IN THE VORMIRIAN COMPANY LAW APPELLATE TRIBUNAL

Appeals filed under Section 53B of the Competition Act, 2002 against impugned order of the
Competition Commission of Vormir
Order dated ........passed under section ..................of the Competition Act, 2002

MEMORIAL FILED ON BEHALF OF THE APPEALLANT

APPEAL (TA) No. 1/2020

Food Service Aggregators (FSAs) …Appellant

VS

Vormirian Association of Restauranteurs (VAR) …Respondent

CLUBBED WITH

APPEAL (TA) No. 2/2020

Food Service Aggregators (FSAs) …Appeallant

VS

Vormirian Association of Restauranteurs (VAR) …Respondent

Most Respectfully Submitted to the Hon’ble Judges of the Supreme Court of Bohemia at
Riverdale
COUNSEL APPEARING ON BEHALF OF ‘APPEALLANT
 T A B L E O F CO N T E N -
T ABLE OF C ONTENTS

TABLE OF C ONTENTS i

LIST OF AB B R E V I ATI O N S iii

INDEX OF AU T H O R I T I E S iv

S TATE M E N T OF JURISDICTION viii

ISSUES FOR CO N S I D E R ATI O N ix

S TATE M E N T OF FA C T S x

S UMMARY OF AR G U M E N T S xiii

W RITTEN S UBMISSIONS 1

I. WHETHER THE ORDER OF THE RIVERDALE HIGH COURT DECLARING THE DIRECTOR
GENERAL’S REPORT AND THE ENSUING COMPETITION COMMISSION OF BOHEMIA’S (CCB)
ORDER VOID IS CORRECT IN LAW? 1

1.1. THAT THE INVESTIGATIVE POWER OF THE DG IS RESTRICTED TO THE DIRECTIONS

HE RECEIVES FROM THE CCB. 1

1.2. THAT THE PRINCIPLES OF NATURAL JUSTICE STAND TO BE VIOLATED IF THE DG IS

ALLOWED TO EXPAND THE SCOPE OF HIS INVESTIGATION 4

II. WHETHER THE AGREEMENT BETWEEN THE MRI MANUFACTURERS AND THE SERVICE

PROVIDERS IS ANTI-COMPETITIVE IN NATURE? 5

2.1. THAT THE AGREEMENT IN ITSELF IS NECESSARY AND HAS THE ABILITY TO PROMOTE
COMPETITION 5

2.2. THAT THE CLAUSE STIPULATING PRIOR APPROVAL TO DEAL IN GOODS OF

COMPETING MANUFACTURERS HAS PRO-COMPETITIVE EFFECTS AND IS NOT LIKELY TO

HAVE ANY ADVERSE EFFECT ON COMPETITION 6

2.3. THAT THE ALLOCATION OF SERVICE PROVIDERS TO A PARTICULAR GEOGRAPHICAL

AREA OPERATES TO THE BENEFIT OF THE CONSUMER AND IT IS NOT LIKELY THAT ANTI -

COMPETITIVE EFFECTS WILL ENSUE FROM THE SAME 9

T A B L E O F CO N T E N -
 2.4. THAT THE RECOMMENDATION OF A MINIMUM RESALE PRICE IS NOT
ANTICOMPETITIVE

11

2.5. THAT MR SODHI’S DECLINE IN BUSINESS IS NOT INDICATIVE OF THE

ANTICOMPETITIVE NATURE OF THE AGREEMENTS 15

2.6. THAT THE COMPAT’S DECISION HOLDING THAT THE AGREEMENT WAS NOT ANTI -

COMPETITIVE IS CORRECT IN LAW 16

III. WHETHER THERE WAS ABUSE OF DOMINANT POSITION BY THE MANUFACTURERS ’

UNDER SECTION 4 OF THE COMPETITION ACT, 2002? 17

3.1. THAT THE RELEVANT MARKET EXTENDS TO THE SPARE PARTS OF ALL

MANUFACTURERS’ AND THE SERVICES PROVIDED BY THE INDEPENDENT SERVICE

PROVIDERS 17

3.2. THAT THE MANUFACTURERS’ DID NOT EXERCISE A POSITION OF DOMINANCE IN THE

RELEVANT MARKET 20

3.3. THAT THE MANUFACTURERS’ DID NOT ABUSE THEIR POSITION OF DOMINANCE 21

IV. WHETHER THE BOHEMIAN MEDICAL ASSOCIATION ACTED AS A PLATFORM FOR

CARTELIZATION? 25

4.1. THAT RESOLUTION DOES NOT AMOUNT TO A PRICE FIXING AGREEMENT 26

4.2. THAT THE MAXIMUM PRICE AGREEMENT IS NOT PER SE ILLEGAL 27

4.3. THAT THE RESOLUTION TO EXCLUSIVELY AVAIL THE SERVICES OF THE ASP IS

JUSTIFIABLE 28

P R AYE R xv
 LIS T O F AB BR E V I ATI O N -
LI S T O F A B B R E V I AT I O N S

Abbreviation Description

AAEC Appreciable Adverse Effects on Competition

CCI Competition Commission of India

CCV Competition Commission of Vormir

DG Director – General

DFI Department of Food Inspection

DG Director – General

FSAs Food Service Aggregators

FSS Food Service Sectors

EC European Commission

Ministry Ministry of Consumer Affairs of Vormir

RPM Resale Price Maintenance

THE ACT The Competition Act, 2002

VAR Vormarian Association of Restauranteurs

VCLAT Vormarian Company Law Appelleate Tribunal

 IN D E X O F AU T H O R I T -
I NDEXOF A UTHORITIES

Cases
 IN D E X O F AU T H O R I T -

C. Edward Fee & Shawn Thomas, Sources of Gains in Horizontal Mergers: Evidence from

Customer, Supplier, and Rival Firms, 74 J. FIN. ECON. 423, 424-27 (2004). 22

Competition and Market Authority, Guidance on Trade Associations, professions and self-

regulating bodies 26

D.P Mittal, Competition Law and Practice 409 (2nd edn., 2007). 7

Eugene Buttigieg, Competition Law:Safeguarding the Consumer Interest, Vol. 40(2009). 11

Green Paper on Vertical Restraints in EC Competition Policy, ¶ 59 13

Joshua D. Wright, The Economics of Resale Price Maintenance & Implications for Competition

Law and Policy (2014) 12

OECD, Policy Roundtables on Trade Associations (2007) 26

Robert Pitofsky, Self Regulation and Antitrust, Prepared Remarks before the 34 Annual

Symposium on Associations and Antitrust (Feb. 18, 1998). 30

SVS Raghavan Committee, Report of High Level Committee on Competition Law & Policy

(2000) ¶ 2.8. 3

United Kingdom Office of Fair Trading, Market Definition: Understanding Competition Law, in

COMPETITION LAW (2004) 18

Treatises

Commission Notice, Guidelines on Vertical Restraints, ¶125 8

European Commission, Council Regulation No. 1/03, Recital 4 (2002). 11

 STATE M E N T O F JU R I S D IC T IO -
STAT E M E N T O F J URISDICTION

THE APPEALLANT HAS APPROACHED THIS HON’BLE COURT UNDER SECTION 53(B) OF THE COMETITION

COMMISSION OF VORMIR.

