BL 8th Sem Moot

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BEFORE THE HON'BLEVORMIRIAN COMPANY LAW APPELLATE TRIBUNAL APPEAL (AT)
(COMPETITION) NOS. 1-2 OF 2020
(FILED UNDER SECTION 53-B OF THE COMPETITION ACT, 2002)
IN THE MATTER:
FOOD SERVICE AGGREGATORS …
APPELLANTS;
VERSUS
COMPETITION COMMISSION OF VORMIR&VORMIRIAN ASSOCIATION OF RESTAURANTS …

RESPONDENTS.
ON SUBMISSION TO THE HON'BLEVORMIRIAN COMPANY LAW APPELLATE TRIBUNAL APPEAL
WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS
COUNSEL FOR THE APPELLANTS

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS……………………………………………………………………IV
INDEX OF AUTHORITIES ……………………………………………………………………VI
STATEMENT OF JURISDICTION
…………………………………………………………….XIV
STATEMENT OF FACTS
………………………………………………………………….......XV
ISSUES RAISED…………………………………………………………………………….XVIII
SUMMARY OF ARGUMENTS………………………………………………………………...XIX
ARGUMENTS ADVANCED …………………….
……………………………………………….1
ISSUE I:—WHETHER THE FSAS VIOLATED PROVISIONS OF §4 OF THE ACT,
COLLECTIVELY AND/OR INDIVIDUALLY (ON PART OF TRIMATOAND/OR AS PART OF A
SINGLE ECONOMIC ENTITY)?...................................................................................................1
A. That the FSAS Operate In The Relevant Market Of Food Services Aggregation In The State
Of
Vormir…………………………………………………………………………………………1
B. That The FSAS Collectively Cannot Be Termed As Dominant Within The Meaning Of §4
The Act………………………………………………………………………………………...3
C. That Trimato Is Not Dominant In The Relevant Market.....................................................5
D. Alternatively, That The Conduct Of FSAS (Collectively And/Or Individually) Do Not
Constitute Abuse Of Dominant Position………………………………………………………6
ISSUE II:—WHETHER THE FSAS VIOLATED THE PROVISION OF SECTIONS 3(3) READ
WITH §3(1) OF THE
ACT?.......................................................................................................10
A. That There Is Absence Of Collusion Amongst FSAS………………………………………..10
B. That The Conduct Of Appellants Has Not Caused An AAEC……………………………….13
ISSUE III:—WHETHER THE FSAS VIOLATED THE PROVISIONS OF §3(4)(E) AND §3(3)
READ WITH §3(1) BY WAY OF THEIR
APPAS?......................................................................14
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A. The Parity Agreements Are Not A Form Of Rpm Under The Meaning Of §3(4)(E) Of The
Act……………………………………………………………………………………………14
B. The APPAS Do Not Felicitate A Hub And Spoke Cartel Within The Meaning Of §3(3) Read
With §3(1) Of The Act………………………………………………………………………18
ISSUE IV:—WHETHER VAR, ALONG WITH ITS MEMBER RESTAURANTS, VIOLATED
PROVISIONS OF §3(3) READ WITH SECTIONS 3(1) OFTHE
ACT?..........................................19
A. VAR Felicitated A Collusion Amongst Its Member Restaurants……………………………19
B. There Is A Conspiracy Amongst Var And Its Member Restaurants To Fix Prices……….....20
PRAYER…………………………………………………………………..…………………XIII
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INDEX OF AUTHORITIES
LIST OF ABBREVIATIONS
S. No. Abbreviation Expansion
1. & And
2. ¶ Paragraph
3. AAEC Appreciable Adverse Effect on
Competition
4. AIR All India Reporter
5. APPAs Across Platform Parity Agreements
6. Act Competition Act of Vormir, 2002
7. Anr. Another
8. Art. Article
9. CCI Competition Commission of India
10. CCV Competition Commission of Vormir
11. CMLR Common Market Law Report
12. Cir. Circuit
13. Co. Company
14. COMPT Competition Appellant Tribunal
15. Comp LR Competition Law Review
16. Corp. Corporation
17. DFI Department of Food Inspection
18. DG Director General
19. DG Report Director General Report
20. EC European Commission
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21. EU European Union

22. ECJ European Court of Justice
23. ECLI European Case Law Identifier
24. ECR European Court Reports
25. ed. Edition
26. FAQs Frequently Asked Questions
27. FSAs Food Service Aggregators
28. HM Hypothetical Monopolist
29. Hon'ble Honorable
30. i.e. that is
31. Ibid ibidem
32. Id. idem
33. Inc. Incorporation
34. Ltd. Limited
35. MNC Multi National Corporation
36. OP Opposite Party
37. Ors. Others
38. (P) Private
39. RPM Resale Price Maintenance
40. RM Relevant Market
41. SCC Supreme Court Cases
42. SCC Online Supreme Court Cases Online
43. SCR Supreme Court Reporter
44. S.E.E. Single Economic Entity
45. SSNDQ Small but Significant Non-transitory
Decrease in Quality
46. SSNIP Small but Significant Non-transitory
Increase in Price
47. Supra see above
48. TFEU Treaty of Functioning of European
Union
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49. UP Uttar Pradesh

50. VAR Vormirian Association of Restaurants
51. VCLAT Vormirian Company Law Appellate
Tribunal
52. v. Versus
TABLE OF CASES
CASES
1. All India Distillers' Association v. Haidyn Glass Ltd., [2010] CCI.
2. All India Motor Transport Congress v. Indian Foundation of Transport Research &
Training, Appeal No. 20 of 2015 (COMPAT).
3. All India Online Vendors Association v. Flipkart India (P) Ltd., Case No. 20 of 2018
(CCI).
4. All India Organisation of Chemists and Druggists v. CCI, Appeal No. 21 of 2013
(COMPAT).
5. Arshiya Rail Infrastructure Ltd. (ARIL) v. Ministry of Railways (MoR) through the
Chairman, Railway Board and Container Corporation of India Ltd. (CONCOR), [2013]
112 CLA 297 (CCI).
6. AshishAhuja v. Snapdeal and Ors., Case No. 17 of 2014 (CCI).
7. Atos Worldline India (P) Ltd. v. Verifone India Sales (P). Ltd., 2015 CompLR 327 (CCI).
8. Belaire Owners' Association v. DLF Ltd. Haryana Urban Development Authority

Department of Town and Country Planning, State of Haryana, [2011] 104 CLA 398
(CCI).
9. Builders Association of India v. Cement Manufacturers' Association, Case No. 29 of

2010 (CCI).
10. Builders Associations v. Cement manufacturers Association, Case no. 29 of 2010 (CCI).
11. CCI v. Artistes & Technicians, (2017) 5 SCC 17.
12. Competition Commission v. Steel Authority of India Ltd. and Anr., (2010) 10 SCC 744.
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13. Consumer Online Foundation v. Tata Sky Limited, Dish TV India Limited, Reliance
Big TV Ltd. and Sun Direct TV (P) Ltd., Case No. 2 of 2009 (CCI).
14. Deepak Verma v. Clues Network (P) Ltd., Case No. 34 of 2016 (CCI).
15. DG (IR) v. Modi Alkali and Chemicals Ltd, 2002 CTJ 459.
16. Dish Tv India Ltd. v. Hathway Cable &Datacom Ltd., Case No. 78 of 2013 (CCI).
17. DLF v. State of Haryana, (2003) 5 SCC 622.
18. Excel Corp Care v. CCI, (2017) 8 SCC 47.
19. Exclusive Motors (P) Ltd. v. Automobili Lamborghini SPA, [2014] 121 CLA 230 (CAT).
20. Faridabad Industries v. Adani Gas Ltd., Case No. 71 of 2012 (CCI).
21. FICCI-Multiplex Association of India v. United Producers/Distributors Forum, Case No.

