Appellant Speech

The council seeks permission to approach the Dias.

This is the council appearing on behalf of the Appellants in the instant matter.
The appeals invoke appellate jurisdiction of this Hon’ble Tribunal under section 53B of the
Competition Act, 2002.
The council Seeks permission to begin?
The council seeks permission to address the bench collectively as your Lordships/ ladyships?
The council would be Speaking for 14 minutes on the following two issues-
1. Whether Transaction 1 is interconnected to Transactions 2, 3, and 4 in terms of
Regulations 9(4) and 9(5) of the Combination Regulations?
And the linked sub issues
2. Whether WasseypurFoods contravened the standstill obligations set out under
Sections 6(2A) read with 43A of the Competition Act in relation to Transaction 1?
If your lordships do not have any preliminary questions the council seeks permission to
move on the submissions.
The test of interconnectedness-
It is humbly submitted that Transactions 1, 2, 3, and 4 are interconnected under Regulations 9(4)
and 9(5) of the CCI Combination Regulations, 2011. The key contention is that neither the
Competition Act nor the legislative instruments define “interconnected,” leaving the CCI's
decisional practice and regulatory amendments to guide us.
The amendment to Regulation 9(4) in 2016 clarified that "interconnected" transactions do not
require "interdependency," underscoring that the two are distinct concepts. Based on the CCI’s
established parameters for determining interconnectedness—commonality of business,
simultaneity in execution, commercial feasibility, and cross-conditionalities—the transactions in
this case clearly fall within these criteria.
First, there is commonality of parties, with Wasseypurfoods being central to all four transactions.
Second, the simultaneity in execution and consummation, as seen in Transactions 2, 3, and 4
occurring while Transaction 1 was still under review, demonstrates alignment in timing. Third,
the goal of making Wasseypurfoods a "one-stop shop," as stated in the public announcement and
vision statement [annexure C], negates the commercial feasibility of isolating these transactions,
meeting the commercial feasibility criterion. Finally, the public announcement reflects cross-
conditionalities, showing that these transactions are intrinsically linked.
In light of the CCI’s own precedents, including the Jet/Etihad case, the interrelatedness of these
transactions renders them composite under Regulation 9(4), and therefore, the parties cannot
avoid compliance with this regulation.
Ultimate intended effect test-
Hon'ble tribunal, it is submitted that under the ultimate intended effect test, as laid out in
Regulation 9(4) of the Combination Regulations, a single notice is required when multiple
transactions, though conducted in steps, collectively achieve a single, overarching business
objective.
In the SIIL/MALCO case, the CCI recognized that inter-related and inter-dependent
transactions should be considered as a composite whole if the ultimate objective could only be
achieved through the successful completion of all such transactions. This approach was further
reinforced in Thomas Cook/SHRIL and IMT/Network18, where the CCI applied a case-by-
case analysis to identify a broad, long-term objective behind a series of transactions.
The essence of this test is that each transaction contributes to a larger ultimate objective, and
hence, they are interdependent. For example, in the Tech Mahindra/C&S case, the
consolidation of IT businesses into a single entity was seen as the ultimate objective. Similar
principles apply here.
In the present case, it has been clearly stated that the ultimate goal of WasseypurFoods was to
become a "one-stop shop" for its customers' immediate, local needs, as evidenced by both the
internal vision statement and the public announcement. This overarching objective ties the
transactions together, establishing them as interconnected and interdependent steps toward that
singular goal.
Therefore, the transactions must be seen as a composite under Regulation 9(4), and a single
notice should have been filed for all of them, as each is essential for realizing the ultimate
objective of integrating acquired businesses into the existing food delivery app. Discarding the
technical isolation of these transactions, as the CCI and Supreme Court have stated, would be
contrary to the spirit of the Act.

[Issue 1(i)]- If not, then were Transactions 2, 3, and 4 independently notifiable

to the CCW under Sections 5 and 6 of Competition Act?
It is humbly submitted that under the Item 1 Provision and its Explanation, there are three
essential conditions for claiming the benefit of the Minority Acquisition Exemption: (a) the
acquisition does not allow the acquirer to hold 25% or more of the shares or voting rights; (b) the
acquisition is made in the ordinary course of business or solely as an investment; and (c) the
acquisition does not lead to the acquisition of control.
The phrase “ordinary course of business”, though not specifically defined, generally refers to
non-strategic acquisitions made by entities as part of routine business operations. Courts have
interpreted this to mean a certain degree of routine in business practice. However, in cases such
as Manta Holdings LP and Thoma Bravo Funds XII LP, the CCI has clarified that even
seemingly minor rights, like the ability to appoint a single director, can disqualify a transaction
from benefiting under the Minority Acquisition Exemption.