53B Appeal to Appellate Tribunal. —

(1) The Central Government or the State Government or a local authority or enterprise or any person,

aggrieved by any direction, decision or order referred to in clause

(a) of section 53A may prefer an appeal to the Appellate Tribunal.

(2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on

which a copy of the direction or decision or order made by the Commission is received by the Central

Government or the State Government or a local authority or enterprise or any person referred to in

that sub-section and it shall be in such form and be accompanied by such fee as may be prescribed:

Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of

sixty days if it is satisfied that there was sufficient cause for not filing it within that period.

(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties

to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming,

modifying or setting aside the direction, decision or order appealed against.

(4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and the

parties to the appeal.

(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as

expeditiously as possible and endeavour shall be made by it to dispose of the appeal within six

months from the date of receipt of the appeal.

STATE M E N T O F JU R I S D IC T IO -
 IS S U E S F O R C O N S I D E R -
I SS U E S F O R C O N S I D E R AT I O N

I. WHETHER THE FSAs VIOLTAED THE PROVISIONS OF SECTION 3(3) READ

WITH SECTION (1) OF THE ACT?

II. WHETHER THE FSAs VILOTED THE PROVISIONS OF SECTION 3(4)(e) AND

SECTION 3(3) READ WITH SECTION 3(1) BY WAY OF THEIR APPAs?

III. WHETHER FSAs VIOLATED PROVISIONS OF SECTION 4 OF THE ACT,

COLLECTIVELY AND/OR INDIVIDUALLY (ON PART OF TRIMATO

AND/OR AS PART OF A SINGLE ECONOMIC ENTITY)?

IV. WHETHER VAR, ALONG WITH IT’S MEMBER RESTAURANTS, VIOLATED

PROVISONS OD SECTION 3(3) READ WITH SECTION 3(1) OF THE ACT ?

 STATE M E N T O F FA C T -Page
STAT E M E N T OF F ACTS

Background

1. The State of Vormir is a large democratic country which has undergone tremendous and

significant changes on account following factors: (i) improved internet connectivity (ii)

conductive regulatory environment due to initiatives such as ‘Digital Vormir’ (iii)

availability of smartphones (iv) increase in disposable income of the residents of Vormir.

These factors have resulted in the growth of various new-age industries driven by

innovation with a significant digital footprint. To tap into this chapter of “Vormir’s growth”,

domestic and foreign investors have invested heavily in promising new-age industries.

Food Services Sector and Food Service Aggregators

2. With an offshoot of digitization of the economy notable FSA’s have emerged : Trimato,

Ziggy & NomRhino.

3. These FSAs are two-sided market and cater to: (a) Restaurants who list their products (b)

Customers who place orders.

4. Some market Surveys also suggest that majority of Smartphone users are using Web- Based

Application, which has increased their usage.

5. In Economic of Survey of December 2019, by the Ministry it was found that a huge group of

disgruntled customers had various grievances against FSAs such delivery of unhygienic

food, rude behavior of delivery personnel, delayed services, non-availability of food etc.,

despite facing this issue the customers remained heavily dependent on this FSAs. The

ministry was surprised by this response of the loyal customers hence it orders it’s executive

arm Department of Food Inspection (DFI) to delve deeper to look into the matter

6. When Vormarian Association of Restauranteurs (VAR), representative body of food

 services, came to know about the assessment being conducted by DFI, the VAR approached

STATE M E N T O F FA C T -Page

the DFI and shared confidential details in relation to the problems and challenges faced by

them due to the activities of the FSA’s, being convinced of the FSAs Activities the VAR

approached the Competition Commission Vormir (CCV), and prayed before it to investigate

the matter. In addition to VAR’s Complaint, DFI also referred the matter to CCV.

Case No. 1 of 2020

7. VAR filed information under Section 19(1) (a) of the Act, before the CCV against the FSAs

alleging a contravention of Sections 3 and 4.

Violation Section 4

a. Out of 35 million monthly made in Vormir, It alleged that the Trimato owns a

considerable amount of market share of all orders for the past 11 months. It is also

alleged that commissions are being charged on its restaurant partners while similar

commissions aren’t being charged on its cloud kitchens.

b. Trimato’s Quick Service Restaurant is OBO and, Ziggy’s is Fab food, these both quick

Service Restaurants have opened up their own franchises all over Vormir.

c. It is also alleged that, Due to the discriminatory practice by the FSAs, it has provided a

means to leverage their interest in the downstream market and conventional restaurants.

d. T
 SU M M A RY O F AR G U M E N -Page
SU M M A RY O F A RGUMENTS

1. WHETHER THE ORDER OF THE RIVERDALE HIGH COURT DECLARING THE

DIRECTOR GENERAL’S REPORT AND THE ENSUING CCB ORDER VOID IS

CORRECT IN LAW?

It is humbly submitted that as per the Competition Act, 2002, the Competition Commission has

the power to direct the Director General to investigate into any matter where the Commission

finds a prima facie infringement of the sections of this Act. In the instant matter, the Director

General investigated into a violation of Section 4 when he had been given a direction to

investigate into a violation of Section 3(4). It is contended that the statutory provision is

unambiguous and the legislative intent is clear as to the extent of power bestowed on the Director

General. Formation of an opinion that there is a prima facie contravention of the provisions of

the Act is sine qua non for an investigation by the Director General. The scheme of the Act

provides for hearing at multiple stages. The law entitles the parties the opportunity to be heard

before the Director General as well as the Commission. Therefore, allowing the Director General

to expand the scope of investigation results in the violation of the principles of natural justice.

Thus the Riverdale High Court’s order declaring the Director General’s report and the ensuing

CCB order void is correct in law.

2. WHETHER THE AGREEMENT BETWEEN THE MRI MANUFACTURERS AND THE

SERVICE PROVIDERS IS ANTICOMPETITIVE IN NATURE ?

It is humbly submitted that the agreement between the MRI manufacturers and the authorised

service providers is not likely to cause an appreciable adverse effect on competition, therefore it

does not contravene Section 3(1) of the Act. It is contended in this regard that the order of the
SU M M A RY O F AR G U M E N -Page
COMPAT finding no violation should be upheld and the agreement be declared as valid. It is

submitted that the agreement in question has pro-competitive effects in the form of accrual of

benefits to the consumers. Further any anti-competitive effect as enshrined in Section 19(3) of

the Act is not a likely result of the agreements in question. The agreement enhances competition

and efficiency in the primary manufacturing market as well as the aftermarket for spare parts and

services. The exclusive supply clause, the territorial allocation and the minimum recommended

resale price have sound business justifications and ultimately provide enhanced services to the

consumer.