1 of 2009 (CCI).
22. Film & Television Producers Guild of India v. MAI, Case No. 37 of 201 (CCI).
23. Film & Television Producers Guild of India v. MAI, Case No. 37 of 2011 (CCI).
24. Fx Enterprise Solutions India (P) Ltd. v. Hyundai Motor India Ltd., Case No. 36 of 2014
(CCI).
25. Fx Enterprise Solutions v. Hyundai Motor India Ltd., Case No. 36 of 2014 (CCI).
26. Ghanshyam Das Vij v. Bajaj Corp Ltd, Case No. 68 of 2013 (CCI).
27. H.M.M. Ltd. v. Director General, MRTPC, (1998) 6 SCC 485.
28. In Re, Suo-Moto Case Against LPG Cylinder Manufactures, 2012 SCC
OnLine CCI 12.
29. In Re, Alleged Cartelization by Steel Producers, Case No. RTPE No. 09 of
2008 (CCI).
30. In Re, Alleged cartelization in supply of LPG Cylinders procured through
tenders by Hindustan Petroleum Corporation Ltd. (HPCL) v. Allampally
Brothers Ltd., Case No. 64 of 2014 (CCI)
31. In Re, Alleged cartelization in the matter of supply of spares to Diesel Loco
Modernization Works, Indian Railways, Patiala, Punjab, [2014] CCI32 (CCI).
32. In Re, BhartiAirtel Ltd. v. Reliance Industries Ltd., Case No. 03 of 2017
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(CCI).
33. In Re, Cartelisation in respect of zinc carbon dry cell batteries market in India
v. Eveready Industries India Ltd., SuoMotu Case No. 02 of 2016 (CCI).
34. In Re, Delhi Jal Board v. Grasim Industries Ltd., [2017] SCC OnLine CCI 48.
35. In Re, Sheth& Co., Case No. 04 of 2013 (CCI).
36. In Re, Meera Metal Industries, RTP Enquiry No. 19 of 1986(MRTPC).
37. In Re, SCGH v. L & T., [2013] CCI 69.
38. In Re, Federation of Indian Airlines, Case No. RTPE 3 of 2008, (CCI).
39. Indian Sugar Mills Association v. Indian Jute Mills Association (IJMA),
2014 CompLR 225 (CCI).
40. Indian Sugar Mills Association v. Indian Jute Mills Association,
[2014]CCI90.
41. JyotiSwaroopArora v. CCI, (2016) 231 DLT 396.
42. JyotiSwaroopArora v. Tulip Infratech Ltd., 2015 CompLR 109 (CCI).
43. JyotiSwaroopArora v. Tulip Infratech, Case No. 59 of 2011,(CCI)
44. Crown Theatre v. Kerala Film Exhibitors Federation, Case No. 16 of
2014(CCI).
45. Gujarat State Electricity Corporation Ltd. v. South Eastern Coalfields Ltd.,
2013 CompLR 910(CCI).
46. HNG Stock Exchange of India Ltd. v. Competition Commission of India,
2014 CompLR 304 (COMPAT).
47. ManappuramJewellers (P) Ltd. v. Kerala Gold & Silver Dealers Association,
2012 CompLR 548 (CCI).
48. Mohan Meakins limited, RTP Enquiry No. 65 of 1984(MRTPC).
49. MohitManglani v. Flipkart India, 2015 SCC OnLine CCI61.
50. Mr. Om Datt Sharma v. M/s Adidas AG, M/s Reebok International Ltd. and
M/s Reebok India Company, 2014 CompLR 180(CCI).
51. Mrs. ManjuTharad, Proprietress and M/s. Manoranjan Films, Kolkata v.
Eastern India Motion Picture Association, Kolkata and The Censor Board of
Film Certification, Kolkata, [2012] 110 CLA 136(CCI).
52. National Insurance Companies Ltd. v. Competition Commission of India,
2017 CompLR 1 (COMPAT).
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53. NeerajMalhotra v. Deutsche Bank, Case No. 5 of 2009 (CCI).

54. PrasarBharati (Broadcasting Corporation of India) v. TAM Media Research
(P) Ltd. Case 70 of 2012(CCI).
55. Rajasthan Cylinders and Containers Ltd. v. Union of India, 2018 SCC OnLine
SC 1718.
56. Rajasthan Cylinders v. Union of India, 2018 SCC OnLine SC 1718.
57. RamakantKini v. Dr. LH Hiranandani Hospital Pawai, Case No. 39 of
2012(CCI).
58. RRTA v. Amar dye Chem, RTP Enquiry No. 51 of 1975(MRTPC).
59. Saint Gobain Glass India Ltd. v. Gujarat Gas Company Limited, 2015
CompLR 431 (CCI).
60. Samir Agarwal and ANI Technologies (P) Ltd., 2018 SCC OnLine CCI 86.
61. Samir Agarwal v. ANI Technologies, 2018 SCC OnLine CCI86.
62. Sh. DhanrajPillay v. Hockey India, 2013 CompLR 543 (CCI).
63. Shailesh Kumar v. Tata Chemicals Ltd., Case No. 66 of 2011, (CCI).
64. ShriPravahanMohanty v. HDFC Bank Ltd. and Card Services Division of the
HDFC Bank, Case No. 17 of 2010 (CCI).
65. SubhasChanda v. Ganga Prasad, AIR 1967 SC 878.
66. Sunil Bansal v. Jaiprakash Associates Ltd., 2015 CompLR 1009 (CCI).
67. Suresh Chandra v. State of W.B., AIR 1976 Cal 110.
68. Swastik Stevedores (P) Ltd. v. Dumper Owner's Association, 2015 CompLR
212 (CCI).
69. The National Stock Exchange of India Ltd. v. Competition Commission of
India, 2014 CompLR 304(COMPAT).
70. Three D Integrated Solutions Ltd. v. VeriFone India Sales (P) Ltd., 2015
CompLR 464 (CCI).
EUROPEAN UNION CASES
CASES
1. HFB Holdings fur FernwarmetechnikBeteiligungsgesellsschaft GmbH & Co.
KG v. Commission of the European Communities, [2002] ECR II- 1487.
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2. Areca v. Commission, (2011) ECR-II-63 (EU).

3. Argos Ltd. and Littlewoods Ltd. v. Office of Fair Trading and JBB Sports
plc., [2006] EWCA Civ 1318.
4. Case C-23/14, Post Denmark A/S v. Konkurrencerådet, ECLI : EU : C : 2015 :
651.
5. Case T-340/03, France Telecom SA v. Commission, [2003] E.C.R. II-10781.
6. Case C-360/92 P. Publishers Association, [1995] ECRI-23.
7. Case C-413/14, Intel Corporation Inc v. Commission, EU : C : 2017 : 632.
8. Case C-52/09, Konkurrensverket v. TeliaSoneraSverige AB, ECLI : EU : C :
2011 :83.
9. Case C-525/16, MEO v. Autoridade da Concorrência, EU : C : 2018 : 270.
10. Case C-62/86, AKZO Chemie BV v. Commission of
European Communities, ECLI : EU : C : 1991 :286.
11. Case T-201/04, Microsoft Corporation v. Commission, [2007] ECR II 3601.
12. Case T-340/03, France Télécom SA v. Commission of the European
Communities, ECLI : EU : T : 2007 : 22.
13. Case T-83/91, Tetra Pak II v. Commission of European Communities,
ECLI : EU : T : 1994 :246.
14. Case T-86/95, CompagnieGenerale Maritime, [2002] ECR II1011.
15. Case T-99/04, AC-Treuhand v. Commission, [2008] ECR II-1501, 130.
16. CBEM v. CLT and IPB, [1985] ECR 3261.
17. Commercial Solvents v. Commission, [1974] ECR 223.
18. COMP/M. 1672, Volvo/Scania [2001] O.J. L 143/74.
19. Hoffman-La Roche & Co. v. Commission, [1979] ECR 461
20. In Re, British Basic Slag Ltd., (1962) LR 3 RP 179.
21. R v. Re A Loyalty Bus Bonus Scheme, (2001) ECC 19.
22. R v. William E. Coutts Co., [1968] 1 O.R. 549.
23. Shell International Company Ltd. v. Commission
of European Communities, [1992] ECRII-757.
24. T-340/03, France Telecom SA v. Commission, [2009] 4 CMLR25.
25. United Brands v. Commission, [1978] ECR 207..
26. United Brands v. Commission, [1978] ECR 207.
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UNITED STATES CASES
CASES
1. American Needle v. National Football League, 560 US 283 (2010).
2. American Tobacco Co. v. United States, 328 US 781 (1946).
3. Copperweld Corp. v. Independence Tube Corp., 467 US 752 (1984).
4. Dr. Miles Medical Co. v. John D. park, 220 US 373 (1911).
5. Interstate Circuit, Inc. v. United States, 306 US 208.
6. Jefferson Parish Hospital v. Hyde, 466 US 2 (1984).
7. Ohio v. American Express Co., 585 US 201 (2018).
8. United States v. Socony-Vacuum, 310 US 150 (1940).
BOOKS REFERRED
1. SM Dugar, Guide to Competition Law, ArijitPasayat et al. eds., 6th ed. 2016
2. Abir Roy, Competition Law In India : A Practical Guide (2nd Ed. 2016).
3. Alison Jones & Brenda Sufrin, Eu Competition Law, Texts, Cases And
4. Materials, (6th Ed., Oxford University Press 2016).
5. Jonathan Faull & Ali Nikpay, TheEu Law Of Competition (3rd Ed. 2014).
6. Richard Whish, Competition Law (David Bailey, 8th Ed. 2017).
LEGISLATIONS AND STATUTES REFERRED

1. The Companies Act, Act 18 Of 2013, INDIA CODE (2013)
2. The Competition Act, No. 12 Of 2003, INDIA CODE (2002)
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ARTICLES
1. Ariel Ezrachi, The Competitive Effects of Parity Caluses on Online Commerce, 55, OLS 88,
101-103 (2015).
2. AvinashAmarnath, The Oligopoly Problem : Structural and Behavioral Solutions Under the
Indian Competition Law, 55, JILI 283, 298-300 (2013).
3. AZB and Partners, Vertical Agreements in India (2019)
4. Ben Klopack& Nicola Pierri, Vertical contracting and price parity agreements : evidence
from hotels in Europe (2016)
5. Frank Mathewson & Ralph Winter, The Law and Economics of Resale Price Maintenance,
13, REV. IND. ORG. 57, 72 (1998).
6. Kenneth G. Elzinga& David E. Mills, The Economics of Resale Price Maintenance, 3, ABA
SAL 156, 165-166 (2008).
7. IgaMałobęcka, Hub-and-spoke cartel - how to assess horizontal collusion in disguise?, 8,
AKADEMIA LEONA KOŹMIŃSKIEGO 64, 64-78
8. (2016).
9. IttaiPaldor, The Vertical Restraints Paradox : Justifying the Different Legal Treatment of
Price and Non-Price Vertical Restraints, 58
10. Lester G. Telser, Why Should Manufacturers Want Fair Trade II, 33, J.L. & ECON. 409,
415-416 (1990).
11. Maurice E. Stucke, Is Competition always good?, 1, JOURNAL OF
12. ANTITRUST ENFORCEMENT, 162, 162-197 (2013)
13. William Breit, Resale Price Maintenance : What Do Economists Know and When Did
They Know It, 147
14. William E. Kovacicet. al., Plus Factors and Agreement in Antitrust Law, 110, MICH. L.
REV. 393, 398-400 (2011).
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GUIDELINES, REPORTS AND REGULATIONS
1. Commission Notice on The Definition Of Relevant Market For The Purposes Of Community
Competition Law, (97/C372/03), 2.
2. Competition Commission Of India, Market Study On E-Commerce In India : Key Findings
And Observations (2020)
3. Guidelines On The Applicability Of Article 101 Of The Treaty On The Functioning Of The
European Union To Horizontal Co-Operation Agreements, (2011/C11/01), 86.
4. Guidelines On The Application Of Article 81(3) Of The Treaty,
(2004/C101/08), 33.
5. Raghavan Committee Report, Report Of High-Level Committee On Competition Policy Law,
4.3-1.
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STATEMENT OF JURISDICTION
THE APPELLANTS HAVE PREFERRED AN APPEAL BEFORE THE HON'BLEVORMIRIAN

