COMPETITION APPELLATE TRIBUNAL

NEW DELHI

APPEAL NO. 70/2016

I.A. No. 164/2016

[Under Section 53-B of the Competition Act, 2002 against order dated
13.01.2015 passed by the Competition Commission of India in Case
No. 52 of 2013].

CORAM
Hon’ble Shri Rajeev Kher
Member

Hon’ble Ms. Anita Kapur

Member

In the matter of :
Financial Software & Systems Private Limited
G-4, 1st Cross Street,
SIPCOT IT Park,
Rajiv Gandhi Salai (OMR),
Siruseri, Navalur
Chennai – 603103
India … Appellant

Versus

1. Competition Commission of India

7th Floor, The Hindustan Times House,
18-20, Kasturba Gandhi Marg,
New Delhi-110001
Through Its Secretary

2. ACI Worldwide Solutions Pvt. Ltd.

Having its Registered Office at:
The Capital, Suite B-802,
Plot C 70, Block G,
Bandra Kurla Complex Road,
Bandra Kurla Complex,
Mumbai, India

3. ACI Worldwide Incorporated

Having its Registered Office at:
3250 Kraft Road,
Suite 300, Naples,

1
 Florida – 34105
United States of America

4. ACI Worldwide (Asia) Pvt. Limited

Having its Registered Office at:
300, Beach Road,
No. 21-03/06,
The Concourse,
Singapore – 199555 … Respondents

Appearances: Shri Amit Sibal, Senior Advocate assisted by Shri

G.R. Bhatia, Shri Abdullah Hussain, Shri Rudresh
Singh, Ms. Prerna Parashar, Shri Tahir Siddiqui and
Shri Rohan Alva, Advocates for the Appellant

Shri Udayan Jain, Ms. Anju Thomas and Shri Kamal

Sharma, Advocates for Respondent No. 1

Shri Amitabh Kumar, Shri Vaibhav Chakse and Ms.

Diksha Rai, Advocates for Respondent Nos. 2 to 4

ORDER

The Appellant/Applicant, M/s Financial Software and Systems

Private Limited (The Applicant) has presented this appeal against the

decision of the Competition Commission of India (for short, the

‘Commission’) dated 13.01.2015 on 16.11.2016. Since the appeal

has been presented after the period of limitation, the Applicant has

filed an application, I.A. No. 164/2016 for condonation of the delay.

2. In their application the Applicant has stated that the impugned

order was passed on 13.01.2015 purportedly under Section 26 (8) of

the Competition Act, 2002 (for short, the ‘Act’), whereby the

Commission disagreed with the findings of the Director General (for

2
short, the ‘DG’) recommending that the Respondent Nos. 2 to 4 had

not contravened section 3 or 4 of the Act. It has been stated that in

view of the fact that Section 53A (1) (a) of the Act specifically

mentions those sections, decisions under which are appealable under

Section 53B of the Act and a decision under Section 26 (8) of the Act

is not included in Section 53A of the Act, the Applicant was under the

belief that the Commission’s impugned order was not appealable and

therefore, did not prefer an appeal before this Tribunal within the

period prescribed (60 days) under Section 53B of the Act.

3. Instead it exercised its right to file a Writ Petition in the High

Court of Delhi against the Commission’s impugned order. This belief

was further supported by Supreme Court’s decision in Competition

Commission of India Vs. Steel Authority of India, (2010) 10 SCC 744,

as well as the decisions of this Tribunal in Jindal Steel & Power

Limited Vs. Competition Commission of India and another, Appeal

No. 45/2012 and Consumers Guidance Society Vs. Hindustan Coca

Cola Beverages Private Limited, Appeal No. 10/2012. However, while

pursuing the Writ Petition in the High Court, the the Applicant noticed

that this Tribunal, in Deputy Chief Materials Manager, Rail Coach

Factory, Kapurthala Vs. M/s Faiveley Transport India limited and

another, Appeal No. 10/2016 decided on 17.02.2016 (Faiveley case),

had exercised its appellate jurisdiction in dealing with an order passed

by the Commission under Section 26 (8) of the Act. This tribunal had

further followed the same approach in case of Sunil Bansal and Ors.

Vs. M/s Jaiprakash Associates Limited and another, Appeal No.

3
21/2016 on 28.09.2016(Sunil Bansal case). Having recognized that

this Tribunal was entertaining appeal against a decision of the

Commission made under Section 26 (8) of the Act, the Applicant has

approached this Tribunal.

4. Even before we consider the admissibility of the appeal for

hearing, the first hurdle that the Applicant needs to cross is secure

condonation of delay amounting to 674 days. The Applicant has

submitted a list of relevant dates at the beginning of the hearing on

the application for condonation of delay. While the list contains 36

dates, we have picked up only those which are relevant for our

present purpose as below:-

S. No. Date Event

1. 13.01.2015 CCI passes the impugned order in Finan-

cial Software and Systems Private Limited

v. M/s ACI Worldwide Solutions Private

Limited and Ors. Case No. 52 of 2013.

2. 21.03.2015 W.P. (C) No. 2957 in FSS v. The Compe-

tition Commission of India & Ors. filed be-

fore the Hon’ble Delhi High Court.

