COMPETITION LAW

FEBRUARY 2021 (2)

INDIAN COMPETITION LAW:

HOW TO CONTEST EFFECTIVELY AN INQUIRY RELATING TO ANTI-
COMPETITIVE AGREEMENTS BEFORE THE COMPETITION
COMMISSION OF INDIA/DIRECTOR GENERAL
(PART III)
INTRODUCTION

The present antitrust/competition law, the Competition Act, 2002, inter alia, deals with
one of the substantive laws relating to prohibition of anti-competitive agreements (under
Section 3) which was enforced w.e.f. 20th May, 2009. An anti-competitive agreement is an
agreement entered into by and between enterprises or persons, association of
enterprises, in respect of production, supply, distribution, storage, acquisition or control
of goods or provision of service which causes or is likely to cause an appreciable adverse
effect on competition within India (“AAEC”) Such agreements are treated in contravention
of the Act and are void. These agreements are either horizontal or vertical in nature.
Section 3(5)(i) deals with the exemptions relating to Intellectual Property Rights (“IPR”)
and exports under Section 3(5)(ii). All these sub-sections have been dealt with in detail in
our various articles which are available at the links given in the end of this article.

Having dealt with the substantive provisions of Section 3 in the various articles as stated
above, now we will discuss how to contest effectively an inquiry/investigation relating to
anti-competitive agreements before the Competition Commission of India (“CCI”)/
Director General (“DG”).

An inquiry/investigation relating to anti-competitive agreements can be contested before

the CCI/DG keeping in view of the factors as legislated in Section 19(3) of the Competition
Act, 2002, viz. statutory defences available to the contesting party. Besides this, there are
certain points which have to be kept in mind relating to violation of principles of natural
justice as it has been seen that the authorities under the Competition Act often do not
follow the same. It can either be during investigation by the DG or during inquiry by the
CCI. Thus, this topic can be discussed in three broader heads:

1. Factors for Determination of AAEC under Section 19(3)

2. Irregularities/Violation of Principles of Natural Justice during Investigation by DG
3. Irregularities/Violation of Principles of Natural Justice during Inquiry by the CCI

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In Part I of the Article, we have discussed the factors for determination of AAEC under
Section 19(3) emphasizing on the decisional practice by the Competition authorities. In
Part II of the Article, we have discussed the irregularities/violation of principles of natural
justice during Investigation by the DG with the help of case laws. For the sake of
continuity, we are hereby stating the conclusions of both the Articles as follows:

Part I Conclusion:

By way of this article, we dealt the applicability and scope of factors enumerated in Section
19(3) on the agreements, vertical as well as horizontal, which are required to be tested on
the criteria of AAEC. An inquiry or investigation relating to anti-competitive agreements
can be contested before the CCI/DG in due consideration of the factors given in Section
19(3). To put it in simpler words, factors under Section 19(3) are the statutory defences
available to the contesting party. In so far as horizontal agreements are concerned,
Section 19(3) is a deeming provision and the burden is on the party that is alleged to have
entered into horizontal agreements to prove that its act and conduct does not create
barriers to new entrants in the market, do not drive existing competitors out of the market
or do not foreclose competition by hindering entry into the market. The party to horizontal
agreements, depending on the facts and circumstances, may also have to prove that the
said agreements are beneficial to consumers, improve production/distribution of goods
and provision of services or promote technical, scientific and economic development. On
the other hand, in case of vertical agreements, the onus to prove contravention of Section
3(4) and AAEC due to such contravention lies on the complainant as the AAEC in such cases
is determined on the rule of reason unlike horizontal agreements which are presumed to
be anti-competitive per se.

We discussed the classification of factors determining AAEC into negative factors and
positive factors. Factors enumerated in clause (a) to (c) of Section 19(3) are negative
factors which usually indicate AAEC unless proven otherwise. The other three factors
mentioned in clauses (d) to (f) are in the nature of efficiency justifications and even though
they do not indicate AAEC, yet they are vital to determine the presence or absence of AAEC
in the market and it is therefore, prudent to examine all six factors together to determine

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the overall impact on competition. The story, however, does not end here. In order to
understand how the interplay of these factors has proved to be decisive in evaluating the
impact of horizontal as well as vertical agreements on the competition, we have discussed
decisional practice by the authorities by way of a plethora of orders and judgments passed
by the CCI, COMPAT (and NCLAT) and the Supreme Court. As per the broad scheme of
Section 19(3) read with Section 3(3) formulated by the Supreme Court in Rajasthan
Cylinders judgment (supra), once the CCI finds that case is covered by one or more of the
clauses of Section 3(3), it need not undertake any further enquiry and burden would shift
upon the opposite party to rebut the presumption of AAEC by leading adequate evidence.
If an evidence dispelling the presumption is led, the CCI shall consider the factors
mentioned in Section 19 to see whether all or any of these factors are established. If the
evidence collected by the CCI leads to one or more factors mentioned in Section 19(3), it
would again be treated as an agreement which may cause or is likely to cause AAEC,
thereby compelling the CCI to take further remedial action. In line with the framework of
Section 19(3) as well as the said Apex Court ruling, the Competition Authorities (CCI,
COMPAT and NCLAT) by way of judicial orders have observed, opined and held as follows:

I. For applicability of Section 19(3)(a), (b) & (c), there should be an agreement of
the nature defined under Section 2(b) of the Act, which creates barriers to new
entrants in the market or forecloses competition by hindering entry into the
market. In any market, any firm is free to leave the market.

II. While determining whether an agreement has an appreciable adverse effect on

competition under Section 3 of the Act, the Commission as well as DG shall have
due regard to all or any of the Section 19(3) factors.

III. It is wrong to presume that the parameters prescribed under Section 19(3) are
not required to be applied while assessing an agreement under Section 3(3)
because it is a deeming provision. Section 19(3) being a deeming provision does
not deprive the Commission of its powers to apply these factors while
determining AAEC. Section 19(3) is a mandatory provision and the Commission is
bound to apply these factors for arriving at AAEC.

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IV. The barrier to entry for competing firms must not be confused with difficulties in
exit, if any, faced by the consumers. Therefore, any aspect of any inconvenience
or difficulty faced by consumers must be examined in the context of Section
19(3)(d) which makes accrual of benefits to the customers as one of the
determinant factors for assessing appreciable adverse effect. If a consumer finds
it difficult to shift from one bank to another due to prepayment charges, that
difficulty must be examined under this clause.

