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TMI Blog2024 (1) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... Complex [ 2007 (3) TMI 379 - SUPREME COURT] , the Apex Court observed that Conceptually, an Ombudsman is only a non- adversarial adjudicator of disputes. He serves as an alternative to the adversary system for resolving disputes, especially between citizens and government agencies. An adversarial adjudication necessarily stands on a higher plane than a settlement of a complaint at the instance of an Ombudsman. The proceedings before the Ombudsman cannot oust the jurisdiction of the civil court. As per Section 16(2)(e) of the Ombudsman Scheme, the Ombudsman may reject a complaint at any stage, if the complaint requires consideration of elaborate documentary and oral evidence. Order VII Rule 11(d) of the Code of Civil Procedure, 1908, applies to those cases only where a suit made by the plaintiff in the plaint, without any doubt or dispute, shows that the suit is barred by any law in force. An application for rejection of plaint can be filed if the allegations made in the plaint considered on face value and taken to be correct in its entirety appear to be barred by any law. The power to reject a plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 ought not to be exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 110 of 2023: Mr. P.Chidambaram Senior Counsel, Mr. Sriram Panchu Senior Counsel, Mr. Satish Parasaran Senior Counsel, Mr. Srinath Sridevan Senior Counsel, Assisted by: Mr.R.Venkat Raman, Mr. Santhosh Ukkur, Mr. Abir Roy, Mr. D.Senthil Kumar, Mr. Anirudh B.Menon, Mr. Harinarayanan. S.K., Mr. Sachin Menon, Mr. Deva Kumar, Mr. Vivek Pandey, Mr. Aman Shankar, Mrs. Sukanya Vishwanath and Mr. Arvind Srinivas For the Appellant in O.S.A.(CAD) No.102 of 2023: Mr.Arun C.Mohan Assisted by Mr.Abir Roy, Ms.Shruthi Srinivasan, Mr.Karthik Selvaraj and Mr.Aman Shankar For the Respondents 1 to 7/Cross Objectors in O.S.A.(CAD) Nos.97, 99, 100, 108, 109 and 110 of 2023: Mr.P.S.Raman Senior Counsel for Mr. G.Balasubramanian for M/s.Leela Co. For the Respondents 1 to 7/Cross Objectors in O.S.A.(CAD) Nos.98, 102, 103, 104, 105 106 of 2023 and Cross Objection Nos.58, 59, 61, 64 68 of 2023: Mr. Sajan Poovayya Senior Counsel for Mr. G.Balasubramanian for M/s. Leela Co. Assisted by: Mr. S.Anand, Mr. Jesin Prabhu George, Mr. S.Girish, Mr. P.Arun Kumar, Mr. Vijayendra Pratap Singh, Ms. Sayobani Basu, Mr. Raghav Seth, Ms. Shubhangni Jain, Mr. Ankitesh Ojha, Ms. Maithreyi Canthaswamy Sharma, Mr. Krishna Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a system provider. Suit would lie against the system provider for breach of the provisions of the PSS Act, 2007, contractual rights, declaratory relief and other reliefs. The plaintiffs have averred violation of the PSS Act, 2007 r/w the Guidelines on Regulation of Payment Aggregators and Payment Gateways, 2020 by the defendants. The violations referred to by the plaintiffs are: (a) Violation of Section 10-A of the PSS Act, 2007; (b) Failure to comply with the settlement period prescribed under the Reserve Bank of India (RBI) Guidelines; (c) Commission for payment processing not being charged at a pre-determined rate; (d) Illegal debits by the defendants from the Escrow Account; and (e) Co-mingling of business while settling funds with the appellants. (ii) The PSS Act, 2007 is not a complete code or that the RBI is a self-contained machinery which can grant all the remedies that a civil court can grant. No pleadings are raised by the defendants that the civil courts' jurisdiction is ousted by Section 28 of the PSS Act, 2007, nor appropriate pleadings have been made alleging ouster of jurisdiction of civil courts by referring to Sections 17, 18 and 24 of the PSS Act, 2007. (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own appropriate provisions vesting the authority under the special statute with the powers of the civil court in order to ensure transparent and extensive adjudicatory mechanism. The plaintiffs, to buttress their submissions, relied upon other special statutes such as the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017 to contend that under the said Act, a rent tribunal is constituted and is vested with the powers of a civil court under the Civil Procedure Code, 1908 for recording evidences, issuing commission for local investigation, powers to execute its orders, to review its decision and specifically providing that the proceedings before the rent court or rent tribunal shall be deemed to be a judicial proceedings. Similarly, reliance was placed upon other special statutes such as the Consumer Protection Act, 2019, The Recovery of Debts and Bankruptcy Act, 1993 and the Telecom