CCI Appeals Aahar's Abuse of Dominance in Food Delivery Market

TEAM CODE – T-04
CCI – DNLU 2ND JUSTICE G.P. SINGH MEMORIAL NATIONAL CORPORATE

LAW MOOT COURT COMPETITION 2022
BEFORE THE HON’BLE SUPREME COURT

OF INDIA
CASE NO -…../2022
APPEAL UNDER SECTION 53T

OF THE INDIAN COMPETITION ACT, 2002
In The Matter of
COMPETITION COMMISION OF INDIA (CCI) …………………………

APPELLANT
VS
AAHAR………………………………………………………………………RESPONDENT
WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT
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CCI- DNLU 2ND JUSTICE GP SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION,
2022
TABLE OF CONTENTS
LIST OF ABBREVIATIONS..................................................................................................III
INDEX OF AUTHORITIES....................................................................................................IV
STATEMENT OF JURISDICTION........................................................................................IX
STATEMENT OF FACTS........................................................................................................X
ISSUES RAISED...................................................................................................................XII
SUMMARY OF ARGUMENTS..........................................................................................XIII
ARGUMENTS ADVANCED...................................................................................................1
[ISSUE 1]: RELEVANT MARKET IS ONE IDENTIFIED BY NRAI AND AAHAR IS

DOMINANT IN THE RELEVANT MARKET....................................................................1
A. NRAI’s Definition of Relevant Market is justified.................................................1
i. Relevant product market..........................................................................................1
ii. Relevant geographical market.................................................................................3
B. Aahar is Dominant Entity in the Relevant Market..................................................3
i. Aahar has been able to operate independently of competitive forces......................4
ii. Aahar’s conduct prima facie shows its dominance in the market............................7
[ISSUE 2]: AAHAR HAS ABUSED ITS DOMINANT POSITION....................................8
A. INSISTENCE ON PRICE PARITY UNDER CLAUSE 9 OF THE MERCHANT

AGREEMENT IS ABUSIVE............................................................................................8
i. Price Parity clauses are prohibited in various jurisdictions.....................................8
ii. The Clause distorts competition..............................................................................9
iii. Price Parity clauses lead to higher prices for consumers.........................................9
B. The manner of provision of Deep Discounts under Clause 12 of the Merchant

Agreement amounts to abuse of Dominant Position........................................................10
i. The provision of Deep Discounts amounts to abuse under section 4(2) of the Act.
10
ii. The discount offered by Aahar result in creating an entry barrier.........................11
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MEMORIAL FOR APPELLANTS
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iii. The provision of Deep Discount under Clause 12 amounts to Predatory Pricing. 11
C. Aahar’s conduct amounts to abuse of dominant position......................................13
i. Aahar’s conduct was discriminatory......................................................................14
ii. Aahar has violated platform neutrality..................................................................14
[ISSUE 3]: AAHAR INDULGED IN ANTICOMPETITIVE AGREEMENTS WITH ITS

MERCHANT PARTNERS CREATING APPRECIABLE ADVERSE EFFECT ON
COMPETITION (“AAEC”), AS SPECIFIED UNDER SECTION 3 OF THE ACT.........16
A. Providing negative reinforcement for listing on competing apps under Clause 17

is anti-competitive on the following grounds:.................................................................16
i. There was an agreement........................................................................................16
ii. Clause 17 of the present agreement is in nature of exclusive distribution

agreement and refusal to deal agreement u/s 3(4) (c) and s. 3(4) (d) respectively of the
act. 16
iii. Clause 17 of the agreement is anti-competitive under §19 (3) of the act..............18
B. Making Restaurant Promotion on the app subject to Resorting to Aahar’s Delivery

Partner under Clause 22 renders the said agreement Anti-Competitive..........................19
I. The vertical agreement is anti-competitive in nature.............................................19
ii. The said clause of the agreement is likely to cause an appreciable adverse effect
on competition..............................................................................................................21
[ISSUE 4]: THE IMPOSITION & QUANTUM OF PENALTY AS IMPOSED BY CCI

ARE SUSTAINABLE ON ACCOUNT OF VIOLATION OF §3 AND §4 OF THE ACT.
..............................................................................................................................................22
i. Strength and size of Aahar.....................................................................................22
ii. Nature of Infringement..........................................................................................22
PRAYER...............................................................................................................................XIV
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LIST OF ABBREVIATIONS
& And
§ Section
¶ Paragraph
AAEC Appreciable Adverse Effect on Competition
SCC Supreme Court Cases
MFN Most Favoured Nation
CA Competition Authorities
CCI Competition Commission of India
CompAT Competition Appellate Tribunal
CompLR Company Law Reporter
ECR European Court Reports
Ed. Edition
EU European Union
Inc. Incorporation
In Re In Reference
Ltd. Limited
NCLAT National Company Law Appellate Tribunal
No. Number
OP Opposite Party
Ors. Others
SC Supreme Court
EC European Commission
TFEU Treaty on the Functioning of the European Union
U.S. United States

2022
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INDEX OF AUTHORITIES
INDIAN CASES
All India Online Vendors Association v. Flipkart India Pvt. Ltd., 2018 SCC OnLine CCI 97
(India).....................................................................................................................................2
Amazon Seller Services Private Ltd. v. CCI, 2021 SCC OnLine Kar 12626 (India)..............17
Arshiya Rail Infrastructure Ltd. v. Ministry of Railways, 2012 SCC OnLine CCI 53 (India).
..............................................................................................................................................12
Automobiles Dealers Association v. Global Automobiles Limited & Anr., 2012 CompLR 827
(CCI) (India).........................................................................................................................16
CCI v. Bharti Airtel Ltd., (2019) 2 SCC 521 (India)...............................................................16
CCI v. Coordination Committee of Artistes and Technicians of W.B., (2017) 5 SCC 17
(India).....................................................................................................................................1
CCI v. SAIL, (2010) 10 SCC 744 (India)................................................................................19
CCI v. Steel Authority of India Ltd., (2010) 10 SCC 744 (India)...........................................16
DotEx International Ltd. and Omnesys Technologies Pvt. Ltd., 2011 CompLR 129 (CCI)
(India)...................................................................................................................................12
East India Petroleum Pvt. Ltd. v. South Asia LPG Company Pvt. Ltd., 2018 SCC OnLine
CCI 59 (India)......................................................................................................................15
Federation of Hotel & Restaurant Association of India v. MakeMyTrip India Pvt. Ltd., 2021
SCC OnLine CCI 12 (India)..................................................................................................7
Harshit Chawla v. WhatsApp, 2020 SCC OnLine CCI 32 (India)............................................2
Hindustan Steel Ltd. v. State of Orissa, (1969) 2 SCC 627 (India).........................................22
In Re: Delhi Vyapar Mahasangh v. Flipkart Internet Private Limited and Amazon Seller
Services Private Ltd., 2020 SCC OnLine CCI 3 (India)......................................................18
In Re: Johnson and Johnson Ltd., (1988) 64 Comp Cas 394 NULL (India)............................12
Indian National Shipowners' Association v. Oil and Natural Gas Corp. Ltd., 2018 SCC
OnLine CCI 48 (India)......................................................................................................10
Jasper Infotech Pvt. Ltd. (Snapdeal) v. Kaff Appliances Pvt. Ltd., 2019 SCC OnLine CCI 2
(India)...................................................................................................................................19
JSW Paints Private Limited v. Asian Paints Ltd., 2020 SCC OnLine CCI 1 (India)..............18
Jupiter Gaming Solutions Pvt. Ltd. v. Finance Secretary, Government of Goa, 2011 SCC
OnLine CCI 22 (India).........................................................................................................13
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Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan & Ors., (2010) 9 SCC 496 (India).......23
Lifestyle Equities CV v. Amazon Seller Services Private, 2020 SCC OnLine CCI 33 (India).2
M/s Transparent Energy Systems Pvt. Ltd. v. TECPRO Systems Ltd., (2013) SCC OnLine
CCI 42 (India)......................................................................................................................12
Matrimony.com Ltd. v. Google LLC and Ors., 2018 SCC OnLine CCI 1 (India)..................15
MCX Stock Exchange Ltd. v. NSE, 2011 SCC OnLine CCI 52 (India)...................................7
Meru Travel Solutions Pvt. Ltd. v. Uber India Systems Pvt. Ltd. & Ors., 2015 SCC OnLine
CCI 191 (India)......................................................................................................................1
National Stock Exchange India Ltd. v. CCI, 2011 SCC OnLine Comp AT 242 (India).........13
Prints India v. Springer India Pvt. Ltd., 2012 SCC OnLine CCI 45 (India)..............................1
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95 (India).............18
Shri M. M. Mittal v. M/s Paliwal Developers Ltd., 2016 SCC OnLine CCI 61 (India)............1
Sonam Sharma v. Apple Inc., USA and Ors., 2013 SCC OnLine CCI 25 (India)...................19
XYZ v. REC Power Distribution Company Ltd., 2016 SCC OnLine CCI 21 (India).............15
FOREIGN CASES
Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993)................12
Case 27/76, United Brands v. Commission, 1978 E.C.R. 207 [EU]..........................................5
Case C-209/10, Post Danmark A/S v. Konkurrenceråde, EU:C:2012:172 [EU].....................21
Case C-418/01, IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG, 2004
E.C.R. I-5039 [EU]................................................................................................................1
Case C-457/10, AstraZeneca v. Commission, [2013] 4 C.M.L.R. 7 [EU]................................4
Case C-525/16, MEO-Serviços de Comunicações e Multimédia SA v. Autoridade da
Concorrência, ECLI:EU:2018:270 [EU]..............................................................................10
Case C-6/72, Continental Can Company Inc v. Comm’n of the European Communities,
(1973) E.C.R. 215 [EU].........................................................................................................1
Case C-95/05, British Airways plc v. Commission, 2007 E.C.R. I-2331 [EU].........................4
Case T-155/06, Tomra Systems and Others v. Comm’n, 2010 E.C.R. II-4361 [EU]..............14
Case T-191/98, Atlantic Container Line AB and others v. EC Comm’n, 2003 E.C.R. II-3275
[EU]......................................................................................................................................22
Case T-201/04, Microsoft Corp. v. Comm’n of the European Communities, 2007 E.C.R. II-
3601 [EU].............................................................................................................................20
Case T-23/90, Automobiles Peugeot SA v. Comm’n, 1991 E.C.R. II-2533 [EU]..................16
Case T-322/81, N.V. Netherlands Banden Industrie Michelin v. Commission of the European
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Communities, 1983 E.C.R. 3461 [EU]..................................................................................4