4
3. 09.04.2015 Order passed by the Hon’ble High Court

in W.P. (C) No. 2957 of 2015:

1. Notice issued to respondents.

2. Respondents No. 2-4 directed not to

restrain the banks from taking cus-

tomization and integration services

from the petitioner qua BASE 24

owned by R2 (Interim order).

3. Matter listed on 08.07.2015

4. 27.04.2015 Order passed by the Hon’ble Delhi High

Court in LPA 251 of 2015 filed by Re-

spondent No. 2:

Division Bench refused to interfere with

the interim order, however, they directed

the hearing in W.P. (C) No. 2957 of 2015

be advanced from 08.07.2015 to

18.05.2015.

5. 09.12.2015 Order passed by the Hon’ble Delhi High

Court in W.P. (C) No. 2957 of 2015:

Interim relief vacated by the Hon’ble

Court.

Matter to be listed on 07.01.2016

5
6. 27.01.2016 Order passed by the Hon’ble Delhi High

Court in LPA 3 of 2016 filed by Petitioner:

Declined to interfere, however, directed

the Learned Single Judge to expeditiously

dispose of the main petition.

7. 17.02.2016 Order of the Hon’ble Competition Appel-

late Tribunal in Deputy Chief Materials

Manager, Rail Coach Factory, Kapurthala

v. Ms. Faiveley Transport India Limited

(2016) SCC Online Comp AT 365.

8. 21.03.2016 Order in Sunil Bansal v. JAL:

The Hon’ble Competition Appellate Tribu-

nal noted that the failure to issue notice to

the appellants with respect to its disagree-

ment with the findings of the DG and the

denial of opportunity of the appellants re-

quires consideration by it.

Notice issued to the respondents returna-

ble on 12.05.2016.

6
9. 18.04.2016 Order of the Hon’ble Competition Appel-

late Tribunal in interglobe Aviation Limited

v. The Secretary, Competition Commis-

sion of India & Ors. (2016) SCC Online

Comp AT 291.

Remanded back by the Hon’ble Competi-

tion Appellate Tribunal for non-adherence

to the principles of natural justice.

10. 24.08.2016 C.M.A. 31195 of 2016 filed by petitioner

before the Hon’ble Delhi High Court:

Miscellaneous Application filed before the

Hon’ble Court regarding the change in

law.

11. 31.08.2016 Order passed by the Hon’ble Delhi High

Court in W.P. (C) No. 2957 of 2015:

Petitioner/applicant submitted in C.M.A.

31195 of 2016 that it intends to file an ap-

peal before the Hon’ble Competition Ap-

pellate Tribunal.

Matter re-notified for 07.10.2016.

7
12. 28.09.2016 Order in Sunil Bansal v. JAL:

Final order of the Hon’ble Competition Ap-

pellate Tribunal setting aside the im-

pugned order, allowing the appeal and re-

manding the matter back to CCI for fresh

consideration.

13. 05.10.2016 Appeal No. 45 of 2016 filed by the Appel-

lant in the matter of Financial Software

and Systems Private Limited v. The Com-

petition Commission of India & Ors. before

the Hon’ble Competition Appellate Tribu-

nal.

14. 17.10.2016 Order of the Hon’ble Competition Appel-

late Tribunal in Appeal No. 45 of 2016:

Appeal was dismissed. However, it was

made clear that if the “appellant seeks

permission to withdraw the pending writ

petition with liberty to file an appeal under

Section 53B, then it may file fresh appeal”.

15. 10.11.2016 Withdrawal Application being CM No.

42089/2016 filed by the Petitioner before

the Hon’ble Delhi High Court.

8
 16. 15.11.2016 Order passed by the Hon’ble Delhi High

Court in CM No. 42089/2016 in W.P. (C)

No. 2957 of 2015:

Withdrawal application of the petitioner

was considered and allowed and the writ

petition was dismissed as withdrawn with

the liberty to the petitioner to approach the

Hon’ble Competition Appellate Tribunal.

17. 18.11.2016 Appeal No. 70 of 2016 filed by the Appel-

lant in the matter of Financial Software

and Systems Private Limited v. The Com-

petition Commission of India & Ors. before

the Hon’ble Competition Appellate Tribu-

nal.

These dates briefly give the course of proceedings in the High Court

as well as in this Tribunal. It is apparent from the list of relevant dates

that the Writ Petition (C) No. 2975/2015 was entertained by the High

Court on 09.04.2015 when notices were issued and an interim

restraint order was also given. The interim restraint order was

subsequently vacated on 09.12.2015. Out of the two cases decided

by this Tribunal quoted by the Applicant, the Faiveley case was

decided by this Tribunal on 17.02.2016. The Sunil Bansal case was

9
decided on 28.09.2016. The Applicant filed Civil Miscellaneous

Application No. 31195/2016 before the Division Bench of High Court

on 24.08.2016 requesting for directions to this Tribunal to entertain

the Applicant’s appeal-which had not even been filed till that date. The

First Appeal No. 45/2016 was filed in this Tribunal while the pendency

of the Writ Petition before the High Court on 05.10.2016 which was

dismissed by this Tribunal on 17.10.2016 directing that the Applicant

could not pursue two remedies on the same facts at two different fora

and they therefore should choose the forum that they wish to pursue.