V. The practice of levying pre-payment penalty and foreclosure charges by the banks
and financial institutions acts as an exit load, restricts or limits the borrower from
availing the best market rate of interest and impedes competition among lending
institutions.

VI. If in every tender document only one person gets an order to the exclusion of
others, it amounts to foreclosure of competition by creating entry barriers into
the market and thereby, violative of Section 19(3) of the Act. If the tender
document is designed so as to create barriers and hindrances to new entrants in
the market, it would amount to anti-competitive practice.

VII. In order to determine if the agreements entered between the OEMs and the
authorized dealers are in the nature of exclusive distribution agreements or
refusal to deal, the Commission needs to determine if such agreements cause an
AAEC in the market based upon the factors listed in section 19(3) of the Act.

VIII. An agreement which creates barriers to entry may also induce improvements in
promotion or distribution of goods or vice-versa. Hence, whether an agreement
restricts the competitive process is always an analysis of a balance between the
positive and negative factors listed in Section 19(3) of the Act.

IX. Accrual of benefits to the consumers which is one of the factors enumerated in
Section 19(3), cannot be viewed only from the perspective of continuous supply
of the tendered product or supply at negotiated price. The procurement should
be at a competitive price, more so when the procurer is a public authority. When

5
 the bids are quoted pursuant to a collusive action by the bidders, even post bid
negotiations cannot guarantee lowest rates because the procurer cannot
ascertain the most competitive price prevalent in the market. Manipulation in the
bidding process itself thwarts provision of goods and services by credible players,
who lose out in the absence of conditions which foster competition.

In view of the decisional practices by Competition Authorities across the length and
breadth of numerous judicial orders, it is fair to conclude that examining the horizontal
and vertical agreements on the yardstick of factors mentioned in Section 19(3) has proved
to be vital and decisive in evaluating and determining the overall impact on competition
and both the CCI as well as the Appellate Tribunal(s) have accorded primacy to the these
factors while determining whether or not the agreements in question are anti-competitive
and have an appreciable adverse effect on competition.

Part II Conclusion:

By way of this Part II of the Article, we dealt irregularities/violation of principles of natural

justice in the light of investigation which is commenced and carried out by the DG on the
receipt of prima facie order passed by the CCI under Section 26(1) of the Act alongwith the
copy of information or reference, as the case may be, and other documents and materials
filed therewith or at the time of hearing before the CCI. Under the scheme of the Act, the
DG can start investigation only on the order/direction by the CCI and not on its own. In
terms of the Act as well as Regulations framed thereunder, the DG has all the powers as
conferred upon the CCI under Section 36(2) including power to take evidence on record
during investigation. The Act provides that CCI shall be guided by the principles of natural
justice, however, the Act as well as the Regulations framed under are silent on whether
DG during investigation should also be guided by the principles of natural justice and there
is no prescribed procedure for the DG to follow while conducting investigation. This is the
grey area which forms the crux of this article. In the absence of any procedure, though the
DG has evolved its own procedure on case-to-case, however, on various occasions, the
procedure adopted by the DG has given rise to certain irregularities or violated the

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principles of natural justice vis-à-vis the opposite party against which the investigation is
carried out.

We categorized the violation of principles of natural justice by DG under three broad heads
and highlighted each of these violations with reference to case laws. As to the violation
under first head, i.e. non supply of documents/additional documents to opposite party, it
has been observed in numerous cases that the DG more often than not fails to send copy
of prima facie order under Section 26(1) and accompanying documents to the opposite
party thereby causing lot of inconvenience to the said party and leading to delays in
investigation. The story does not end here. Pursuant to DG notice, the information/
additional information furnished by the Informant/third party is not submitted to the
opposite party which results in procedural irregularities and violation of principles of
natural justice. The DG must ensure that his report contains findings on each of the
allegations made in the information or reference, as the case may be, together with all
evidences, documents, statements or analyses collected during the investigation.

Regarding violation under second head, i.e. recording of statement on oath in absence of
opposite party, it is a sad state of affairs that the DG does not give opportunity to the
opposite party to record statement on oath of the Informant/third party and also does not
send the copy of that statement to the said opposite party, thereby depriving it from cross-
examining the witness of the Informant/third party. By denying the opposite party a level
playing field, the DG not only creates irregularities but also violates the principles of
natural justice. The DG must not rely upon unverified and fabricated documents and
unsubstantiated statements produced and made by Informant/third party without making
attempt to verify the correctness and authenticity thereof and without giving opposite
party an opportunity to cross examine the former. The DG also should not rely upon his
personal knowledge for recording a finding which is contrary to the principle that 'no one
should be a judge in his own cause'.

Lastly, so far as the violation under third head is concerned, the same was highlighted by
the High Court of Delhi in CCI v. Oriental Rubber Industries (supra) wherein the Court while
voicing support for the right of the person summoned for investigation to be represented

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by an advocate, left the issue open for the Competition Commission to decide the
appropriate course. Pursuant to the order passed by the High Court, vide amendment
dated 06.12.2018, Regulation 46A was inserted in the CCI (General) Regulations 2009. The
said Regulation authorizes the DG to allow the person summoned to be accompanied by
an advocate, subject to the conditions prescribed in clause (1) of the Regulation. In other
words, if the person summoned for investigation seeks permission to engage an advocate,
the same can be granted. The DG shall not adopt discrimination by way of permitting
advocate of the Informant to be present during oral testimony and denying the same
opportunity to advocate of the opposite party. As rightly observed by COMPAT in Alkem
Laboratories ruling, such an act on the part of DG makes the entire investigation report a
nullity in law and is violative of the principles of natural justice.

In view of the prevailing practice by the DG as to violation of principles of natural justice,

it is highly recommended that to fill up the grey area, the Act or the Regulations framed
thereunder are amended to either add provision(s) prescribing the procedure to be
followed by the DG in accordance with the principles or natural justice, or insert
provision(s) requiring the DG to abide by the principles of natural justice while conducting
investigation against the party alleged to have contravened the provisions of the Act.

Now in this Part III (concluding) of the Article, we will discuss irregularities/violation of
principles of natural justice during Inquiry by the CCI.