Regulatory Authority Act, 1997. (vii) It is submitted that the threshold to oust the jurisdiction of the civil court is high. In the absence of the powers to receive pleadings and evidence, discover and inspect documents, prefer an appeal, summon witnesses and conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (b) Whether the machinery provided for redressal of the grievance in respect of infringement of such right or imposition of a liability under such enactment, was adequate and complete? By applying the test laid down in the judgment of the Apex Court in the case of Shiv Kumar Chadha vs Municipal Corporation of Delhi and Ors. 1993 (3) SCC 161, the PSS Act, 2007 neither creates a special right/liability for any of the parties herein nor can it provide an adequate remedy vis- a-vis the skeletal and opaque adjudicatory mechanism prescribed under Section 24(3) of the PSS Act, 2007. (xi) It is contended by the plaintiffs that Sections 61 and 62 of the Act of 2002 would not bar the jurisdiction of the civil court. Section 62 of the Act of 2002 would enable the the plaintiffs to approach the civil court seeking appropriate remedy as it states that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force . Reliance is placed on the judgments of the Apex Court in the cases of Indian Medical Assn. vs. V.P.Shantha (1995) 6 SCC 651, KSL Industries Ltd. Vs Arihant Threads Ltd. (2015) 1 SCC 166, Mathew Varghese vs M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67. (xvi) Specific issues of novation and restraint of trade are raised by the plaintiffs. The same are required to be adjudicated by the civil court and the same cannot be decided by the Competition Commission of India nor the Reserve Bank of India. It is submitted that the definition of service under the GPTS refers to payment processing only. Now, Google has novated unilaterally and said that the price or service fee charged by Google on the Play Store is for whole host of services. This fundamentally alters the very substratum of the contract. The same is illegal. (xvii) It is further contended that presently, all the App developers have contracts with third-party payment processors approved by the Reserve Bank of India, however, with the change brought in by the authorized payment provider unilaterally by Google, that freedom is being taken away. Such a conduct is clearly hit by Section 27 of the Indian Contract Act, 1872 [for brevity, ICA, 1872 ]. (xviii) Violation of provisions of the PSS Act, 2007 on the part of the defendants also constitutes a breach of statutory duty. The claim for breach of statutory duty can be maintained even against private bodies/individuals. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions filed on 8th June, 2022 made by the defendants on account of Shaadi's information before the Competition Commission of India, the defendants made contrary submissions to suit their convenience by requesting the Competition Commission of India to defer the proceedings initiated on account of a new information filed under Section 19 and final inquiry under Section 42 of the Act of 2002. In every forum, the defendants are taking contrary pleadings, in what they believe is the same cause of action and citing examples of other ongoing proceedings to stall any judicial determination on the issues. (xxii) The contention of the defendants that the Competition Commission of India can look into the PSS Act, 2007 issues to ascertain abuse of dominance is not correct. The plaints would disclose that it does not contain any averment to seek any of the reliefs or remedies provided for within the scope of the Act of 2002. The reliefs claimed are those under the ICA, 1872 and the PSS Act, 2007. In Combination Registration No.C-2018/05/571 involving Walmart International Holdings, Inc., the Competition Commission of India held that it cannot look into provisions of other laws. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order, under Section 26(1) of the Act of 2002, inquiry is said to start. During the inquiry, an application under Section 33 of the Act of 2002, for interim relief, can be filed. The Director General parallelly conducts the investigation in the concerned relevant market and then submits the investigation report to the Competition Commission of India. The Competition Commission of India can either accept the said report and call for written and oral pleadings from the parties concerned or ask the Director General for further investigation. The Competition Commission of India can, after consideration of the investigation report and the pleadings made by the parties, pass a final order under Section 27 of the Act of 2002, in case violation of the provisions of the Act of 