Liberty was given to file a fresh appeal, in case, the Writ Petition is

withdrawn. The withdrawal application was filed on 10.11.2016 and

allowed by the High Court on 15.11.2016 with freedom to pursue Writ

Petition in case appeal is not entertained. As a consequence, the

Applicant filed the present appeal on 18.11.2016.

5. We have heard the learned Counsels for the Applicant, the

Commission (the Respondent No. 1) and the Respondent Nos. 2 to 4

at great length. All three of them have relied heavily on the case law

developed on the subject. The learned Senior Counsel, Shri Amit

Sibal on behalf of the Applicant advanced the following stream of

argument in favour of condonation of the delay in filing appeal:

1. On the date the Commission gave the impugned

order, only one remedy against the order was available,

i.e. the Writ jurisdiction of the High Court.

2. Consequently the Applicant filed the Writ before the

High Court of Delhi and pursued it with all its sincerity and
10
 bonafide. The Applicant also got an interim restraint

against the Respondents from the High Court.

3. While pursuing the Writ the Applicant noticed this

Tribunal’s decision delivered on 17.02.2016 in the

Faiveley case. The Applicant also noticed the subsequent

Sunil Bansal case and Inter globe Aviation Ltd. case

where in the first case the Tribunal had intervened against

a decision given under Section 26 (8) of the Act and

specific directions were made on the process

incorporating principles of natural justice was to be

adopted in situations where the Commission did not agree

with the DGs findings in situations represented by S. 26(8)

of the Act.

6. Having being motivated by these decisions the applicant

decided to prefer appeal in the Tribunal instead of pursuing the Writ.

Besides the above facts Shri Sibal, referring to a string of cases

discussed subsequently, argued that in the first place, matter relating

to condonation of delay in filing appeal needs to be decided

irrespective of the question of jurisdiction of this Tribunal in dealing

with the subject appeal. Secondly he argued that while dealing with a

matter wherein condonation of delay has been requested, the Court

should adopt a pragmatic approach rather a pedantic approach.

Thirdly he argued that the facts of the case are very clear in

establishing that the Applicant has throughout maintained bonafide

11
and at no stage he could be blamed for manipulating facts to seek an

appropriate forum or remedy.

7. Learned Counsel for the Respondent Nos. 2 to 4, Shri Amitabh

Kumar argued that though the Applicant pursued a rightful remedy

before the High Court, it could not have shopped for a different forum

even if that forum was exercising a jurisdiction which was

‘questionable’. Shri Amitabh Kumar mainly focused on the fact that

the Applicant has not been able to explain the reasons for the long

delay. According to him even if we were to accept that the Applicant

was rightfully pursuing the Writ jurisdiction and the first time that it

noticed that this Tribunal had exercised a jurisdiction which hither to

was not available to it, in the Faiveley case, the Applicant should have

made its choice of filing an appeal at that time itself. However, the

Faiveley case was decided on 17.02.2016 whereas the First appeal

before the Tribunal was filed on 05.10.2016 which is a delay of almost

eight months. The Applicant’s argument that it was following the

proceedings in the Sunil Bansal case and once the Sunil Bansal case

was decided on 28.09.2016, the First Appeal was filed immediately

on 05.10.2016 was countered by Shri Amitabh Kumar stating that the

Applicant spent a long period from 17.02.2016 till 04.10.2016 simply

“researching” on the subject and preparing for the appeal. This was a

clear enough indication of the casualness in approach and of the fact

that once the interim restraint order had been vacated by the High

Court of Delhi on 09.12.2015 the Applicant realized that pursuing the

remedy before the High Court was not worthwhile and therefore, they
12
began to consider filing an appeal if it could be possible at that time.

Therefore, the Applicant was driven by the desire to do forum

shopping to seek a favourable remedy when it realised that the matter

was likely to take much longer in the High Court, and without an

interim remedy, they were even more motivated into moving this

Tribunal. Even assuming that the Applicant was genuinely driven by

the fact that this Tribunal had exercised jurisdiction in the Faiveley’s

case on 17.02.2016 the Applicant wasted a long period of time till the

Sunil Bansal’s case was decided. It was also clear from the decision

of this Tribunal in the Sunil Bansal’s case that the decision was not

under Section 26 (8) of the Act but the Tribunal had very clearly stated

that it was exercising the jurisdiction considering the impugned order

under Section 26 (6) of the Act which was appealable under Section

53 A (1) (a) of the Act. In view of the fact that the Applicant had not

been able to explain the long delay in filing this appeal, even if it was

bonafide, this inordinate delay could not have been condoned.