IRREGULARITIES/VIOLATION OF PRINCIPLES OF NATURAL JUSTICE DURING INQUIRY BY

THE CCI

Under the scheme of the Act, the CCI is empowered to regulate its own procedure,
however, in discharge of its functions, the CCI shall be guided by the principles of natural
justice and subject to other provisions of the Act and of any Rules made by the Central
Government, the CCI shall have powers to regulate its own procedure (Section 36(1)).
Further, in terms of Section 36(2) of the Act, the CCI shall have for the purpose of
discharging its function under this Act, the same powers are vested in a civil court under

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the Code of Civil Procedure 1908 while trying a suit in respect of certain matters
mentioned therein.

The principles of natural justice have twin ingredients: firstly, the person who is likely to
be adversely affected by the action of the authorities should be given notice to show
cause thereof and granted an opportunity of hearing and secondly, the orders so passed
by the authorities should give reason for arriving at any conclusion showing proper
application of mind. Violation of either of them could in the given facts and circumstances
of the case, vitiate the order itself. Such rule being applicable to the administrative
authorities certainly requires that the judgment of the Court should meet with this
requirement with higher degree of satisfaction. The order of an administrative authority
may not provide reasons like a judgment but the order must be supported by the reasons
of rationality. The distinction between passing of an order by an administrative or quasi-
judicial authority has practically extinguished and both are required to pass reasoned
orders.1

The Competition Commission is required to act as per the accepted standard of fairness
and render just decision after complying with the principles of natural justice as
expounded by the Courts across the globe including the Supreme Court of India. Like any
other adjudicatory body, the CCI is bound to comply with various facets of the principles
of natural justice and its proceedings must conform to the objective standard of fairness.2

The very fact that Parliament has in its wisdom conferred powers upon the Commission
and the Director General which are vested in the regular civil courts and enacted several
provisions making compliance of the principles of natural justice mandatory is sufficient
to demolish the argument which is implicit in the statement contained in the affidavit of
the Secretary. To put it differently, it is wholly misconceived to say that the Commission
essentially functions as an executive/administrative body and is not required to adhere to
the principles of natural justice and fairness. It has been repeatedly held by the Supreme
Court that the functions performed by the bodies like the Commission which are clothed

1
Competition Commission of India vs. Steel Authority of India Limited and Anr. 2010 (10) SCC 744.
2
Lafarge India Ltd. vs. Competition Commission of India and Ors. (Appeal No. 105/2012).

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with the power to decide the rights of the parties or pass order adversely affecting a
person are quasi-judicial in nature and are bound to comply with different facets of the
principles of natural justice. Therefore, even if the Commission agrees with the Secretary
that it is not a quasi-judicial body in traditional sense inasmuch as the Act has entrusted
it with multifarious functions but the suggestive submission made in the affidavit that the
Commission can ignore the fundamentals of the principles of natural justice and fairness
deserves nothing but rejection.3

Thus, in view of the rulings of the Supreme Court, COMPAT/NCLAT and the statutory
provisions under the Act, the CCI is bound to comply with different facets of the principles
of natural justice during inquiry. Now we will explain with the help of case laws how and
in what manner the irregularities/principles of natural justice are being violated by the
CCI during an inquiry as observed by the Appellate Authority, i.e. COMPAT/NCLAT under
the following heads:

A. Cases where Appellate Authority observed Irregularities/Violation of Principles of

Natural Justice by the CCI during Inquiry

B. Cases where no Violation of Principles of Natural Justice by the CCI during Inquiry

A. Cases where Appellate Authority Observed Irregularities/Violation of Principles of

Natural Justice by the CCI during Inquiry

1. In Somi Conveyor Beltings Ltd. vs. Union of India4 and Competition Commission of
India vs. Grasim Industries Ltd.5 the Division Bench of the Hon’ble Delhi High Court
extensively quoted the principles propounded by the Apex Court in Competition
Commission of India vs. Steel Authority of India Ltd.6 and held that:

3
Coal India Limited vs. Competition Commission of India and Ors. 2016 CompLR 716 (CompAT).
4
242 (2017) DLT 220. (WP(C) No. 1416/2016 decided on 11.04.2017)
5
265 (2019) DLT 535. (LPA No. 137/2014 decided on 12.09.2019)
6
2010 (10) SCC 744.

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a) In exercise of its powers, the Commission is expected to form its opinion as to
existence of prima facie case for contravention of provisions of the Act and then
pass a direction to the Director General to cause an investigation into the matter.
These proceedings are initiated by the intimation or reference received by the
Commission in any of the manners specified under Section 19 of the Act.

b) At the very threshold, the Commission is to exercise its powers in passing the
direction for investigation, or where it finds that there exists no prima facie case
justifying passing of such a direction to the Director General, it can close the
matter and/or pass such orders as it may deem fit and proper. In other words, the
order passed by the Commission under Section 26(2) is a final order as it puts an
end to the proceedings initiated upon receiving the information in one of the
specified modes.

c) The provisions of Section 26(1) clearly indicate exclusion of principles of natural

justice, at least in the initial stages by necessary implication, however, in cases
where the conduct of an enterprise, association of enterprises, person or
association of persons or any other legal entity is such that it would cause serious
prejudice to the public interest and is violative the provisions of the Act, the
Commission will be well within its jurisdiction to pass ex parte ad interim
injunction orders immediately in terms of Section 33 of the Act, which would
certainly be more than adequate compliance with the principles of natural justice.
However, the power under Section 33 of the Act to pass temporary restraint order
can only be exercised by the Commission when it has formed prima facie opinion
and directed investigation in terms of Section 26(1) of the Act, as is evident from
the language of this provision read with Regulation 18(2) of the Regulations.

d) In consonance with the settled principles of administrative jurisprudence, the

Commission is expected to record at least some reason even while forming a prima
facie view, however, while passing directions and orders dealing with the rights of
the parties in its adjudicatory and determinative capacity, the Commission is

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 required to pass speaking orders upon due application of mind and respond to all
the contentions raised before it by the rival parties.

