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TMI Blog2022 (12) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... its report disclosing therein violation of the provisions contained in the Act, the CCI is required to pass appropriate order. In a case DG submits a closure report and thereafter under sub-section (5) of Section 26 of the Act, after inviting objections, CCI is satisfied, only then under sub-section (7) of Section 26 of the Act, CCI can issue direction for further investigation. Further investigation as per Act is required in a case of closure not in a case where DG has submitted report showing contravention of provisions of the Act by a party/parties. The Regulation 20 describes procedure about the investigation by the DG, whereas Regulation 20(6) empowers the CCI to direct DG for further investigation. However, in view of Section 26 of the Act it can be concluded that Regulation 20 (6) of CCI(General) Regulations, 2009 can be used in furtherance of exercise of jurisdiction under Section 26(7) of the Act which is required to be invoked in a case where DG under Section 26(5) submits report regarding non contravention of the provisions of the Act. In any event taking shelter of Regulation 20(6) of Regulation 2009 CCI was not authorised to pass an order for further investigation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oject and paid 10% of the sale price of the apartment and parking space amounting to Rs.859850/- as booking amount. Subsequently the agreement was executed between informant and Respondent No.2 and a flat i.e. apartment No.4, Floor No.15, Block D in the said project was allotted to the informant. Since in the agreement number of clauses were reflecting abuse of dominance position by the Respondent, which according to the informant was highly unfair and discriminatory the informant referring number of such clauses filed information application before the CCI. On such information petition a case was registered being Case No.73/2014 and after forming prima facie opinion, Director General was directed by the CCI to conduct investigation. After conducting investigation the DG submitted investigation report showing violation of provision under Section 4 of the Act by Respondent No.1 and 2. The CCI after receipt of the investigation report showing violation of provisions of the Act by Respondent No.1 and 2, exercising jurisdiction under Regulation 20(6) of Competition Commission of India (General) Regulations, 2009 (hereinafter referred to as Regulation 2009) directed the DG to further in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant that the order impugned is liable to be set aside since the order is based on its supplementary investigation report for which direction for further investigation was given by the CCI without being authorised under the provisions of the Act. On the sole ground it was argued that the order impugned is liable to be set aside. Learned counsel for the appellant besides making oral submission has also referred to Notes of Written submissions which is reproduced hereinbelow:- 1. The present notes on submission are being field in addition to oral arguments which will be adduced before this Hon ble Appellate Tribunal and that the same may be kindly be taken on record and into consideration before final disposal of the instant appeal. 2. It is submitted that the Ld. CCI has seriously erred in not accepting report of the Director General (DG) in toto wherein the DG had investigated the case in accordance with the directions given vide order dt 04.02.2015 and stated in paras 14.9, 14.11 to 14.14 (page 358-359 of rejoinder) under chapter 14 of main investigation report dt 18.3.2016 that the same was perfectly conducted by DG in accordance with the order dt 4.2.2015 of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submitted that only after reply dated 26.11.2018 filed by R1/R2 and rejoinder dated 4.12.2018 filed by appellant and after detailed arguments, this Hon ble Appellate Tribunal had admitted the present appeal on dated 29.01.2019. 7.It is submitted that Respondent Nos 1 and 2 made a false statement that they reached out to the Appellant on multiple occasions but on the contrary, there are several emails/letter sent by appellant i.e. 3.10.2018, 6.10.2018, 9.10.2018, 25.11.2018, 27.05.2019, 13.06.2019, 26.06.2019, 15.07.2019, 25.07.2019 and 20.01.2020 calling upon to comply, but there was no proper response from R1/R2 to fulfil terms of settlement. 8. The appellant says and submits, that the appellant does not belong to the legal fraternity and is a business person. As stated earlier, lawyers of the R1 and R2 advised the appellant by showing various orders of this Hon ble Appellate Tribunal that a compromise is permissible before CCI, therefore, the appellant who was eager to resolve the entire issue at an earlier date and in good faith had no other alternative but to subscribe his signature on the dotted lines as and when the respondents Nos 1 and 2 asked the appellant to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circumstances or facts of different cases. Other case laws i.e., Dalip Singh Vs State of UP, Amar Singh Vs UOI Kishore Samrite Vs State of UP are on facts not applicable to the present case. 11. lt is submitted that appellant has approached this Hon'ble Appellate Tribunal with bona fide intentions. It is settled legal position that a judicial quasi-judicial authority can dismiss a complaint for default (without going into the merits of the case for non-appearance or the informant) in case of non-appearance of the complainant, however in a case where the judicial / quasi-judicial authority chooses to decide case on merits, the authority has to consider all the material and evidence on record. And a party not appearing before the authority can challenge the order by filing an appeal provided under the law. Therefore, the contentions raised by R-1 R-2 has no merits. Interestingly, the Ld. CCI has passed the order dt 31.08.2018 on merit without considering settlement because it is trite law that settlements are not considered in competition law for the simple reason that this law is for the benefit of a larger 9roup rather than of one single individual. Information can be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd full-fledged investigation may be restored in the interest of justice and fair play. Same is Annexed as marked (Annexed at page no 158 to 359 of rejoinder); Quashing and setting aside order dated 09.11.2016 and further proceedings based on the newly determined