3. WHETHER THE MANUFACTURERS’ ABUSED THEIR POSITION OF DOMINANCE UNDER

SECTION 4 OF THE COMPETITION ACT, 2002?

It is submitted that the relevant market in the present matter is the market for all the spare parts

and repair and maintenance services in the market. The manufacturers’ are not the only source of

spare parts in the relevant market and hence, possess limited market share. Therefore, they do

not exercise a position of dominance in the relevant market. Moreover, the manufacturers’ have

not abused their position of dominance as they have not imposed discriminatory pricing, engaged

in exclusionary or exploitative abusive conduct or used their position in the market for spare

parts to leverage their position in the market for repair and maintenance services.

4. WHETHER THE BMA ACTED AS A PLATFORM FOR CARTELIZATION?

It is submitted that the BMA is a trade association that has acted as a representative of its

members. The BMA exercises buying power and hence, negotiated rates of services with the

ASPs. It is contended that the encouragement to recover the negotiated rate from the consumer

was recommendatory in nature and therefore, not binding. Hence, the price rise in the industry

may only be attributed to the use of the ASP and not the recovery of the negotiated rates.
Moreover, the resolution to exclusively avail of the services of the ASP is justifiable. It is

submitted that the association may engage in self-regulatory conduct to ensure quality standards

in the relevant sector. Hence, the BMA has not acted as a platform for cartelization.
 WR IT T E N SU B M I S S I O -Page
WR I T T E N SU B M I SS I O N S

I FSAs have not violated the provisions of Section 3(3) read with Section 3(1) of the Competition Act,
2002.
It is humbly submitted that Section 3(1) of the Act provides that any agreement which causes or is likely
1
to cause an appreciable adverse effect on competition
WR IT Tshall
E N Sbe
U Bvoid.
M I SSection
SIO 3(3) of the Act provides that
-Page
any agreement amongst persons or enterprises at the same levels of the production chain shall be in
contravention of Section 3(1) if it causes or is likely to cause AAEC. It is submitted that the agreement
between the Foodservice aggregators (FSAs) and authorized Partner restaurants has not and is not likely
to cause an AAEC. Therefore, it does not contravene Section 3(3) read with Section 3(1) of the Act.

In order to prove that there exists an anti-competitive agreement between the FSAs and the partner
restaurant one needs to fulfil 4 pre-conditions Firstly an association of persons, or enterprises should
directly or indirectly determine purchase or sale prices. Secondly, there needs to be a limitation or control
on production, supply of the product needs to be proved. Thirdly, the alleged firm should share the
market or source of production and lastly The firm should be indulge in direct or indirect Bid Rigging or
Collusive bidding which is presumed to have adverse appreciable effect on the competition.

1.1 That there is no Appreciable Adverse effect by the business operations of FSAs.

1.1.1 It is contended by the counsel for appellant that there is no appreciable adverse effect by the
business operations of FSAs. In order to establish the same each and every factor under Section 19(3)
needs to be disapproved.

1.1.2 Firstly, there should be no barriers to entry of new competitors in the market. In the present case
there are already four to five more FSAs apart from Trimato which are present in the market. Secondly,
no FSAs have indulged in the practice which is aimed to drive competitors out of the market.

1.1.3 Thirdly, no FSA is involved in the practice which leads to foreclosure of competition by hindering
entry into the market. All the FSAs policies have nowhere hindered the entry of any competitor in the
market. Fourthly, there should be accrual of benefit to consumers which in the present case is there in the
form of better services and experience to consumers.

1.1.4 Fifthly, there should be improvements in the production or distribution of goods or provision of
services which are given by FSAs by introducing concept of ‘Cloud Kitchen’. Sixthly, there should be
scientific, technical and economic development by means of production or distribution of goods or

1 Hereafter AAEC.
provision of services. These FSAs are acting as the two sided market and hence serving the interest of
both customers as well as restaurants listed on their
WR platform.
IT T E N SU B M I S S I O -Page

1.2 That there is no determination of purchase or sale prices directly or indirectly by FSAs

1.2.1 ¶7 (g)2 provides that FSAs have entered into a unique arrangement on ‘Across platform parity
agreements’3, whose primary objective is to maintain the price parity of all the items offered by the
restaurants across different platforms, be it on some other competitor’s website or even restaurant’s
individual website. The appellants have not influenced or manipulated the purchase or sale price that the
restaurants quote to their customers. The agreement merely tries to bring uniformity in the price of the
items offered by the respective restaurants.

1.2.2 It is well established that any agreement that is likely to cause an appreciable adverse effect on
competition within India is declared as void under Section 3(1) read with Section 3(2) of the Act. The word
"cartel" is used in Section 3(3) of the Act. Section 3(3)(a) of the Act states that even indirect determination
of sale price pursuant to the agreement between enterprises shall be presumed to have an appreciable
adverse effect on competition. Agreement between enterprises even indirectly resulting in bid-rigging or
collusive bidding is also presumed to have an appreciable adverse effect on competition. 4 In the present
case there is no formation of cartel since there is no agreement between FSAs and Restaurant to fix the
purchase or sell price.

1.3 That there is no limitation or control over the production or provision of services by the FSAs

1.3.1 Second condition which needs to be fulfilled in order to prove horizontal anti competitive
agreement is by limiting or controlling production, supply, markets, technical development, investment or
provision of services which is not alleged by the side of respondent and appellant have nowhere indulged
in this kind of agreement since the only task of FSAs is to act as a double sided market between the
restaurant and the customers and therefore can’t be held liable for limiting or controlling production
since that task is solely in control of the restaurants itself.

1.3.2 In respect of general code of conduct for the ‘Members of the Automotive Tyre Industry in India’,
which sought to regulate the production, distribution and sale of tyres and tubes with a view to
completely eliminate competition in the industry was held to be in contravention of Section 3. 5 But FSAs
are nowhere involved in contravention of Section 3(3)(b). Since they are not controlling production
process and does not have a view to eliminate the competition.

2 Moot Problem, Page [2].

3 Hereafter APPA.
4 K. Poomalai and Ors. v. Director of Sugar, Chennai and Ors. 2012 8MLJ 457.
5 RRTA v. Incheck Tyres & others RTP Enquiry No. 1/1971, order dated 19-4-1976.
1.4 That there is no sharing/Division of market or source of production between FSAs and Restaurants

1.4.1 There is absolutely no point in alleging thatWRFSAs ENS

IT T are S S I O or source of -Page
U B M I market
sharing production with
their partner restaurants since these FSAs are only acting as a connecting link between these restaurants
and the customers who are ordering their meal from the online market. The FSAs are merely acting as a
different channel of distribution for these restaurants and are just a platform for interface.