e) The word 'inquiry' has not been defined in the Act, however, Regulation 18(2)
explains what is 'inquiry'. Inquiry shall be deemed to have commenced when
direction to the Director General is issued to conduct investigation in terms of
Regulation 18(2). In other words, the law shall presume that an 'inquiry' is
commenced when the Commission, in exercise of its powers under Section 26(1)
of the Act, issues a direction to the Director General. Once the Regulations have
explained 'inquiry' it will not be permissible to give meaning to this expression
contrary to the statutory explanation.

f) Inquiry and investigation are quite distinguishable, as is clear from various

provisions of the Act as well as the scheme framed thereunder. The Director
General is expected to conduct investigation only in terms of the directive of the
Commission and thereafter, inquiry shall be deemed to have commenced, which
continues with the submission of the report by the Director General. The CCI then
has to consider such report as well as consider the objections and submissions
made by other party and till the time final order is passed by the Commission in
accordance with law, the inquiry under this Act continues.

g) Both Regulations 18(1) and 20(4) of the CCI Regulations, require the DG to
investigate the matter i.e. the allegations "made in information or reference, as
the case may be", together with all evidence, documents, statements or analysis
collected during investigation. The investigation has to be a comprehensive one.
Merely because the information that emerges does not pertain to the specific
subject matter which the DG has been asked to investigate, would not constrain
the DG from examining such information as well if it points to violation of some
other provisions of the Act. Indeed, the directions given by the CCI to the DG under
Section 26(1) of the Act is only to 'trigger' investigation.

h) Under Regulation 41 of the CCI Regulations, both the CCI and the DG can
determine the manner in which evidence may be adduced in the proceedings

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 before them and the DG also has the powers to call for information and examine
witnesses and documents. Under Regulation 45, it is not mandatory that in every
such investigation the DG has to necessarily exercise all those powers. The extent
of the opportunity to be given to a party, against whom the investigation is in
progress, will depend on the facts and circumstances of the case and on the kind
of information and evidence chanced upon by the DG during the course of its
investigation.

2. In Board of Control for Cricket in India vs. Competition Commission of India7 (Appeal
No. 17/2013) decided on 23.02.2015, the Appellant challenged the order passed by CCI
on the ground of violation of principles of natural justice and the Appellate Tribunal
observed and held as under:

a) A careful scrutiny of the record reveals that while directing its Secretary to forward
the report of the DG to the Appellant, the CCI nowhere indicated its disagreement
with the finding on the issue of 'relevant market' and provided no opportunity to
the Appellant to prove as to why Organization of Private Professional Cricket
League/Events in India cannot be treated as the 'relevant market'.

b) The Appellant was served with the copy of DG’s report in two installments and
was called upon to file its objections/suggestions. It was, therefore, natural for the
Appellant to file reply only with reference to the findings and the conclusions
recorded by the DG and if the CCI wanted to differ with the DG on the issue of
'relevant market' then it should have given notice spelling out its intention to do
so and give an opportunity of hearing to the Appellant, which was admittedly not
done. The CCI, therefore, could escape from the conclusion that the finding
recorded by it as to Organization of Private Professional Cricket League/Events in
India being the 'relevant market' was vitiated due to violation of the rule of audi
alteram partem and such conduct of the Commission showed clear bias and
preconceived notion against the Appellant.

7
2015 CompLR 548 (CompAT).

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 c) The Secretary of the Commission virtually admitted that the CCI relied on the so
called information available in public domain without disclosing the same to the
Appellant. The Commission's failure to disclose the information/material
proposed to be used by it for arriving at a finding on the issue of abuse of
dominance and to give an opportunity to the Appellant to explain/controvert the
same resulted in violation of the principles of natural justice.

d) The Commission relied on random and unreliable newspaper reports and articles
available on a website to provide the viewership data and advertisement rates.
The authenticity and credibility of the data provided in the newspaper articles
relied on by the Commission cannot be verified. The so called information
available in the public domain could not have been used by the Commission
because no one had appeared in the witness box to prove the same. The
information downloaded by the Commission from the internet and other similar
sources can, at best be compared with newspaper report and it has been
consistently held by the Supreme Court that such reports have no evidentiary
value without further proof.

e) The Commission ordered deletion of clause 9.1(c) of Media Rights Agreement

despite no mention of the same in DG report and without giving an opportunity of
hearing and fair chance to the Appellant to defend itself. Even at the time of
hearing, the Commission never raised any issues regarding the impugned clause
and despite this, the Commission relied on the impugned clause without giving an
opportunity to the Appellant to defend the same. Such a deletion made by the CCI
stood vitiated due to breach of principles of natural justice because the same was
neither referred in the order passed under Section 26(1) nor the DG recorded any
finding qua its validity or otherwise.

In view of these observations and findings, the Appellate Tribunal held the findings
recorded by the CCI as legally unsustainable and accordingly set aside the impugned
order.

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3. In Himachal Pradesh Society of Chemist & Druggist Alliance and Ors. vs. Rohit Medical
Store8 (Appeal No. 58/2015) decided on 13.01.2016, the Appellant challenged the
impugned order of the CCI on the ground of violation of principles of natural justice.
Accepting and concurring with the contentions and submissions of the Appellant
pertaining to violation of principles of natural justice by CCI and DG, the COMPAT opined
and inferred as under:

a) The DG relied upon the statement made by Respondent No. 1 and the unverified
documents produced by him without making any attempt to verify the correctness
and authenticity thereof and without giving Appellants an opportunity to cross
examine him.

b) The Respondent had filed similar information on an earlier occasion and then
applied for withdrawal thereof.

c) The DG relied upon his personal knowledge for recording a finding against the
Appellants which is contrary to the basic principle that 'no one should be a judge
in his own cause'.

d) The findings recorded by the DG on the issue of violation of Section 3(1) read with
Section 3(3)(b) of the Act was perverse because he relied on the unsubstantiated
statement made by Respondent No. 1 and fabricated documents etc. produced by
him.

e) The CCI did notice some of the objections raised by the Appellants but failed to
deal with the specific pleas raised by the Appellants as to investigation conducted
by the DG being in violation of the principles of natural justice and the findings
recorded by him being perverse.

f) The objections raised by the Appellants regarding violation of principles of natural

justice by the DG were quite serious and the Commission was duty bound to

8
2016 CompLR 304 (CompAT).

