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TMI Blog2016 (1) TMI 1515X X X X Extracts X X X X X X X X Extracts X X X X ..... eassess the material and seek to reach a conclusion from the one reached by the Single Bench except where the exercise of discretion by the Single Bench has been shown to have been exercised arbitrarily or perversely or where the settled principles of law regulating grant or refusal of interim protection have been ignored. In the present case, the respondents No.2 to 4 were supplying software for electronic payment solutions (BASE-24) to several banks in India which enables the said banks to process transactions at ATMs or at the point of sale terminals of different stores since the software facilitates communication of transactions with the relevant bank s core banking network. It is no doubt true that the said order was in operation till a final order came to be passed by CCI on 13.01.2015. However, a clear finding has been recorded by the majority members of CCI in the order dated 13.01.2015 that the alleged dominance of the respondents No.2 to 4 in the relevant market has not been established and consequently the issue of abuse of dominant position does not arise. While arriving at the said conclusion, CCI has taken into consideration the entire factual matrix of the case and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C) No.2957/2015 assailing the order of CCI dated 13.01.2015. On 09.04.2015, the learned Single Judge while directing the pleadings to be completed by all the parties to the writ petition by 08.07.2015, ordered that the respondents No.2 to 4 herein in the meanwhile will not restrain the banks which are currently taking customization and integration services from the writ petitioner/informant qua the software BASE-24 owned by the respondents No.2 to 4 herein. The intra court appeal being LPA No.251/2015 filed by the respondent No.2 herein against the said interim order dated 09.04.2015 was disposed of by judgment dated 27.04.2015 advancing the date of hearing of the writ petition and directing both the parties to complete the pleadings before that date. 5. Pursuant thereto, the writ petition was taken up on 21.05.2015 and after hearing the parties to some extent, the learned Single Judge with the consent of both the parties modified the interim order dated 09.04.2015 without prejudice to the rights and contentions of the parties as under: "4. …..the petitioner will provide only customization/ modification services qua the following banks, in accordance with the stand taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same had resulted in denial of market access to the appellant herein and other third party service providers, it is contended by the learned Senior Counsel that the CCI's order dated 13.01.2015 disregarding the findings of Director General and arriving at its own conclusion that no contravention of the provisions of the Act is established is without jurisdiction and suffered from an error apparent on the face of the record. At any rate, according to the learned Senior Counsel, there is no reason to interfere with the interim order which has been operating in favour of the appellant even during the proceedings before CCI. It is submitted by the learned Senior Counsel that the interim order in favour of the appellant came to be passed by CCI in exercise of the powers conferred under Section 33 of the Act having been satisfied that an act in contravention of Section 3(1) has been committed and that the said order was not disturbed even by the Appellate Tribunal on an appeal preferred by the respondents No.2 to 4 herein. While submitting that there was no change in circumstances to justify interference with the interim relief, the learned Senior Counsel submitted that the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the finality attached by the statute to the findings of fact recorded by CCI the learned Single Judge is justified in declining to continue the interim order. In the light of Section 53-N of the Act which provides for awarding compensation for any loss or damage in the event of a case of contravention being made out, the learned Senior Counsel further submitted that there is no substance in the contention of the appellant that the loss suffered cannot be compensated in damages in the absence of an interim protection pending the writ petition. Bringing to the notice of this court that there was no interim order in favour of the appellant for about three months after the order of CCI dated 13.01.2015 till the interim direction was granted by this court on 09.04.2015 and that the main petition now stands posted to 25.02.2016, the learned Senior Counsel submitted that it would be appropriate to direct to dispose of the main writ petition itself expeditiously. 12. Since the main petition is still pending, the scope of the appeal before us is limited to the extent as to whether it is necessary to continue the interim order dated 09.04.2015 as modified on 21.05.2015 till the disposal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a condition that the banks should not take services of the appellant shows that the respondents No.2 to 4 wanted to kill the business of the existing competitor in the field of customization. The CCI was also of the opinion that no inconvenience would be caused to the respondents No.2 to 4 in case the banks continue the customization services with the appellant and accordingly restrained the respondents No.2 to 4 from implementing the condition that the banks should not take services of the appellant herein for customization of the software in question. 16. It is no doubt true that the said order was in operation till a final order came to be passed by CCI on 13.01.2015. However, a clear finding has been recorded by the majority members of CCI in the order dated 13.01.2015 that the alleged dominance of the respondents No.2 to 4 in the relevant market has not been established and consequently the issue of abuse of dominant position does not arise. While arriving at the said conclusion, CCI has taken into consideration the entire factual matrix of the case and assigned detailed reasons. CCI has also recorded a clear finding that the contravention of Section 3(4) read with Section 3( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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