Learned Counsel Shri Udayan Jain, on behalf of the Commission

argued that this Tribunal did not have the jurisdiction to entertain an

appeal against a decision under Section 26 (8) of the Act and if such

a jurisdiction was assumed in the Faiveley case, the case should be

considered per incuriam and cannot be considered as a decision to

be followed in subsequent cases. As far as Sunil Bansal case is

concerned it was not a case under Section 26 (8) of the Act and

therefore, the Applicant had no case in that situation. Referring to the

application under consideration, Shri Jain argued that the application

13
mentions that there has been a change in position of law-apparently

referring to the interpretation of the Tribunal’s decision in the Faiveley

and Sunil Bansal cases. Shri Jain further argued that the proviso to

Section 53B(2) of the Act clearly shows that the Tribunal can entertain

an appeal after the expiry of the period of 60 days if it is satisfied that

there was “sufficient cause” for not filing the appeal within prescribed

period. In that situation the proviso to sub-section 2 of Section 53 of

the Act was similar to Section 5 of the Limitation Act and therefore,

the interpretation of the phrase ‘sufficient cause’ made by Courts in

the context of the Limitation Act has to be followed. Shri Jain also

argued that Section 14 of the Limitation Act was applicable in cases

where a remedy was being pursued out of ignorance in a Court

without jurisdiction and therefore, was not applicable in the present

case as the remedy of Writ jurisdiction was in any case available to

the Applicant. The last argument seemed out of place as the Applicant

at no point asked for a remedy under situations equivalent to Section

14 of the Limitation Act.

8. From the arguments made by the learned Counsels for the

parties there are primarily two issues which arise for decision. Firstly,

whether the issue of jurisdiction needs to be decided before the

application for condonation of delay has to be considered. Secondly,

whether in the present case the delay in filing the appeal could be

justified on the facts and situations presented by the Applicant. On

both sides enormous amount of case law has been referred in support

of their respective arguments. Shri Sibal cited this Tribunal’s decision

14
in Consumers Guidance Society Vs. Hindustan Coca Cola Beverages

Private Limited delivered on 18.10.2012 in Appeal No. 10/2012 and

in Jindal Steel & Power Limited Vs. Competition Commission of India

and another, Appeal No. 45/2012, on the question of appealability of

orders under the Act. In both these cases the Tribunal has clearly

taken a position that Section 53A of the Act is exhaustive in nature

and not inclusive, implying that appeal can lie to the Tribunal only

against orders made under Sections which have been included in

Section 53A(1)(a) of the Act. In the present case the impugned

decision has been admittedly taken by the Commission under Section

26 (8) of the Act and therefore, appeal could not have been

maintained. However, in the two cases decided by the Tribunal

namely the Faiveley case and the Sunil Bansal case quoted earlier,

in the Applicant’s perception the Tribunal took a position as if it was

entertaining appeals against decisions made by the Commission

under Section 26 (8) of the Act, thereby potentially opening the gates

for entertaining appeals even against those decisions which were not

specifically included in Section 53A(1)(a) of the Act. In his support

Shri Sibal also referred to Jyoti Sawroop Arora Vs. The Competition

Commission of India & Ors., W.P. (C) No. 6262/2015 wherein learned

Single Judge of the Delhi High Court had expressed an opinion that

even in a hypothetical situation under Section 26 (8) of the Act an

appeal would lie and the Writ may not be maintainable. Shri Sibal

accepted that the views of the Learned Judge were only in the nature

of an opinion and could not be considered as ratio decidendi.

15
Nevertheless the Applicant was motivated by the views of the

Learned Judge.

9. Shri Sibal also argued that the issue of jurisdiction has not been

specifically contested by the Respondents as no reply to the

application has been filed by either of them and unless specific

pleadings are made to that effect their arguments could not be

considered. In support, he cited Lohia Properties (P) Ltd., Tinsukia,

Dibrugarh, Assam Vs. Atmaram Kumar, (1993) 4 SCC 6. In response

to learned Counsel Shri Udayan Jain’s arguments that jurisdictional

merits have to be considered first before deciding the condonation of

delay, Shri Sibal cited Commissioner, Nagar Parishad Bhilwara Vs.

Labour Court, Bhilwara and another, (2009) 3 SCC 525 wherein it was

decided that while deciding upon the application for condonation of

delay merits of the case have to be kept out of consideration. Shri

Sibal also cited Chinta Lingam & Ors. Vs. Government of India & Ors.,

(1970) 3 SCC 768 in support of his argument that without specific

pleadings to the effect that jurisdiction was contested the learned

Counsel could not have argued on that issue. He also cited Axis Bank

Vs. SBS Organics Private Limited and another, (2016) 12 SCC 18

wherein a reference has been made to Lakshmiratan Engg. Works

Ltd. Vs. CST, AIR 1968 SC 488 explaining the term “entertain” the

appeal which implied that an appeal could be said to have been

entertained when the court had admitted it for a hearing on merits. In

the present case that situation had not arrived and therefore the

appeal has not yet been ‘entertained’. Consequently, we are at a

16
stage prior to the appeal being entertained and the tribunal need not

go into merits of the case.