relevant market. The appellant states that the appellant has never been served upon order dt 09.11.2016 and received it for the first time with reply dt 26.11.2018 filed by R-1/R-2. It is pertinent to mention here that CCI in order dt 09.11.2016 had taken a distorted shelter of section 20(6) of CCI (General) Regulation 2009 and is on facts not appropriate to the present circumstances. Here is the reproduction of section 20(6) of CCI (General) Regulation 2009. If the Commission, on consideration of the report, is of the opinion that further investigation is called for, it may direct the Director General to make further investigation and submit a supplementary report on specific issues within such time as may be specified by the Commission but not later than forty five days . On plain reading of the above provision, it is clear that it emphasizes on further investigation on specific issues only. There is not ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the appellant has suppressed the fact that after filing of the information application the informant had entered into settlement/agreement with the Respondents and this was the reason that subsequently the informant did not participate in the proceeding before the CCI. According to him since the appellant had entered into a settlement he has forfeited his right to file appeal. In this context he has drawn our attention to para 8 at running page 49 of the Reply filed on behalf of the Respondent No.1 and 2 which is quoted hereinbelow:- 8. That it is specifically agreed between the parties that the settlement arrived at between the parties vide Settlement Deed dated 17.03.2017 executed by the First Party as Karta of Amit Mittal (HUF) in respect of another property being Apartment No.4, Floor No.15, Block No.D, Regal Gardens at DLF Garden City, Sector-90, Gurugram, Haryana, has to be read and considered as part and parcel of the present settlement also. The parties hereto further agree and confirm that in case of breach of any terms and conditions of present Settlement Deed, the First Party shall be liable to pay to the Second Party double the settlement amount received by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders of the Commission and material placed on record, the Commission is of the view that market for provisioning of services for development and sale of residential units in Gurgaon would be the correct market in the present case. In any case, since the conclusion on dominance does not seem to change in the present case irrespective of delineation of alternative relevant market definitions, the Commission considers it inappropriate to segregate the market into high-end/middle end, mid-tier etc. at this prima facie stage. 10. The Informant contended that OPs are dominant in the relevant market. It may be noted that OP 1 and OP 2 belong to the same group and as such their dominance as a group is required to be seen. The Commission has already held OP 1 to be dominant in the geographic market of Gurgaon. Although such cases were before the Commission for the Agreement which were entered into from 2007 to 2010, in the absence of any material pointing to the contrary, the Commission is of the view that vis-a-vis OP 1, the market dynamics have not changed much and OP 1 still holds a dominant position in the relevant market. Further, OP 2, by virtue of being amalgamated with M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same does not appear to bestow a position of strength to the OP group. 18. After receipt of the second/supplementary DG report the impugned order has been passed under Section 26(6) of the Act wherein the CCI concluded that the contravention of the provisions under Section 4 of the Act is not established in the instant matter. Since the order impugned has been passed under Section 26(6) of the Act, we propose to reproduce entire Section 26 of the Act as follows:- 26. Procedure for inquiry on complaints under section 19.- (1) On receipt of a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information, 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 Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act. 19. On examination of the provisions contained in Section 26 of the Act it is evident that the CCI is having a very limited jurisdiction to direct for further investigation that too in a case as per Section 26(5) of the Act if the DG recommends that there is no contravention of provisions of Act then Commission shall invite objections or suggestions and thereafter under sub-section (7) of Section 26 of the Act after consideration of objections and suggestions referred to in sub-section (5) further investigation is necessary only then direct for further investigation. Meaning thereby that purport of Section 26 of the Act is that if after investigation DG submits report disclosing therein violation of the provisions contained in the Act, the CCI is required to pass appropriate order. In a case DG submits a closure report and thereafter under sub-section (5) of Section 26 of the Act, after inviting objections, CCI is satisfied, only then under sub-section (7) of Section 26 of the Act, CCI can issue direction for further investigation. Further investigation as per Act is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is called for, it may direct the Director-General to make further investigation and submit a supplementary report on specific issues within such time as may be specified by the Commission but ordinarily not later than forty-five days. 21. The aforesaid Regulation 20 describes procedure about the investigation by the DG, whereas Regulation 20(6) empowers the CCI to direct DG for further investigation. However, in view of Section 26 of the Act it can be concluded that Regulation 20 (6) of CCI(General) Regulations, 2009 can be used in furtherance of exercise of jurisdiction under Section 26(7) of the Act which is required to be invoked in a case where DG under Section 26(5) submits report regarding non contravention of the provisions of the Act. In any event taking shelter of Regulation 20(6) of Regulation 2009 CCI was not authorised to pass an order for further investigation and the same cannot be justified. 22. We are of the opinion that without going into further detail or delving into merit of the case the order impugned is liable to be set aside since the order is primarily passed on the supplementary investigation report submitted by the DG which was conducted on a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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