Case T-340/03, France Télécom v. Comm’n, 2007 E.C.R. II-107 [EU].................................13
Case T-612/17, Google and Alphabet v. Commission, EU:T:2021:763 [EU].........................21
Case T-83/91, Tetra Pak International SA v. Comm’n, 1994 E.C.R. II-755 [EU]..................15
Case T-87/76, Hoffmann-La Roche v. Comm’n, 1979 E.C.R. 461 [EU]..................................3
Kier Group Plc & Ors. v. Office of Fair Trading, (2011) CAT 3 [UK]...................................22
Societe Nationale Industrielle Aerospatiale v. United State District Court for the Southern
District of Iowa, 482 U.S. 522, (1987)...................................................................................1
William Inglis, Etc v. ITT Continental Baking Co, 668 F.2d 1014 (US)................................12
BOOKS
1 SM DUGAR ET. AL., GUIDE TO COMPETITION LAW (6th ed. Lexisnexis 2016)....................15
ABIR ROY, COMPETITION LAW IN INDIA 146 (2nd ed, Eastern Law House 2014)..................21
ABIR ROY, COMPETITION LAW IN INDIA: A PRACTICLE GUIDE 220 (Kluwer Law
International, 2016)..............................................................................................................21
FAULL & NIKPAY, THE EU LAW OF COMPETITION (Jonathan Faull et al. eds. Oxford Univ.
Press 3d ed. 2014)................................................................................................................12
GUSTAVO GHIDINI, INTELLECTUAL PROPERTY AND COMPETITION LAW: INTELLECTUAL
PROPERTY AND COMPETITION LAW: THE INNOVATION NEXUS (1st ed. Edward Elgar
2006)....................................................................................................................................15
HOVENKAMP H., FEDERAL ANTITRUST POLICY- THE LAW OF COMPETITION AND PRACTICE
(4th ed. Thomson West, 2005)..............................................................................................11
RICHARD WHISH AND DAVID BAILEY, COMPETITION LAW 684 (7th ed. Oxford University
Press 2012)...........................................................................................................................18
ARTICLES
Andrei Hagiu and Julian Wright, Multi-sided Platforms, 43 INT’L J. INDUS. ORG. 1621,
(2015).....................................................................................................................................2
Boik, Corts, The Effects of Platform Most-Favored-Nation Clauses on Competition and
Entry, 59 J. L. & ECON. 105, 107 (2016).............................................................................10
Ingrid Vandenborre & Michael J. Frese, Most Favoured Nation Clauses Revisited, 35
E.C.L.R. 588 (2014)...............................................................................................................8
Justin Johnson, The Agency Model and MFN Clauses, 84 (3) REV. ECON. STUDIES, 1151,
1169 (2017)..........................................................................................................................10
Lapo Filistrucchi ET AL, Market Definition in Two-Sided Markets: Theory and Practice, 10
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JOCLEC 293, (2014)............................................................................................................1

S.O. Spinks, Exclusive Dealing, Discrimination, and Discounts under EC Competition Law,
67 (3) ANTITRUST L. J. 641 (2000)......................................................................................14
Tilottama Raychaudhuri, Vertical Restraints in Competition Law: The Need to Strike the
Right Balance between Regulation and Competition, 4 NUJS L. REV. 609, 615 (2011)....16
OTHER AUTHORITIES
Abir Roy & Vivek Pandey, Digital Markets- Competition Issues in Vertical Agreements,
Sarvada Legal, https://competitionlawsarvada.legal/2020/12/01/digital-markets-
competition-issues-in-vertical-agreements/ (Last visited on Feb. 5 2022)..........................16
ABUSING A DOMINANT POSITION – OVERVIEW, LexisNexis
https://www.lexisnexis.com/uk/lexispsl/competition/document/391329/55KB-7MK1-
F187-53G2-00000-00/Abusing_a_dominant_position_overview (Last visited Jan 29,
2022)....................................................................................................................................22
Also Italy Prohibits Rate Parity Clauses of Online Booking Platforms by Law, HOTREC,
(Aug. 3, 2017),
https://www.hotrec.eu/wp-content/customer-area/storage/1b22ccd9b3ba794b784a4fa707b2
b688/Also-Italy-prohibits-rate-parity-clauses-of-online-booking-platforms-by-law-3-
august-2017.pdf......................................................................................................................8
Belgium the 5th country in Europe allowing for price setting freedom for hoteliers, HOTREC,
(Jul. 20,
2018), https://www.hotrec.eu/wp-content/customer-area/storage/fbe1a334b31509a99f2f3f1
a3a75daaa/D-0718-203-DM-Press-Release-Belgium-parity-clause-ban.pdf........................8
Commission Regulation (EC) 772/2004, of 27 April 2004, Application of Article 81(3) of the
Treaty to Categories of technology transfer agreements O.J. (L123) 11, art. 1 (j) (i)...........1
Communication from the Comm’n — Guidance on The Commission's Enforcement Priorities
in Applying Article 82 Of The EC Treaty To Abusive Exclusionary Conduct By Dominant
Undertakings, 2009 O.J. (C 45) 10......................................................................................12
COMPETITION COMMISSION OF INDIA, MARKET STUDY ON ECOMMERCE IN INDIA
https://www.cci.gov.in/sites/default/files/whats_newdocument/Market-study-on-e-
Commerce-in-India.pdf (Last visited Jan. 25, 2022).............................................................9
Consolidated Version of the Treaty on the Functioning of the European Union art. 102, May
9, 2008 O.J. (C 115) 89..........................................................................................................5
DG COMPETITION, DISCUSSION PAPER ON THE APPLICATION OF ARTICLE 82 OF THE TREATY
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TO EXCLUSIONARY ABUSES (2005),