10. Shri Sibal cited M. Dorayya and another Vs. Sri

Baleswaraswami Varu and Sri Venugopalaswamy Varu a deity reptd.

by its trustee A. Adinarayan Murty and another, 1964 SCC online AP

91 in support of his claim that the delay was caused because a

remedy in another Court was being pursued. He argued that, under

the Competition Act, 2002 the Tribunal is allowed flexibility beyond

the procedural shackles imposed by the Code of Civil Procedure,

while dealing with the dispute before it, it should therefore, not strictly

bind itself within the procedure but should feel at liberty in the interest

of justice to waive the period of limitation. Shri Sibal cited Manoharan

Vs. Sivarajan & others, (2014) 4 SCC 163 wherein Hon’ble Supreme

Court has looked at the phrase ‘sufficient cause’ as contained in

Section 5 of the Limitation Act as well as in proviso to sub-section 2

of Section 53B of the Act. Quoting from an earlier case Collector,

Land Acquisition, Anantnag & another Vs. Mst. Katiji & others, (1987)

2 SCC 107, sufficient case has been explained as follows:-

“11……The expression 'sufficient cause' should, there-

fore, be considered with pragmatism in justice-oriented

process approach rather than the technical detention of

sufficient case for explaining every day's delay. The

factors which are peculiar to and characteristic of the

functioning of pragmatic approach injustice oriented

process. The Court should decide the matters on merits

17
 unless the case is hopelessly without merit. No separate

standards to determine the cause laid by the State vis-a-

vis private litigant could be laid to prove strict standards

of sufficient cause. The Government at appropriate level

should constitute legal cells to examine the cases whether

any legal principles are involved for decision by the Courts

or whether cases require adjustment and should

authorize the officers to take a decision to give

appropriate permission for settlement. In the event of

decision to file the appeal needed prompt action should

be pursued by the officer responsible to file the appeal

and he should be made personally responsible for lapses,

if any. Equally, the State cannot be put on the same

footing as an individual. The individual would always be

quick in taking the decision whether he would pursue the

remedy by way of an appeal or application since he is a

person legally injured while State is an impersonal

machinery working through its officers or servants.”

11. Further in State of Bihar & others v. Kameshwar Prasad Singh

& another, (2000) 9 SCC 94 it was held that power to condone the

delay in approaching the Court has been conferred upon the Courts

to enable them to do substantial justice to parties by disposing the

cases on merit. The Hon’ble Supreme Court quoting from Collector,

Land Acquisition, Anantnag & another Vs. Mst. Katiji & others, (cited

18
earlier) held that a liberal approach is adopted on principle as it is

realized that:

“1. Ordinarily a litigant does not stand to benefit by lodging

an appeal late.

2. Refusing to condone delay can result in a meritorious

matter being thrown out at the very threshold and cause

of justice being defeated. As against this when delay is

condoned the highest that can happen is that a cause

would be decided on merits after hearing the parties.

3. 'Every day's delay must be explained' does not mean

that a pedantic approach should be made. Why not every

hour's delay, every second's delay? The doctrine must be

applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations

are pitted against each other, cause of substantial justice

deserves to be preferred for the other side cannot claim

to have vested right in injustice being done because of a

non-deliberate delay.

5. There is no presumption that delay is occasioned

deliberately, or on account of culpable negligence, or on

account of mala fides. A litigant does not stand to benefit

by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on

account of its power to legalize injustice on technical

19
 grounds but because it is capable of removing injustice

and is expected to do so”.

(emphasis supplied)

12. Shri Sibal also referred to S. Ganesharaju (dead) Through LRS.

and another Vs. Narasamma (dead) Through LRS. and others, (2013)

11 SCC 341 wherein it was held that,

“The trend of the courts while dealing with the matter with

regard to condonation of delay has tilted more towards

condoning delay and directing the parties to contest the

matter on merits, meaning thereby that such technicalities

have been given a go-by. Since sufficient cause has not

been defined, thus, the courts are left to exercise a

discretion to come to the conclusion whether

circumstances exist establishing sufficient cause. The

only guiding principle to be seen is whether a party has

acted with reasonable diligence and had not been

negligent and callous in the prosecution of the matter.”

(emphasis supplied)

13. Shri Amitabh Kumar, learned Counsel for the Respondent Nos.

2 to 4 cited this Tribunal’s order in Appeal No. 80/2015 in Ministry of

Tourism Vs. M/s. Span Communications and another wherein the

Tribunal referring to the case law on the subject quoted as follows:

“where a case has been presented in the Court beyond

limitation the applicant has to explain the court as to what

20
 was the “sufficient cause” which means an adequate and

enough reason which prevented him to approach the

court within limitation. In case a party is found to be

negligent, or for want of bonafide on his part in the facts

and circumstances of the case, or found to have not acted

diligently or remained inactive, there cannot be a justified

ground to condone the delay. No court could be justified

in condoning such an in ordinate delay by imposing any

condition whatsoever. The application is to be decided

only within the parameters laid down by this Tribunal in

regard to the condonation of delay. In case there was no

sufficient cause to prevent a litigant to approach the court

on time condoning the delay without any justification,

putting any condition whatsoever, amounts to passing an

order in violation of the statutory provisions and it

tantamounts to showing utter disregard to the legislature.”