2002 is found to be made. (xxvii) Enforcement mechanism for directions passed by the Competition Commission of India in an order passed under Section 27 of the Act of 2002 is covered under Sections 42 and 42A of the Act of 2002. The power to issue interim orders under Section 33 of the Act is during an inquiry and not prior. The inquiry is said to start after an order under Section 26(1) [prima facie order] is passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India and Ors. (2023) SCC Online SC 740 and Texco Marketing (P) Ltd. vs. TATA AIG General Insurance Co. Ltd. (2023) 1 SCC 428. (xxxii) Forcing the plaintiffs to enter into an unlawful agreement, wherein an unauthorized payment service provider is being forced to be integrated by Google, is clearly a violation of Section 23 of the ICA, 1872. The Competition Commission of India cannot determine the violation of Sections 23 or Section 27 of the ICA, 1872. (xxxiii) The prayer in the plaints seeking a declaration that the pricing under GPBS or UCB is exorbitant can only be granted by a civil court, since the Competition Commission of India cannot be a price regulator. Determination of price is outside the remit of the Competition Commission of India as has been held by the Apex Court in the case of Rajasthan Cylinders and Containers vs Union of India (2020) 16 SCC 615. It is the defendants' own stand that the Competition Commission of India cannot determine price. The same was the submission and is culled out in the Competition Commission of India's order. (xxxiv) It is contended that Section 9 of the Code of Civil Procedure, 1908 provides that the courts can try all civil suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Law Appellate Tribunal have jurisdiction to inquire into Google's alleged abuse of dominance and alleged non-compliance with the Competition Commission of India's orders. The cause of action identified in the plaints is premised on the issues determined by the Competition Commission of India order. Reference is made to Sections 4, 42 and 42A of the Act of 2002. Their sole case is that DDA/DPP is imposed through Google's alleged dominance. This applies as much to the alleged breach of the Act of 2002 as it does to the claimed violations of the ICA, 1872. The averments in the plaints are solely on the ground that the defendants occupy the dominant position to gain unfair advantage. (iii) In the plaints, the plaintiffs even asked for the Competition Commission of India's order to be made part and parcel of the plaints, with a leave to make extensive reference to all relevant portions of the Competition Commission of India order. Matrimony and Alliance of Digital Foundation (ADIF) have filed applications seeking initiation of inquiry under Section 42 of the Act of 2002 and further sought directions under Section 33 not to impose UCB policy. As such, the plaintiffs r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the UCB pilot has been specifically addressed in the Competition Commission of India's order. The launch of the UCB pilot was considered a mitigating factor of the defendants on the issue of quantum of penalty. The plaintiffs have not filed any appeal contesting these findings of the Competition Commission of India and any further action to re-agitate the same is barred by the principles akin to issue estoppel. (x) The orders of the Competition Commission of India are in rem, therefore are binding on all the plaintiffs. Reliance is placed on the judgment of this Court in the case of R.Subramanian vs. Hongkong Shanghai Banking Corpn. Ltd. 2018 SCC OnLine Mad 13690 to contend that a suit can very well be rejected by a civil court if the party has already approached a particular forum and is re-agitating the same reliefs/issues before the civil court. (xi) Section 61 of the Act of 2002 is a complete bar for exercise of jurisdiction of the civil court. Section 62 of the Act of 2002, relied by the plaintiffs, cannot be used to render the express ouster in Section 61 of the Act of 2002 nugatory and redundant. Section 62 of the Act of 2002 is not applicable in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2007 defines the right of parties, their corresponding obligations and the consequences of breach in case of violation of the same. The PSS Act, 2007 provides for a mechanism of adjudication of disputes between parties. The PSS Act, 2007 identifies RBI as the designated expert authority for overseeing the implementation and enforcement of the PSS Act, 2007. The RBI is the sole authority empowered to deal with violations of the PSS Act, 2007. The RBI is empowered to pass and enforce directions in respect of any entity, purportedly non-compliant with and/or in violation of the PSS