https://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf (Last visited Jan. 17,
2022)....................................................................................................................................12
Elena V. Sitkareva1and Natalia V. Ivanovskaya, The Concept and Procedure for
Determining the Dominant Position in Russia and the USA, Proceedings of ADVED 2019-
5th International Conference on Advances in Education and Social Sciences 2019
https://www.ocerints.org/adved19_e-publication/papers/200.pdf (Last visited on Feb. 10,
2022)......................................................................................................................................5
European Commission Press Release IP/16/4284, Mergers: Commission approves acquisition
of LinkedIn by Microsoft, subject to conditions (Dec. 6, 2016)..........................................20
Far East Trade Tariff Charges and Surcharges Agreement, 2000 O.J. (L 268/1)....................22
GUIDELINES FOR FOREIGN DIRECT INVESTMENT (FDI) ON E-COMMERCE (2016),
https://dpiit.gov.in/sites/default/files/pn3_2016_0.pdf ( Last visited Jan. 26, 2022)..........10
Morten Hvvid, Hearing on Across Platform Parity Agreements, OECD, DAF/COMP (2015),
¶146......................................................................................................................................10
Nicolas Petit and Norman Neyrinck, Behavioral Economics and Abuse of Dominance: A
Fresh Look at the Article 102 TFEU Case-Law [2010] ÖZK 203,
https://antitrustlair.files.wordpress.com/2011/02/n-petit-n-neyrinck-behavioral-economics-
and-abuse-of-dominance-a-fresh-look-at-the-article-102-tfue-case-law.pdf.......................20
PREDATORY PRICING (1989), https://www.oecd.org/competition/abuse/2375661.pdf (Last
visited Jan. 31, 2022)...........................................................................................................13
Raghavan Committee Report, (2000),
https://theindiancompetitionlaw.files.wordpress.com/2013/02/report_of_high_level_commi
ttee_on_competition_policy_law_svs_raghavan_committee.pdf, accessed 01 Feb 2022.....9
Report on the Monitoring Exercise Carried Out in the Online Hotel Booking Sector by EU
Competition Authorities, at 5 (2016),
https://www.ec.europa.eu/competition/ecn/hotel_monitoring_report_en.pdf.......................8
STATUTES
Loi 2015-990 du 6 août 2015 pour la croissance, l'activité et l'égalité des chances
économiques [ Law 2015-990 of August 6, 2015 for the Economic Growth, Activity and
Equal Opportunity, Article 133] JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.]
[OFFICIAL GAZETTE OF FRANCE], Aug. 7, 2015, p. 0181......................................................8
The Clayton Antitrust Act of 1914 §2, 15 U.S.C.§13 (2012)............................................12
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The Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).....................................1
STATEMENT OF JURISDICTION
The appellant has invoked the jurisdiction of the Hon’ble Supreme Court of India under
Section 53T of the Competition Act, 2002.
Section 53T of the Competition Act, 2002 reads as follows:
53T. The Central Government or any State Government or the Commission or any statutory
authority or any local authority or any enterprise or any person aggrieved by any decision or
order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days
from the date of communication of the decision or order of the Appellate Tribunal to them;
Provided that the Supreme Court may, if it is satisfied that the applicant was prevented by
sufficient cause from filing the appeal within the said period, allow it to be filed after the
expiry of the said period of sixty days.
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STATEMENT OF FACTS
BACKGROUND OF DISPUTE
1. In the year 2020, due to advent of COVID 19 nationwide lockdown was imposed starting
from 24th March 2020 which adversely effects economy, particularly food service industry
resulting in a 53% degrowth, permanent closure of about 15% restaurants and job losses in
excess of 2.4 million. Several steps were taken by different e-commerce platform of food
sector to fill in the losses suffered.
PARTIES TO THE DISPUTE
2. Bhukkad Technologies Pvt. Ltd., operating in India through the Brand name “Aahar”, is a
private company founded in 2013. It offers food delivery along with various other services on
its mobile app and website. Aahar enjoys considerable amount of popularity, with its
valuation of around $5.5 billion by Feb. 2020, closely followed by its rival SpiceMax.
3. The National Restaurant Association of India (NRAI) is a voluntary association of over
100,000+ restaurant across India, which filed the complaint against the action of Aahar.
DISPUTE
4. As a dire consequence of Covid 19, Aahar suffered huge losses by virtue of which Aahar
had to make several radical changes to reinstate investor confidence and cut back on losses.
One such change was to amend its Merchant Agreement, which had serval clauses, few of
which i.e., Price Parity, Discount Policy, listing on other App and Delivery Partner Usage
were contested by some Restaurant. In response to the growing unrest, Ms Arya Singh, CEO
of Aahar informs the aggrieved party that its ready to address the grievances and do the
needful.
5. In August 2020, NRAI filed complaint before the Commission, defining the relevant
market as “App Based food delivery with restaurant search platform across the territory of
India”, wherein it alleged Aahar to had abused its dominant position because of the violation
of several provision of Act.
6. Aahar on the other hand, contested that the said amendment was necessary business
decision as Aahar was incurring huge losses. It proposed alternative definition of “Market for
app and website-based delivery from restaurants and grocery stores in India”, thereby
refuting status of dominance and its abuse too. It also raised concern regarding the imposition
of penalty, if any as it would render Aahar unable to compete in the Market.
INVESTIGATION BY DIRECTOR GENERAL
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7. DG tabled its Report in March 2021 wherein it rejected the definition of relevant market
put forward by Aahar, established its dominance and was suggestive of the fact that deep
discounts offered were not result of fair market condition but deep pockets. Thus, on analysis
of several factors as enumerated under Section 19(3) and Section (4) of the Act, the DG
found Aahar guilty of violating provisions of the Act.
COMPETITION COMMISSION FINDINGS
8. In June 2021, the Commission perused the DG Report and concluded Aahar to be a
dominant enterprise, whereby it abused its position under §4(1), § 4(2)(a)(ii) and § 4(2)(c) of
the Act. Moreover, clause 9, 17 and 22 violates Section (3) and § 3(4) of the Act. It passed an
order under Section 27(b) of the Act, imposing a penalty amount of 5% on the average of the
relevant turnover of the preceding three financial years, amounting to $ 25 million, to be
deposited within six months.
APPEAL BEFORE NCLAT
9. In October 2021, the NCLAT allowed the appeal and remanded the matter back to the
Commission. It stated that the DG Report did not carry out a proper analysis of Aahar’s
dominant position, the relevant market definition employed by the DG was restrictive and the
DG did not take into account legitimate concerns raised by Aahar with regard to its business
losses.
The Commission appealed to the Supreme Court of India (“Supreme Court”), which
granted an interim stay on NCLAT’s order in December 2021. The matter is, henceforth,
listed before the Hon’ble Supreme Court of India on 18th February 2022.
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ISSUES RAISED
THE FOLLOWING CONTENTIONS HAS BEEN PLACED BEFORE THE HON’BLE SUPREME COURT
FOR ITS KIND CONSIDERATION:
ISSUE 1
WHAT WAS THE DEFINITION OF THE RELEVANT MARKET? WAS AAHAR DOMINANT IN SUCH
MARKET?
ISSUE 2
IF YES, DID THE FOLLOWING PRACTICES AMOUNT TO ABUSE OF ITS DOMINANT POSITION
UNDER SECTION 4 OF THE ACT?:
I. INSISTENCE ON PRICE PARITY, AS PER CLAUSE 9 OF THE MERCHANT AGREEMENT;
AND
II. MANNER OF PROVISION OF DEEP DISCOUNTS UNDER CLAUSE 12 OF THE
MERCHANT AGREEMENT?
III. AAHAR’S CONDUCTS AMOUNTS TO ABUSE OF ITS DOMINANT POSITION
ISSUE 3
HAD AAHAR INDULGED IN ANTI-COMPETITIVE AGREEMENTS WITH ITS MERCHANT
PARTNERS CREATING APPRECIABLE ADVERSE EFFECT ON COMPETITION (“AAEC”), AS
SPECIFIED UNDER SECTION 3 OF THE ACT, BY VIRTUE OF:

I. PROVIDING NEGATIVE REINFORCEMENT FOR LISTING ON COMPETING APPS
UNDER CLAUSE 17; AND
II. MAKING RESTAURANT PROMOTION ON THE APP SUBJECT TO RESORTING TO
AAHAR’S DELIVERY PARTNER NETWORK UNDER CLAUSE 22?
ISSUE 4
WHETHER THE PENALTY IMPOSED BY COMMISSION ON AAHAR WAS JUSTIFIED?
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SUMMARY OF ARGUMENTS
DOMINANT IN THE RELEVANT MARKET
It is submitted that the definition of Relevant Market proposed by NRAI is duly justified and
Aahar is dominant in the said relevant market by virtue of explanation (a) of § 4(2) read with
§19(4) of the Competition Act, 2002.
[ISSUE 2]: AAHAR HAS ABUSED ITS DOMINANT POSITION
It is humbly submitted before this Hon’ble court that since Aahar is a dominant entity, clause
9 and Clause 12 of the merchant agreement The Competition Act allows an enterprise to be in
a dominant position; however, it prohibits abuse of such a position. 42 It is submitted that
Aahar has abused its dominance by insisting on price parity under clause 9 of the merchant
agreement and by imposing the provision of deep discounts under clause 12 of the merchant
agreement.
[ISSUE 3] AAHAR IS INDULGED IN ANTICOMPETITIVE AGREEMENTS WITH
ITS MERCHANT PARTNERS CREATING APPRECIABLE ADVERSE EFFECT ON
COMPETITION (“AAEC”), AS SPECIFIED UNDER SECTION 3 OF THE ACT.
It is humbly submitted that Aahar is indulged in anti-competitive agreements with its
Merchant Partners creating AAEC under §3 when read with § 19(3) of the Act as by virtue of
Clause 17 of the amended Merchants Agreement Aahar provides negative reinforcement for
listing on competing apps and making restaurant promotion on the app subject to resorting to
Aahar’s delivery partner network under Clause 22 causes vertical restrain i.e. prohibited by
virtue of §3(4) of the Act.
[ISSUE 4] THE IMPOSITION & QUANTUM OF PENALTY AS IMPOSED BY CCI
It is humbly submitted that the quantum of penalty imposed on the Aahar is justified and in
proportion with Aahar’s abusive conduct owing to the size of Aahar and its conduct in
contravention with §3 and § 4 of the Competition Act, 2002.
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ARGUMENTS ADVANCED
DOMINANT IN THE RELEVANT MARKET.
(¶1) It is humbly submitted before the Hon’ble court that the definition of relevant market
advanced by NRAI is justified and that Aahar is dominant entity in the said relevant market.
I. NRAI’S DEFINITION OF RELEVANT MARKET IS JUSTIFIED.
(¶2) Relevant market determination is a tool to define the bounds in which to assess the
actions of a firm.1 The purpose of market determination is to identify the products that exert
competitive pressure, and are substitutable to the extent that the firms producing them can be
considered its competitors.2 To assess a violation of § 4, it is essential to ascertain the
relevant market,3 as dominance and its abuse are delineated as per the relevant market.4
(¶3) Relevant market has two dimensions5 namely:
ii. Relevant product market
(¶4) Relevant product market6 consists of all products or services which are functionally
interchangeable and substitutable7 from a consumer’s perspective8 to which one can switch if
the said product or service is available on unfair terms. 9 The characteristics of product in
question are taken by virtue of which they are apt to satisfy an inelastic need and are only to a
limited extent interchangeable with other products. 10 Physical characteristics, nature and end
use of product are crucial in determining the relevant product market.11
(¶5) In the instant case, the relevant market definition advanced by NRAI 12 is correct because
of following reasons:
a) Online marketplace is different from online retail store
(¶6) The definition advanced by NRAI encompasses only those restaurant food delivery
1
CCI v. Coordination Committee of Artistes and Technicians of W.B., (2017) 5 SCC 17 (India).
2
Lapo Filistrucchi ET AL, Market Definition in Two-Sided Markets: Theory and Practice, 10 JOCLEC 293,
(2014).
3
Shri M. M. Mittal v. M/s Paliwal Developers Ltd., 2016 SCC OnLine CCI 61 (India).
4
Prints India v. Springer India Pvt. Ltd., 2012 SCC OnLine CCI 45 (India).
5
The Competition Act, 2002, § 2(r), No. 12, Acts of Parliament, 2002 (India) [hereinafter The Competition Act].
6
Case C-418/01, IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG, 2004 E.C.R. I-5039 [EU].
7
Meru Travel Solutions Pvt. Ltd. v. Uber India Systems Pvt. Ltd. & Ors., 2015 SCC OnLine CCI 191 (India).
8
F WIJCKMANS & F TUYTSCHAEVER, VERTICAL AGREEMENTS IN EU COMPETITION LAW (2d ed. 2011)
9
Commission Regulation (EC) 772/2004, of 27 April 2004, Application of Article 81(3) of the Treaty to
Categories of technology transfer agreements O.J. (L123) 11, art. 1 (j) (i).
10
Case C-6/72, Continental Can Company Inc v. Comm’n of the European Communities, (1973) E.C.R. 215
[EU].
11
Societe Nationale Industrielle Aerospatiale v. United State District Court for the Southern District of Iowa,
482 U.S. 522, (1987).
12
Moot Proposition, ¶ 6.
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platforms which have search feature i.e., only marketplaces. Online marketplace platforms
such as Aahar are multi-sided digital platform i.e., they cater to two distinct user groups
namely the restaurants and the end consumers. A key feature is that the user groups, though
distinct, are usually interdependent.13 Their interdependence stems from network effects. It
means when the value derived by one consumer group depends on the presence of another
group. In case of Aahar the two sides of the market are users looking to order food and
restaurants who wish to offer their food.
(¶7) The Commission in a case14 categorically held that, “there is a difference between online
retail store and online marketplace platform.” The Commission characterised the online
platforms with network effects. On similar lines, CCI in Lifestyle Equities v Amazon15 noted
the distinguishing characteristics of platforms where the sellers would be interested in selling
when increasingly high number of buyers visit such online platform and vice versa.
(¶8) Therefore, it is concluded that online marketplace platforms cannot be substituted with
online retail stores.
b) Substitutability of the services
(¶1)
(¶2)
(¶3)
(¶4)
(¶5)
(¶6)
(¶7)
(¶8)
(¶9) The definition advanced by Aahar includes delivery of groceries in the relevant market
definition.16 It is therefore, asserted that delivery services for restaurant food and groceries
cannot be regarded as substitutable by the consumer because of following:
 Price: The most commonly used test for determining demand substitutability based
on price is the SSNIP (Small but Significant and Non-transitory Increase in Price)
test17 in which a hypothetical monopolist could profitably and permanently raise the
price of the products by 5 to 10 %. The relevant market would then include all those
13
Andrei Hagiu and Julian Wright, Multi-sided Platforms, 43 INT’L J. INDUS. ORG. 1621, (2015).
14
All India Online Vendors Association v. Flipkart India Pvt. Ltd., 2018 SCC OnLine CCI 97 (India).
15
Lifestyle Equities CV v. Amazon Seller Services Private, 2020 SCC OnLine CCI 33 (India).
16
17
Harshit Chawla v. WhatsApp, 2020 SCC OnLine CCI 32 (India).
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products which the consumer would regard as substitutable to avoid the increase in
price.18
 Characteristic: Groceries have a shelf life ranging from certain days to few months;
their delivery can be made with a day or two. The same is not true for restaurant food
as it is perishable and thus, the delivery is to be made within certain hours.
 Intended use: The intent with which a consumer orders or avails delivery of
restaurant food cannot be substituted with delivery of groceries.
iii. Relevant geographical market
(¶1)
(¶2)
(¶3)
(¶4)
(¶5)
(¶6)
(¶7)
(¶8)
(¶9)
(¶10) It is asserted that the relevant geographical market would whole of India as Aahar
provides services in whole of India19 and the complaint of competitive restraints is also raised
by restaurants belongings to different parts of India through NRAI. 20 Moreover, both, the
appellants21 and the respondents22, concede that India is the relevant geographical market.
IV. AAHAR IS DOMINANT ENTITY IN THE RELEVANT MARKET
(¶1)
(¶2)
(¶3)
(¶4)
(¶5)
(¶6)
(¶7)
(¶8)
18
Id.
19
20
21
Id.
22
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(¶9)
(¶10)
(¶11) It is humbly submitted that Aahar is a dominant entity in the relevant market and that
the Commission has rightfully held Aahar to be a dominant entity and thereby imposing
penalty under § 27(b) of the Act23.
(¶12) The Act defines dominant position24 in Explanation of §4.
(¶13) According to European Law25 dominant position is “a position of economic strength
enjoyed by an undertaking which enables it to prevent effective competition being maintained
on the relevant market by affording it the power to behave to an appreciable extent
independently of its competitors, its customers and ultimately of the consumers.”26
(¶14) It is hereby stated that Aahar is dominant in the relevant market because:
i. Aahar has been able to operate independently of competitive forces
(¶15) It is submitted that Aahar holds a dominant position, while inquiring about the same
under §4, all or any of the factors listed under §19 (4) should be given due regard. 27
Following factors have been considered in the present matter:
a) Market share of Aahar.
(¶16) Market Share is one of the most important factors in determining dominance of an
enterprise. Aahar’s market share in 2017, 2018 and 2019 (based on average number of
monthly orders) is between 45-50% as reported by Red Sheer 28 Aahar has been able to
maintain higher percentage of market share than its rivals’ in the market as is evident from