In the present case, Transaction 2 (Step 2) granted JPS extraordinary shareholder rights,
including the right to appoint an observer on the board and obtain financial information. This is a
clear deviation from ordinary business practice and falls outside the purview of the Minority
Exemption, making Transaction 2 independently notifiable.
Further, Transactions 3 and 4 also fail to meet the exemption criteria. These transactions were not
made in the ordinary course of business, but rather in pursuit of a strategic goal to integrate all
businesses into a single entity, as per WasseypurFoods' broader objective of becoming a "one-
stop shop." Thus, these too cannot claim minority exemption and are independently notifiable.
In conclusion, the extraordinary rights and strategic intent behind the acquisitions in Transactions
2, 3, and 4 make them ineligible for the Minority Acquisition Exemption, and they should have
been independently notified to the CCI.
ISSUE 1(ii): Independent of their interconnectedness or notifiability, did WasseypoorFoods
have an obligation under the Combination Regulations to disclose Transaction 2, 3, and 4
in the Transaction 1 CCW Filing in terms of Sections 44 and 45 of the Competition Act?
Hon'ble tribunal, it is humbly submitted that WasseypurFoods had an obligation under the
Combination Regulations to disclose Transactions 2, 3, and 4 in the Transaction 1 CCW filing
as mandated by Sections 44 and 45 of the Competition Act.
1. Active Concealment of Facts:
Section 44 and 45 explicitly prohibit any party to a combination from making false
statements or omitting material particulars in filings with the Competition Commission.
According to the Reliance case, a fact is considered "material" if it could impact the
Commission’s assessment of whether the combination causes or is likely to cause an
Appreciable Adverse Effect on Competition (AAEC) under Section 20(4) of the Act.
2. In the present case at hand, as has been established in the above arguments, the ultimate
objective of WasseypurFoods was to become a one stop shop, also mentioned in
paragraph 9 of the moot proposition. Prior to the transaction, Wasseypur foods was
already dominant on this market having nearly 52% market share in the food delivery
market [para 3]. After closing of Transaction 1 it would have 60>% market share in the
respective market. After implementation of transaction 2, 3 and 4 in the post-merger
market structure, the merged entity will be able to offer a package of products that has
never been put together on the market prior to the merger and that cannot be challenged
by any other competitor on its own, thereby raising serious concerns about barriers to
entry, market concentration, and the potential elimination of effective competition. These
factors clearly fall within the material considerations outlined in Section 20(4).
3. Thus, the instant matter is a clear, conscious and willful case of omission to state the
actual purpose of the Combination despite the disclosure requirement under item 5.1.2, of
Form 2 read with Section 44 and 45 of the Act. Further, Wasseypurfoods has failed to
provide any material or plausible explanation in its response to the SCN 2 and in the
subsequent submissions to demonstrate that its disclosures against query 5.2.1 are correct.
 It is evident that these statements have been made with full knowledge that the same are
false in material particulars. Wasseypurfoods had misled the Commission to believe,
through false statements and material omissions, that these transactions were not relevant
for the assessment of Transaction 1.
Sub-argument- Obligation to Disclose Material Information:
The legal precedent, including Dalglish v. Jarvie, establishes that parties seeking relief must
bring all material facts before the Court. Similarly, WasseypurFoods was under a duty to disclose
all facts material to the assessment of the combination’s impact on the market.
In the Ultratech case, the Commission held that omission of material information or incorrect
statements in the filing would attract penalties under Sections 44 and 45. In this case,
WasseypurFoods failed to disclose Transactions 2, 3, and 4, which were crucial to the
Commission's assessment of whether Transaction 1 would lead to AAEC. Moreover, the internal
vision statement clearly indicated WasseypurFoods’ long-term strategy of becoming a "one-stop
shop," which is critical to understanding the interconnectedness of these transactions.
In light of the above, WasseypurFoods' failure to disclose these material facts amounts to active
concealment and misrepresentation, violating the disclosure obligations of the Act. The
company should be held liable for misleading the Commission in its assessment of Transaction 1.
ISSUE 1(iii): If yes, did the CCW err in not asking Wasseypur and SQ to re-notify
Transactions 1, 2, 3, and 4 through a composite filing after concluding in the Penalty Order
that these transactions were interconnected?
Brief Arguments for Speech: Obligation to Jointly Notify Interconnected Transactions
Hon'ble tribunal, it is humbly submitted that the interconnectedness of Transactions 1, 2, 3, and
4 imposed an obligation on WasseypurFoods to file a composite notice with the Commission, as
mandated by Regulation 9(4) of the Combination Regulations. The Competition Act requires
transactions that are inter-connected to be reviewed holistically, ensuring that no part of the
combination is consummated until the Commission has granted its approval.