Act, 2007 and directions, guidelines and regulations prescribed thereunder. If the plea of the plaintiffs is accepted that the civil jurisdiction is not impliedly barred, then there is a potential for conflicting opinions by the sectoral regulator and the civil court and to avoid scrutiny of an expert regulator, all parties can embark on set up litigations to keep the matters pending in civil courts to avoid scrutiny by the regulatory authority. (xvi) It is submitted by the defendants that the Apex Court, in the case of Internet Mobile Assn. of India vs. RBI (2020) 10 SCC 274 also has held that the RBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about violation of the PSS Act, 2007 before the civil court, much less, a commercial court. The plaintiffs in their respective plaints, acknowledged that the PSS Act, 2007 allows the RBI to pass appropriate orders under Sections 17 and 18 of the PSS Act, 2007. The plaintiffs further alleged in the plaints that the RBI should have taken suo motu cognizance of these issues under Sections 10, 17 and 18 of the PSS Act, 2007. One of the plaintiffs ( Matrimony ), in its complaint to the RBI dated 17th April, 2023, has itself stated that it is asking the RBI to act on the very same allegations as set out in the plaints and that the RBI has the power to do so under Sections 17 and 18 of the PSS Act, 2007. (xxi) The issues concerning purported breach of the PSS Act, 2007 were raised by the plaintiffs in conjunction with the allegations of abuse of dominance, which have been examined by the Competition Commission of India. Section 11 of the Commercial Courts Act, 2015 excludes claims where jurisdiction of the civil courts is excluded either expressly or impliedly. A civil suit is barred expressly under the Commercial Courts Act, 2015 and impliedly under the PSS Act, 2007. Reliance is placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court in the case of Titaghur Paper Mills Co. Ltd. vs. State of Orrisa (1983) 2 SCC 433 to contend that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute alone must be availed. The Apex Court, while considering similar statutes, has held that there was an implied bar on the jurisdiction of the civil courts. Reliance is placed on the judgments in the cases of Jithendra Nath Biswas vs. Empire of India and Ceylone Tea and Co. and Anr. (1989) 3 SCC 582 and Anwar vs. Ist ADJ (1986) 4 SCC 21. (xxvii) The RBI is an expert regulator/body, having power to issue directions, guidelines and orders to system participants for proper compliance of the provisions of the PSS Act, 2007 and also has powers to issue further directions and take cognizance of offence punishable under the Act for non-compliance under Section 28 of the PSS Act, 2007. The RBI has expertise in economic and fiscal matters. It is a modern piece of economic legislation governing a technical field of payment settlements. (xxviii) It is further submitted that the contention of the plaintiffs that the PSS Act, 2007 does not create a new ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nforceability of Clause 16.8 of the DDA. It is also when experienced business men are involved in commercial contract and they are not of unequal bargaining power, the agreed terms must ordinarily be respected and enforced. Reliance is placed on the judgment of the Apex Court in the case of Phulchand Exports Ltd. vs. O.O.O. Pariot (2011) 10 SCC 300 . (xxxiii) It is further submitted that reliance on Australian Court's judgment in Epic Games, Inc. vs. Google LLC and Canadian Court's judgment in Douez vs. Facebook, Inc. is misplaced. Douez (supra) is a case between a consumer and a corporation and in Epic Games (supra), claims in the case were entirely statutory, derived from the Australian Competition and Consumer Protection Act, 2010. In view thereof, the cross objections may be allowed. 8. We have considered the submissions canvassed by learned Senior Counsel appearing for the respective parties. 9. The plaints have been rejected by the learned Single Judge under the impugned judgment purportedly under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908 on the ground that the Act of 2002 and the PSS Act, 2007 bar the jurisdiction of the civil court. 10. The defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench of the Apex Court, in the case of Dhulabhai etc. vs. State of Madhya Pradesh and Anr. 1968 SCC Online SC 40, has laid down the following seven principles to determine whether the jurisdiction of the civil court would be barred to try and entertain a suit of civil nature: (1) Where the statute gives a finality to the orders of the special Tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of elaborate documentary and oral evidence. 