the market survey report of 2020 by Moody’s29, in which AAHAR holds higher percentage of
market share of around 40-45%.30
(¶17) Decline in the market share cannot be taken as evidence that the entity is not
dominant.31
b) Size and resources of the enterprise.
(¶18) Aahar has routinely featured as one of the biggest players in the online food delivery
23
24
The Competition Act, supra note 5, § 4.
25
Case T-87/76, Hoffmann-La Roche v. Comm’n, 1979 E.C.R. 461 [EU] [hereinafter Hoffmann-La Roche
case].
26
Case T-322/81, N.V. Netherlands Banden Industrie Michelin v. Commission of the European Communities,
1983 E.C.R. 3461 [EU].
27
28
29
30
31
Case C-457/10, AstraZeneca v. Commission, [2013] 4 C.M.L.R. 7 [EU]; Case C-95/05, British Airways plc v.
Commission, 2007 E.C.R. I-2331 [EU].
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market. It raised $ 450 million from its existing investors pushing its valuation to $ 5.5 billion
in February 202032 rose to $7 billion in 2022.33
c) Size and importance of competitors.
(¶19) In 2009, the Law on Protection of Competition34 included cases in which the position
of an entity whose market share is less than 35% can be recognized as dominant. In
particular, the position of a business entity, whose share in the market of a specific product is
less than 35%, but at the same time exceeds the shares of other competitor. A market share of
45% was held to confer a dominant position. 35Aahar has consistently held higher market
share than its competitors in the market.
d) Economic power of the enterprise including commercial advantage over
competitors.
(¶20) Under EU Law, the dominant position thus referred to by Article 10236 relates to a
position of economic strength enjoyed by an undertaking. 37 In the present case Aahar built a
strong network due to which it tipped the market in its favour. Aahar valuations in February
2020 were $5.5 billion which rose to $7 billion in March 2022.
e) Vertical integration of the enterprises or sale or service network of such enterprises.
(¶21) AAHAR has created great service network as mentioned that Aahar enjoys
considerable popularity.38Aahar is in a superior bargaining position and the restaurants are
dependent on the platform to get access to maximum customers.
f) Dependence of consumers.
(¶22) With great number of consumers and merchants using AAHAR, it enjoys the benefits
of network effects resulting with the help of its s easy interface and excellent customer
service by virtue of which, it tipped the market in its favour, which has given it a strong edge
in the market over its competitors. AAHAR enjoys popularity among all generation.
g) Merchants have no countervailing buyer power.
(¶23) The merchant agreement has been amended unilaterally by Aahar and the dominant
position of Aahar is evident from the clauses of the agreement as restaurants are to be abiding
32
33
34
Elena V. Sitkareva1and Natalia V. Ivanovskaya, The Concept and Procedure for Determining the Dominant
Position in Russia and the USA, Proceedings of ADVED 2019- 5th International Conference on Advances in
Education and Social Sciences 2019 https://www.ocerints.org/adved19_e-publication/papers/200.pdf (Last
visited on Feb. 10, 2022).
35
Case 27/76, United Brands v. Commission, 1978 E.C.R. 207 [EU] [hereinafter The Bananas case].
36
Consolidated Version of the Treaty on the Functioning of the European Union art. 102, May 9, 2008 O.J. (C
115) 89 [hereinafter TFEU].
37
The Bananas case, supra note 35.
38
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by the provisions and all the power to deal with the rating, discount policy, and delisting of
restaurants lie with Aahar because of the large network created by it. Merchant partners
lacked countervailing powers to negotiate better contractual terms for them.
ii. Aahar’s conduct prima facie shows its dominance in the market
(¶24) Relying on international jurisprudence and the order of the Commission in the case of
MCX Stock Exchange Ltd v. NSE 39, it is suggested that abusive conduct of the enterprise can
also be relied on as a factor in assessing dominance. Imposition of arbitrary terms in contracts
by big platforms creates a situation where the business of a retailer is at the mercy of the big
platform players and their unilateral revision of terms as was observed by the CCIo40, wherein
the Commission acknowledged the dominant position of the OTAs and initiated investigation
into the abuse of dominance.
(¶25) In the Indian Competition Act, under section 19(4), the ability to leverage, in itself, is
taken as one of the factors of dominance.
(¶26) In the present case AAHAR is able to operate independently of competitive forces
prevailing in the relevant market is very much evident from the ability of AAHAR to impose
"unfair" conditions and terms on restaurants listed on its app and to revise the merchant
agreement unilaterally. Therefore, it is concluded that Aahar is dominant in the relevant
market.
[ISSUE 2]: AAHAR HAS ABUSED ITS DOMINANT POSITION
(¶27) It is humbly submitted that since Aahar is a dominant entity, Clause 9 and Clause 12 of
the merchant agreement. The Act allows an enterprise to be in a dominant position; however,
it prohibits abuse of such a position. 41
Here, Aahar has abused its dominance by insisting on
price parity under Clause 9 and by imposing the provision of deep discounts under Clause 12.
A. INSISTENCE ON PRICE PARITY UNDER CLAUSE 9 OF THE MERCHANT
AGREEMENT IS ABUSIVE
(¶28) It is submitted that by insisting on maintaining price parity Aahar imposes an unfair
condition on restaurants which distorts competition in the relevant market thereby violating §
4 (2) of the Act.
i. Price Parity clauses are prohibited in various jurisdictions
(¶29) Price parity clauses or Most Favoured Nation [MFN] clauses stipulate that sellers on a
platform cannot set higher retail prices on this platform than in a certain set of alternative
39
MCX Stock Exchange Ltd. v. NSE, 2011 SCC OnLine CCI 52 (India) [hereinafter MCX case].
40
Federation of Hotel & Restaurant Association of India v. MakeMyTrip India Pvt. Ltd., 2021 SCC OnLine CCI
12 (India) [hereinafter MakeMyTrip case].
41
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sales channels.42 In the instant case, the price parity clause is ‘narrow’ as it prohibits the
restaurant to offer better prices on its own website or on the menus served in the restaurant.43
(¶30) This narrow MFN clause is treated as abusive. In France completely prohibited the use
of MFN clauses i.e., both wide and narrow variants. 44 Thereafter, Austria,45 Italy,46 and
Belgium47 completely banned price parity clauses through domestic legislations.
(¶31) Further, according to the Draft European Parliament Legislative Resolution, Recital 37:
“it should not be accepted that gatekeepers limit business users from choosing to
differentiate commercial conditions, including price.”
ii. The Clause distorts competition.
(¶32) While adjudicating upon abuse of dominance it must be accessed whether the practice
harms competition.48 A Price parity clause that prevents a retailer from offering better prices
on other platforms and/or on its own website is potentially distortive 49 and thus constitutes
abuse.50
(¶33) The reason is that a platform can set a high commission knowing that the ‘narrow’
parity agreement prevents the seller from using direct sales to undercut it. It was unwise for
seller to set lower price on platform with low commission rate. That lower price would
undercut both the high-commission platform and its own direct sales, which are tied to the
price of the high-commission platform. As such, the narrow parity agreement, under these
two conditions, the seller bears the brunt of double marginalization.
(¶34) In the present case, Aahar, by including price parity clause in the merchant agreement,
is indirectly determining the sale price for restaurants on all distribution channels which is
42
Ingrid Vandenborre & Michael J. Frese, Most Favoured Nation Clauses Revisited, 35 E.C.L.R. 588 (2014).
43
44
Loi 2015-990 du 6 août 2015 pour la croissance, l'activité et l'égalité des chances économiques [ Law 2015-
990 of August 6, 2015 for the Economic Growth, Activity and Equal Opportunity, Article 133] JOURNAL
OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Aug. 7, 2015, p. 0181.
45
Report on the Monitoring Exercise Carried Out in the Online Hotel Booking Sector by EU Competition
Authorities, at 5 (2016), https://www.ec.europa.eu/competition/ecn/hotel_monitoring_report_en.pdf.
46
Also Italy Prohibits Rate Parity Clauses of Online Booking Platforms by Law, HOTREC, (Aug. 3, 2017),
https://www.hotrec.eu/wp-content/customer-area/storage/1b22ccd9b3ba794b784a4fa707b2b688/Also-Italy-
prohibits-rate-parity-clauses-of-online-booking-platforms-by-law-3-august-2017.pdf.
47
Belgium the 5th country in Europe allowing for price setting freedom for hoteliers, HOTREC, (Jul. 20,
2018), https://www.hotrec.eu/wp-content/customer-area/storage/fbe1a334b31509a99f2f3f1a3a75daaa/D-0718-
203-DM-Press-Release-Belgium-parity-clause-ban.pdf.
48
Raghavan Committee Report, (2000),
https://theindiancompetitionlaw.files.wordpress.com/2013/02/report_of_high_level_committee_on_competition
_policy_law_svs_raghavan_committee.pdf, accessed 01 Feb 2022.
49
COMPETITION COMMISSION OF INDIA, MARKET STUDY ON ECOMMERCE IN INDIA
https://www.cci.gov.in/sites/default/files/whats_newdocument/Market-study-on-e-Commerce-in-India.pdf (Last
visited Jan. 25, 2022) [hereinafter The CCI Report].
50
The Competition Act, supra note 5, § 4(2)(a)(i).
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presumed to have AAEC51. Thus, Clause 9 renders it anti-competitive.