COMPANY LAW APPELLATE TRIBUNAL, 2002 AGAINST THE FINAL ORDER OF THE
COMPETITION COMMISSION OF VORMIR UNDER §27 IN CASE NO. 1 OF 2020 AND ORDER
UNDER §26(2) IN CASE NO. 2 OF 2020, IN ACCORDANCE WITH §53-B OF THE
COMPETITION ACT, 2002.
§53-B OF THE COMPETITION ACT, 2002
“Appeal to Appellate Tribunal
(1) The Central Government or the State Government or a local authority or enterprise or
any person, aggrieved by any direction, decision or order referred to in clause (a) of Section
53-A may prefer an appeal to the Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the
date on which a copy of the direction or decision or order made by the Commission is
received by the Central Government or the State Government or a local authority
or enterprise or any person referred to in that sub-§and it shall be in such form
and be accompanied by such fee as may be prescribed : Provided that the
Appellate Tribunal may entertain an appeal after the expiry of the said period of
sixty days if it is satisfied that there was sufficient cause for not filing it within
thatperiod.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may,
after giving the parties to the appeal, an opportunity of being heard, pass such
orders thereon as it thinks fit, confirming, modifying or setting aside the
direction, decision or order appealedagainst.
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(4) The Appellate Tribunal shall send a copy of every order made by it to the
Commission and the parties to theappeal.
(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall
be dealt with by it as expeditiously as possible and endeavour shall be made to
disposeoftheappealwithinsixmonthsfromthedateofreceiptofappeal.”
ALL OF WHICH IS RESPECTFULLY SUBMITTED
SYNOPSIS OF FACTS
DESCRIPTION OF PARTIES
Food Service Aggregators [for brevity ‘FSAs’ &/Or ‘APPELLANTS’] namely,

Trimato, Ziggy and NomRhino are the Appellants in the instant matter, they have
preferred an appeal before the Hon'ble Vormirian Company Law Appellate
Tribunal [for brevity ‘VCLAT’] against the final order of the Hon'ble
Competition Commission of Vormir [for brevity ‘CCV’] in Case No. 01 of 2020
and order in Case No. 02 of2020.
APPELLANTS are the independent FSAs located in the State of Vormir, who act
as intermediaries between conventional restaurants and consumers, through their
platforms. RESPONDENTS in the instant case, consist of CCV and the
Vormirian Association of Restaurants [for brevity ‘VAR’], the apex
representative body of food services industry in Vormir.
BACKGROUND
The State of Vormir is a large democracy located in South Asia, having 30 states.
Vormir has undergone significant economic transformations due to improved
internet connectivity, conducive regulatory environment due to ‘Digital Vormir’,
increased availability of smart phones and increase in disposable income of the
residents of Vormir. These factors have led to significant innovation in Vormir
and accordingly, domestic and foreign investors have made heavy investments in
new age industries in Vormir.
TIMELINE OF EVENTS
2010 The FSAs started their operations in the State of Vormir, acting as two-sided
markets and catering to both the restaurants who list their products on the
platform of the FSAs and the consumers who order food products from their
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platform.
2013 There was a boom in the business of the FSAs due to the conducive
environment and other factors as listed in the background of the case.
2019 The Ministry of Consumer Affairs [for brevity ‘Ministry’] conducted an
economic survey of the e-commerce market and found that there was huge group
of disgruntled consumers who had grievances against the FSAs. However, it was
found that despite facing such problems the consumers were heavily dependent on
the FSAs for their services. The Ministry referred the matter to the Department of
Food Inspection [for brevity ‘DFI’], for delving deeper into the problem.
Subsequently, VAR also approached the DFI and shared confidential details in
relation to the disruptive activities of the FSAs.
2020 CASE NO. 01 OF 2020
VAR along with several restaurant owners filed an information before the CCV
under §19(1)(a) of the Act. Separately, DFI also referred the matter to CCV. The
VAR in its information had alleged the contravention of §3 and 4 of the Act by
the FSAs. VAR in respect of §4 of the Act alleged the charge of excessive
commissions from the partner restaurants by the Trimato, the leveraging of
dominant position by the FSAs in order to enter the downstream market of
conventional restaurants function, recommendation software of Trimato and
predatory pricing by way of deep discounts, in contravention of different
provisions of §4 of the Act. The VAR had also alleged hub and spoke
cartelisation by the FSAs in light of the across platform parity agreements
which were entered into by the FSAs and their partner restaurants. The CCV
heard the VAR and passed an order under §26(1) of the Act, thereby directing the
Director General [for brevity ‘DG’] to conduct an investigation into the matter.
The FSAs challenged the said order before the High Court of Doomstadt [for
brevity ‘HC’], by way of a writ. However, the HC dismissed the writ petition filed
by the FSAs. Consequently, the DG submitted its report and upheld all the
allegations made by VAR against the FSAs and concluded that the FSAs have
contravened the provision of §3 and 4 of the Act. The CCV, concurring with all
the findings of the DG Report passed final order under §27 of theAct.
CASE NO. 02 OF 2020
The FSAs consequent to the final order in Case No. 01 of 2020 filed an
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information under§19(1)(a)of the Act against VAR and alleged the violation of §3
(3) read with 3(1) of the Act, on the grounds of hub and spoke cartelization by the
VAR and its member restaurants, in light of price parallelism, price fixing and
collusive agreement to indulge in anti-competitive activities. The CCV heard the
FSAs and passed an order under §26(2) of the Act as according to it no prima
facie was made out against VAR and its partner restaurants.
PRESENT APPEAL
Aggrieved by the orders of the CCV in Case No. 01 of 2020 and Case No. 02 of
2020 the FSAs preferred separate appeals before the Hon'ble VCLAT under §53-
B of the Act. The Hon'ble VCLAT has clubbed the appeals filed by the FSAs for
hearing together in Appeals [TA (AT) (Competition) Nos. 1-2 of 2020].
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STATEMENT OF ISSUES
ISSUE I
 WHETHER THE FSAS VIOLATED PROVISIONS OF §4 OF THE ACT, COLLECTIVELY AND/OR
INDIVIDUALLY (ON PART OF TRIMATO AND/OR AS PART OF A SINGLE ECONOMIC
ENTITY?
ISSUE II
 WHETHER THE FSAS VIOLATED THE PROVISIONS OF §3(3) READ WITH §3(1) OF THE
ACT?
ISSUE III
 WHETHER THE FSAS VIOLATED THE PROVISIONS OF §3(4)(E) AND §3(3) READ WITH §3(1)
BY WAY OF THEIR APPAS?
ISSUE IV
 WHETHER VAR, ALONG WITH ITS MEMBER RESTAURANTS, VIOLATE PROVISIONS OF §3(3)
READ WITH §3(1) OF THE ACT?
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SUMMARY OF ARGUMENTS
ISSUE-I
The APPELLANTS respectfully contend that their market conduct does not
amount to abuse within the meaning of section 4 of the Act because, firstly, the
APPELLANTS operate in the relevant market of ‘provision of food services
aggregation in the State of Vormir’ which is a transaction based two-sided
market. Secondly, the APPELLANTS do not constitute a single economic entity
because they do not fall within the ambit of Explanation (b) of section 5 of the Act and the
economic interests of the APPELLANTS are distinct from one another as they are
competitors in the relevant market. Thirdly, Trimato independently is not dominant in the
relevant market as it cannot function independently of its competitors in the relevant market
or affects its competitors or consumers or relevant market it its favor. Lastly, the conduct of
the FSAs does not amount to abuse within the meaning of section 4 of the Act as the
APPELLANTS have not indulged themselves in either exclusionary or exploitative market
conduct. Moreover, the FSAs have not leveraged their dominant position in the relevant
market in order to enter into market under section 4(2)(e) of the Act as they do not meet the
conditions necessary for leveraging position.
ISSUE-II
The APPELLANTS respectfully content that they have not violated the provisions of section
3(3) read with section 3(1) of the Act on account of two reasons, firstly, the circumstantial
evidence relied upon by the DG in its investigation report which was later upheld by the
CCV are only indicative of parallel business behavior in the market. The collusion on part of
the FSAs by way of an understanding or a horizontal agreement between the FSAs cannot be
proven in the instant case. Secondly, the conduct of the FSAs is not causing an AAEC,
relevant for the purpose of section 3(1) of the Act, in the relevant market of because the
conduct of the FSAs is leading to accrual of benefits upon the consumers and as such there
is no presence of barriers in the relevant market.
ISSUE-III
The APPELLANTS respectfully content that a violation of section 3(4)(e) read with section
3(1) can also not be established because firstly, the APPAs entered into between the FSAs
MEMORIAL ON BEHALF OF THE APPELLANTS xix