1.4.2 The Competition Commission of India (CCI) has repeatedly emphasized that the existence of an
agreement, understanding or arrangement, demonstrating/indicating meeting of minds, is a sine qua non
for establishing a contravention under Section 3 of the Act. 6In the present case there exists no such
agreement or arrangement between the FSAs and the Partner restaurants. The only agreement entered
between FSAs and restaurant owners is ‘Across platform parity agreements’ with aim to bring uniformity
in rates across different platforms and even the restaurant outlet as well.

1.5 That there is no agreement between FSAs and restaurant owners which directly or indirectly results
in bid rigging or collusive bidding

1.5.1 Section 3 (3) clause (d) of the act defines ‘bid rigging’ to mean an agreement amongst the
competitors joining hands together at the time of bidding with the object to distort competition.

1.5.2 Court held that a combination intending bidders to refrain from bidding against each other has been
held not to be illegal.7 Also, the point to be taken care is that in this particular case there is not at all any
bidding or such type of arrangement that took place so there is absolutely no point of raising the issue of
bid rigging in the very first place.

II FSAs haven’t violated the provisions of Section 3(4) (e) and Section 3(3) read with Section 3(1) by way
of their APPAs.

It is contended that under Section 3(4) (e) of the competition act defines ‘resale price maintenance’ as an
agreement between manufacturer of goods and seller of goods whereby the seller can’t sell the product
of the manufacturer lower than the price stipulated by the manufacturer in the agreement itself.
Violation of Section 3(4)(e) only comes into picture when there is a appreciable adverse effect of such
agreement on the competition as well on the market. Resale price maintenance means a situation
wherein the final price charged to customers is not set by the distributor but imposed by the producer. 8

2.1 That there is no Resale price Maintenance between FSAs and Restaurants therefore there is no
violation of S. 3(4)(e).

6 Samir Agrawal v. ANI Technologies Pvt. Ltd. and Ors. 2018 CompLR 1114 (CCI).
7 Jyoti v. Jhowmull, (1909) 36 Cal 134.
8 Abir Roy Competition law in India Second edition pg. No. 138
2.1.1 An essential pre-condition as to when the agreement to be categorised under the Resale Price
Maintenance is when the resale of the goods by W
the seller
R IT T E Ntakes
SU Bplace.
M I S SWhereas,
IO in present case FSAs are
-Page
only acting as a distribution channel for the restaurants listed on these FSAs and are nowhere involved in
the resale of the goods. In the case at hand, the FSAs are merely facilitating in delivery of food item
ordered from the respected partner restaurants listed on their platform to the doorstep of the customers
and offering better deals to them so as to promote customer service .

2.1.2 It is submitted that although S. 3(4)(e) of the Act doesn’t make it explicit that there are three
categories of Resale Price Maintenance which can be considered anti-competitive namely, First Fixed
Price whereby the manufacturer and reseller agree and decide upon the price on which the product is to
be sold and not below it and if done so might attract some penalty. Secondly Minimum Resale Prices the
term suggest there is a minimum price below which the product couldn’t be sold and thirdly Maximum
resale price whereby goods by reseller can’t be sold above certain price fixed through agreement
between manufacturer and reseller.9

2.1.3 It is contended that since the agreement between the FSAs and restaurants owners doesn’t fall
under any of the categories explained above hence the said agreement can’t be held to be in violation of
the provisions of the Competition Act.

2.1.4 In Commission observed that online distribution channel by the opposite parties provide an
opportunity to the consumers to compare the prices as well as the pros and cons of the product.
Furthermore, through the option of delivery right at their door steps consumers have the opportunity to
accept the purchase at their convenience and do not need to set aside a couple of hours at a stretch to
make the purchase through a brick-and-mortar retail outlet. Therefore, at this stage, it does not appear
that the exclusive arrangement between manufacturers and opposite parties lead to AAEC in the
market.10 Similarly, FSAs are aimed to help customers as well as the restaurant owners to connect to the
online distribution of their product.

2.1.5 In the same case mentioned above opposite parties 11 submitted that they are third party platforms
and offer ready to use environment to potentially large number of customers and manufactures. It was
submitted that an e-commerce portal's business is based on a marketplace model where the

9 Abir Roy Second Edition Pg. 144.

10 Mohit Manglani v. Flipkart India Private Limited and Ors.2015 131 SC L18 (CCI)
11 Operating Platforms.
manufacturer/supplier is the owner of the products sold through online retail portals and the customer
making such purchase is the end consumer of the
WR product, the
IT T E N SU BMonline
ISSIO retail portals merely
-Pageacting as a
platform that bring the two sides together for facilitating the transaction. Similarly, in the concerned case
FSAs are just the platform through which customer can place the order and the restaurants can list their
product there these FSAs act as a two sided market 12 and are nowhere involved in the resale of the
product.

2.1.6 Commission found that Hyundai placed restrictions on its dealers on the maximum permissible
discount that may be given by a dealer to the end-consumer, coupled with the practice of price
monitoring put in place by Hyundai wherein the dealers were penalized on account of any deviation. Also,
Hyundai imposed restriction the maximum permissible discount that may be given by a dealer to the end-
consumer amounted to resale price maintenance. 13 But the same condition is not applicable in the
respective case since the FSAs have nowhere penalized or enforced some anti competitive conditions on
the restaurants.

2.2 That there is no violation of Section 3(3) read with Section 3(1) by FSAs Across platform parity
agreements (APPAs).

2.2.1 It is contended by the counsel for appellant that APPAs entered between FSAs and Restaurants
owners is nowhere in contention with the provision of Section 3(3) read with Section 3(1) of the Act since
the respective agreement is not resulting into the horizontal anti competitive agreement. The only
purpose which is served by this agreement is to bring price uniformity as well as to promote healthy
competition in the market.

2.2.2 This agreement doesn’t influence or manipulate or force the restaurant owners to keep the selling
or purchasing price as suggested by the FSAs and therefore doesn’t lead to violation of S. 3(3)(a) of the
Act. It’s just that the basic term of this agreement is the price quoted on each FSA should be identical and
doesn’t lead to any appreciable adverse effect on competition. In Express Industry Council of India v. Jet
Airways, Indigo Airways and SpiceJet airways 14commission penalized all the three airlines for fixing fuel

12 ¶ 2 of moot prop.
13 M/s Fx Enterprise Solutions India Pvt. Ltd v. M/s Hyundai Motor India Limited. case no. 36 of 2014.
14 CCI Case No. 30 of 2013
surcharge which is a component of the air cargo price. But in present appellant is nowhere involved in
fixing price under agreement with the restaurants
Wlisted
R IT T on
E Ntheir
SU B platform.
MISSIO -Page

3.WHETHER THE FSAs VIOLATED PROVISIONS OF SECTION 4 OF THE ACT, INDIVIDUALLY (ON PART OF
TRIMATO AND/OR AS PART OF SINGLE ECONOMIC ENTITY)?