15
 consider and decide the same before delving into the merits of the findings
recorded in the report of the DG.

g) The CCI should have examined and decided whether the investigation conducted
by the DG was consistent with the rules of fairness and whether the Appellants
should have been afforded opportunity to cross-examine the Respondent No. 1. If
the CCI had looked into this aspect of the case, it could have passed an order under
Section 26(7) of the Act and asked the DG to conduct further investigation or itself
made inquiry into the matter in accordance with the provisions of the Act. Its
failure to adopt either course resulted in grave miscarriage of justice.

h) The CCI did not consider the detailed submissions made by the Appellants on the
merits of the findings recorded by the DG.

In light of these observations and findings, the Appellate Tribunal had no hesitation in
rejecting the acts/omissions and perverse findings of the authorities below. Allowing the
appeal, the Appellate Tribunal directed the DG to conduct fresh investigation into the
matter and further directed the CCI to pass fresh order after giving ample opportunity to
the parties to file their objections/submissions which may be recorded by the DG and
hearing their advocates/representatives.

4. In Alkem Laboratories Limited vs. Competition Commission of India9 (Appeal Nos. 9,

14 and 15 of 2016) decided on 10.05.2016, the COMPAT on examining the facts and
submissions of the parties and the impugned order of the CCI found that the findings
recorded by the CCI as to alleged involvement of Appellant No. 1 in anti-competitive
practices/conduct of Respondent No. 3 were self-contradictory and perverse. Concurring
with and accepting the submissions of Appellant No. 1, the COMPAT observed, opined
and inferred as under:

a) As regards Appellants Nos. 2 and 3, the Commission made very casual

observations that they were responsible by virtue of their key positions in the

9
2016 CompLR 757 (CompAT).

16
 organisation of Appellant No. 1. These observations were made without a shred
of evidence that Appellants Nos. 2 and 3 were in-charge of and were responsible
for the conduct of the business of Appellant No. 1 and the Respondent No. 2 also
adduced no evidence whatsoever on this aspect of the case. The Jt. DG did not
make any investigation about the position of Appellants Nos. 2 and 3 except
mentioning that Sh. Johnson Matthew was working as DGM-ACE, Sales and Shri
T.K. Haridas was working as Branch Manager, Ernakulam nor did it issue summons
to Appellants No. 2 and 3 for recording their statements as was done in the case
of the Informant- Respondent No. 2 and the President of Respondent No. 3 –
AKCDA, thereby making it crystal clear that during the course of investigation,
Appellants Nos. 2 and 3 did not get any opportunity to explain their position or to
cross-examine Respondent No. 2, who had made all sorts of unfounded allegations
against Appellant No. 1. The exercise undertaken by the CCI to penalize Appellants
No. 2 and 3, therefore, suffered from gross violation of principles of natural justice.

b) The finding recorded by the Commission that Appellant No. 1 insisted on

production of NOC from Respondent No. 3 or that there was a tacit understanding
between Appellant No. 1 and Respondent No. 3 on the issue of production of NOC
was based on pure surmises and conjectures. On one hand the Jt. DG and the CCI
relied on the alleged directions issued by Respondent No. 3 to the parties to obtain
NOC and at the same time, recorded a finding that there was some understanding
between Appellant No. 1 and Respondent No. 3 on the issue of production of NOC
as a condition precedent for supply of medicines.

c) Once the Commission found that Respondent No. 3 had been issuing diktats to the
pharmaceutical companies or coercing them to insist on production of NOC for
appointment of a person as a stockist or supply of medicines, the element of
agreement/concurrence automatically disappeared and Appellant No. 1 could not
have been held guilty of acting in violation of Section 3(1) of the Act.

d) The Jt. DG and the Commission committed grave error in returning a finding of
guilty against Appellant No. 1. The Appellant No. 1 had taken a categorical stand

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 from day one that Shri Paul Madavana was not competent to appoint Respondent
No. 2 as a stockist and this was the reason why the medicines were not supplied
to him. The Appellant No. 1 also pleaded that the application made by Respondent
No. 2 in March, 2014 was accepted by the competent authority i.e. Appellant No.
3 because a field survey had already been conducted by Shri Vijayan Nair, Area
Business Manager and Shri Peter A. Tharu, Regional Manager and letter dated
19.11.2013 was issued without insisting on production of NOC from Respondent
No. 3. Admittedly, after his appointment as a stockist by the competent authority
i.e. Appellant No. 3, the Respondent No. 2 applied for supply of medicines and the
needful was done without asking for NOC from AKCDA. The Respondent No. 2
nowhere pleaded that Appellant No. 1 or any of its officers had demanded NOC
before his appointment as a stockist in March, 2014 or thereafter. Therefore, the
entire edifice of the finding that Appellant No. 1 acted in violation of Section 3(1)
fell flat on its face.

e) The Jt. DG did not independently collect any evidence to prove that Appellants
Nos. 2 and 3 were in-charge of and were responsible to the Appellant No. 1 for the
conduct of its business. Rather, from the very beginning, the stand of Appellant
No. 1 was that the application made by Respondent No. 2 in September, 2013 for
appointment as a stockist was processed by two of its officers and the final
decision was required to be taken by the Vice President-Marketing and the
authorised signatory, but the letter appointing Respondent No. 2 as a stockist was
issued by Shri Paul Madavana without any authority to do so. The Assistant Drugs
Controller accepted this statement and the Jt. DG and the Commission did not find
any valid ground to discard the same. Therefore, there could be no escape from
the conclusion that Appellants Nos. 2 and 3 were neither the in-charge of nor
responsible to the Appellant No. 1 for the conduct of its business so as to attract
Section 48(1) of the Act. The mere fact that Appellant No. 3 had issued letter
appointing Respondent No. 2 as a stockist cannot lead to an inference that he was
in-charge of and responsible for the conduct of the business of Appellant No. 1. As
far as Appellant No. 2 is concerned, not a shred of evidence was produced before
the Jt. DG to show that his case falls within the ambit of Section 48(1) of the Act.