UID- SM0117057
and their partner restaurants are not in nature of RPM as they are not the producers of the
product and the prices specified are not stipulated prices which are set by the FSAs.
Secondly, the APPAs do not cause AAEC in the relevant market as they are actually pro-
competitive agreements that reduce the possibility of free riding and accrue benefits to
consumers and the provisions of services. Lastly, the charge of hub and spoke cartelization is
also not made out as there was no meeting of meeting of mind and collusion on part of FSAs
and their partner restaurants.
ISSUE-IV
The APPELLANTS respectfully contend that there is indeed a requirement of investigation

into the anti-competitive practices of the VAR and its member restaurants as there is
presence of an anti-competitive understanding between the member restaurants of VAR
which is violative of section 3(3) read with section 3(1) of the Act. This is because, firstly,
sensitive information pertaining to the market we as shared in the bi-annual meetings of the
VAR and subsequently there was a significant increment in prices of the services by VAR
member restaurants. Secondly, the VAR member restaurants have indulged in price and
quality fixing on the platforms of the FSAs which is not objectively justified and cause
AAEC in the relevant market.
MEMORIAL ON BEHALF OF THE APPELLANTS xx

UID- SM0117057
ARGUMENTS ADVANCED
ISSUE I:—WHETHER THE FSAS VIOLATED PROVISIONS OF §4 OF THE ACT,

COLLECTIVELY AND/OR INDIVIDUALLY (ON PART OF TRIMATOAND/OR AS PART OF A
SINGLE ECONOMIC ENTITY)?
1. It is respectfully contended before the Hon'ble VCLAT that dominance per se is not
prohibited under the scheme of Antitrust Law in the State of Vormir but its abuse is
prohibited.1 The key elements considered while determining the conduct of an enterprise 2 in
relation to §4 of the Act3 are, first, the relevant market in which the enterprise is operating,
second, the market power of the entity and third, whether the conduct of enterprise under
investigation amounts to abuse.4
2. Accordingly, the APPELLANTS respectfully contend, first, the FSAs operate in the relevant
market of provision of food aggregation in the State of Vormir[A], second, the FSAs
collectively cannot be termed as dominant entity within the meaning of §4 of the Act [B],
third, Trimato is individually not dominant in the Relevant Market [C] and fourth,
alternatively, the conduct of FSAs either individually or collectively does notconstitute abuse
of dominant position within the meaning of §4 of the Act [D].
A. THAT THE FSAS OPERATE IN THE RELEVANT MARKET OF FOOD SERVICES
AGGREGATION IN THE STATE OF VORMIR
3. It is humbly contended that for the purpose of determining the dominance of an enterprise or
a group under §4 of the Act, it is essential to delineate the relevant market 5 in which the
enterprise or group is functioning. 6In the instant case, the APPELLANTS are operating in the
relevant market of provision of food aggregation for in the geographical region of Vormir for
two reasons, first, the relevant product market is a two-sided market in which the FSAs are
intermediaries [1] and second, the relevant geographical market is the State of Vormir[2].
1. The relevant product market is a two-sided market of food services aggregation
4. It is contended that a relevant product market 7 comprises of all those products and/or services
1
Belaire Owners' Association v. DLF Ltd. Haryana Urban Development Authority Department of Town and
Country Planning, State of Haryana, [2011] 104 CLA 398 (CCI).
2
§2(h), The Competition Act, No. 12 of 2003, INDIA CODE (2002).
3
Competition Act, supra note 2, §4.
4
1 S.M. DUGAR, GUIDE TO COMPETITION LAW 423 (ArijitPasayat et al. eds., 6th ed. 2016).
5
Competition Act, supra note 2, §2(r).
6
Matrimony.com Ltd. v. Google India (P) Ltd., Case No. 07 and 30 of 2012 (CCI).
7
Competition Act, supra note 2, §2(t).
1
UID- SM0117057
which are regarded as interchangeable or substitutable by the consumer, by reason of the

products' characteristics, their prices and their intended use.8 In addition, substitutability is an
essential parameter which is considered while determining a relevant product market. 9
Furthermore, the SSNIP10 test or the HM test is taken into due consideration while
determining the product market for the purpose of ascertaining the dominance of an enterprise
or a group in a relevant market.11
5. Keeping in view the aforesaid, the FSAs cater to both the restaurants who list their food
products on their platform and the customers who order food products from their platform and
the restaurants.12 Furthermore, there is presence of ‘indirect network effects’. Therefore, the
market13 so defined must include both sides of the markets i.e. the restaurants and the ultimate
consumers.14
6. Assuming arguendo, it is accordingly contended that in the instant case, the relevant market
ought to be considered as ‘provision of food services aggregation’, while treating the offline
and online markets as different channels of distribution of the same product and not as two
distinct relevant markets.15
2. The relevant geographic market is the State of Vormir
7. It is contended that the relevant geographical market 16 in the instant case, ought to be taken as
the entire geographical region of the State of Vormir. 17 This is because, as per the Act,
relevant geographic market comprises the area in which conditions of competition are
distinctly homogeneous.18 Additionally, for the purpose of provision food services
aggregation, the conditions of competition are homogeneous pan-Vormir and accordingly, the
relevant geographical market in the instant case ought to be taken as ‘State of Vormir’.19
8
Commission Notice on the definition of relevant market for the purposes of Community Competition Law,
(97/C372/03), ¶2.
9
SM Dugar, supra note 4 at 127; See also: Case T-340/03, France Telecom SA v. Commission, [2003] E.C.R. II-
107, ¶81.
10
See: Case COMP/M. 1672, Volvo/Scania [2001] O.J. L 143/74, ¶56.
11
JONATHAN FAULL & ALI NIKPAY, THE EU LAW OF COMPETITION 47 ¶1.147, (3rd ed. 2014) [for
brevity ‘F&N’].
12
Moot Proposition, ¶3.
13
Ohio v. American Express Co., 585 US 201 (2018); See also: Times-Picayune Publishing Co. v. United States,
345 US 594 (1953).
14
F&N, supra note 11 at 48, ¶1.148.
15
AshishAhujav. Snapdeal and Ors., Case No. 17 of 2014 (CCI); See also: Deepak Vermav. Clues Network (P)
Ltd., Case No. 34 of 2016 (CCI).
16
Competition Act, supra note 2, §2(s).
17
All India Online Vendors Association v. Flipkart India (P) Ltd., Case No. 20 of 2018 (CCI), ¶26.
18
Case T-340/03, France Telecom SA v. Commission, [2009] 4 CMLR 25, ¶81.
19
MEMORIAL ON BEHALF OF THE APPELLANTS 2

UID- SM0117057
B. THAT THE FSAS COLLECTIVELY CANNOT BE TERMED AS DOMINANT WITHIN THE

MEANING OF §4 THE ACT
8. The analysis of the dominance under §4 of the Act is done in relation with an enterprise or a
group of enterprises as defined under §5 of the Act. 20 Accordingly, the APPELLANTS
contend, first, the FSAs do not constitute an S.E.E. and accordingly not dominant [1] and
second, collective dominance is outside the purview of §4 of the Act [2].
1. The FSAs do not constitute an S.E.E. and accordingly not dominant
9. It is respectfully contended that while interpreting the relationship between two or more
enterprises qua S.E.E., regard is placed upon the economic interests of the enterprises in
question, their de facto economic relationship and the nature of relationship that exist between
them.21 APPELLANTS therefore contend that first, they fall outside the definition of ‘group’
under §5 of the Act [i], second, there is absence of effective legal control [ii] and third, the
economic interests of the FSAs are distinct and separable [iii].
(i) The FSAs do not constitute ‘group’ within the meaning of Explanation (b)to §5 of the
Act
10. It is respectfully submitted that §4 of the Act provides that no enterprise or group shall abuse
its dominant position.22 Therefore, an entity which is not an enterprise or collection of
enterprises that do not form part of the group will not be considered under §4 of the
Act.23Furthermore, group under §5 of the Act requires two or more enterprises, either directly
or indirectly, to have twenty six percent or more voting rights in the other enterprise or
capacity to appoint more than fifty percent of the members of the board of directors or
existence of control over the management or affairs of the other enterprise. 24 Moreover, there
must be an existence of de jure or de facto control between the enterprises.25
11. In the instant case, however, there is absence both de facto and de jure control in the
functioning and management of the FSAs, which are separate legal entities. Moreover, the
existence of certain investments of fifteen present in Trimato, five percent in Ziggy and eight
percent in NomRhino by the Iron Bank, with a board seat in each does not effectively
20
SM Dugar, supra note 4 at 421; See also:Mrs. ManjuTharad, Proprietress and M/s. Manoranjan Films,
Kolkata v. Eastern India Motion Picture Association, Kolkata and The Censor Board of Film Certification,
Kolkata, [2012] 110 CLA 136 (CCI).
21
American Needle v. National Football League, 560 US 283 (2010).
22
ABIR ROY, COMPETITION LAW IN INDIA : A PRACTICAL GUIDE 158 (2nd ed. 2016)
23
SM Dugar, supra note 4 at 422.
24
Competition Act, supra note 2, §5, Explanation (b).
25
National Insurance Companies Ltd &Orsv. Competition Commission of India, 2017 CompLR 1 (COMPAT).