(emphasis supplied)

14. Shri Amitabh Kumar also cited Mohinder Prakash Vs. DLF

Commercial Developers Ltd., 2012 SCC Online Del 932 which was

an appeal against the decision of the MRTPC before the Hon’ble

Supreme Court. We quote paragraph 12 of the order to summarize

the conclusion drawn by the Hon’ble Supreme Court

“On reading of the aforesaid paragraphs of the application

it shows that the plaintiff withdrew the complaint on

account of objections raised by counsel for the defendant

21
on the basis of decision in Saurabh Prakash (Supra) and

on the advice of the counsel. This decision was rendered

by the Apex Court in the year 2006 and was available to

the plaintiff in the year 2006 and more so it was brought

to the notice of the plaintiff when the objection was taken

by the defendant in the written statement. If the stand of

the plaintiff is to be taken as correct, then the plaintiff has

been unable to discharge onus that he was prosecuting

his complaint diligently before the MRTP, as the present

application lacks particulars or any evidence on record be

it the orders of the MRTP or any attempt on the part of the

plaintiff to show that despite the judgment and the

objection taken, he continued to prosecute the complaint

diligently from the year 2006 to 2010. There is nothing on

record to show as to why when the objection was raised

in the written statement, at that stage, the plaintiff did not

consider it appropriate to withdraw the complaint and file

the suit or as to why the plaintiff decided to do so in the

year 2010 as there is nothing on record to suggest any

change of circumstances between the year 2006 to 2010

except the inaction on the part of the plaintiff. The order

passed by the MRTP Commission also does not show

that either the plaintiff sought liberty of the Commission or

such liberty was granted as has been pleaded in the

application. The plaintiff simply withdrew the complaint

22
 and filed the present suit. Another factor which shows

complete lack of bona fides and due diligence on the part

of the plaintiff is the unexplained delay of nine months in

filing the present suit after withdrawal of the complaint.

There is also no explanation much less a cogent

explanation in the application as to why the plaintiff did not

approach this court at the earliest opportunity available,

after withdrawing the complaint in the month of March,

2010 and waited till December, 2010, which would show

the careless attitude of the plaintiff and the inaction on his

part.”

(emphasis supplied)

15. Shri Amitabh Kumar also cited this Tribunal’s order in the earlier

appeal filed by the Applicant bearing Appeal No. 45/2016 drawing our

attention to paragraphs 24 to 26

“24. It is not in dispute that W.P. (C) 2957/2015 filed by

the appellant under Articles 226 and 227 of the

Constitution with the prayers to which reference has been

made in the earlier part of this order is still pending before

the High Court. In our opinion, if the appellant was

advised that the impugned order is appealable then it

should have filed appeal under Section 53B within the

period of limitation prescribed in the sub-section (2)

thereof. However, instead of adopting that course, the

appellant took a conscious decision to challenge the

23
impugned order by filing writ petition under Article 226 and

227 of the Constitution and succeeded in persuading the

learned Single Judge of the High Court to pass an interim

order, which was ultimately vacated. The appellant

challenged the second order of the learned Single Judge

by filing Letters Patent Appeal, which was dismissed by

the Division Bench of the High Court. Thereafter, the

Senior Advocates appearing for the parties made a

statement before the learned Single Judge on 28.04.2016

that writ petition is maintainable. However, after four

months, the appellant took a U-turn and filed C.M.

No.31195/2016 and made an unusual prayer that the

Tribunal be directed to adjudicate the matter on the issue

of violation of principles of natural justice, knowing fully

well that nothing was pending before the Tribunal.

25. In our considered view, C.M. No.31195/2016 filed

by the appellant in the pending writ petition was totally

misconceived and the mere fact that the learned Single

Judge took cognizance of the statement made by the

Senior Counsel appearing for the appellant that it intends

to file an appeal before the Competition Appellate

Tribunal cannot be made a ground for entertaining the

appeal by overlooking the fact that the issues raised in the

appeal are being agitated before the High Court.

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 26. We are also of the view that the appellant cannot

pursue two remedies simultaneously for quashing of the

order passed by the Commission. It has to make a choice

either to pursue the writ petition pending before the High

Court or this appeal.”

(emphasis supplied)

16. Shri Kumar argued that even this Tribunal had expressed

skepticism on the manner in which a Miscellaneous Application was

moved in the High Court and thereafter an Appeal was filed while

keeping the Writ pending. In Basawaraj and another Vs. Special Land

Acquisition officer, (2013) 14 SCC 81 it was held that

“Sufficient cause is the cause for which defendant could

not be blamed for his absence. The meaning of the word

"sufficient" is "adequate" or "enough", inasmuch as may

be necessary to answer the purpose intended. Therefore,

the word "sufficient" embraces no more than that which

provides a platitude, which when the act done suffices to

accomplish the purpose intended in the facts and circum-

stances existing in a case, duly examined from the view

point of a reasonable standard of a cautious man. In this

context, "sufficient cause" means that the party should not

have acted in a negligent manner or there was a want of

bona fide on its part in view of the facts and circumstances

of a case or it cannot be alleged that the party has "not

acted diligently" or "remained inactive"…………………….

25
 whenever the Court exercises discretion, it has to be

exercised judiciously. The applicant must satisfy the Court

that he was prevented by any “sufficient cause” from

prosecuting his case, and unless a satisfactory

explanation is furnished, the Court should not allow the

application for condonation of delay.”