14.1. It is an elementary rule of civil jurisprudence that a plaint cannot be rejected in part. For applying the principles under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 vis-a-vis, the bar of jurisdiction of the civil court, if a plaint in entirety is capable of rejection, then only the plaint can be rejected. If any part of the relief cannot be granted under the other Acts or law, then the plaint cannot be rejected in part. In view thereof, it is not necessary to refer to the case laws relied by the plaintiffs on their side. 14.2. Order VII Rule 11(d) of the Code of Civil Procedure, 1908, applies to those cases only where a suit made by the plaintiff in the plaint, without any doubt or dispute, shows that the suit is barred by any law in force. An application for rejection of plaint can be filed if the allegations made in the plaint considered on face value and taken to be correct in its entirety appear to be barred by any law. The power to reject a plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 ought not to be exercised except in a clear cut case. The question of rejection of plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant therein, which is filled with one-sided and arbitrary clauses. In case of refusal on the part of an App Developer to accept the aforesaid DDA, the App of the said App Developer shall not be enlisted in Google Play Store. 16.4. In paragraph 24 of the plaint, the plaintiff refers to the order passed by the Competition Commission of India dated 25.10.2022 against defendants 1, 2, 6 and 7, while making extensive references to defendants 3 and 5. It has quoted the order passed by the Competition Commission of India. 16.5. In paragraph 25 of the plaint, the plaintiff avers that instead of choosing to comply with the directions of the Competition Commission of India, in its true letter and spirit, the defendants have found an innovative way of circumventing and side-stepping the said order by permitting the App Developers in India to use Alternate Billing System/User Choice Billing alongside and in addition to the GPBS. Under the guise of giving Alternate Billing System/User Choice Billing to the App Developers, the defendants still mandate the integration of GPBS by the App Developers in their respective applications. 16.6. In paragraph 28, the plaintiff contends that the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be not later than on Tr+1 basis. While the said timelines are applied to a transaction, on the contrary, Clause 12 of the above Service Seller Agreement contemplates that, if the seller's service account is linked to any Google Marketplace pursuant to this Section 12, or if the Seller uses the Service to process Google Payments for digital goods, GPC or GPC's affiliates acting on its behalf will use commercially reasonable efforts to electronically transfer funds for payment transactions submitted for capture by seller within a calendar month to seller's settlement account before close of business on the 15th day of the following calendar month. 16.10. In paragraph 48 of the plaint, the plaintiffs avers that the Competition Commission of India, in paragraph 290 of the order dated 25.10.2022, observed that the defendants failed to observe strict timeline when it comes to making payment to App Developers, wherein, the payments are released after a gap of 15 to 46 days from the day of the transaction. Despite such stern observations and directions, the defendants herein continue to retain Clauses in its Service-Seller Agreement, which permit it to retain the funds of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d exercise of undue influence by the defendants on the plaintiff to get unfair advantage, amounting to unconscionablity. 16.17. In paragraph 71 of the plaint, the plaint refers to the gaining unfair advantage by using dominant position, as such, violating the provisions of the ICA, 1872. In the same paragraph, it refers to the order dated 25.10.2022 of the Competition Commission of India coming down heavily of such abusive and dominant practices adopted by the defendants. The plaintiff further avers that the order of the Competition Commission of India may be treated as part and parcel of the plaint, with a leave to the plaintiff to make extensive reference to all the relevant portions of the said order. It further goes on to aver in paragraph 73 that the defendants continue to adopt take it or leave it approach, despite the warnings issued by the Competition Commission of India. 