(¶35) Additionally, by insisting on price parity Aahar is washing away the competition, since
consumers are inclined towards platforms such as Aahar due to network effect 52 and the
discounts they offer, no price differentiation completely ouster direct channels from
competition. This has resulted in foreclosure of many small restaurants 53 as large portion of
the profits is extracted by Aahar by way of high commission rates.
iii. Price Parity clauses lead to higher prices for consumers
(¶36) Herein, the MFN clauses price may not reflect the lowest price at which the product
can be made available, but in fact, could be an inflated price. Theoretical models developed
by prominent authors also show that these can lead to higher prices for end consumers.54
(¶37) Since, Aahar is insisting on price parity, restaurants’ direct channels will not be able to
compete with Aahar. In order to sustain, restaurants partners will be forced to increase the
prices of the dishes on the menu served in the restaurants and thereby increasing prices on
menu hosted by Aahar which leads to higher prices for the end consumers.
IV. THE MANNER OF PROVISION OF DEEP DISCOUNTS UNDER CLAUSE 12 OF THE
MERCHANT AGREEMENT AMOUNTS TO ABUSE OF DOMINANT POSITION.

(¶38) The practice of unilateral discounting55 was allegedly undermining the market position
of the service providers, i.e., restaurants, by eroding their profitability and devaluing their
products in the eyes of consumers.56
i. The provisions of Clause 12 amounts to abuse under section 4(2)(a)(i) of the Act.
(¶39) E-commerce entities shall not directly or indirectly influence the sale price of goods or
services and shall maintain a level playing field.57 Competitive disadvantage does not require
proof of actual quantifiable deterioration in the competitive situation.58
(¶40) Herein, Aahar’s a discount policy which is twofold 59 which indicates heavy discount
imposed over and above the price set by the restaurant, thereby using its superior bargaining
51
The Competition Act, supra note 5, § 3(3)(a).
52
53
54
Justin Johnson, The Agency Model and MFN Clauses, 84 (3) REV. ECON. STUDIES, 1151, 1169 (2017); Boik,
Corts, The Effects of Platform Most-Favored-Nation Clauses on Competition and Entry, 59 J. L. & ECON. 105,
107 (2016); Morten Hvvid, Hearing on Across Platform Parity Agreements, OECD, DAF/COMP (2015), ¶146.
55
Indian National Shipowners' Association v. Oil and Natural Gas Corp. Ltd., 2018 SCC OnLine CCI
48 (India).
56
The CCI Report, supra note 50, at 27.
57
GUIDELINES FOR FOREIGN DIRECT INVESTMENT (FDI) ON E-COMMERCE (2016),
https://dpiit.gov.in/sites/default/files/pn3_2016_0.pdf ( Last visited Jan. 26, 2022).
58
Case C-525/16, MEO-Serviços de Comunicações e Multimédia SA v. Autoridade da Concorrência,
ECLI:EU:2018:270 [EU].
59
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power, making them loose control over the final price. Thus, it creates an artificial price-
distortion and drives consumers increasingly to online platforms, which in turn leads to
higher dependence of service providers on these intermediary platforms and lead to
permanent value erosion of their products and undermine their market position.
(¶41) Moreover, the said clause allows Aahar to introduce any new discounts, which shall be
borne by the Merchant and mere intimation shall be provided. So, even when Merchant are
funding the discounts, it is the platform that decides the scheme thus, it amounts to
imposition of unfair condition is provision of service, which amounts to abuse.60
(¶42) Thus, the Discount offered by Aahar is imposed by platforms in exercise of their
superior bargaining power adversely affects the business models of the service providers
ii. The discount offered by Aahar result in creating an entry barrier.
(¶43) In the instant case, the deep discount offered by Aahar causes below the cost pricing
impairing the ability of others to compete in the market as the price points at which this
restaurant sells its food item on these marketplace platforms are in many instances lower than
the cost price for the offline channel and they either have to match the online discounts at a
significant loss or the online market would be foreclosed for them.
(¶44) Thus, it is causing the service providers, foreclosure of other distribution channel
thereby denying the market access thereby causing abuse of its dominant position 61 & which
in a way limits or restricts the provision of services causing abuse of dominant position.62
iii. The provision of Deep Discount under Clause 12 amounts to Predatory Pricing.
(¶45) Predatory Pricing means a short term strategy adopted 63
by market giants with deep
pockets to sustain losses and reduce the prices of their products as a measure of wiping out
competition from the market.64 Similar was the instance of the United States65 and European
Union under Article66 102. Predation by dominant undertaking 67 involves deliberately
incurring losses or foregoing profits in the short term to foreclose rivals with a view to
60
The Competition Act, supra note 5, § 4 (2)(a)(i).
61
The Competition Act, supra note 5, § 4(2)(b).
62
The Competition Act, supra note 5, § 4(2)(c).
63
HOVENKAMP H., FEDERAL ANTITRUST POLICY- THE LAW OF COMPETITION AND PRACTICE (4th ed. Thomson
West, 2005).
64
The Competition Act, supra note 5, § 4 explanation (b).
65
The Clayton Antitrust Act of 1914 §2, 15 U.S.C.§13 (2012).
66
TFEU, supra note 37.
67
Communication from the Comm’n — Guidance on The Commission's Enforcement Priorities in Applying
Article 82 Of The EC Treaty To Abusive Exclusionary Conduct By Dominant Undertakings, 2009 O.J. (C 45)
10 [hereinafter Guidance on Abusive Exclusionary Conduct].
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strengthen or maintain its market power.68 In the landmark case.69 CCI held that three
conditions have to be satisfied to constitutes predatory pricing, which are as follows:
a) There must be a specific incidence of predatory pricing or under pricing
(¶46) It is essential to prove pricing below an appropriate cost measure. 70 Moreover, where no
reliable information on cost data is available to the Commission, it can build a credible case
of predatory abuse through other arguments.71Herein, Clause 12 adversely affects the price of
the final product sold in the market because of the evident three discount offered by Aahar 72
thereby pushing the cost far below than required.
b) There exists predatory intent on the part of Aahar
(¶47) Predatory intent73 means intent to drag competitors out of the market, achieve a
monopoly or to induce consumers to divert from competitors,74 there is an anticipated benefit
based on the tendency to exclude competition and other anti-competitive effects. 75 In a case76
the court held that to establish a healthy market the interest of new entrants must be
protected, and thus predatory pricing is declared as illegal and abuse of dominance under the
Act. However, the exclusion of players can be attempted through short-run pricing low
enough to induce exit or deter entry in the market. 77 Moreover, predation is an “objective
concept” and it is not necessary to prove intent for any direct effect.78
(¶48) Herein, intent can be inferred through the profit sacrifice test, which also indicates
pricing below AAC79, here, even after incurring huge loss Aahar offered such a discount
which clearly shows its strategy to wipe out the existing competition and its conduct also
denied market access by creating entry barriers for new restaurants wishing to list on the app
68
FAULL & NIKPAY, THE EU LAW OF COMPETITION (Jonathan Faull et al. eds. Oxford Univ. Press 3d ed.
2014).
69
M/s Transparent Energy Systems Pvt. Ltd. v. TECPRO Systems Ltd., (2013) SCC OnLine CCI 42 (India)
[hereinafter Transparent Energy].
70
Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) [hereinafter Brooke Group
case].
71
DG COMPETITION, DISCUSSION PAPER ON THE APPLICATION OF ARTICLE 82 OF THE TREATY TO
EXCLUSIONARY ABUSES (2005), https://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf (Last visited
Jan. 17, 2022).
72
Moot proposition, ¶4.
73
In Re: Johnson and Johnson Ltd., (1988) 64 Comp Cas 394 NULL (India).
74
MCX case, supra note 40; DotEx International Ltd. and Omnesys Technologies Pvt. Ltd., 2011 CompLR 129
(CCI) (India).
75
William Inglis, Etc v. ITT Continental Baking Co, 668 F.2d 1014 (US).
76
Arshiya Rail Infrastructure Ltd. v. Ministry of Railways, 2012 SCC OnLine CCI 53 (India).
77
PREDATORY PRICING (1989), https://www.oecd.org/competition/abuse/2375661.pdf (Last visited Jan. 31,
2022).
78
National Stock Exchange India Ltd. v. CCI, 2011 SCC OnLine Comp AT 242 (India).
79
Tetra Pak, supra note 95; Case T-340/03, France Télécom v. Comm’n, 2007 E.C.R. II-107 [EU].
10 | P a g e
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Meanwhile, other channels suffer huge losses 80 thereby drove out existing restaurants from
the market without any accrual of benefits to the consumers.
c) Aahar had the ability to recoup the losses suffered.
(¶49) The rationale behind predatory pricing to bleed or suffer losses in the short term, to
recoup the losses after the competition is gone in the long run 81 i.e. a substantial plan exists
with a motive to recoup the losses incurred due to dropping the prices by jacking the prices
high again after eliminating the competitors from the market.82
(¶50) In the present case, Aahar had the fair opportunity to recoup the suffered losses as
Aahar had secured another round of funding in March 2022, amounting to $1.5 billion from
White Stone LLC, driving up its valuation to $7 billion.83
IV. AAHAR’S CONDUCT AMOUNTS TO ABUSE OF DOMINANT POSITION.
(¶51) Under the act, dominance per-se is not illicit84, however, enterprises are barred from
abusing it.85 Herein, Aahar has abused its dominant position under § 4 of the Act as [i]
Aahar’s conduct was discriminatory and, [ii] Aahar violated platform neutrality.
i. Aahar’s conduct was discriminatory
(¶52) It is considered an abuse when a dominant undertaking imposes dissimilar conditions
to equivalent transactions with other trading parties, thereby placing them at competitive
disadvantage.86 The EU Article 102 TFEU states the same. 87 Moreover, vertical integration
may create an incentive to improve the platform’s own/related entity’s market position by
engaging in preferential treatment on the platform.88
(¶53) Herein, Aahar indulged in discriminatory conduct as it granted preferential treatment to
its cloud kitchens and other big restaurants like McBurger,89charged different commission
rates per order which resulted in the foreclosing of several small restaurants as could not
afford to pay commission rates up to 30% of their expenses 90 thereby amounts to abuse under
§4(2)(a)(ii)91.
80
81
Brooke Group case, supra note71.
82
Transparent Energy, supra note 70.
83
Moot proposition, ¶ 11.
84
85
Jupiter Gaming Solutions Pvt. Ltd. v. Finance Secretary, Government of Goa, 2011 SCC OnLine CCI 22
(India).
86
The Competition Act, supra note 5, § 4(2)(a); S.O. Spinks, Exclusive Dealing, Discrimination, and Discounts
under EC Competition Law, 67 (3) ANTITRUST L. J. 641 (2000).
87
Hoffmann-La Roche case, supra note 25; Case T-155/06, Tomra Systems and Others v. Comm’n, 2010 E.C.R.
II-4361 [EU].
88
The CCI Report, supra note 51, at 21; Matrimony.com case, supra note 99.
89
90
91
The Competition Act, supra note 5, § 4(2)(a)(ii).
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ii. Aahar has violated platform neutrality

(¶54) E-commerce marketplaces violate platform neutrality when they serve as both a
marketplace and a competitor. The Study92 delineates two broad issues concerning the
neutrality of e-commerce platforms namely [a] leveraging and, [b] preferential listing.
a) Aahar engaged in Leveraging
(¶55) Under the Act93, an undertaking is prohibited94 from using its dominance in one
relevant market to enter95 or protect its position96 in another without competing on merits.97 It
requires the undertaking’s participation98 in two, distinct relevant markets, one market where
a firm is dominant, and another where such dominance is leveraged.99
(¶56) Herein, one market is of e-commerce, where Aahar is dominant and the other is the
market for restaurants where its dominance was leveraged. Aahar’s conduct of setting up its
own cloud kitchens on its platform and promoting it over other restaurants clearly helped it
gain an unfair advantage in the relevant market of restaurants as Aahar as a platform has
access to competitively relevant transaction data on products or services on the platform
which is used by the Aahar to enter into and strengthen their position in the relevant product
market. Thus, it can be concluded that Aahar constitutes abuse under § 4(2)(e) of the Act.
b) Aahar engaged in Preferential listing
(¶57) It is the manipulation of search results aims at shifting consumer attention towards
preferred products and services. CCI100 refers to these actions as ranking bias as, in many
cases, it is the manipulation of sellers’ ranking on the platform that results in compromised
search results. CCI held Google liable101for indulging in search bias.
(¶58) Here, Aahar used its platform and its data to give preferential listing its cloud kitchens
and restaurants like McBurger by manipulating the search results due to which other
restaurants on the platforms suffer from lower visibility and hence restricted market access.
Therefore, Aahar’s practice of providing higher promotion to few sellers amounts to abuse.
[ISSUE 3]: AAHAR INDULGED IN ANTICOMPETITIVE AGREEMENTS WITH
92
93
The Competition Act, supra note 5, § 4(2)(e).
94
Case T-83/91, Tetra Pak International SA v. Comm’n, 1994 E.C.R. II-755 [EU] [hereinafter Tetra Pak].
95
XYZ v. REC Power Distribution Company Ltd., 2016 SCC OnLine CCI 21 (India).
96
GUSTAVO GHIDINI, INTELLECTUAL PROPERTY AND COMPETITION LAW: INTELLECTUAL PROPERTY AND
COMPETITION LAW: THE INNOVATION NEXUS (1st ed. Edward Elgar 2006); Honda Siel Cars, supra note 120.
97
East India Petroleum Pvt. Ltd. v. South Asia LPG Company Pvt. Ltd., 2018 SCC OnLine CCI 59 (India)
[hereinafter East India Petroleum case].
98
1 SM DUGAR ET. AL., GUIDE TO COMPETITION LAW (6th ed. Lexisnexis 2016).
99
Matrimony.com Ltd. v. Google LLC and Ors., 2018 SCC OnLine CCI 1 (India) [hereinafter Matrimony.com
case].
100
101
Matrimony.com case, supra note 99.
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ITS MERCHANT PARTNERS CREATING APPRECIABLE ADVERSE EFFECT ON