18
 f) After considering the report of the Jt. DG in its ordinary meeting, the CCI directed
that copy thereof be supplied to the parties and 11 individuals including
Appellants Nos. 2 and 3 but the proceedings recorded in that meeting or the
communications sent to the two Appellants did not contain any indication as to
the action proposed to be taken against them under Section 48(1) of the Act. Like
others, Appellants Nos. 2 and 3 were also given opportunity by the CCI to file their
reply/suggestions/objections but there was not even a whisper that their role was
being probed in the context of Section 48(1) of the Act. Therefore, the Appellants
Nos. 2 and 3 did not get an opportunity to show that Section 48(1) cannot be
invoked against them because they were neither the in-charge of nor responsible
to Appellant No. 1 for the conduct of its business. Therefore, the penalty imposed
by the CCI on Appellants Nos. 2 and 3 by invoking Section 48(1) stood vitiated due
to the violation of rule of audi alteram partem and liable to be declared as nullity.

g) The Jt. DG did not issue any notice to Appellants Nos. 2 and 3 and called upon
them to explain their position in regard to the alleged anti-competitive conduct of
Appellant No. 1. No evidence was adduced by Respondent No. 2 to prove the
ingredients of Section 48(1). The Jt. DG also did not issue summons to Appellants
Nos. 2 and 3 for the purpose of recording their statements, as was done in the
case of the informant- Respondent No. 2 and the President of Respondent No. 3 -
AKCDA. It was, hence, clear that during the course of investigation, Appellants Nos.
2 and 3 did not get any opportunity to explain their position or to cross-examine
Respondent No. 2 who made all sorts of unfounded allegations against Appellant
No. 1 and went to the extent of making a false statement that the Depot Manager
had orally asked him to produce NOC from AKCDA as a condition for supply of
medicines.

The Apellate Tribunal therefore, minced no words in holding that Jt. DG and the CCI
committed grave error in recording perverse and contradictory findings against the
Appellants and that the consequential penalty imposed by the CCI on Appellants No. 1, 2
and 3 was legally unsustainable and therefore, liable to be quashed.

19
B. Cases where No Violation of Principles of Natural Justice by the CCI during Inquiry

1. In Shree Cement Limited vs. Competition Commission of India10 concurring with the
order passed by the COMPAT, the Hon’ble Delhi Court was of the firm opinion that in the
given facts of the case, both COMPAT and CCI adhered to the principles of natural justice
and parties had been given liberal and full hearing even at the interlocutory stage.

2. In Gulf Oil Corporation Ltd. and Ors. vs. Competition Commission of India11 (Appeal
Nos. 82-88 and 90) decided on 18.04.2013, one of the questions which arose before the
COMPAT was whether the Appellants could complain of the denial of natural justice and
more particularly of the non-receipt of the objections raised by the CIL to the notice. The
COMPAT observed and held as follows:

a) All the Appellants had adequate notice of the hearings which were to take place
on 17.11.2011 and 13.12.2011 and the notice of the DG report sent to them vide
letter dated 21.10.2011 in which they were invited to put forth objections and
suggestions, if any. For this purpose, the next meeting was kept on 17.11.2011 and
vide further notice dated 20.11.2011, next hearing was scheduled on 13.12.2011.
However, the Appellants voluntarily chose not to appear before the CCI inspite of
specific directions and the notices.

b) It is correct that CIL should have supplied the copy of the objections, which they
had raised to the DG's report exonerating all the Appellants, however, that would
be only in case the other Appellants were available and presented themselves.
Even the representatives who were present on 13.11.2011 before whom the
objections of the CIL were filed did not insist for providing of such copies. Under
these circumstances, a complaint cannot be made on the basis of such non-service
and non-supply of the documents and the copies relied upon by the CIL.

10
210 (2014) DLT 605. (WP(C) No. 3008/2014 decided on 27.05.2014).
11
2013 CompLR 409 (CompAT).

20
 c) If the Appellants had attended the hearings as per the notice, they would certainly
have been justified in seeking all these copies. However their absence from the
hearing and their complacent attitude in relying upon the DG's report was
required to be taken into considered before giving any finding about the denial of
natural justice to them.

In view of the aforesaid facts and circumstances, the Appellate Tribunal rejected the
contention of the Appellants as to refusal of natural justice on account of non-service of
the copy of the report and documents supplied by CIL.

3. In National Insurance Company Ltd. and Ors. v. Competition Commission of India12

(Appeal Nos. 94-97) decided on 09.12.2016, the Appellants sought quashing of the
impugned order passed by CCI on the ground of violation of the principles of natural
justice. The Appellants stated that a specific query was raised by the Chairman and the
matter was adjourned for final hearing on 14.05.2015. On the next date of hearing, the
Appellants filed a letter responding to the Chairman's query, but the quorum of four
members without the Chairman heard the arguments and reserved the order. The
Appellants asserted that the Chairman participated in the internal deliberations of the
Commission but chose not to sign the final order which stood vitiated on account of
Quorum Non Judice and of violation of the principle of 'one who hears must decide
without any influence'. In support of these contentions, the Appellants placed reliance on
Lafarge v. Competition Commission of India13 to claim that this violation was a fatal
irregularity. In the course of oral arguments, the Appellants submitted that the Chairman
of the CCI had earlier functioned as Finance Secretary in the Government of India and held
the additional charge of DFS for some time and therefore, was well aware of the
relationship of DFS with the Appellants and for these reasons, the participation of such a
person in deliberations and his refusal to sign the final order fatally vitiated the said order.
Rejecting the contentions of the Appellant, the COMPAT opined that the Appellants failed
to establish any personal interest of the CCI Chairman in the proceedings and failed to
prove how his presence in deliberations and not signing the impugned order caused any

12
2017 CompLR 1 (CompAT).
13
Supra note

21
prejudice to their case and thus, the impugned Order was not passed in violation of the
principles of natural justice.

4. In the matter of Coal India Limited vs. Competition Commission of India14 (Appeal No.
81/2014) decided on 20.03.2017, the COMPAT observed and found that the Appellant
failed to demonstrate any prejudice and violation of principles of natural justice arising
from the absence of the counsel and that the CCI passed a reasoned order. The issue
arising before the COMPAT was whether the deposition of one Shri Mukherjee, GM (S &
M - Commercial) of the Appellant company (hereinafter ‘deponent’) recorded without
permitting his legal representative to accompany him, was in violation of the principles of
natural justice and required annulment. The Appellant sought expungement of Shri
Mukherjee’s statement alleging violation of principles of natural justice as it was recorded
in the absence of the counsel of the Appellant. Rejecting the contentions of the Appellant
and concurring with the findings and submissions of the CCI, the Appellate Tribunal
observed and opined that:

a) By Appellant’s own admission, its counsel was allowed to remain present in the
premises and the same was duly noted by the CCI.

b) The DG had given permission to the deponent to consult the counsel for queries
on any point of law.

c) The Appellant did not question the accuracy of the submissions made by the
deponent.

d) The Appellant did not specify as to in what way, the presence of the counsel would
have assisted the deponent in responding to the queries raised by the DG.

e) There was no grievance of the deponent being pressurized or threatened, to

obtain incriminating material.