UID- SM0117057
establish that the FSAs collectively constitute a group under explanation (b) of the §5 of the
Act.26
(ii) There is no effective legal control
12. There must be an existence of effective legal control over the management and functioning of
an enterprise over the other in order to term them as a single economic entity. 27 It is
contended that the day to day affairs of the FSAs are managed by their respective board of
directors which take decisions that are in best interest of the economic interest of the
respective FSA.28It is further submitted that the IronBank has limited shareholding rights in
the FSAs and only one seat in the Board of Directors of the FSAs. 29 Accordingly, it is
contended a substantial degree of effective legal control which is required in order to term
two or more enterprises as a single economic entity cannot be established in the instant
matter.30
2. Additionally, collective dominance is outside the purview of §4 of the Act

13. The Antitrust Law scheme of Vormir does not recognize collective abuse of dominance.31 The
word ‘group’ used under §4 of the Act does not refer to group of independent corporate
entities or enterprises.32 In fact, it refers to different enterprises belonging to the same group
in terms of control of management or equity.33 Additionally, there must be collective decision
making and exercise of joint dominance which can only be exercised by a
group.34Accordingly, it is submitted that the APPELLANTS cannot be regarded as
collectively dominant in the relevant market as they do not constitute a group and possess
separable economic interests with distinct decision-making exercise.35
C. THAT TRIMATO IS NOT DOMINANT IN THE RELEVANT MARKET
26
Arshiya Rail Infrastructure Ltd. (ARIL) v. Ministry of Railways (MoR) through the Chairman, Railway Board
and Container Corporation of India Ltd, (CONCOR), [2013] 112 CLA 297 (CCI).
27
Shell International Company Ltd. v. Commission of European Communities, [1992] ECR II-757; See also:HFB
Holdings fur FernwarmetechnikBeteiligungsgesellsschaft GmbH & Co. KG and Others v. Commission of the
European Communities, [2002] ECR II-1487.
28
§166, The Companies Act, Act 18 of 2013, INDIA CODE (2013).
29
See: §149, The Companies Act, Act 18 of 2013, INDIA CODE (2013).
30
In Re, Delhi Jal Board v. Grasim Industries Ltd., [2017] SCC OnLine CCI 48.
31
32
Indian Sugar Mills Association v. Indian Jute Mills Association (IJMA), 2014 CompLR 225 (CCI).
33
34
Consumer Online Foundation v.Tata Sky Limited, Dish TV India Limited, Reliance Big TV Ltd. and Sun
Direct TV (P) Ltd., Case No. 2 of 2009 (CCI); See also:Dish Tv India Ltd. v. Hathway Cable &Datacom
Limited, Case No. 78 of 2013 (CCI).
35
ManappuramJewellers (P) Ltd. v. Kerala Gold & Silver Dealers Association, 2012 CompLR 548 (CCI);
See:JyotiSwaroopArorav. Tulip Infratech Ltd., 2015 CompLR 109 (CCI).

UID- SM0117057
14. An enterprise must hold a position of strength qua its competitors in the given relevant
market in order to be termed as dominant within the meaning of §4 of the Act. 36 The strength
should enable the enterprise to operate independently of competing forces prevailing in the
relevant market or to affect its competitors or consumers or the relevant market in its favour.37
15. In this vein, the APPELLANTS contend that first, Trimato in not dominant in the relevant
market as market share is only an initial indication of dominance [1] and second, Trimato
does not meet the host of stipulated factors mentioned under §19(4) of the Act [2].
1. Market share is only an initial indication of dominance
16. It is respectfully submitted that market share of an equity is only one of the factors that
decides whether an enterprise is dominant or not, but that factor alone cannot be decisive
proof of dominance.38 Additionally, where an enterprise has a large market share, it may be
constrained by that of its other large competitors. 39 It is further submitted that a consistently
high market share may also be the result of a firm's ability to stay ahead of its rivals through
constant innovation and development of products that appeal to the consumers.40
17. Accordingly, market share of sixty percent of all orders per month for the past eleven months
of Trimato cannot be treated as a sole criterion in order to term Trimato dominant in the
relevant market of food aggregation in the geographical region of Vormir.41
2. Trimato cannot be termed dominant within the meaning of §19(4) of the
Act
18. Due regard is to the factors enunciated under §19(4) of the Act while inquiring into the
dominance of an enterprise in a given relevant market.42 Accordingly, it is submitted that first,
Trimato is not dominant in the relevant market as there is absence of entry barriers [i] and
second, the dependence of consumers on Trimato is not per se unrestrained [ii].
(i) Absence of entry barriers in the relevant market
19. The presence of entry barriers for new entrants and high cost for substitutable goods or
services for consumers is a useful criterion in order to determine the dominance of an
36
Exclusive Motors (P) Ltd. v. Automobili Lamborghini SPA, [2014] 121 CLA 230 (CAT);
ShriPravahanMohantyv. HDFC Bank Ltd. and Card Services Division of the HDFC Bank, Case No. 17 of 2010
(CCI).
37
Hoffman-La Roche & Co. v. Commission, [1979] ECR 461; See also:United Brands v. Commission, [1978]
ECR 207.
38
RamakantKiniv. Dr. LH Hiranandani Hospital Pawai, Case No. 39 of 2012 (CCI).
39
M/s HNG Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR 304 (COMPAT).
40
Unilateral conduct workbook, Chapter 3, Assessment of Dominance, prepared by The Unilateral Conduct
Working Group, The Hague, Netherlands, (2011).
41
Saint Gobain Glass India Ltd. v. Gujarat Gas Company Limited, 2015 CompLR 431 (CCI).
42

UID- SM0117057
enterprise in a relevant market.43 However, the presence of large number of options to the
consumers from a range of products available in the relevant geographic market is
demonstrative of the absence of entry barriers/foreclosure of competition.44
20. It is contended that there is rapid growth of new age industries in the State of Vormir which
includes FSAs45 and adding to that there is strong presence of other companies in the relevant
market which offer identical services as provided by Trimato, in the relevant market.
Accordingly, Trimato cannot be termed dominant within the meaning of §4 of the Act.46
(ii) Dependence of consumers on Trimato is not per se unrestrained
21. The heavy dependence of customers on an enterprise is an important factor for attributing
dominance.47 However, in the instant case, the dependence of consumers on the services of
Trimato is not unrestrained.48 It is submitted that there is presence of other strong competitors
i.e. Ziggy and NomRhino which are operating in the relevant market. 49 Accordingly,
dominance ought not to be attributed upon Trimato in the present matter.
D. ALTERNATIVELY, THAT THE CONDUCT OF FSAS (COLLECTIVELY AND/OR
INDIVIDUALLY) DO NOT CONSTITUTE ABUSE OF DOMINANT POSITION
22. It is humbly submitted before the Hon'ble VCLAT of the State of Vormir that the conduct of
APPELLANTS either collectively or individually does not constitute ‘abuse’ within the
meaning of §4 of the Act as first, the FSAs have not violated the provisions of §4(2)(a) and
4(2)(c) of the Act [1], second, the FSAs have not contravened §4(2)(b) of the Act [2], and
third, the FSAs have not abused their dominant position by leveraging their position to enter
into another market [3].
1. The FSAs have not violated the provisions of §4(2)(a) and 4(2)(c) of the Act
23. In this vein, the APPELLANTS respectfully contend that they have not violated the terms of
§4(2)(a) of the Act as first, the charge of differential commissions in not per se abuse under
§4 of the Act [i] and second, the FSAs have not indulged in predatory pricing [ii].
(i) Provision of differential pricing is not per se abuse under §4 of the Act
43
The National Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR 304
(COMPAT).
44
Sunil Bansalv. Jaiprakash Associates Ltd., 2015 CompLR 1009 (CCI).
45
46
Sunil Bansalv. Jaiprakash Associates Ltd., 2015 CompLR 1009 (CCI).
47
Belaire Owners' Association v. DLF Ltd. Haryana Urban Development Authority Department of Town and
Country Planning, State of Haryana, [2011] 104 CLA 398 (CCI); See also:Commercial Solvents v. Commission,
[1974] ECR 223.
48
See:M/s Gujarat State Electricity Corporation Ltd. v. M/s South Eastern Coalfields Ltd., 2013 CompLR 910
(CCI).
49
See: Moot Proposition, ¶7(f).