It is submitted that the relevant market in the present matter is the market which consists of Food
Services Aggregators (FSAs).Trimato is one of the FSAs in the relevant market and hence, possesses
limited market share. Therefore, they do not exercise a position of dominance in the relevant market.
Moreover, the Trimato has not abused its position of dominance as had not imposed discriminatory
pricing, or used its position in the relevant market of the FSAs to leverage its position in the downstream
as well as the conventional market. Moreover, Trimato’s conduct did not lead to the denial of market
access to any of the competitor or different FSAs since there are still four to five more FSA present in the
market.

3.1. THAT THE FSAs DID NOT CONSTITUTE SINGLE ECONOMIC ENTITY.

3.1.1. The counsel for appellant would like to contend that the FSAs(Trimato, Ziggy, NomRhino) did not
constitute a single economic entity. In the present case, the iron bank has an investment of 15%, 5%, and
8% respectively in Trimato, Ziggy and NomRhino, with a board seat in each 15. But can’t be said to possess
the decisional power in all three companies respectively. And hence can’t form a single economic entity.

3.1.2. Also in the case of Kapoor Glass Private Limited v Schott Glass India Private Ltd.16, It was held by the
court that in order to determine Single Economic Entity, inter alia, factors like legal control, single-center
of decision making, unity in economic decisions and exercise of decisive influence has been considered. In

15 Proposition¶ 7
16 CCI March 29,2012
the present case there is no element of the single economic entity present between FSAs and Iron Bank. It
is evolved from the concept of holding company and
WR IT T Esubsidiaries
N SU B M I S SasI Ogiven in Companies
-Page Act, 2013.
Subsidiary companies are those in which holding company can exercise control in the composition of the
Board of Directors and exercises or controls more than one-half of the total share capital 17.

3.1.3. In the instant case, the IronBank shareholding is only 15%, 5%, and 8% in these three FSAs and is a
minority shareholder with a board seat in each of the FSAs and so doesn’t pass the criteria imposed by the
Companies Act, 2013. In the Judgement of Fuji Electric Co.Ltd v. Commission18, It was held by the General
Court, that the minority shareholder Shareholding, the representation on the board of the directors of the
company, the ability to influence the Business policy and actual evidence of attempts will be relevant, also
in the same judgment, It was held that to exercise decisive influence that 30% of minimum shareholding is
required.

3.1.4. Further, in the present case, the shareholding of the IronBank is not even 30% if we combine all
19
three FSAs. The U.S. Supreme Court in Copperweld Corp v Independent Tube Corp held that parent-
corporation and its wholly-owned subsidiary would be considered as Single Economic Entity. Also if
subsidiary has no independent authority to take any decision on its own and they are out and out guided
only by holding company, would be in a position to hold that subsidiary and holding company constitute a
single economic unit20

3.1.5. In the Present case, The IronBank does not have minimum required shareholding for decisive
control21 and neither the DG nor the VAR Report has any evidence that IronBank is acting as Single- centre
for the decision making for all three FSAs and it has only 1 board seat in three FSAs which is not enough to
influence the decision of all the FSAs. Thus, it is submitted that Trimato, Ziggy and NomRhino cannot be
termed as single economic entity only due to common shareholding of IronBank.

17 Section 2(87), the Companies Act,2013

18 (2011) ECR-II-4091
19 467 U.S. 752 (1984)
20Samayanallur Power Investment (P) Ltd v Covanta Energy India(Balaji) Ltd,2005 SCC Online Mad 619
21 Supra 4
 WR IT T E N SU B M I S S I O -Page

3.2 That there are all the necessary conditions present for the RELEVANT MARKET of FSAs to exist.

3.2.1. It is humbly submitted that Section 2(r) of the Act 22 defines “relevant market” as “the market which
may be determined by the Commission with reference to the relevant product market,” Further Section
2(t) of the Act defines “relevant product market” as “a market comprising of all those products or services
which are regarded as interchangeable or substitutable by the consumer, by reason of characteristics of
the products or services, their prices and intended use;

3.2.2. The ascertainment of the relevant market is essential for analyzing a case of abuse of dominance. 23
The dominant position of an enterprise or a group within an identified ‘relevant market’ has to be
established first.24 When determining what constitutes as the relevant market, due regard must be given
to both the relevant product as well as relevant geographic market25.

3.2.3. All those products or services which are regarded as interchangeable or substitutable by the
consumer form part of the same relevant product market 26. Relevant product market is primarily
determined by gauging product substitutability from a consumer’s perspective 27 In the instant case, the
relevant product is the service provided by the Trimato. Here it is necessary to differentiate between the
upstream market where food items are prepared, from the downstream market of the conventional
restaurants28

3.2.4.The appellant would further put reliance on the judgment of Aberdeen Journals Ltd. v Director
General of Fair Trading29 in which it was clearly held that a relevant market shall be decided strictly
depending upon the facts of the case. In the present matter, the relevant market is the service provided

22 The Competition Act,2002

23 Prints India v Springer India Pvt.Ltd, Case 16/2010 ¶9 (CCI)
24 Explanation 2, §4(2), the Competition Act, 2002
25§19(5), Competition Act, 2002
26 §2(t), Competition Act, 2002
27F.Wijckmans&F.Tuytschaever, Vertical Agreements IN EU COMPETITION LAW.106, (2nd edn., 2011).

28SamsherKataria v Honda Seil Car India Ltd. AND Ors ,Case no. 3/2011,, ¶19.4 (CCI)
29: [2003] CAT 21 ,Case no. 1005/1/1/01
by the FSAs and the regular restaurants and the relevant product is Food provided to the customers.
Therefore, Trimato is not the only FSA in the relevant
WR ITmarket and
T E N SU B Mthere
I S S Iare
O other FSAs which
-Pageare present
in the relevant market .A better explanation in this regard can be sought from a broader classification of
the nature of FSAs services where they can be termed as a mere extension of delivery services of the
restaurants. Thus, creating a separate marketplace for FSAs and Vormirian association of restaurant
would practically mean to distinguish between the walks in sales and delivery sales of the same
restaurants.

3.2.5. The ‘relevant geographic market30 should also be taken into consideration to identify the relevant
market31. CCV should pay due regard to factors such as the price of goods and services. 32consumer
preferences33 inter alia while identifying the relevant geographic market. The geographic market for the
FSAs is usually defined on the basis of national or linguistic criteria and is therefore national in scope. This
is primarily due to the differences in the regulatory regimes, language barriers and other conditions of
competition prevailing in the different nations and while determining the relevant geographical market,
one of the factors that Tribunal should pay regard is the local specification requirements. From the facts,
one could find out the business of FSAs has spread to the whole of the Vormir and also 90% of the market
share is held by these three FSAs i.e., Trimato, Ziggy and NomRhino. These factors suggest that the
relevant geographic market for FSAs is not limited to any particular region(s) but to the whole of the
Vormir.