14
2017 CompLR 447 (CompAT).

22
 f) The Appellant had sufficient opportunity before the Commission to present its
case and could have controverted the submissions of the deponent but at no stage
he pleaded prejudice due to absence of counsel.

In view of the above-stated facts and circumstances of the case, the Appellate Tribunal
was of the view that principles of natural justice cannot be straitjacketed. There can be
flexibility in interpreting principles of natural justice when no prejudice is caused and the
facts of this case warranted such flexibility. The violation claimed by the Appellant was
only in form and not in substance.

5. In view of the facts and submissions made by the parties, the High Court of Delhi in
Steel Authority of India Limited vs. Competition Commission of India15 observed that:

a) The certificate was given by the chartered accountants to JSPL and not to the CCI.
No witness was examined to prove the certificate and therefore, the question of
cross-examination of witness regarding the certificate did not arise.

b) It was open for the Appellant to challenge the certificate of the chartered
accountants by filing affidavits of its witnesses.

c) The CCI had provided the Appellant an opportunity to adduce witnesses and file
rebuttal of the DG report by way of affidavits or other material as it deemed
appropriate.

d) The Appellant neither challenged the certificate nor filed any affidavits or other
material.

In light of the above observations, the Court was of the opinion that the impugned order
of the CCI on the issue of cross-examination of witnesses by SAIL did not call for any
interference as the Appellant failed to prove violation of principles of natural justice on
the part of the CCI.

15
180 (2011) DLT 84.

23
CONCLUSION

By way of this Part III of the Article, we discussed irregularities/violation of principles of

natural justice in the light of inquiry which is commenced and carried out by the CCI and
explained with references to case laws as to how and in what manner the irregularities/
principles of natural justice are violated by the CCI during inquiry. We also discussed case
laws wherein the Appellate Authority i.e. COMPAT/NCLAT found no violation of principles
of natural justice on the part of the CCI.

The principles of natural justice have been statutorily engrafted in the scheme of the
Competition Act and the Competition Commission is bound to comply with the same in
the exercise of its adjudicatory functions. The CCI is required to act as per the accepted
standards of fairness and render just decisions after complying with the principles of
natural justice as expounded by the Courts across the globe including the Supreme Court
of India. Like any other adjudicatory body, the CCI is bound to comply with various facets
of the principles of natural justice and its proceedings must conform to the objective
standard of fairness. The Parliament in its wisdom conferred on the CCI, the powers which
are vested in regular civil courts and enacted several provisions making compliance of the
principles of natural justice mandatory.

Inquiry shall be deemed to have commenced when direction to DG is issued to conduct

investigation in terms of Regulation 18(2). In other words, the law shall presume that an
'inquiry' is commenced when the Commission, in exercise of its powers under Section
26(1) of the Act, issues a direction to DG. The provisions of Section 26(1) clearly indicate
exclusion of principles of natural justice, at least in the initial stages by necessary
implication, however, in cases where the conduct of an enterprise, association of
enterprises, person or association of persons or any other legal entity is such that it would
cause serious prejudice to the public interest and is violative the provisions of the Act, the
CCI is well within its jurisdiction to pass ex parte ad interim injunction orders in terms of
Section 33 of the Act, which would be more than adequate compliance with the principles
of natural justice. However, the power under Section 33 of the Act to pass temporary

24
restraint order can only be exercised by the Commission when it has formed prima facie
opinion and directed investigation in terms of Section 26(1) of the Act.

In line with the legislative framework and the foundations and principles set out by the
Supreme Court and High Courts while adjudicating cases pertaining to compliance (or
non-compliance) by the CCI with the principles of natural justice, the Appellate Authority
by way of judicial orders has observed, opined and held as follows:

1. The CCI shall give notice or opportunity of hearing to the opposite party when it
differs with the DG on determination of relevant market or any other aspect of the
DG report.

2. The CCI must not rely on the material which was neither part of the DG's Report
nor provided by the Informant.

3. The CCI must not rely on any random and unreliable newspaper reports and
articles available on websites, the authenticity and credibility of which cannot be
verified. It is well settled that newspaper reports cannot be considered evidence
of contents thereof and such reports per se do not constitute legally acceptable
evidence.

4. The CCI is duty bound to deal with specific pleas raised by the opposite party when
those pleas are made in relation to DG investigation conducted in violation of
principles of natural justice. Only after considering the objections raised by the
opposite party, the CCI should delve into the merits of the findings recorded by
the DG.

5. The CCI must examine and decide whether the investigation conducted by the DG
was consistent with the rules and standards of fairness and whether the opposite
party should have been afforded opportunity to cross-examine the Informant/
third party.

25
 6. If a party after receiving proper notice chooses not to appear, he at later stage
cannot be permitted to say that he was not given a fair opportunity of hearing.

7. When despite being given sufficient opportunity by the CCI to present its case, the
opposite party fails to controvert the submissions of the Informant/third party and
at no stage pleads prejudice due to absence of counsel, cannot later claim that the
CCI acted in violation of principles of natural justice.

8. If warranted by the facts, it is just and fair to be flexible in interpreting the

principles of natural justice when no prejudice is caused.

In view of the decisional practices by the Competition Authorities across the length and
breadth of judicial orders, it is appropriate to infer that the CCI in several cases has failed
to abide by the rules and standards of fairness and rendered unjust decisions in blatant
violation of the principles of natural justice. In some of the cases, it has been observed by
us that the CCI failed to take note of bias of the DG against the opposite party and allowed
itself to be prejudiced by the findings and reports submitted by the DG, thereby acting in
clear violation of the principles of natural justice. The scheme of the Act as well the
decisions pronounced by the Supreme Court and High Courts expressly provide that the
CCI shall be guided by the principles of natural justice, yet the CCI has been found to be
ignoring the statutory regime and judicially settled foundations pertaining to compliance
with the principles of natural justice. However, there have been cases wherein the CCI
passed reasoned orders in due observance of principles of natural justice and the parties
claiming violation failed to prove as to how and in what manner did the CCI acted
arbitrarily and in contravention of the principles of natural justice. In light of this
inconsistent decisional practice carried out by the CCI, it is concluded that the CCI should
be more reasonable and vigilant in applying the principles of natural justice and not
careful enough to guard itself from getting swayed and prejudiced by the pre-conceived
notions, findings and reports of the DG which on many occasions are marred with bias
against the opposite parties.