UID- SM0117057
24. It is humbly submitted that for a trade practice to be unfair, it must be found that it causes loss
or injury to the consumer.50 Furthermore, usual methods of competition are permitted and will
only become unfair or discriminatory if there are particular instances which make competition
to provide services obstructive. 51 Moreover, the difference of margins must be substantial in
order to be termed abusive within the meaning of §4 of the Act.52
25. Keeping in view the aforesaid and the effect-based approach, 53 the differential charge of
commissions by Trimato from its partner restaurants is not in contravention of the §4(2)(a)(i)
of the Act as it is based upon intelligible differentia 54 and accordingly, the charge of denial of
market access in violation of §4(2)(c) of the Act is also not made out.55
(ii) Requirements of predatory pricing are not met
26. The APPELLANTS contend that the discounts provided by them to the consumers are not in
contravention of the provision of §4(2)(a)(ii) of the Act as first, predatory intent cannot be
established [a] and second, the discounts provided are commercially sound and given in order
to meet the competition [b].
a)Predatory intent cannot be established
27. Intention on part of the dominant enterprise to reduce competition or eliminate competitor is a
consideration while determining predatory pricing abuse in §4(2)(a)(ii)of the Act. 56
Furthermore, the instances wherein the prices of a product/service are set below the average
variable costs the predatory intent of the dominant undertaking can be presumed but the same
cannot be presumed when prices are above average variable costs but below average total
costs.57 Moreover, the ‘no economic sense’ test for prices below average variable costs is a
test of intent.58
28. In the instant case, all the FSAs are providing deep discounts to the consumers while they
place an order for food on their platform but the said practice cannot standalone be termed as
predatory since the FSAs operate in a two-sided market wherein they engage with both their
partner restaurants as well as the consumers.59
50
H.M.M. Ltd. v. Director General, MRTPC, (1998) 6 SCC 485.
51
R v. Re A Loyalty Bus Bonus Scheme, (2001) ECC 19.
52
Mr. Om Datt Sharma v. M/s Adidas AG, M/s Reebok International Ltd. and M/s Reebok India Company, 2014
CompLR 180 (CCI).
53
Ghanshyam Das Vijv. Bajaj Corp Ltd & Others, Case No. 68 of 2013 (CCI).
54
PrasarBharati (Broadcasting Corporation of India) v. TAM Media Research (P) Ltd. Case 70 of 2012 (CCI).
55
Case C-525/16, MEO v. Autoridade da Concorrência, EU : C : 2018 : 270; See also: Case C-413/14, Intel
Corporation Incv. Commission, EU : C : 2017 : 632, ¶22.
56
Abir Roy, supra note 22 at 186.
57
Case C-62/86, AKZO Chemie BV v. Commission of European Communities, ECLI : EU : C : 1991 : 286, ¶145;
See also: Case T-83/91, Tetra Pak II v. Commission of European Communities, ECLI : EU : T : 1994 : 246.
58
Case T-340/03, France TÉlÉcom SA v. Commission of the European Communities, ECLI : EU : T : 2007 : 22.
59
F&N, supra note 11 at 48, ¶1.148.

UID- SM0117057
29. Additionally, it is essential to establish the pricing policy of a dominant enterprise is

producing an actual or likely exclusionary effect, to the detriment of competition and thereby,
of consumers interests.60 However, the conduct of the APPELLANTS establishes the fact that
there is no exclusionary effect in the relevant market and accordingly the pricing policy of the
FSAs does not establish predatory intent on their part.
b) The discounts provided are commercially sound and given in order to meet the
competition
30. It is respectfully contended that objective justification can be afforded on the pricing policy
by a dominant enterprise.61 In the instant case, the market of online food aggregation is
relatively new from the conventional food services market and accordingly requires
promotion and awareness among the consumers.62 Therefore, the FSAs are following their
policy of providing discounts to the consumers.
31. Assuming arguendo, market expanding efficiencies63 is also a justification for the below cost
pricing policy of the FSAs as they have a relatively lower marker presence when the entire
food services sector is considered.64Additionally, the FSAs operate in an oligopolistic market
wherein all the competitors are following sympathetic pricing policy. Therefore, the pricing
policy which is adopted by the individual FSAs is done in order to meet competition in the
relevant market of food aggregation.65 Accordingly, the pricing policy of the FSAs is not anti-
competitive within the meaning of §4(2)(a)(ii) of the Act.
2. The FSAs have not violated the terms of §4(2)(b) of the Act
32. Technical or scientific development relating to goods or services which is to the prejudice of
consumers is treated as abuse under §4(2)(b) of the Act.66 It is contended that ‘prejudice to the
consumer’ is an appropriate test in order to test abuse in such cases. 67 In this vein, it is
contended that the unique software developed by Trimato makes certain recommendations to
the customers to for ordering the food on its platform on the basis of previous orders which
were placed by the relevant consumer and the ratings which are obtained by the partner
restaurants from other consumers.68
60
Case C-23/14, Post Denmark A/S v. KonkurrencerÅdet, ECLI : EU : C : 2015 : 651.
61
F&N, supra note 11 at 48, ¶1.148.
62
63
In re, BhartiAirtel Ltd. v. Reliance Industries Ltd. and Anr., Case No. 03 of 2017 (CCI).
64
List of Clarifications, No. 9 at pg. no 3.
65
F&N, supra note 11 at 48, ¶1.148.
66
Atos Worldline India (P) Ltd. v. Verifone India Sales (P) Ltd., 2015 CompLR 327 (CCI).
67
Case T-201/04, Microsoft Corporation v. Commission.[2007] ECR II-3601.
68

UID- SM0117057
33. However, the said software is developed for providing better services to the consumers and is
only recommendatory in nature.69 Moreover, consumers are free to weigh their options and
order the food that they prefer and the same is not violative of §4(2)(b) of the Act.70
3. The FSAs have not abused their dominant position in the relevant market by leveraging
their position to enter into another market
34. A dominant enterprise or a dominant group of enterprises must be dealing in two distinct
relevant markets for the purpose of abuse under §4(2)(e) of the Act.71 Further, the conduct of
the dominant enterprise must not be objectively justified. 72Accordingly, the APPELLANTS
contend that their conduct cannot be regarded as abuse under §4(2)(e) of the Act because of
two reasons, first, the FSAs have not met the conditions for leveraging position [i] and
second, the conduct of FSAs is justified [ii].
(i) FSAs have not met the conditions for leveraging position
35. It is necessary for an enterprise or a group of enterprise to be dominant in one relevant market
for the purpose of violation of §4(2)(e) of the Act. 73 In the instant case, the FSAs collectively
or Trimato are not dominant in the relevant market of provision of food services
aggregation.Accordingly, the APPELLANTS cannot be said to have abused their dominant
position by leveraging its position to enter the conventional market of food services where the
regular restaurants operate.74
(ii) Alternatively, conduct of FSAs is objectively justified
36. It is respectfully submitted that objective justification for anti-competitive practice can be
afforded by a dominant enterprise in against an allegation of violation of §4(2)(e) of the Act. 75
Additionally, the conduct of dominant enterprise must lead to substantial elimination of
competition in the secondary market due to the restriction on the availability of input for the
purpose of abuse under §4(2)(e) of the Act.76
37. In the instant case, the APPELLANTS are charging commissions in the range of 15 -20%
from their partner restaurants.77 The rates of commission which are charged by the FSAs
69
Moot proposition, ¶7(d).
70
Jefferson Parish Hospital v. Hyde, 466 US 2 (1984).
71
The National Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR 304
(COMPAT).
72
ALISON JONES & BRENDA SUFRIN, EU COMPETITION LAW, TEXTS, CASES AND MATERIALS, 398
(6th ed, Oxford University Press 2016).
73
Three D Integrated Solutions Ltd. v. VeriFone India Sales (P) Ltd., 2015 CompLR 464 (CCI).
74
Sh. DhanrajPillayv. M/s Hockey India, 2013 CompLR 543 (CCI).
75
CBEM v. CLT and IPB, [1985] ECR 3261.
76
77

UID- SM0117057
differ on the basis of individual contracts which are entered into by the FSAs after
negotiations. Furthermore, the cloud kitchens are relatively new in the market of food
services and accordingly lesser commission is charged from them. 78Additionally, the charge
of commissions in the range of 15-20% does not cause foreclosure of competition in the
secondary market as the input is not indispensable79 to the relevant market and there is no
refusal thereof.80 Accordingly, the conduct of FSAs in not in violation of §4(2)(e) of the Act.
ISSUE II:—WHETHER THE FSAS VIOLATED THE PROVISION OF SECTIONS 3(3) READ
WITH §3(1) OF THE ACT?
38. It is respectfully contended before the Hon'ble VCLAT that the APPAs as agreements
between the FSAs and their partner restaurants do not violate the provisions of §3(1) read
with §3(3) of the Act because of two reasons, first, there is no collusion between the FSAs
[A] and second, the conduct of FSAs do not cause AAEC [B].
A. THAT THERE IS ABSENCE OF COLLUSION AMONGST FSAS

39. APPELLANTS contend that there is no existence of collusion between them because, first,
there is absence of anti-competitive agreement between them [1], second, circumstantial
evidences adduced is consistent with independent conduct [2] and third, there cannot be
horizontal agreement between the FSAs and their partner restaurants [3].
1. There is no anti-competitive agreement between the parties

40. Agreement has been defined inclusively81 under Sec. 2(b) of the Act.82 According to the
provisions of the Act, an agreement may be in writing or oral or may be enforceable by legal
proceedings or not.83 Moreover, the basic requirement for establishing an arrangement is that
the parties to it shall have communicated with one another in some way.84
41. In the instant case, there was no communication85 between the FSAs at any level and the
parallel business conduct in absence of any evidence of communication at any level is not
78
Moot Proposition, ¶7(c).
79
Case C-52/09, Konkurrensverketv. TeliaSoneraSverige AB, ECLI : EU : C : 2011 : 83.
80
1 S.M. DUGAR, GUIDE TO COMPETITION LAW 423, (ArijitPasayat et al. eds., 6th ed. 2016).
81
Suresh Chandra v. State of W.B., AIR 1976 Cal 110; See also: BRYAN A. GARNER, EIGHTH EDITION,
BLACK'S LAW DICTIONARY.
82
Competition Act, supra note 2, § 2(b).
83
Abir Roy, supra note 22 at 46.
84
In Re, British Basic Slag Ltd., (1962) LR 3 RP 179.
85
Moot Proposition, ¶7(h).