3.2.6. The relevant product market comprises all the products which are perceived to be substitutable by
the consumers by the reason of the products’ basic characteristics and intended use. The products, to be
part of the same market, not need to be perfect substitutes. In the present case, the customers have
option substitutes for Trimato such as Ziggy, NomRhino that constitute the relevant product market of
FSAs.

Thus, the geographic relevant market should be restricted to the Vormir. Therefore, it is humbly
submitted that the market of FSAs is the relevant market in Vormir.

30 §2(s), Competition Act, 2002

31 §19(5), Competition Act, 2002
32 §19(7), Competition Act, 2002
33 §19(6)), Competition Act, 2002
3.3. Trimato did not exercise a position of dominance in the relevant market
WR IT T E N SU B M I S S I O -Page
3.3.1.It is submitted that Section 4 of the Act defines “dominant position” as, “a position of strength,
enjoyed by an enterprise, in the relevant market, in India, which enables it to: (i) operate independently
of competitive forces prevailing in the relevant market; or (ii) affect its competitors or consumers or the
relevant market in its favour.” Explanation of the same has been provided below.

A. Trimato did not Function Independently in the relevant market.

3.3.2. In the present matter, the relevant market is the food service provided by the Trimato and others
FSAs as well as by the regular restaurants. It is an established principle that a firm would be able to
behave independently of competitive forces if it has acquired a position of economic strength 34. This
position of economic strength can be understood to be one of the substantial market powers 35. Here
Trimato did not function independently in the relevant market due to the presence of the other FSAs and
regular restaurants and also each of them has a limited market share of their own.

3.3.3. It is also alleged that Trimato and Ziggy with their newly formed cloud kitchens leverage their
interest in the downstream market as well as in the conventional market of the regular restaurants.
However, the Expansion of the business from one relevant market to other is cannot be termed as abuse
of dominance36 and also Trimato is not functioning independently without any competition as there are
several other players such as Ziggy as well as regular restaurants present in the market. It is Submitted
that Trimato cannot function independently of the Competitive forces prevalent in the market.

B. Trimato cannot affect Consumers, Competitors or the Relevant market in the its favour.

3.3.3. It is humbly contended that an enterprise should have the ability to engage in conduct that
excludes competition or prevent entry of the newcomers into the relevant market and should be able to
influence the relevant market in its favor 37. Here in this particular case, Trimato did not involve in any

34United Brands Co. v. Commission, 1978 ECR 207, ¶65 (ECJ) [hereinafter, United Brands]; Hoffmann-La Roche & Co. AG v.
Commission, 1979 ECR 461, ¶4 (ECJ)
[hereinafter, Hoffmann].
35Guidance on Article 102 Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by
Dominant Undertakings, OJ 2009 (C 45)7, ¶10 [hereinafter, Enforcement Guidance]; Art. 102, TFEU.
Page | 6
36Abir Roy, Competition Law in India,(3rd edition)
37 BBI/Boosey and Hawkes:Interim Measures,1987 OJ (L 286) 36,¶18 (EC) [Hereinafter,Boosey]
activity that exclude competition or prevent entry of the new comers since there are five or six more FSAs
which exist in the market along with the Trimato38WR IT T E N SU B M I S S I O -Page

3.3.4. Additionally, any anti-competitive practices by the Trimato will not affect the consumers as there
are other Substitutes available to the consumers in the identified market. The buyers have countervailing
buying power because of the competitive market 39. In Conclusion, It is submitted that the Trimato does
not hold a dominant position in the relevant market. Therefore, Trimato cannot held liable for violation of
Section 4 of the Act.

3.4. Trimato is not abusing its dominant position under Section 4(2)(a) of the Vormiran competition
act,2002.

3.4.1 The appellant humbly submits that without prejudice to the above contentions, Section 4 of the Act
prescribes types of conduct that will be considered abusive if carried out by a dominant enterprise. In the
instant case, it is contended that Trimato’s conduct was not in violation of (I) Section 4(2)(a), (ii) Section
4(2)(c), and (iii) Section 4(2)(e) of the Act.

3.4.2. It is submitted that Section 4(2)(a) of the act prohibits the (a) unfair or discriminatory condition in
the sale of goods and services and,(b) unfair or discriminatory price in the purchase of goods or services.
The explanation for Section 4(2) (a) states that any discriminatory or unfair pricing or condition imposed
“shall not include such discriminatory condition or price which may be adapted to meet the competition.

3.4.3. In the present Matter, the Trimato have entered into a double-sided agreement with (a) the
restaurants who list their food products on its platform; (b) and the customers who order food products
from its platform. The purpose of entering into the agreement is to tap into the growth of the Vormir’s
FSAs which helps restaurants to increase their target audience and it helps the Trimato to increase its
profit, also it contributes to the growth of the economy of the Vormir 40

3.4.4. It is alleged by the VAR that Trimato is charging excessive commissions from its partner restaurants,
while the newly formed cloud kitchens that are owned by Trimato are not being charged the same
commissions41. It is submitted that the less commission charged by the Trimato from the newly formed
cloud Kitchen is not discriminatory as these cloud kitchens are newly formed, in order to survive in the

38 Clarifications ¶ 5
39 Saurabh Tripathy v. Great Eastern Energy corp.Ltd , Case No. 63/2014, ¶18 (CCI)
40. Proposition ¶ 2
41 Proposition ¶ 7
market and build its consumer base, it is important to charge less commission from these cloud kitchens 42.
These kitchens have just been introduced in theW
market
R IT T Eand
N SUcan’t
B M Ibe
S Scharged
IO with the same
-Page amount of
commission that is charged from the already established restaurants.

3.4.5. Further, in the case of Ashish Ahuja v Snapdeal 43, it was clearly held by the CCI that the e-commerce
in India is still in its infancy and in order to sustain and gain buyers and to establish a position in the
market, there is a need to charge less commission. Further, the allegation of charging less commission
from cloud kitchens is only directed towards Trimato which is unfair, as the similar strategy is used by the
other restaurants and in order to meet competition in the market, Trimato is forced to adopt the same
strategy and it comes within the ambit Meeting competition defense. The ECJ in United Brand 44s, case
acknowledged the right of any firm, even those in dominating position, to take action in protecting its
commercial interests.

