation Application (AT) No.01 of 2019, then the Office of the Registry shall issue an Office Memorandum to the Applicant/ FCI, requiring it to pay the said sum within 14 days from the date of receipt of such Memorandum. On such receipt of the said Memorandum, the Applicant/FCI shall pay the necessary fees. Resultantly, if any amendment is to be carried out by the Applicant in the Compensation Application (AT) No.01 of 2019 at relevant paragraph, the same may be carried out by through Learned Counsel for the Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the present case is concerned. Moreover, this Tribunal holds that Section 53N of the Competition Act, 2002 entail an Applicant s cause of action to have come into existence because of an order of the Competition Commission of India or the Competition Appellate Tribunal. Further, it cannot be lost sight of that in the instant case, the Competition Commission of India, erstwhile COMPAT and the Hon ble Supreme Court had found that the Respondents had violated the Competition Act. Viewed from the aforesaid perspectives, this Tribunal, answers the issue of maintainability of Compensation Application (AT) No.01 of 2019. 78. The Registry is directed to list the Compensation Application (AT) No.01 of 2019 for hearing of the matter on merits in respect of other issues in usual course. 79. I.A. 40 of 2019 filed by the Applicant seeking exemption to file original circular dated 13.03.2006 (declaring the Applicant s authorized Signatories) is allowed. However, the Applicant is directed to file the certified copy of the original Circular Dated 13.03.2006 as well as the certified copy of the judgment of the Hon ble Supreme Court dated 08.05.2017 in Civil Appeal No.2480 of 2014 etc. w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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