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sufficient for the purpose of establishing the existence of an anticompetitive agreement

between two enterprises.86 Additionally, it is submitted that merely following a price leader
and adopting the price announced by him would not essentially imply an arrangement as it
lacks mutuality.87
42. Keeping in view the aforesaid, it is submitted that adoption of parallel business behavior,
though may be admissible as circumstantial evidence, cannot be taken to establish an
arrangement.88 Accordingly, in absence of agreement or understanding, the FSAs cannot be
held liable for entering into anti-competitive agreements within the meaning of §3(3) read
with §3(1) of the Act.89
2. Circumstantial evidence adduced is consistent with independent conduct

43. APPELLANTS contend that it is a settled proposition of law that proof of conscious parallel
business behaviour is circumstantial evidence but such evidence, is insufficient unless the
circumstances under which it occurred make the inference of rational, independent choice less
attractive than that of concerted action.90
44. It is also contended that in an investigation of cartelization, the first issue to be established is
whether there was an agreement and then the behaviour of the members of the cartels had to
be seen with reference to the said agreement.91 The existence of a cartel can only be presumed
on the basis of the behaviour of the members of the alleged cartel. 92 Merely because two or
more enterprises are doing similar or identical thing, will not find an agreement within the
meaning of §3(1) unless some meeting of their minds or common intention to do so is
established.93
45. Further, in absence of any conclusive evidence of concerted action, the ‘preponderance of
possibility’ is considered.94 However, the facts said to indicate towards the possible collusion
are not established as the FSAs are competing against each other in the relevant market and
merely trying to gain profits.95
86
Film & Television Producers Guild of India v. MAI, Case No. 37 of 201 (CCI).
87
All India Motor Transport Congress v. Indian Foundation of Transport Research & Training, Appeal No. 20
of 2015 (COMPAT).
88
American Tobacco Co. v. United States, (1946) 328 US 781.
89
In Re : Federation of Indian Airlines, Case No. RTPE 3 of 2008, (CCI).
90
Shailesh Kumar v. Tata Chemicals Ltd., Case No. 66 of 2011, (CCI).
91
DG (IR) v. Modi Alkali and Chemicals Ltd, 2002 CTJ 459.
92
In Re, Alleged cartelization in the matter of supply of spares to Diesel Loco Modernization Works, Indian
Railways, Patiala, Punjab, [2014] CCI 32.
93
JyotiSwaroopArorav. CCI &Ors., (2016) 231 DLT 396.
94
Maurice E. Stucke, Is Competition always good?, 1, JOURNAL OF ANTITRUST ENFORCEMENT, 162,
162-197 (2013); See also:Copperweld Corp. v. Independence Tube Corp., 467 US 752 (1984).
95
Moot Proposition, ¶7(h).

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46. The Sherman Act from which the Act has been inspired, is a comprehensive charter of
economic liberty aimed at preserving free and unfettered competition as the rule of trade. 96
Therefore, the Act also happens to encourage free and fair competition in the market, which
means the motive of gaining profits does not contravene any provision, as long as it is well
within the limits prescribed by law.97 Furthermore, it can be stated that the similarity in price
between FSAs is due to the nature of the services.98
47. Accordingly, in the mere presence of circumstantial evidence, the ‘preponderance of
possibilities’ cannot be presumed to be the gravest one, when there are multiple other
circumstances that could have occurred as a result of the said circumstances the existence of a
horizontal agreement between the FSAs cannot be established.99
3. Assuming arguendo, there cannot be horizontal agreement between APPELLANTS and
their partner restaurants
48. Horizontal agreement can only exist between the competitors operating at the same level in
the economic process i.e., agreement between wholesalers or retailers. 100 In light of the
aforesaid, the APPAs in the instant matter can't fall within the ambit of Sec. 3(3) as the parties
to the agreement i.e., FSAs and their partner restaurants are not operating at the same level.
49. It is also pertinent to note that the agreement can only be entered into being in the same line
of production.101 This, however, cannot be held to be applicable here, as the alleged entities
don't fall within the same production line.
50. APPELLANTS contend that they act as platforms which cater to the restaurants to list their
food services as well as the consumers to order food services therefrom. 102 It is contended that
the partner restaurants of the FSAs are the producers of the food services while the FSAs only
act as intermediaries between the restaurants and the ultimate consumers. Keeping in view the
aforesaid, it is contended that the line of production is not same and accordingly there cannot
be a horizontal agreement between the two.103 Moreover, the FSAs are not a part of the
production chain to begin with, as it is not performing any of the tasks prescribed to the
entities involved within the same, including manufacture, production and so on.104
96
Maurice E. Stucke, Is Competition always good?, 1, JOURNAL OF ANTITRUST ENFORCEMENT, 162,
162-197 (2013).
97
Competition Commission v. Steel Authority of India Ltd. and Anr., (2010) 10 SCC 744.
98
In Re, Suo-Moto Case Against LPG Cylinder Manufactures, 2012 SCC OnLine CCI 12.
99
Rajasthan Cylinders and Containers Ltd. v. Union of India, 2018 SCC OnLine SC 1718.
100
Raghavan Committee Report, Report of High-Level Committee on Competition Policy Law, ¶4.3-1.
101
Swastik Stevedores (P) Ltd. v. Dumper Owner's Association, 2015 CompLR 212 (CCI).
102
103
Swastik Stevedores (P) Ltd. v. Dumper Owner's Association, 2015 CompLR 212 (CCI).
104

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51. Further, the parity agreements are bilateral in nature between the FSAs and restaurant
owners so that products are charged similarly on all FSAs platform. 105 Accordingly, there
cannot be any horizontal agreement between the FSAs and their partner restaurants and the
APPAs entered in between them are vertical agreements which are not per se anti-competitive
in nature.106
B. THAT THE CONDUCT OF APPELLANTS HAS NOT CAUSED AN AAEC
52. AAEC is an essential requirement of § 3(1) of the Act which can be established by having
due regard to all or any of the factors contained in § 19(3). 107 Accordingly, the submission of
the APPELLANTS is two-fold, first, APPAs are not driving existing competitors out of the
market [1] and second, these agreements cause benefits to the consumers and efficiency gains
[2].
1. The APPAs does not drive existing competitors out of the market
53. It is submitted that the APPAs entered into by the FSAs does not drive existing competitors
out of the market. The elimination of competition in the market depends on the degree of
competition existing prior to the agreement and on the impact of the restrictive agreement on
competition.108 For this purpose, the market share of the parties is considered.109
54. Assuming arguendo, the market share of the FSAs in the relevant market of ‘provision of
online food aggregation’ is consistent even post entering into parity agreements with the
partner restaurants. Moreover, there are also no evidences of driving of existing competitors
out of the market or foreclosure of competition by hindering the entry into the market or price
fixing and causing adverse effect.110 Accordingly, the conduct of the FSAs does not cause
AAEC in the relevant market.
2. The agreement between FSAs cause benefits to the consumers and efficiency gains
55. Firms that are collaborating on some socially valuable activity may need to agree to do away
with competition so as to establish the cooperative society. 111 Restrictive contract which are
designed to promote use of energy efficient manufacturing processes, technological
innovation and production of eco-friendly products is explicitly permitted as exception.112
105
Moot Proposition, ¶7(g).
106
107
In Re, Alleged cartelization in supply of LPG Cylinders procured through tenders by Hindustan Petroleum
Corporation Ltd. (HPCL) v. Allampally Brothers Ltd., Case No. 64 of 2014 (CCI), ¶120.
108
Case T-86/95, CompagnieGenerale Maritime, [2002] ECR II-1011.
109
Case C-360/92 P. Publishers Association, [1995] ECR I-23; See also: ALISON JONES & BRENDA
SUFRIN, EU COMPETITION LAW, TEXTS, CASES AND MATERIALS, 252 (6th ed., Oxford University Press
2016).
110
Ajay Devgun Films v. Yash Raj Films (P) Ltd, 2012 SCC OnLine Comp AT 233.
111
Guidelines on the Application of Article 81(3) of the Treaty, (2004/C101/08), ¶ 33.
112

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56. Accordingly, the parity agreements create price parity, which allows the restaurant to publish
the lowest price they can offer, and because of the FSA's polices of parity agreements the
restaurants eventually had to reduce their prices113 which have led to consumer benefit which
has been neglected by commission.114
57. Moreover, in absence of price parity restriction, competition on non-price parameters may
also be harmed, thereby adversely affecting the scientific and technological innovation in the
relevant market.115 Accordingly, the conduct of the FSAs does not cause AAEC in the
relevant market.
ISSUE III- THAT THE FSAS HAVE NOT VIOLATED THE PROVISIONS OF §3(4)(E) AND
§3(3) READ WITH §3(1) BY WAY OF THEIR APPAS.
58. It is respectfully contended before the Hon'ble VCLAT of the State of Vormir that the FSAs
has not violated the provisions of the provisions of §3(4)(e) and 3(3) read with §3(1) of the
Act because of two reasons, first, the parity agreements are not a model of RPM [A] and
second, the APPAs do not felicitate a hub and spoke cartel within the meaning of §3(3) read
with §3(1) of the Act [B].
[A] THE PARITY AGREEMENTS ARE NOT A FORM OF RPM UNDER THE MEANING OF §3(4)
(E) OF THE ACT.
59. APPELLANTS respectfully contend that the APPAs are not a form of RPM within the
meaning of §3(4)(e) of the Act because of two reasons, first, neither are the FSAs
manufactures of the products and nor there is not a fixed price at which the products are
portrayed at the platforms of the FSAs [1] and second, if the APPAs are indeed a form of
RPM, they do not cause an AAEC [2].
1. The FSAs are not the manufacturers of the food services and the products are not sold at
a stipulated price set by the FSAs
113
Moot Proposition ¶7(h).
114
115
AvinashAmarnath, The Oligopoly Problem : Structural and Behavioural Solutions Under the Indian
Competition Law, 55, JILI 283, 298-300 (2013).