16.18. It is on the basis of the aforesaid facts, the plaintiff has filed the plaint, seeking relief to declare the Google Payments Terms of Service Seller posted on 02.06.2022, Payment Policies, Policies relating to Service Fees, Terms and Conditions, posted by the defendants' on its Websites/Portals/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposition of GPBS by Google, also results in denial of market access for payment aggregators as well as app developers, in violation of the provisions of Section 4(2)(c) of the Act. 392.5. practices followed by Google results in leveraging its dominance in market for licensable mobile OS and app stores for Android OS, to protect its position in the downstream markets, in violation of the provisions of Section 4(2)(e) of the Act. 392.6. different methodologies used by Google to integrate its own UPI app vis- -vis other rival UPI apps with the Play Store results in violation of Sections 4(2) (a)(ii), 4(2)(c) and 4(2)(e) of the Act. 17.3. The order passed by the Competition Commission of India is as under: 393. In view of the foregoing analysis, the Commission delineates the following relevant market(s) in the present matter: a. Market for licensable OS for smart mobile devices in India b. Market for app stores for Android smart mobile OS in India c. Market for apps facilitating payment through UPT in India 394. The Commission holds Google to be dominant in the first two relevant markets i.e., market for licensable OS for smart mobile devices in India and market for app store for Andr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fee(s). 395.8. Google shall not discriminate against other apps facilitating payment through UPI in India vis- -vis its own UPI app, in any manner. 396. The anti-competitive clauses of different policies of Google, as identified in this order, shall not be enforced by Google, with immediate effect. 397. Google, however, is allowed three months from the date of receipt of this order to implement necessary changes in its practices and/or modify the applicable agreements/ policies and to submit a compliance report to the Commission in this regard. 17.4. The Competition Commission of India also imposed a penalty of Rs.936.44 Crores upon Google. 18. It would now appear that, the further policy dated 02.06.2022 is being assailed. In the matter before the Competition Commission of India, the Competition Commission of India considered that many Payment Aggregators in India charged fee within the range of 0% to 3% and Google charged excessive service fee from 15% to 30%. The Competition Commission of India has also passed an order against Google not to discriminate against other Apps, facilitating payment through UPI in India vis-a-vis its own UPI App, in any manner. It further prohibited G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of a proceeding before the Commission an issue is raised by any party that any decision, which the Commission has taken during such proceeding or proposes to take, is or would be contrary to any provision of the Act of 2002 whose implementation is entrusted to a Statutory Authority, then the Commission may make a reference in respect of such issue to the Statutory Authority. On receipt of a reference under Sub-Section (1), the Statutory Authority shall give its opinion within sixty days of receipt of such reference to the Commission, which shall consider the opinion of the Statutory Authority and thereafter give its findings, recordings, reasons therefor on the issues referred in the said opinion. 21.4. Section 26 of the Act of 2002 provides a detailed procedure for inquiry under Section 19 of the said Act. Where after inquiry the Commission finds that any agreement referred to in Section 3 or action of an enterprise in a dominant position is in contravention of Section 3 or Section 4 of the Act of 2002, as the case may be, it may pass any orders enumerated in Section 27 of the Act of 2002. The same are extracted hereunder: (a) direct any enterprise or association of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion that the defendant has abused its dominant position, can pass multifarious orders and grant relief to the plaintiffs. The same would be within the ambit and jurisdiction of the Commission under the Act of 2002. 24.1. One of the arguments of the learned Senior Counsel for the plaintiffs is that if the Competition Commission of India is to be given the status of a Court, then it should have the powers of collecting evidences, summoning witnesses, inspection of documents. 24.2. Regulation 41 of the Competition Commission of India (General) Regulations, 2009, empowers the Competition Commission of India to admit evidences. So also admit on record every documents, entries in the books of accounts, information of persons, opinion of the handwriting expert and various provisions of the ICA, 1872 are also made applicable. Under Regulation 42, the supporting facts, by filing an affidavit, can also be submitted. The Competition Commission of India can also permit production of additional evidences. A detailed procedure is also prescribed. Under the Act of 2002, even provision for execution of the order is provided. The Act of 2002, as such, is a complete code in itself. 