1. Inter-Connection Provision and Single Notice Requirement:
As per Regulation 9(4), if transactions are inter-connected, even those exempt from
mandatory notification must be disclosed in a single composite notice. The rationale
behind this provision is that transactions with a common ultimate intended effect should
be evaluated together by the CCI to fully assess their impact on the market. The Supreme
Court of India in CCI v. Thomas Cook reaffirmed that even minority acquisitions,
when interconnected with a larger transaction, must be disclosed, and the penalty
imposed on Thomas Cook highlighted the importance of joint notification.
2. Commission Precedents on Invalidated Notices:
In Combination Registration No. C-2023/12/1091, the Commission identified
deficiencies in the notice that omitted key information required for assessing the
combination’s impact under the Competition Act. Similarly, in Combination
Registration No. C-2015/01/241, the Commission directed the parties to refile their
 notice after identifying that the original filing was non-compliant with the Combination
Regulations.
These precedents establish that the CCI mandates complete and correct filings when
interconnected transactions are involved. If WasseypurFoods had disclosed the
interconnectedness of Transactions 1, 2, 3, and 4, the Commission would likely have required a
fresh notice in Form II, allowing a comprehensive review of all transactions.
In conclusion, WasseypurFoods should have filed a composite notice for Transactions 1, 2, 3,
and 4, and the Commission erred in not demanding a fresh notice once the interconnectedness
became evident. This failure to notify jointly violates Regulation 9(4) and undermines the proper
assessment of the combination’s impact on the market.
ISSUE 1(iv): Can the CCW now direct the WasseypurFoods to re-notify Transactions 1, 2,
3, and 4 under Section 20(1) of the Competition Act read with Regulation 8 of the
Combination Regulations?
It is humbly submitted that, under Regulation 8 of the Combination Regulations, 2011, the
Commission may, under Section 20(1), initiate an inquiry if a party fails to notify a combination
as required by Section 6(2). Upon such inquiry, the Commission can direct the parties to file a
notice in Form I or Form II within 30 days. In the Piramal/Shriram case, the Commission
exercised its suo-motu powers to demand notification of transactions. Similarly, CCW can now
direct WasseypurFoods to re-notify all interconnected transactions through a composite filing.
ISSUE 2: Whether WasseypurFoods contravened the standstill obligations set out under
Sections 6(2A) read with 43A of the Competition Act in relation to Transaction 1?
the council humbly submits that WasseypurFoods' actions, specifically the Side Letter, the
Internal Email, and the subsequent refusal to deal with Danish Delights, indicate a clear violation
of the standstill obligations under Section 6(2A) read with Section 43A of the Competition Act,
2002. Section 6(2A) explicitly states that no combination shall come into effect until the earlier
of two conditions: either 210 days have passed from the notice date or the CCI has passed an
order under Section 31 of the Act. This reflects the absolute nature of the suspensory regime,
which mandates that combinations cannot be consummated, either in part or in full, without
CCI's explicit approval or until the stipulated period has lapsed.
It is essential to emphasize that the Competition Act prohibits the consummation of a
combination before the CCI's approval, as this would be tantamount to a violation of Section
6(2). The intention behind this provision is to ensure that the market dynamics are preserved
during the CCI's review process. The act of implementing the combination before the statutory
time period or without approval undermines this objective and violates the procedural
framework.
In the present case, WasseypurFoods' conduct amounts to substantive gun-jumping, as defined
under Section 43A of the Act. Gun-jumping occurs when parties, in violation of their standstill
obligations, proceed with actions that prematurely give effect to the proposed combination before
the CCI's approval. This was elaborated upon in the Ultratech Cement case, where CCI explained
that any action undertaken pursuant to the proposed combination that has the effect of
consummating the transaction or part thereof without CCI’s approval constitutes gun-jumping.
The Indian merger control regime, like many global jurisdictions, prohibits the implementation
or consummation of transactions while they are under review. This is particularly critical in
India, where the regime is suspensory in nature. It ensures that parties to a proposed combination
continue to compete in the market as they were prior to the transaction until either CCI approval
or the 210-day review period expires. In this case, the premature actions of WasseypurFoods
clearly breach these obligations, and accordingly, a penalty under Section 43A must be
considered.