COMPETITION (“AAEC”), AS SPECIFIED UNDER SECTION 3 OF THE ACT.
It is humbly submitted before this Hon’ble Court that the said agreement is anti-competitive
in nature as stated under following contentions;
A. PROVIDING NEGATIVE REINFORCEMENT FOR LISTING ON COMPETING APPS
UNDER CLAUSE 17 IS ANTI-COMPETITIVE ON THE FOLLOWING GROUNDS:

i. There was an agreement.
(¶59) It is submitted that for an act to fall within the ambit of §3, there must be an agreement
between two or more parties. The said agreement is in the nature of vertical agreement
between Aahar and restaurants under §3 (4)102 of the act. Even a unilateral decision by one
party i.e., Aahar and evidence of tacit acquiescence by the other i.e., restaurants is sufficient
to establish an agreement.103
ii. Clause 17 of the present agreement is in nature of exclusive distribution
agreement and refusal to deal agreement u/s 3(4) (c)104 and s. 3(4) (d)105
respectively of the act.
(¶60) For assessment of exclusivity clauses, the CCI may require firms to hold at least 30%
market share in the relevant market to deem it as sufficient market power to cause
AAEC.106 Aahar has 40-45% of market share in 2020107 and has been proved to be the
dominant entity in the relevant market.
(¶61) Commission's main objects are, to prevent practices having adverse effect on
Competition, to promote and sustain competition and to ensure freedom of trade. 108 Exclusive
dealing reduces inter-brand competition.109 These restrictions limit the price competition
between the distributors and may be disadvantageous for the end consumers. 110 Exclusive
agreements raises concern, as an e-Commerce Platform with market power can thwart
competition.111 Also, the agreements with the object - the "prevention, restriction or
102
The Competition Act, supra note 5, § 3(4).
103
Case T-23/90, Automobiles Peugeot SA v. Comm’n, 1991 E.C.R. II-2533 [EU].
104
105
The Competition Act, supra note 5, § 3(4)(d).
106
Automobiles Dealers Association v. Global Automobiles Limited & Anr., 2012 CompLR 827 (CCI) (India).
107
108
CCI v. Steel Authority of India Ltd., (2010) 10 SCC 744 (India); CCI v. Bharti Airtel Ltd., (2019) 2 SCC 521
(India).
109
Tilottama Raychaudhuri, Vertical Restraints in Competition Law: The Need to Strike the Right Balance
between Regulation and Competition, 4 NUJS L. REV. 609, 615 (2011).
110
Abir Roy & Vivek Pandey, Digital Markets- Competition Issues in Vertical Agreements, Sarvada Legal,
https://competitionlawsarvada.legal/2020/12/01/digital-markets-competition-issues-in-vertical-agreements/
(Last visited on Feb. 5 2022).
111
Amazon Seller Services Private Ltd. v. CCI, 2021 SCC OnLine Kar 12626 (India).
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distortion" of competition within the internal market are prohibited.112

(¶62) The present agreement amounts to Exclusive Distributive Agreement.113 The Clause
17114 show that it creates de facto exclusivity, through a threat of ranking restaurants lower in
search list of Aahar app if they list additionally on other similar competing app, restaurants
are thus, restrained from being listed on the other competing similar app like Aahar which
consequently limits the supply of goods by restaurants. Due to great network effect and
market power, Aahar has huge consumer base and restaurants are dependent on it. In a CCI
report, majority availing the services of marketplace platforms felt it was important to have a
presence on all the major platforms to effectively compete and to have significant
dependence on these major platforms.115 Therefore, it will not practically be possible for
restaurants to be additionally listed on other competing app similar to Aahar hence its
position in the market keeps the restaurants under the control.
(¶63) The present agreement amounts to Refusal to deal. 116 Such restrictive agreement may
potentially have adverse effect on competition including consumers. 117Further any
undertaking should have the right to choose its trading partners and to dispose freely off its
property.118 This agreement can create barriers to entry and restricts choice of consumers
thereby likely to result in AAEC.119 This clause is in violation of §3 (1).
iii. Clause 17 of the agreement is anti-competitive under §19 (3) of the act.
(¶64) ‘Whether an agreement restricts the competitive process is always an analysis of the
balance between the positive and the negative factors listed under § 19(a)-(f)’. 120 Even if
AAEC is probable result of agreement is anti-competitive. 121 The Act states122 that while
determining whether an agreement has an AAEC under §3, factors under §19(3) should be
considered. Factors considered herein are following :
a) Creation of barriers to new entrants in the market under §19 (3) (a)123
(¶65) Using exclusive dealing restrictions to prevent a potential new entrant from having
access to the vital input of a distribution network, Aahar would ultimately prevent entry, and
112
TFEU, supra note 37, art. 101.
113
The Competition Act, supra note 5, § 3(4) explanation (d).
114
Moot Proposition ¶ 8.
115
116
The Competition Act, supra note 5, § 3(4) explanation (d).
117
MakeMyTrip case, supra note 40.
118
Guidance on Abusive Exclusionary Conduct, supra note 67.
119
JSW Paints Private Limited v. Asian Paints Ltd., 2020 SCC OnLine CCI 1 (India).
120
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95 (India) [hereinafter Honda Siel
Cars].
121
122
123
The Competition Act, supra note 5, § 19(3)(a).
14 | P a g e
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allow the incumbent to keep growing his market share.

b) Denial of access to competitors in the relevant market under §19 (3) (b)124
(¶66) Exclusive distributive agreement causes denial of market access to certain portion of
traders, irrespective of the positive impact of the agreement on the competition125
c) Foreclosure of competition by hindering entry of competitors into the market under
§19 (3) (c)126
(¶67) Exclusive agreement raises potential competition concern when used as an
exclusionary tactic to foreclose competition to rivals or to impede entry. 127 Aahar is misusing
its dominant position to put such terms in the agreement which has the effect of exclusive
distribution agreement and refusal to deal agreement and is trying to foreclose the
competition by implementing the same. It is also submitted that for existing player or
potential entrant, it will be difficult to break this network as it must spend much more than
AAHAR to create his own network and such expenditure will be sunk costs and thus, not an
attractive proposition.128The present agreement is anti-competitive in nature and agreements
having net anti- competitive are proscribed by the Act.129
(¶68) Thus, the overall effect of such exclusive agreement is anticompetitive based on a
cumulative assessment of all the factors listed under §19(3) of the Competition Act.
IV. MAKING RESTAURANT PROMOTION ON THE APP SUBJECT TO RESORTING TO
AAHAR’S DELIVERY PARTNER UNDER CLAUSE 22 RENDERS THE SAID AGREEMENT

