[ISSUE 1] THAT THE RELEVANT MARKET SHOULD BE DEFINED AS “MARKET

FOR APP AND WEBSITE-BASED DELIVERY FROM RESTAURANTS AND

GROCERY STORES IN INDIA”.

It is humbly submitted before the Hon’ble Supreme Court of India that the term relevant market 1
includes both relevant geographical2 as well as relevant product market3, wherein relevant
geographical market is not per se disputed in the alleged matter which is considered to be “across
the territory of India”, though similar is not the case with Relevant product/ service market.
Thus, the most appropriate definition for Relevant Market would be “Market for app and
website-based delivery from restaurants and grocery stores in India”. The said assertion would be
proved under following contentions:-

[1.1]THAT THE SUPPLY SIDE SUBSTITUTIBILTY SHOULD BE TAKEN INTO

CONSIDERATION.

A single relevant market can be defined from both supply and demand sides, when both the sides
have similar views regarding substitutability. 4The European Commission had defined the
relevant market looking into both demand-side and supply side substitutability for a more
holistic analysis.5 CAs have recognised the interdependence between both sides of the market
due to indirect network effects, and have factored this into their relevant market
determinations.6The relevant product market is to be looked at from both demand and supply
perspectivebased on the characteristics of the product, its price and intended use. 7In its decisional
practice the CCI8 many a times takes this into account, making the definition under Section 2(t)
that defines‘Relevant Product Market’ clearer would only prove to be beneficial.

1
The Competition Act, § 2(r).
2
The Competition Act, § 2(s).
3
The Competition Act, § 2(t).
4
Daniel Mandrescu, Applying (EU) competition law to online platforms: Reflections on the definition of the relevant
market, World Competition: Law and Economics Review, Vol. 41(3), (2018) papers.ssrn.com/sol3/papers.cfm?
abstract_id=3271624 ( Last visited January 15, 2022)
5
11 Case T-612/17, Google and Alphabet v. Commission (Google Shopping) 2021 (EU)./Google Search
(Shopping) (Case AT.39740) Commission Decision C(2017) 4444 [2017] OJ C9/11 .
6
SUPPORT STUDY ACCOMPANYING THE COMMISSION NOTICE ON THE EVALUATION OF THE
DEFINITION OF RELEVANT MARKET FOR THE PURPOSES OF COMMUNITY COMPETITION LAW,
ec.europa.eu/competition-policy/system/ files/2021-06/kd0221712enn_market_definition_notice_2021_1.pdf. ( Last
visited January 25, 2022)
7
In Re: M/s Atos Worldline India Pvt. Ltd. vs M/s Verifone India Sales Pvt. Ltd. And Ors, 2015 SCC OnLine CCI
57 (India).
8
Ultratech Cement Limited/ Jaiprakash Associates Limited Case No. 2015/02/246 (CCI) 2015 (India).
[1.1.A] Relevant market determination from supply side substitutability.

The Review Committee Report9 has suggested that in cases where the suppliers can shift from
one product to another in a short span of time without incurring much cost, this should be
considered part of the relevant market as well. The 'Draft Competition (Amendment) Bill 202010
also recommends insertion of a para which states that the "the production or supply of which are
regarded as interchangeable or substitutable by the supplier, by reason of the ease of switching
production between such products and services and marketing them in the short term without
incurring significant additional costs or risks in response to small and permanent changes in
relative prices"to section 2(t) of the Act. The recommended addition of supply-
sidesubstitutability in relevant product market definition by the Draft Competition
(Amendment) Bill 2020 has brought us in line with international jurisprudence as well. With
regards to the factors that the CCI is to consider under Section 19(7), inclusion of 'switching
costs' would cater to the needs of the developing markets as well. 11
In the instant case, owing to the multi sided nature of the market, supply side substitutability
should be given due importance. Herein, it is very much evident that due to heavy losses faced
by Aahar during COVID 19, several radical steps were taken to bridge out the gap in the supply
chain and cut back on losses and one much step was to expand its delivery service into grocery
and other items available in small stores (called ‘kirana’ shops), a service branded as “InstaAnn”,
thus it tried to expand its delivery system into newer dimension owing to the low switching cost
and available technologically driven app.12 Also the delivery personnel of the platform may not
differentiate between an order for food or groceries hence delivery service for both will be
substitutable from supply side of the market.Thus, from supply side in the given market both the
delivery of food and grocery items are easily substitutable, hence form part of same relevant
market.

[1.1.B] BOTH APP AND WEBSITE BASED ONLINE DELIVERY SYSTEM SHOULD
BE CONSIDERED UNDER THE SAME RELEVANT MARKET.

9
REPORT OF THE COMPETITION LAW REVIEW COMMITTEE 29TH JULY
2019https://www.ies.gov.in/pdfs/Report-Competition-CLRC.pdf
10
Draft Competition (Amendment) Bill 2020,
https://www.taxmanagementindia.com/file_folder/folder_5/Draft_Competition_Amendment_Bill_2020.pdf.
11
Id.
12
Moot Proposition ,¶3.
The "purpose of defining the market is to encompass all those products or services which are
considered to be effective substitutes for the product or service in question, by the consumers". 13
The consumer may not be concerned whether the food is delivered by app or website based
online food delivery system. It is asserted that the distinguishing factor of the delivery business is
the service of receiving one’s desired item or food without leaving the comfort of one's home
and not the ability to search for restaurants on the App of Aahar. Furthermore, the consumers can
use phone based direct ordering App to place their order from the restaurants or order directly
from the restaurant's website, and merely the search function does not put the platform in
a different relevant market as compared to other food delivery options. In the instant case,
delivery services market is much broader, as all restaurants had the potential of setting up their
own delivery channels (as they did pre-2011, i.e., before the advent of online delivery platforms
such as SpiceMax). In fact, restaurants not listed on Aahar aggressively advertised on social
media platforms and had in-house delivery partners for fulfilling such orders. Additionally, there
existedindependent delivery services such as Bungo, which consumers could avail for picking up
their orders from restaurants and having it delivered to their place of choice for a small fee.
Aahar advanced the alternative definition of “Market for app and website-based delivery from
restaurants and grocery stores in India”. Thus, the relevant market should be defined as “Market
for app and website-based delivery from restaurants and grocery stores in India.”

[1.2] THAT MERELY SEARCH FEATURE DOES NOT PUT AAHAR IN A

DIFFERENT RELEVANT MARKET.

In HarshitaChawla v WhatsApp,14 the CCI defined the primary relevant market as the ‘market for
Over-The-Top (OTT) messaging apps through smartphones in India’, noting in its analysis that
communication apps could be segmented into several different categories on the basis of their
peculiar features and functionalities. However, it chose not to rely too heavily on the peculiar
characteristics of communication apps, and focused instead on the ‘primary or most dominant
feature of the app to categorise it into a particular relevant market.’ To approve the combination
between Facebook and Jaadhu Holdings Pvt Ltd, the Commission noted 15 that there was a
gradual trend toward convergence in terms of functionality between user apps, so that relying on

13
Fast Track Call Cab (P.) Ltd v. ANI Technologies (P.)Ltd, 2015 SCC OnLine CCI 70 (India).
14
Harshit Chawla v. WhatsApp, 2020 SCC OnLine CCI 32 (India).
15
Combination Registration No. C-2020/06/747
slight differences in features may not be appropriate for relevant market determination. The
CCI’s approach in these cases is suited to digital markets as they are dynamic and complex, with
features and functionalities being added regularly.