Wasseypur foods asserted control
the council submits that WasseypurFoods' actions, particularly its treatment of Danish Delights
and the arrangement through the Side Letter, suggest a violation of competition law by asserting
decisive influence over Sultana Foods. The Commission has consistently interpreted control to
include "the ability to exercise decisive influence over the management or strategic commercial
decisions" of a target entity, which can occur through mechanisms such as majority
shareholding, veto rights, or contractual covenants.
The rejection of Danish Khan's request for listing on WasseypurFoods without notice and the
simultaneous removal of Danish Delights from Sultana Foods indicate coordination between
WasseypurFoods and Sultana Foods, which supports the assertion of control and potential anti-
competitive practices. The 50% stake that SardarFoods held in Danish Delights further
suggests this exclusion was motivated by a desire to hinder competition, rather than legitimate
business concerns.
The Side Letter, which facilitates regular communication and financial information sharing
between RS and Sultana Foods, may appear innocuous but raises concerns about
WasseypurFoods asserting premature control. Although the stated purpose of these consultations
was to ensure financial health before the completion of Transaction 1, the subsequent actions,
such as the transitional discounts by Sultana Foods, contradict this claim. These discounts
demonstrate that Sultana Foods was acting in furtherance of WasseypurFoods’ strategic goals,
undermining its independence as a competitor. This clearly violates standstill obligations, as the
combination was being partially consummated prior to the approval of the Commission.
This conduct would undermine the ex-ante review process, as intended under Section 6(2A),
which mandates maintaining the status quo during the review period. As noted by the Hon'ble
Tribunal in the SCM Soilfert Limited v. CCI case, the ex-ante nature of notification is vital to
ensuring that combinations do not come into effect before the Commission has had the
opportunity to assess potential anti-competitive effects. Thus, the premature actions by
WasseypurFoods and Sultana Foods warrant scrutiny and enforcement action for violating the
standstill obligations.
Premature Integration-
The council submits that the actions of WasseypurFoods and Sultana Foods violate the
standstill obligation under the Competition Act, which prohibits merging parties from
prematurely coordinating their commercial activities, sharing competitively sensitive information
(CSI), or integrating their businesses before obtaining clearance. This view is consistent with
competition law literature and jurisprudence under Article 7(1) and Article 101 TFEU, which
emphasize that merging parties must remain independent during the review process to preserve
competition.
The Internal Email, offering a joining bonus to Sultana Foods' partners before the closing of
Transaction 1, constitutes a form of premature integration, signaling coordinated behavior.
Additionally, the refusal to deal with Danish Delights, which occurred after the email leak and
resulted in Danish Delights being removed from Sultana Foods, further illustrates that the
parties engaged in coordinated conduct before obtaining approval, thereby violating the standstill
obligation. Such actions are particularly concerning given WasseypurFoods’ dominant position
in the market.
Until the merger is cleared, the parties must act as independent entities, adhering to antitrust
rules that prohibit price-fixing, market allocation, boycotting third parties, and sharing CSI. The
premature coordination between WasseypurFoods and Sultana Foods, especially through
actions like the removal of Danish Delights, suggests that the acquirer exercised control over
the target, amounting to consummation of the combination before the Commission's approval.
In sum, the premature integration and coordinated behavior by the parties led to the de facto
acquisition of control, violating the standstill obligations under the Act, and thus, the
combination came into effect without the required approval.

Refusal to deal with Danish Delights violates Section 3(4)(d) of the Competition Act
the council asserts that WasseypurFoods’ refusal to engage with Danish Delights constitutes a
clear violation of Section 3(4)(d) of the Competition Act, which addresses agreements that
restrict the persons or classes of persons to whom goods may be sold. Such conduct is indicative
of a "refusal to deal," particularly when it results from a conspiracy with competitors or
business entities.
In this case, WasseypurFoods justified its refusal based on Danish Delights’ ties to
SardarFoods, an entity associated with a competitor. However, this rationale is devoid of any
reasonable basis and serves to restrict market access for Danish Delights, thereby foreclosing
competition, which constitutes an appreciable adverse effect on competition (AAEC).
The principle that a refusal to deal can violate competition law is underscored by precedents
such as United States v. Microsoft Corp., where the court determined that threatening reprisal
against suppliers and customers for cooperating with competitors contravenes competition laws.
Similarly, the U.S. Supreme Court has affirmed that a monopolist's refusal to deal with rivals
can violate Section 2 of the Sherman Act under certain circumstances.
Given these legal precedents and the provisions of the Competition Act, it is evident that
WasseypurFoods’ refusal to deal with Danish Delights, based on an anti-competitive motive,
not only breaches Section 3(4)(d) but also undermines the competitive integrity of the market.
Therefore, the Tribunal should find WasseypurFoods in violation of the Act for its actions.