(emphasis supplied)

It was further held,

“The expression “sufficient cause” should be given a

liberal interpretation to ensure that substantial justice is

done, but only so long as negligence, inaction or lack of

bona fides cannot be imputed to the party concerned. It is

a legal proposition that law of limitation may harshly affect

a particular party but it has to be applied with all its rigour

when the statute so prescribes.”

(emphasis supplied)

17. Shri Amitabh Kumar also referred to the term ‘forum shopping’

to suggest that the Appellant/Applicant initiated a legal proceeding in

the High Court knowing well that it was the only remedy available on

the date to them. However, once the interim restraint on the opposite

party was withdrawn the Applicant started looking for alternate

remedy and the Faiveley case came in handy to pursue the

Applicant’s intention. However, they still did not clinch a decision soon

after Faiveley but allowed to linger their decision to seek alternate

remedy for almost eight months. Thus they did not merely display
26
negligence and inaction but also could be blamed for forum shopping.

In order to substantiate his argument on forum shopping, Shri Kumar

cited Union of India & Ors. Vs. M/s. Cipla Ltd. & Anr., 2016 SCC

Online SC 1159, wherein the Hon’ble Supreme Court has through an

illustrative discussion given several forms of Forum shopping. In

paragraph 164 of the referred order the Hon’ble Supreme Court

stated “the Court is required to adopt a functional test vis-à-vis the

litigation and the litigant. What has to be seen is whether there any

functional similarity in the proceedings between one Court and

another or whether there is some sort of subterfuge on the part of a

litigant. It is this functional test that will determine whether a litigant is

indulging in forum shopping or not.”

(emphasis supplied)

18. Shri Kumar also argued that if in an earlier case a relief had

been obtained by a party it did not imply that another party could

obtain a similar relief having belatedly filed their application/petition

therefore, if Faiveley had happened it did not imply that the Applicant

could seek similar relief from the Tribunal knowing well that an order

under Section 26 (8) of the Act was not appealable.

19. Shri Udayan Jain also referred to several cases most of which

were indicative of the jurisdictional aspect rather than to do with

limitation under Section 5 of the Limitation Act or the provisions of the

Competition Act. On the issue of jurisdiction Shri Jain argued that in

the first place this Tribunal had no jurisdiction to entertain an appeal

27
against a decision given under Section 26 (8) of the Act therefore, it

had consequently no authority to entertain an application for

condonation of delay in filing an appeal which was not legally

permissible. He referred to the SAIL case and an order of this Tribunal

in TPM Consultants Private Limited Vs. Competition Commission of

India wherein both the Hon’ble Supreme Court and this Tribunal

respectively, have taken a view that only those appeals are

maintainable in the Tribunal which are included in Section 53A(1)(a)

of the Act. The crux of Shri Jain’s argument besides the one referred

above was that merely by withdrawing the Writ Petition with the

permission to file an appeal did not confer a jurisdiction on the

Tribunal. He also somehow referred to Section 14 of the Limitation

Act which concerns situation when a litigation is being pursued in a

Court without jurisdiction but out of bonafide ignorance of the litigant.

In the present case it is an admitted fact that a Writ against the order

under Section 26 (8) of the Act could be legitimately filed before the

High Court and therefore, a kind of situation envisaged in Section 14

of the Limitation Act did not apply. We are afraid that this particular

argument of Shri Jain did not appeal to us, it was also controverted

by the Applicant. Shri Jain also argued that the decision of this

Tribunal in Faiveley case was per incuriam- he referred to Hon’ble

Supreme Court’s decision in Madhya Pradesh Rural Road

Development Authority and Ors. Vs. L.G. Chaudhary Engineers and

Contractors, (2012) 3 SCC 495. We consider this an important matter

and would have liked to deal with it in a more systematic and

28
elaborate manner than in the manner in which it was presented to us.

Neither the pleading to that effect was made on behalf of the

Commission nor substantive arguments were made from all sides on

the subject. We would refrain from commenting upon the character of

this Tribunal’s order in the Faiveley case when the matter has not

been adequately argued by either side. We also recognize that in the

manner in which our examination of the matter has proceeded, the

declaration of the Faiveley case as per incuriam is not material.

20. After having discussed the case law from both sides at a

substantially great length we can now apply the principles in these

cases to our present situation. It is quite clear that an application for

condonation of delay is the first point of halt for a litigant before he

embarks upon the process of litigation in situation where he is

approaching the judicial forum after the prescribed period of limitation.

Therefore, in our view unless he clears the first hurdle no judicial

forum can address the substantive part of the admissibility of his

pleadings because till the delay is condoned he does not have the

so-called, license to approach the judicial forum, to seek a remedy for

the perceived wrong. The fact that a judicial forum has an authority to

address the subject issue or not is something which can be addressed

only subsequently. It is quite clear from the discussion in the previous

paragraphs and the case law cited that while dealing with condonation

of delay we are not expected to look into the merit of the case nor are

we expected to go into the substantive part of pleadings. The

substantive part can only be addressed to the extent that it is

29
necessary to establish the manner in which the time was spent in

order to make the relevant appeal/application. Therefore, we do not

subscribe to Shri Jain’s argument that a matter of jurisdiction comes

in the way of deciding the condonation application.