3.4.6. It is contended although Trimato in the present case, has a market share of 60% from the past 11
months45, it has not abused its dominant position in the relevant market. The term unfair has not defined
anywhere in the Act46 and it has to be examined in the context of unfairness in relation to customers and
competitors47. In the explanation of Section(4)(2)(a) it is mentioned that predatory pricing is the subset of
unfair pricing48. Predatory pricing takes place when an enterprise intentionally lower the price of its
product with an intention of eliminating the competitor 49 or have an appreciable adverse effect on
competition in India as It is inferred from the facts of the case that Economy of the Vormir is Booming at
significant rate and there is not any evidence put forth by the DG as well as the informant that practices
of Trimato are causing appreciable adverse effect on competition in Vormir and also it is not inferred from
the conduct of the Trimato that its conduct is causing elimination of any FSAs from the market.

3.4.7. The report of the DG, as well as informants, has also not put forth any evidence with respect to the
possibility of recoupment. The rationality for a recoupment rule is that without recoupment, even if
predatory pricing causes the target painful losses, it produces lower aggregate prices in the market, and
consumer welfare is enhanced and. Hence it is contended that in order to crystalize any liability on the

42 New e-commerce report,2019

4313 CCI ,Case No. 17 of 2014
44United Brands Co. v Commission (1978) ECR 207
45 Proposition ¶ 7
46 MCX stock exchange v NSE India Ltd, 2011 SCC online CCI 52
47 Ibid
48 Supra 29
49Newmann v Reinforced Earth Co.F2D 424 (SC Cir 1986)
Trimato under Section 4 of the act it is important to establish that the Trimato would be able to recoup
any loss suffered during the predation 50. Therefore,
WR ITany
T Eprice
N SU or
BM condition
I S S I O adopted by the FSAs is not in
-Page
contravention of section 4(2)(a) and it has adopted to meet the market conditions.

3.4.8 It is contended that the Trimato cannot be held for denial of market access under Section 4 (2)(c) of
the Act. Denial of market access is a conduct by dominant enterprises which led to the foreclosure of the
market access or defer entry of new player in the market51

3.4.9 The U.S Case of Dentsplay52 held that there should always be scope for a rival to access the market
on a scale sufficient to be a viable competitor. In the instant case, Trimato, although it has a market share
of 60% from the past 11 months charging less commission from the newly formed cloud kitchens, is not
discriminatory, and it is important for the promotion as well as establishment of the cloud kitchens in the
market.

3.4.10. In the case of Snapdeal53, the CCI observed that distributed circulars only clarified that the
warranty services offered by the manufacturer were limited to those products brought from its
authorized distributors, genuine spare parts and services of the same. The CCI further stated that “the
conduct of SanDisk in issuing such circular can only be considered as part of normal business practice and
cannot be termed as abuse of dominance”. Moreover, Ziggy and NomRhino has market share of 30% and
the rest 10% is shared between two or three FSAs which shows that there is no foreclosure of markets for
the new entrants and also there is no evidence put Neither by the VAR nor any prima facie evidence
found by DG which led to conclude that there is denial of market access.

3.4.11. Further, It can be inferred from the facts of the case, that Trimato is holding 60% market share
from the past 11 months54 Also there exist 4 to 5 more FSA apart from Trimato and if going by the
respondent allegation that there is a denial of market access by Trimato by abusing its dominant position
then these remaining FSAs by now should have left the market but that’s not the case here. Instead all
these FSAs are competing within themselves.

50 Brooke Group Ltd v Brown & williamson Tobacco Corporation, 509 U.S. 209 (1993)
51 Sh. Dhanraj Pilay&ors. v. M/S Hockey India, Case no 73 of 2011
52 United States v. Dentsply International,Inc 399 F.3d 181 (3rd Cir. 2005)
53 Supra 26
54 Proposition ¶ 7
 WR IT T E N SU B M I S S I O -Page
3.4.12 In JSW Paints Private Limited Vs. Asian Paints Limited 55 it was observed that Asian Paints has denied
access to necessary distribution channels in the relevant market and has limited the availability of
alternate products in the relevant market for consumers thereby reducing the competition in the market
in contravention of provisions of Section 4(2)(c) of the Act. As a result of the conduct of Asian Paints, the
final consumers may also be deprived of the choice to purchase different kinds of paints at competitive
prices. But in the present case, Trimato has never indulge itself in activity or practices which led to denial
of market access to the remaining FSAs and also it means that Customers are preferring Trimato over
other FSAs and it should not be alleged that it affects market and lead to denial of market access under
Section 4(2)(c)56.

3.4.13. It is humbly submitted that Trimato is unable to affect its competition in its favor as the Ziggy
along with other FSAs are offering competitive pricing. Further, they are constrained by the need to retain
customers. Therefore, it is submitted that the Trimato is not the dominant enterprises in the relevant
market and not violating Section 4(2)(c). Therefore, Trimato cannot be held liable for the Violation of
Section 4(2)(e) of the act.

IV VAR along with its member restaurants have violated provisions of S. 3(3) read with S. 3(1) of the Act

S. 3(3) of the Act talks about the Horizontal agreements between two or more enterprises that are at the
same stage of production chain and in the same market. Such agreements are often between the same
manufacturers or producers of goods or suppliers of the same services and are presumed to have
Appreciable Adverse Effect on the competition. In the present case the Horizontal agreement between
VAR and some Restaurant owners have resulted in fixation of prices with the consistent increase of nearly
200% which has clearly resulted in the Price Parallelism and has clearly affected the competition adversely
in Vormir57 and has led to formation of Hub and Spoke cartel58 between them.

4.1 That the consistent increase in price by VAR members on FSAs platform has led to Price Parallelism
and has hampered FSAs growth perspective in the long run.

55 CCI, Case 36 of2019

56 26 ManappuramJewellers Pvt. Ltd. v. Kerala Gold & Silver Dealers Association, Case No. 13 of
2011, Decided on, 23.04.2012.

57Para 11 (b) of moot proposition.

58 Interstate Circuit, Inc., et al. v. United States, 306 U.S. 208 (1939).
4.1.1 It is humbly submitted that consistent increase of price by VAR members on FSAs platform has
resulted in Price Parallelism and has hampered growth
WR IT perspective
T E N SU B Mas
I Swell
S I Oas reduced the-Page
profit of FSAs to
great extent. As per S. 3(3) (a) of the Act whereby a horizontal agreement between enterprises engaged in
identical or similar trade of goods which results in determination of sale as well as purchase price of the
goods directly or indirectly will be void per se.

4.1.2 In General Motors Continental NV v. Commission59 ECJ60 used the expression ‘excessive price’ for the
very first time and decided that ‘the imposition of a price which is excessive in relation to the economic
value of the service provided’ could be abusive under Article 102(a). And the present case the respondent
has clearly imposed excessive pricing despite minimal increase in the cost price.