ANTI-COMPETITIVE.
(¶69) Any vertical agreement made under §3(4) would be anti-competitive if it, in
accordance with §3(1), causes AAEC. It is most humbly submitted before this Hon’ble Court
that Clause 9 of the agreement violates §3(4) of the Act by a “tie-in” arrangement because:
I. The vertical agreement is anti-competitive in nature.
(¶70) A vertical agreement could be anti-competitive if it results in tie-in arrangement 130
which means any agreement requiring a purchaser of goods, as a condition of such purchase,
to purchase some other goods.131The necessary ingredients required to term tie-in
arrangements per se anti-competitive were first pronounced in Sonam Sharma v. Apple Inc.,
124
125
RICHARD WHISH AND DAVID BAILEY, COMPETITION LAW 684 (7th ed. Oxford University Press 2012).
126
127
In Re: Delhi Vyapar Mahasangh v. Flipkart Internet Private Limited and Amazon Seller Services Private Ltd.,
2020 SCC OnLine CCI 3 (India).
128
CCI v. SAIL, (2010) 10 SCC 744 (India).
129
Jasper Infotech Pvt. Ltd. (Snapdeal) v. Kaff Appliances Pvt. Ltd., 2019 SCC OnLine CCI 2 (India).
130
The Competition Act, supra note 5, §3(4)(a) explanation (a).
131
The Competition Act, supra note 5, §3(4)(d).
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USA132 which are:
a) Presence of two separate products or services capable of being tied.
(¶71) Herein, there must be two services that can be tied together. As per EU, it should be
judged in accordance with consumer demand whether products or service should be deemed
distinct i.e. if consumers would buy the products together in absence of the tying.133
(¶72) In the instant case, Aahar is an app-based food ordering and delivery platform which
offers various services to its user.134 The provision of service of higher promotion of the listed
restaurant on its app per se different from service of delivery.
b) The seller conditioned the sale of one product or service on the purchase of a
second.
(¶73) Further, there must be an agreement to sell one service on the condition that the buyer
purchases another products or services. In order to establish tying level of coercion is
required.135 This adherence to the requirement of coercion in its strict sense fails to consider
that tying in the digital environment varies significantly. In Microsoft v Commission 136 held
that in cases of tying in digital markets “coercion exists when a dominant undertaking
deprives its customers of the realistic choice of buying the tying product without the tied
product.” Here, coercion can also occur when there is mere incentive to buy tied product. 137
Higher display of any product is likely to have direct effect on consumers choice.138
(¶74) Herein, provision of higher promotion of restaurant listed on Aahar is subject to the
Merchants availing the delivery services of Aahar,139 which is not just suggestive of strong
network effect Aahar has but also highlights the dire necessity of higher promotion. 140Thus,
we can assert that higher promotion on app is mandated.
c) That seller has sufficient position in the market for tying the product to enforce it.
(¶75) It is pertinent that the seller has to have such power in the market for the tying product
that it can force the buyer to purchase the tied product. Here, Aahar is dominant entity
thereby possessing sufficient economic power with strong network effect so every restaurant
132
Sonam Sharma v. Apple Inc., USA and Ors., 2013 SCC OnLine CCI 25 (India).
133
Guidance on Abusive Exclusionary Conduct, supra note 67.
134
135
TFEU, supra note 37, art. 102(d).
136
Case T-201/04, Microsoft Corp. v. Comm’n of the European Communities, 2007 E.C.R. II-3601 [EU]
[hereinafter Microsoft].
137
Nicolas Petit and Norman Neyrinck, Behavioral Economics and Abuse of Dominance: A Fresh Look at the
Article 102 TFEU Case-Law [2010] ÖZK 203, https://antitrustlair.files.wordpress.com/2011/02/n-petit-n-
neyrinck-behavioral-economics-and-abuse-of-dominance-a-fresh-look-at-the-article-102-tfue-case-law.pdf.
138
European Commission Press Release IP/16/4284, Mergers: Commission approves acquisition of LinkedIn by
Microsoft, subject to conditions (Dec. 6, 2016).
139
140
Case T-612/17, Google and Alphabet v. Commission, EU:T:2021:763 [EU].
16 | P a g e
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wants to get listed on Aahar, which seems meaningless without getting promotion.
ii. The said clause of the agreement is likely to cause an appreciable adverse effect
on competition.
(¶76) That under §19(3)141 the Act specifies certain conditions to assess the negative and
positive effects on the market.142 In order show that any arrangement constitutes tying it is
important to show that it has foreclosure effect.143
(¶77) Foreclosure seeks to determine whether the dominant undertaking produces an actual
or likely exclusionary effect, detriment of competition and consumers’ interests. 144 Though a
total foreclosure is not necessary, even if it shown that competitors are disadvantaged would
suffice the cause,145 to qualify the condition of ‘market foreclosure’, it is sufficient that the
rivals are disadvantaged and consequently led to competing less aggressively.146
(¶78) Herein, availing the Aahar’s delivery services drives up cost of doing business.
Restaurants who have their own delivery fleet claimed that they could provide this service to
the consumers at a much lower cost, it also ended up creating a geographical restriction only
within which the restaurant could deliver. 147 Thus, it hampered the interest of consumers as
they have to bear unnecessary cost and also disadvantaged the market of service of delivery
owing to difficulty these delivery platform would face to compete in the market148
[ISSUE 4]: THE IMPOSITION & QUANTUM OF PENALTY AS IMPOSED BY CCI
(¶79) In imposing fines the main aim is to ensure that the prohibited conduct does not
recur.149The Commission often explicitly justifies a high fine being imposed to exclude, by its
deterrent effect, any repetition of the behaviour in question. 150 In a case CCI151 held that if
there is discretion, authority is bound to take into account aggravating or mitigating
circumstances and exercise discretion laid down under the law, judicially. It is humbly
submitted that the quantum of penalty imposed on the Aahar is justified and in proportion
with Aahar’s abusive conduct on the following grounds-
141
The Competition Act, supra note 5, §19(3).
142
ABIR ROY, COMPETITION LAW IN INDIA 146 (2nd ed, Eastern Law House 2014).
143
Microsoft, supra note 137.
144
Case C-209/10, Post Danmark A/S v. Konkurrenceråde, EU:C:2012:172 [EU].
145
Tetra Pak, supra note 95.
146
ABIR ROY, COMPETITION LAW IN INDIA: A PRACTICAL GUIDE 220 (Kluwer Law International, 2016).
147
148
ABUSING A DOMINANT POSITION – OVERVIEW, LexisNexis
https://www.lexisnexis.com/uk/lexispsl/competition/document/391329/55KB-7MK1-F187-53G2-00000-00/
Abusing_a_dominant_position_overview (Last visited Jan 29, 2022).
149
Case T-191/98, Atlantic Container Line AB and others v. EC Comm’n, 2003 E.C.R. II-3275 [EU].
150
Far East Trade Tariff Charges and Surcharges Agreement, 2000 O.J. (L 268/1).
151
Hindustan Steel Ltd. v. State of Orissa, (1969) 2 SCC 627 (India).
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i. Strength and size of Aahar.

(¶80) It is reasonable for a bigger undertaking to receive a more severe penalty than a smaller
company.152 In the instant case, Aahar has been proved to be dominant entity in the market.
Thus, imposing a penalty of 5% will not be disproportionate owing to the size and market
power enjoyed by Aahar.
ii. Nature of Infringement
(¶81) Aahar’s conduct amounts to contravention of section 3 and 4 of the act. Moreover, its
conduct posed a serious threat to the competition in the relevant market it amounts to denial
of market access which was held to be one of the most severe forms of abuse of a dominant
position and the maximum statutory penalty on at a rate of 10% of the company's average
annual turnover was imposed.153 The nature of infringement is serious and warrants harsh and
strict penalty on Aahar. §27(b) expressly provides for the Commission to impose such
penalty as it may deem fit not more than 10% of the average of the turnover for the last three
preceding financial years, upon each of such person or enterprises which are parties to such
agreements or abuse. In the instant case, nothing on the record calls for a lenient view 154
as
the abusive practices has been carried with the sole object of undue economic gains and
business profits155.Therefore the quantum of penalty imposed is well within the limit.
152
Kier Group Plc & Ors. v. Office of Fair Trading, (2011) CAT 3 [UK].
153
East India Petroleum case, supra note 98.
154
Microsoft, supra note 137.
155
Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan & Ors., (2010) 9 SCC 496 (India).
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PRAYER
Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is
most humbly prayed that this Hon’ble Supreme Court of India may be pleased to adjudge and
declare:
1. That relevant market definition proposed by NRAI is justified and Aahar is dominant
in the said relevant market.
2. That the practices of Aahar amounts to abuse of its dominant position under § 4 of the
Act.
3. That Aahar has indulged in anticompetitive agreements with its Merchant partners
creating AAEC as specified under §3 of the Act.
4. That the penalty imposed by Commission on Aahar under §27(b) was justified.
AND / OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.
All of which is most humbly prayed
ON BEHALF OF
CCI (Appellant)
SD/-
XIV | P a g e

CCI Appeals Aahar's Abuse of Dominance in Food Delivery Market

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TEAM CODE – T-04

CCI – DNLU 2ND JUSTICE G.P. SINGH MEMORIAL NATIONAL CORPORATE

BEFORE THE HON’BLE SUPREME COURT

APPEAL UNDER SECTION 53T

COMPETITION COMMISION OF INDIA (CCI) …………………………

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

[ISSUE 1]: RELEVANT MARKET IS ONE IDENTIFIED BY NRAI AND AAHAR IS

A. NRAI’s Definition of Relevant Market is justified.................................................1

i. Relevant product market..........................................................................................1

ii. Relevant geographical market.................................................................................3

B. Aahar is Dominant Entity in the Relevant Market..................................................3

i. Aahar has been able to operate independently of competitive forces......................4

[ISSUE 2]: AAHAR HAS ABUSED ITS DOMINANT POSITION....................................8

A. INSISTENCE ON PRICE PARITY UNDER CLAUSE 9 OF THE MERCHANT

i. Price Parity clauses are prohibited in various jurisdictions.....................................8

ii. The Clause distorts competition..............................................................................9

iii. Price Parity clauses lead to higher prices for consumers.........................................9

B. The manner of provision of Deep Discounts under Clause 12 of the Merchant

ii. The discount offered by Aahar result in creating an entry barrier.........................11

C. Aahar’s conduct amounts to abuse of dominant position......................................13

i. Aahar’s conduct was discriminatory......................................................................14

ii. Aahar has violated platform neutrality..................................................................14

[ISSUE 3]: AAHAR INDULGED IN ANTICOMPETITIVE AGREEMENTS WITH ITS

A. Providing negative reinforcement for listing on competing apps under Clause 17

i. There was an agreement........................................................................................16

ii. Clause 17 of the present agreement is in nature of exclusive distribution

B. Making Restaurant Promotion on the app subject to Resorting to Aahar’s Delivery

I. The vertical agreement is anti-competitive in nature.............................................19

[ISSUE 4]: THE IMPOSITION & QUANTUM OF PENALTY AS IMPOSED BY CCI

i. Strength and size of Aahar.....................................................................................22

ii. Nature of Infringement..........................................................................................22

AAEC Appreciable Adverse Effect on Competition

SCC Supreme Court Cases

MFN Most Favoured Nation

CCI Competition Commission of India

CompAT Competition Appellate Tribunal

CompLR Company Law Reporter

ECR European Court Reports

NCLAT National Company Law Appellate Tribunal

TFEU Treaty on the Functioning of the European Union

U.S. United States

Communities, 1983 E.C.R. 3461 [EU]..................................................................................4

JOCLEC 293, (2014)............................................................................................................1

TO EXCLUSIONARY ABUSES (2005),

FOR ITS KIND CONSIDERATION:

II. MANNER OF PROVISION OF DEEP DISCOUNTS UNDER CLAUSE 12 OF THE

SPECIFIED UNDER SECTION 3 OF THE ACT, BY VIRTUE OF:

AAHAR’S DELIVERY PARTNER NETWORK UNDER CLAUSE 22?

presumed to have AAEC51. Thus, Clause 9 renders it anti-competitive.

MERCHANT AGREEMENT AMOUNTS TO ABUSE OF DOMINANT POSITION.

ii. Aahar has violated platform neutrality

ITS MERCHANT PARTNERS CREATING APPRECIABLE ADVERSE EFFECT ON

UNDER CLAUSE 17 IS ANTI-COMPETITIVE ON THE FOLLOWING GROUNDS:

distortion" of competition within the internal market are prohibited.112

allow the incumbent to keep growing his market share.

AAHAR’S DELIVERY PARTNER UNDER CLAUSE 22 RENDERS THE SAID AGREEMENT

i. Strength and size of Aahar.

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