21. This Tribunal has also looked at the issue of limitation in some

of its earlier decisions. In Geeta Kapur Vs. Competition Commission

of India & Ors. in Appeal No. 41/2016 decided on 29.08.2016 it was

held as follows:-

“Though, Section 5 of the Limitation Act has been liberally

interpreted in some judgments including the often cited

judgement of the Supreme Court in Collector Land Acquisition,

Anantnag and Anr. Vs. Mst. Katiji and Ors. AIR 1987 SC 1353,

while dealing with an application filed for condonation of delay

in filing an appeal under Section 53B(1) of the Act, the Tribunal

cannot be guided by the principles laid down in those cases

because a special period of limitation has been prescribed

under the Act for conducting investigation and also for filing

appeals against the direction given or decision or order made

by the Commission. The legislative intendment of prescribing a

shorter period is in consonance with the object of expeditious

disposal of the matters relating to prevention of practices having

adverse effect on competition, promotion and sustenance of

competition in markets, protection of interests of consumers

and ensuring of freedom of trade carried on by other

participants in markets in India. If the ratio of the judgments

30
 involving the interpretation of the term ‘sufficient cause’

appearing in Section 5 of the Limitation Act is applied for

interpreting proviso to Section 53B(2) of the Act, then the whole

purpose of prescribing a different period of limitation would

frustrated.”

(emphasis supplied)

22. As far as the period of limitation is concerned it is quite clear

from the language of proviso of Section 53B of the Act that it is entirely

similar to Section 5 of the Limitation Act. A plethora of case law given

above establishes that though under Section 5 of the Limitation Act

the power to condone delay is discretionary it has to be exercised

judiciously. Further condonation of delay should not encourage

multiple litigation. To the extent condonation helps in delivery of

justice, it is relevant that a practical view is taken. On the distinction

drawn by the Applicant that in the cases of limitation pragmatism

should prevail over a pedantic approach, we are of the view that while

pragmatism should prevail there should be a frame within which

pragmatism should be encouraged. It is not the scheme of the

legislation that inordinate delays without appropriate explanation are

condoned leading to unnecessary litigation. If a provision is stipulated

in the law it has to be applied with sincerity and pragmatism would not

give the courts a liberty to extend what is prohibited by law to an

extent that it will negate the very objective of the relevant provision.

Applying these principles to the present case it was clearly brought

out by Shri Amitabh Kumar that once the decision in the Faiveley case
31
was given by this Tribunal, going by the Applicant’s understanding,

the window for seeking relief in an appeal before the Tribunal had

been opened. If that be so the Applicant should have sought the

remedy under Section 53B of the Act immediately after the Faiveley

case was decided. Therefore, even though the Applicant was

pursuing a legitimate remedy under writ jurisdiction of the High Court,

and we have no reasons to suspect the bonafide of the Applicant till

the point he became conscious of this Tribunal having exercised

authority to deal with decisions under Section 26 (8) of the Act, he

should have exercised the option of preferring an appeal immediately

after this tribunal’s decision in the Faiveley case. On the contrary the

applicant continued to pursue the writ and even sought an interim

remedy in the writ in the nature of a direction to this Tribunal without

having even filed an appeal before this Tribunal. It showed

ambivalence and inaction on the part of the Applicant. Further

between the decisions of the Tribunal in the Faiveley case and the

Sunil Bansal case precious eight months had been lost. During the

course of his argument, Shri Sibal mentioned that the Applicant

counsels were keeping an eye in the proceedings in the Sunil Bansal

case therefore, it cannot be said they were not conscious of the

potential right of appeal in the Tribunal. We find this argument

unsustainable because it cannot be expected that a litigant should

have the luxury to choose the time of his filing a dispute beyond the

prescribed period of limitation, spending his time watching the trend

of decisions that a certain Court would be giving. We are conscious

32
that a day wise explanation for the delay may not be possible and not

even required but in the present case a good eight months had

elapsed without the Applicant explaining the way in which those eight

months were spent. It was argued by the learned senior counsel that

during the period of these eight months it was not only the Faiveley

and Sunil Bansal cases but they were also following the Inter-globe

and other cases where this tribunal had remitted the cases to the

commission for following due procedure in line with the principles of

natural justice in similar situations and facts. Somehow this argument

does not impress us for the same reasons as stated above. The

Applicant’s action only shows either an effort at camouflaging their

real intent at forum shopping or their lack of decision and inaction. We

are already pragmatically inclined but in absence of an acceptable

explanation for delay of eight months between the Faiveley decision

and filing of the first appeal in this tribunal we find ourselves

constrained to show any further discretion. It is also to be noted that

it is not as if the Applicant in absence of a favourable decision on this

application, would be left with no remedy at all. He was pursuing the

remedy under the Writ jurisdiction of the High Court and had sought

reliefs similar in effect as in the appeal before us, and the High Court

has allowed him to file this appeal with the liberty to come back and

seek remedy under the Writ jurisdiction in case the appeal fails.

Therefore, he will not be left high and dry if this delay is not

condoned.

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23. Therefore, we are not fully convinced with the reasons

advanced by the applicant in support of his condonation application

and in the consequence the application is rejected.

(Rajeev Kher)
Member

(Anita Kapur)
Member

03 April, 2017

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