25.1. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicability of these provisions. Merely because Section 62 states that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, it cannot be interpreted to mean that any individual can institute proceedings in a commercial court alleging abuse of dominance, while completely ignoring Section 61 of the Act of 2002. The above view is fortified by a judgment of the Apex Court in the case of Gujarat Urja Vikas Nigam Ltd. vs. Essar Power Ltd. (2008) 4 SCC 755. In the said case, the Apex Court read the provision of the Electricity Act, 2003, which is pari materia to Section 62 of the Act of 2002 in conjunction with other provisions of the subject statute. The Apex Court observed that Section 175 of the Electricity Act, 2003 states that the provisions of the Act are in addition to and not in derogation of any other law. The inconsistency may be express or implied. The Apex Court further held that Section 174 and Section 175 of the Electricity Act, 2003 will have to be reconciled and read harmoniously. This can be done by holding that when there is any express or implied conflict between the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the case of Competition Commission of India vs Bharati Airtel Lmt. and Ors. (supra). 30. The grievance raised by the plaintiffs can be dealt with by the Commission under the Act of 2002 and it is not beyond the purview of the Act of 2002. Some of the plaintiffs have approached the Competition Commission of India under the Act of 2002 and were also granted reliefs. There is no reason for not approaching the Commission once again. In fact, the plaintiffs Matrimony and People Interactive Private Limited had approached the Commission. The pleadings in the plaint also contain the averments of the order passed by the Competition Commission of India holding Google to be a dominant player in the relevant market and that Google abuses its dominant position in contravention of provisions of Section 4 of the Act of 2002. 31. The scheme of the PSS Act, 2007 is as under: (i) The PSS Act, 2007, identifies RBI as its own Expert Authority for overseeing the implementation and enforcing of the PSS Act, 2007. The RBI is the authority, empowered to deal with the violations of the provisions of PSS Act, 2007. The RBI is empowered to issue directions, guidelines and orders to system participants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is with the view to avoid conflicting decisions. 33. Reading the plaint in its entirety, it would be clear that the reliefs claimed are not beyond the realm of the authorities constituted under the Act of 2002 and the PSS Act, 2007. 34.1. In the case of Raja Ram Bhargava (supra), the Apex Court observed that, Wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil court's jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil court's jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence. 34.2. The plaintiffs' case is that the period provided in the agreement for payment beyond 15 to 45 days is not in conformity with the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the parties are already tested before the Competition Commission of India and the Competition Commission of India has passed an exhaustive order. The parties are bound by the said order. In view of that, if certain further terms are executed, the same ought to be tested by the Competition Commission of India and not by the other fora. In the result, we do not find any error committed by the learned Single Judge in rejecting the plaint under Order VII Rule 11(d) of the Civil Procedure Code, 1908. The appeals as well as the cross objections stand dismissed. However, there shall be no order as to costs. Consequently, C.M.P.Nos.18312, 18317, 18305, 18308, 18310, 18316, 18320, 18324, 18327, 18323, 18326, 18329, 18615, 18647, 18793, 18794, 18796, 18798, 18801, 18804, 18805, 18809, 18811, 18810, 18814, 18816, 18819, 18812, 18813, 18820, 18821, 18823, 18824, 18818, 18822, 18825, 18826 and 18827 of 2023 are closed. At this stage, learned advocates for the appellants seek extension of the interim order. 2. Learned advocates for the respondents oppose the said request. 3. As it is submitted that the interim order is in operation, to enable the appellants to exhaust the remedy of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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