26
The title of the Article ‘How to Contest Effectively An Inquiry Relating to Anti-Competitive
Agreements before the CCI/DG’ is in three parts. Part I of the Article deals primarily with
the inquiry relating to anti-competitive agreements (Section 3) whereas Part II and III of
the Article regarding irregularities/violation of principles of natural justice during
investigation by the DG and during inquiry by the CCI respectively relate to inquiries of
both anti-competitive agreements (Section 3) and abuse of dominance (Section 4).

27
PREVIOUS ARTICLES ON INDIAN COMPETITION LAW BY LEX INDIS:

● Indian Competition Law: How to Contest Effectively an Inquiry Relating to Anti-

Competitive Agreements Before the Competition Commission of India/Director
General (Part II) https://www.linkedin.com/posts/lex-indis-law-offices_how-to-
contest-effectively-an-inquiry-activity-6765944067701448704-9Lz6

● Indian Competition Law: How to Contest Effectively an Inquiry Relating to Anti-

Competitive Agreements Before the Competition Commission of India/Director
General (Part I) https://www.linkedin.com/posts/lex-indis-law-offices_contest-
effectively-inquiryanti-competitive-activity-6760509535800094721-cy45

● Indian Competition Law: Analyzing The Provisions Of Anti-Competitive Agreements

(Section 3) (Part 2) https://www.linkedin.com/posts/lex-indis-law-offices_vertical-
agreements-activity-6755370013026263040-zxoj

● Indian Competition Law: Analyzing The Provisions Of Anti-Competitive Agreements

(Section 3) (Part 1) https://www.linkedin.com/posts/dr-vijay-kumar-aggarwal-
357a82a2_analyzing-the-provisions-of-section-3-part-activity-
6742669530620841984-Izo8

● Indian Competition Law: Analyzing the Provisions of Abuse of Dominance (Part 2):
https://www.linkedin.com/feed/update/urn:li:activity:6735832685069049856

● Indian Competition Law: Analysing the Provisions of Abuse of Dominance (Part 1):
https://www.linkedin.com/feed/update/urn:li:activity:6725656740676857856

● Indian Competition Law: Whether the Determination of “Relevant Market” Is a

Mandatory Pre-Condition for Making Assessment of AAEC for the Alleged
Contravention of Provisions of Section 3(3) Of The Competition Act?:
https://www.linkedin.com/posts/lex-indis-law-offices_competition-law-activity-
6716280544092569600-swLI

28
● Indian Competition Law: Whether the Scope of Section 3(1) is Independent of
Section 3(3) and Section 3(4) Which Do Not Limit the Scope of Section 3(1)?:
https://www.linkedin.com/posts/lex-indis-law-offices_indian-competition-law-
activity-6712229831389585408-bCww

● Indian Competition Law: Whether Regulation Providing Proceedings Before the CCI
Not to Be Open to the Public is Consistent With the Provisions of the Competition
Act, 2002: https://www.linkedin.com/posts/lex-indis-law-offices_competition-law-
activity-6709428001576153089-zU1U

● A Presentation on Intellectual Property Laws and Competition Laws:

https://www.linkedin.com/posts/lex-indis-law-offices_intellectual-property-laws-
and-competition-activity-6706071670815293440-Vg4D

● Indian Competition Law: Need for Examining the Powers of the Civil Court
Conferred on the Director General During Investigation (Section 41(2)):
https://www.linkedin.com/posts/lex-indis-law-offices_dgs-power-of-examination-
activity-6704651409066905601-WRWd

● Indian Competition Law: Need for a Fresh Look on Transition from “Prejudicial to
Public Interest” to “Appreciable Adverse Effect on Competition” or “Abuse of
Dominance” in Final Orders: https://www.linkedin.com/posts/lex-indis-law-
offices_pi-to-aaec-activity-6701058770526629888-iP3v

● Exemptions of Intellectual Property Rights under Indian Competition Law - Real or

Illusory?: https://www.linkedin.com/posts/lex-indis-law-offices_competition-law-
activity-6694259121773981696-aO7B

● Evolution of Compensation Law Under the Indian Competition/Antitrust Laws:

Part I (https://www.linkedin.com/posts/lex-indis-law-offices_competitionlaw-
compensation-law-activity-6684051617442078721-FvH_) , Part II
(https://www.linkedin.com/posts/lex-indis-law-offices_competitionlaw-
compensation-law-activity-6687235626988834816-yk-p) and Part III

29
 (https://www.linkedin.com/posts/lex-indis-law-offices_as-part-of-the-competition-
law-team-of-lex-activity-6692042758204522496-q1S7)

● Virtual Conversation on Facebook-Jio-Reliance Deal vis-a-vis Contours of

Competition Law: https://www.linkedin.com/events/webinaronfacebook-jio-
reliancedeal-contoursofcompe/

● Legal Status of Facebook Inc. Investment in Reliance Industries Limited (Jio

Platforms) Qua The Competition Act, 2002: https://www.linkedin.com/posts/lex-
indis-law-offices_facebook-jio-ril-investment-contours-of-activity-
6676114104220053504-oBqq

30
 Disclaimer

While Lex Indis Law Offices has paid meticulous attention to the contents of this material to
ensure its accuracy, we assume no responsibility for any error, factual or legal, which might have
crept in. This article has been published for academic research and private circulation only.
Information in this material does not constitute rendering of legal advice. Such information must
not be construed as solicitation of work as expressly prohibited by the Bar Council of India.

Authors

Sunil Kumar Gandhi, Senior Partner; Dr. Vijay Kumar Aggarwal, Senior Consultant, Head,
Competition Law and Policy; Sankalp Jain, Associate; Anmol Vashisht, Associate of Lex Indis Law
Offices.

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