4.1.3 In the case Buckelew v. Martens 61 it was held that Price fixing agreements, whether in fact detriment
to public or not when entered into by competing firms for the purpose of maintaining higher prices, are
illegal. The public are entitled to have competition, in order that they may buy at the lowest price, and it
makes no difference whether the prices- fixing agreements are reasonable or unreasonable or tend to
monopoly or not.

4.1.4 But in the present case the Increase in the price by nearly 200% from 2018 in 2019 without
substantial increase in the cost of production of the same product shows that the price increase was done
by the members of VAR is without any justification and is nowhere for the benefit of the customers as
well as FSAs.

4.1.5 The counsel for the Appellants would also like to place reliance on a recent judgment of Apex Court
in Excel Crop Care Limited v. Competition Commission of India and Anr. 62 To state that price parallelism is
inevitable in an oligopoly market where the limited numbers of sellers/buyers have a high degree of
control on price, quantity and even identities of awardees at its discretion. Thus, the very nature of the
industry cannot be used as a factor to presume collusion. But the present market is not Oligopoly since
there are a large number of restaurants registered with VAR and customers connected to them.

4.2 That the Principle of Natural Justice stands to be violated since the FSAs from the starting of the
process haven’t been granted chance to represent themselves.

59 1975 ECR 1367.

60 European Court of Justice.
61 108 N.J.L. 339 (N.J. 1931).
62 (2017) 8 SCC 47.
4.2.1 It is humbly submitted that of Regulation 41(4) of the 2009 Regulations empowers the
DG to call for the parties to lead evidence by way
WRofITaffidavit
T E N SU or
BM oral
I S Sevidence.
IO The principles
-Page of natural
justice demand the administrator to provide for a reasonable opportunity to be heard (audi alteram
partem) before making a decision concerning quasi-judicial matters.63

4.2.2 In Lafarge India v. CCI & Ors.64, Competition Appellate Tribunal remanded the matter to the
Competition Commission of India for fresh adjudication and further emphasized the role of Natural
Justice. Competition Appellate Tribunal opined that rule of law remains an important cornerstone of
India’s democratic setup and principles of natural justice were required to be followed in each and every
case where an order adversely affecting a person is passed.

4.2.3 The Supreme Court has also emphasized on the due process and the need of the CCI and
Competition Appellate Tribunal to pass speaking orders. In the case of Rangi International Limited v. Nova
Scotia Bank and others65 , a two-Judge Bench of the Supreme Court considered the question whether the
CCI and the Appellate Tribunal should record reasons in support of their orders. Reliance is time and again
placed on a plethora of authorities across various courts in India and abroad which reiterated the view
that denial of a right to hearing constitutes a serious breach of statutory procedure and violation of rules
of natural justice.

4.3 That there is a leak of confidential information by VAR in their bi annual meetings which has
resulted in revelation of growth strategies of FSAs.

4.3.1 The Information Technology Act, 2000 is the main legislation pertaining to protection of data and
privacy in cyberspace. It has provisions relating to civil and criminal liability in cases where any person
tries to secure access to any confidential data. It also provides consequences for breach of confidentiality.
In the present case VAR has shared the confidential details with the DFI66.

4.3.2 Section 72 of the Act relates to any person who, in pursuance of any of the powers conferred by the
Act or its allied rules and regulations has secured access to any: i) Electronic record, ii) book, iii) Register,
iv) Correspondence, v) Information, vi) Document, or vii) Other material. If such person discloses such

63 A.K. Kripak v. Union of India, AIR 1970 SC 150.

64 APPEAL No. 105 of 2012 & I.A. No. 36/2013.
65 (2013) 7 SCC 160.
66 ¶ 6 of moot prop.
electronic record, book, register, correspondence, information, document or other material to any other
person, he will be punished with imprisonment W
forR aITterm
T E N which
SU B Mmay
I S S extend
IO to two years,
-Pageor with fine,
which may extend to two years, or with fine, which may extend to one lakh rupees, or both. In the
present case the information was released by the VAR.

4.3.3 The Department of Science and Technology had introduced the Draft National Innovation Act, 2008.
Section 8 of the Draft Act recognizes the contractual right of parties to set out terms and conditions in
respect of confidentiality. In India as well as globally, it is already common practice to enter into
confidentiality and non-disclosure contracts with employees to prevent them from disclosing trade
secrets or confidential information. Also Section 11 lays down three exceptions to misappropriation of
Confidential Information: (a) availability of the information in the public domain, (b) the information has
been independently derived, and (c) disclosure of the information is held to be in the public interest by a
court of law.

4.3.4 Three exceptions laid down under S. 11 of the Draft Act nowhere comes into play in this particular
case where VAR leaked the confidential information to DFI as well as in their in Bi annual meeting 67 to its
restaurant partners which had competitively sensitive information. And the point to be taken into
consideration is that neither this sensitive and confidential information was present in the public domain
nor the information was independently derived by the VAR. Also the information was of very much
significance and importance to FSAs since it contained the growth strategies and other important points
in favour of FSAs.

4.3.5 It should be noted that even if an enterprise provides such price or quantity related information and
the information is merely received tacitly, both the enterprise providing the information and the
enterprise receiving the information would be implicated in cartelization. 68 Also lord Denning in, RRTA v.
W.H. Smith and Sons Ltd.69, observed that, “People who combine together to keep up prices do not shout
it from the housetops. They keep it quiet. They make their own arrangements in the cellar where no one
can see. They will not put anything into writing nor even into words. A nod or wink will do. Parliament as
well is aware of this. So it included not only an ‘agreement’ properly so called, but any arrangement’,
however informal”. The sharing of confidential information in the meeting has led to formation of Hub
and Spoke cartel.

67 ¶ 11(c) of moot prop.

68 A. Ahlstrom Osakeyhtio v. Commission of the European communities (Judgment of the Court of 27 September 1988.)
69 1914 1 KB 595.
 WOF
SUMMARY T E N SU B M I S S I O
R ITARGUMENTS -Page
WR IT T E N SU B M I S S I O -Page
PR AYE R - -Page 15

P R AY E R

WHEREFORE IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES

CITED, IT IS HUMBLY PRAYED THAT THIS HONORABLE COURT MAY BE PLEASED TO:

I. HOLD THAT THE DIRECTOR GENERAL EXCEEDED THE SCOPE OF HIS AUTHORITY

IN INVESTIGATING A VIOLATION OF SECTION 4 OF THE ACT.

II. HOLD THAT THE AGREEMENT BETWEEN THE MANUFACTURERS AND AUTHORISED

SERVICE PROVIDERS IS NOT ANTI-COMPETITIVE.

III. HOLD THAT THE MRI MANUFACTURERS HAVE NOT ABUSED THEIR DOMINANT

POSITION.

IV. HOLD THAT THE MANUFACTURERS AND BOHEMIAN MEDICAL ASSOCIATION ARE

NOT GUILTY OF CARTELIZATION.

Counsel for Respondents