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TMI Blog2022 (8) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... been noticed by the CCI that there were number of players providing Smart Home Solutions in India and in such a situation there can not be element of dominance in the relevant market. Explanation of Scope of group as explained in Explanation (c) of Section 4 or Explanation relating to Group in Section 5 of the Act - HELD THAT:- The appellant has not brought on record any material to show as to how either of the Respondents were having control over the Management or having their shares, voting rights in consonance with three categories in Explanation (b) of Section 5 of the Act. There is no infirmity in the order and appeal is fit to be dismissed - Appeal dismissed. - COMPETITION APPEAL ( AT ) NO. 23 OF 2019 - - - Dated:- 29-8-2022 - ( Justice Rakesh Kumar ) Member ( Judicial ) And ( Mr. Kanthi Narahari ) Member ( Technical ) For the Appellant : Mr Anirudh, Mr Pulkit Kapoor , Advocated for Appellant For the Respondent : Mr Jasdeep Singh Dhillon, Ms Mohina Anand , Advocates for R1. None for Respondent No.2 to 4. JUDGEMENT JUSTICE RAKESH KUMAR , MEMBER ( JUDICIAL ) The present Appeal has been filed under Section 53B of the Competition Act, 2002 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 26(2) of the Act which has been assailed in the present Appeal. 4. Mr. Anirudh, learned counsel for the Appellant tried to persuade this Tribunal that though there were materials available on record reflecting violation of Section 3 of the Act and also exercise of dominant position in violation Section 4 of the Act by the Opposite Parties who are Respondents herein the Ld. CCI incorrectly passed the impugned order. Learned counsel for the Appellant by way of referring to paragraph 18 of the impugned order submits that despite the fact that there were sufficient material to show contravention of Section 3(3) of the Act and also Section 4, on an incorrect assumption the CCI has recorded that Section 4 of the Act does not provide for joint or collective dominance. It is appropriate to reproduce paragraph 18 of the impugned order which is as follows:- 18. In this regard, the Commission observes that so far as the allegation pertaining to contravention of the provisions of Section 3(3) of the Act are concerned, suffice to note that the Informant has not been able to show any agreement amongst the OPs which can be examined within the framework of Section 3(3) read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to hold all the Respondents responsible for violation of Section 3 and 4 of the Act and were liable to be imposed heavy penalty. 7. In the present appeal despite appearance of all the Respondents, at the time hearing only Mr. Jasdeep Singh Dhillon, learned counsel for the Respondent No.1 has appeared whereas reply and Notes of Written submissions were filed by all the Respondents. In the present appeal though the Appellant has assailed the order of CCI, however, to the reasons best known to the Appellant the CCI was not arrayed as party/respondent. It is true that the Appeal was filed in 2019 but even subsequently no steps were taken by the Appellant to implead CCI as party/respondent. In view of the judgement of Hon ble Supreme Court in the case of Competition Commission of India Vs Steel Authority of India Limited and Another (2010) 10 Supreme Court Cases 744, it was necessary to implead CCI as party/respondent. Mr. Jasdeep Singh Dhillon, learned counsel for the Respondent No.1 tried to persuade the Tribunal that the appellant by way of suppression of several facts filed the information petition before the CCI making incorrect allegations against the Respondent, the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Automation Solutions across India with its registered office at Hyderabad. It is also stated to be the supplier of OP-1. OP-3 is stated to be the Indian Company of OP-4 having its office at Bengaluru and OP-4 is stated to be a global company providing Home Automation Solutions in India through OP-2 and OP-3, with its office at Minnesota, USA. 3. The Informant has submitted in the information that based on the recommendations of its architect for RTI Home Automation Solutions, it conducted an analysis of a few vendors and then finalised OP-1 who is the supplier and integrator of RTI Home Automation Solutions for the State of Maharashtra for its residential project. 4. Subsequently, the Informant issued a work order to OP-1 through Purchase Order (hereinafter, PO ) No. 4500015629 dated 06.05.2017 for a sum of ₹66,31,363/- (Rupees Sixty Six Lac Thirty One Thousand Three Hundred and Sixty Three Only) for 41 items (40 material and 1 installation and commissioning) for availing complete RTI Home Automation Solutions. The PO was inclusive of taxes and duties for supply, installation, freight forwarding, transportation, loading, unloading, leads and lifts, programming, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al burden on the Informant. The Informant stated that such programming, installing and commissioning charges including taxes were already included in the initial PO. Hence, the further demand so made was utterly illegal. 9. Further, the Informant stated that OP-1 also unlawfully withheld the XP8S license key of RTI Home Solutions from the Informant for which the Informant had duly made payment as per the work order. In this regard, the Informant relied on an e-mail dated 15.11.2018 sent by Mr. Manoj Manchala, Director (Technical) of OP-3 to the Informant whereby it was conveyed that the said license for the Informant s project was already billed and delivered to OP-1 by OP-3. 10. Based on above facts and assertions, the Informant alleged violation of Sections 3 and 4 of the Act, and apart from seeking certain interim reliefs requested the Commission to intervene in the matter; to grant exemplary costs of ₹10 lacs in favour of the Informant; and to impose penalty on the OPs as per the provisions of the Act. 11. The Commission has perused the information and the material available on record. 12.It is observed that the Informant approached the OP-1 to supply, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018, the Informant sent a legal notice to OP-1 with the subject Legal Notice regarding incompletion of work as per the work order number 4500015629 dated 06.05.2017, and for deficiency in services and Unfair Trade Practice. It is observed from the contents of the said notice that the same focused on not adhering with the contractual obligations by OP-1 as per the work order and that the language of the notice at many places indicates that the issues are apparently relatable to deficiency of service and unfair trade practices . 17. In the aforesaid factual backdrop as narrated by the Informant in the Information, the Commission proceeds to examine the various allegations within the framework of the Act. 18. In this regard, the Commission observes that so far as the allegation pertaining to contravention of the provisions of Section 3(3) of the Act are concerned, suffice to note that the Informant has not been able to show any agreement amongst the OPs which can be examined within the framework of Section 3(3) read with Section 3(1) of the Act. Similarly, the Commission notes that the Informant has alleged abuse of dominance by all the OPs by averring in the Informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved that OP-3/ OP-4 as supplier/ manufacturer of RTI Home Automation Solutions may also be facing inter-brand competition from other suppliers/ manufacturers operating in the relevant market defined supra. Upon perusing the material and literature in public domain, it appears that this market is evolving in India with the presence of many players who are offering Smart Home Solution to the consumers. Further, there is nothing on record to suggest that OP-1 is the only integrator to design Smart Home Solution in Mumbai or that OP-2 is the only distributor offering Smart Home Solutions or that the consumers are dependent on OP-1 and/ or OP-2, as the case may be. Based on the above assessment, the Commission is of the view that none of the OPs individually are found to be dominant in the relevant market defined supra. 24. In the absence of the dominance of an entity, the question of assessment of abuse does not arise. 25. Coming to the allegations made by the Informant pertaining to contravention of the provisions of Section 3(4) of the Act, it is observed that it inter alia proscribes any agreement amongst enterprises or persons at different stages or levels of the produc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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