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60. Stipulation of a price to sell a particular product/service at a specific price is RPM. 116 In order
to felicitate RPM the supplier or manufacturer has to be the one to restrict the price. 117 In the
instant case, the FSAs have not indulged in any agreement which stipulates a price.
61. Further, it is submitted that the parity agreements are different than RPM as they do not fix a
minimum price of sale rather they felicitate, price parity to curb price discrimination 118 which
is also illegal as per the Act.119 Accordingly, it is submitted that the APPAs entered into by the
FSAs are not detrimental to the provisions of the Act but in furtherance of the principles
enshrined under §18 and preamble of the Act.120
62. Additionally, to be RPM no choice is given to the supplier or enterprise to deviate from the
price and in cases of breach of RPM the supplier may withhold the goods. 121 However, in the
instant case the supplier itself are the restaurants and accordingly the requirement is not met.
63. Assuming arguendo, the FSAs do not in any manner dictate their partner restaurants to frame
prices on their will, they are free to follow their individual pricing policy and the FSAs do not
provide them with a list of prices which may lead to RPM. 122 Accordingly, it is submitted that
the APPAs do not amount to RPM.123
2. The APPAs do not cause AAEC within the meaning of §19 (3) of the Act
64. The antitrust law scheme in Vormir is governed by the rule of reason. 124 It is submitted that
even if an agreement entered into by two enterprises is a manner of RPM, it will not be per se
illegal.125 Moreover, it is necessary to show that the vertical agreement causes an appreciable
adverse economic affect126 with regard to the factors prescribed by §19(3) 127 of the act.128 In
other words, it is necessary to conclude that there is AAEC.129
65. It is humbly submitted that competition does not happen in a void, 130 for it the determination
of relevant market is necessary to evaluate AAEC. 131 Hence, it is submitted that the relevant
116
Mohan Meakins limited, RTP Enquiry No. 65 of 1984 (MRTPC).
117
Fx Enterprise Solutions v. Hyundai Motor India Ltd., Case No. 36 of 2014 (CCI).
118
Ben Klopack& Nicola Pierri, Vertical contracting and price parity agreements : evidence from hotels in
Europe (2016).
119
Competition Act, supra note 2, §4(2)(a).
120
Competition Act, supra note 2, §18.
121
122
In re, Meera metal industries, RTP Enquiry No. 19 of 1986 (MRTPC).
123
RRTA v. Amar dye Chem, RTP Enquiry No. 51 of 1975 (MRTPC).
124
DLF v. State of Haryana, (2003) 5 SCC 622.
125
Dr. Miles Medical Co. v. John D. park, 220 US 373 (1911).
126
In re, SCGH v. L&T., [2013] CCI 69.
127
§19(3), The Competition Act, No. 12 of 2003, INDIA CODE (2002).
128
CCI v. Artistes & Technicians, (2017) 5 SCC 17.
129
GhanshyamDassVij and Bajaj Corp. Ltd. [2015] CCI 155.
130
Excel Corp Care v. CCI, (2017) 8 SCC 47.
131
CCI v. Artistes & Technicians, (2017) 5 SCC 17.

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product market is the ‘provision of food services’ and the vertical restraints actually cause a
positive effect on competition132 and can accordingly be justified on the grounds of objective
justification.133
66. In this vein, the submission of the APPELLANTS is there-fold, first, the absence of APPAs
might drive the FSAs out of market [i], second, the APPAs prevent free riding [ii] and third,
the APPAs lead to accrual of benefits upon the consumers and improves the provision of
service [iii].
(i) The absence of APPAs might drive the FSAs out of the market
67. Elimination of competitors is to be given due regard while evaluation of a vertical restraint. 134
It is submitted that the parity agreements do not create barriers to competition as they do not
in any manner promote price differentiationrather profess price parity. Further, if the
restaurants are allowed to price differently on different sales channels, it will lead to the
elimination of the competitors as they will charge differently on different platforms.135
68. The fact that the restaurant might quote a lower price to Trimato and higher to Ziggy will lead
to the elimination of Ziggy, as customers will use Ziggy and not Trimato for ordering food
Therefore, in order to survive in the market, parity agreements are vital and will deliver a pro-
competitive effect in the instant case.136
69. It is further submitted that the e-commerce sector is a new sector in Vormir and the FSAs
have only boomed recentl within a very less time RPM might actually create demand 137 but
the FSAs are running into losses. Therefore, such practices of RPM are necessary to retain
competition, as difference in prices will led to the distortion of the entire business model of
the FSAs.
(ii) The APPAs prevent free riding
132
European Commission Guidelines on Vertical Restraints, (2010/C130/01) ¶411.
133
Faridabad Industries v. Adani Gas Limited, Case No. 71 of 2012 (CCI).
134
Competition Act, supra note 2, §19(3)(b).
135
Ariel Ezrachi, The Competitive Effects of Parity Caluses on Online Commerce, 55, OLS 88, 101-103 (2015).
136
Competition Commission of India, Market Study on e-commerce in India : Key Findings and Observations
(2020).
137
Frank Mathewson & Ralph Winter, The Law and Economics of Resale Price Maintenance, 13, REV. IND.
ORG. 57, 72 (1998).

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70. It is submitted that the e-commerce sectors being new 138 bring the issue of free riding with
it139 which is prevalent economic problem since 1995.140 Further, the platforms of the FSAs
are different, the investments are different, so in case if tomorrow a new FSA enters the
market with very less investment and just provide delivery, charging very less commission to
the restaurants, then the people will use the platforms of Trimato, Ziggy and NomRhino to
view the product get all the information and then buy it from the cheapest of all 141 as
customers use online market to compare prices 142 leading to another FSA taking a free ride on
the investment of another FSA143, and hence will lead to the problem of free riding.
71. Further, the recommendation software of FSAs recommends restaurants through its software.
It is submitted that consumers will use the platform of FSAs to see its recommendation but
not actually buy from there.
72. Hence, the parity agreements will help the market flourish by ending the problem of free
riding144 which was completely ignored by the commission while imposing the penalty upon
the FSAs under §27 of the Act.
(iii) The APPAs lead to accrual of benefit to consumers and improves provision of
services
73. It is humbly submitted that, the parity agreements create price parity, which allows the
restaurant to publish the lowest price they can offer, and because of the FSAs policies of party
agreements the restaurants eventually had to reduce their prices which has led to consumer
benefit which has been neglected by commission. Moreover, due to the reduction of prices
across platform the restaurants have stopped giving hygienic food and have entered into foul
practices.
74. Assuming arguendo, the parity agreements have led to scientific progress in the field of e-
commerce as due to them the FSAs do not have to worry about the new competitors taking
free ride, they can focus on the delivery services. It is submitted that as there is no price
discrimination, the FSAs can actually look forward to innovation and technology and brand of
its services.145
138
All India Online Vendors Association v. Flipkart India (P) Ltd., Case No. 20 of 2018 (CCI).
139
Kenneth G. Elzinga& David E. Mills, The Economics of Resale Price Maintenance, 3, ABA SAL 156, 165-
166 (2008).
140
R v. William E. Coutts Co., [1968] 1 O.R. 549.
141
IttaiPaldor, The Vertical Restraints Paradox : Justifying the Different Legal Treatment of Price and Non-Price
Vertical Restraints, 58, THE UNIVERSITY OF TORONTO LAW JOURNAL 317, 317-353 (2008).
142
MohitManglani v. Flipkart India, 2015 SCC OnLine CCI 61.
143
RICHARD WHISH, COMPETITION LAW 655 (David Bailey, ed. 2017) [for brevity ‘Richard Whish’].
144
Lester G. Telser, Why Should Manufacturers Want Fair Trade II, 33, J.L. & ECON.409, 415-416 (1990).
145
Richard Whish, supra note 151 at 655.

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B. THE APPAS DO NOT FELICITATE A HUB AND SPOKE CARTEL WITHIN THE MEANING OF
§3(3) READ WITH §3(1) OF THE ACT.
75. It is humbly submitted that the penalty on the FSAs on violation of §3(3)146 is unjustified as
the sine qua non of §3 is an agreement.147 There is no fact in the entire proposition to indicate
any sort of agreement to fix prices or cartelization in any manner and hence, the CCV has
wrongly penalized the FSAs under the Act.
76. It is submitted that the commission has penalized the FSAs on the grounds of a hub and spoke
cartel. A traditional hub-and-spoke cartel is one wherein there is exchange of strategic
information between horizontal competitors (spokes) by the means of a common contractual
partner active at a different level of the distribution chain (the hub), who often also
contributes to stabilizing a cartel.148 It is contended that in the scheme antitrust law the need of
an agreement is necessary.149 Hub and spoke is a single collusive agreement where the
allegation is that the FSAs advocated the decrease in prices of the restaurants listed on their
platforms.
77. The intent of a cartel is to increase price150 and not decrease, it is not economically sustainable
for a cartel to reduce their prices, and the agreement is eventually leading to reduction of
prices. The fact that the competition has increased and the VAR has to reduce their prices in
order to compete with the FSAs is the sole reason VAR filed a case against the FSAs.
78. Additionally, hub and spoke cartel involves a dominant purchaser and needs an evidence of
collusion.151 However, there is no concrete fact to show that there has been a horizontal
agreement between the FSAs and the FSAs have actually increased competition in the market.
79. A mere existence of a common partner, as in this case the FSAs does not leads to a hub and
spoke152 and in order to conclude that the FSAs are indeed a hub which led to hub and spoke,
it is necessary to show that there was meeting of mind between the FSAs and the
restaurants.153
146
Competition Act, supra note 2, §3(3).
147
Samir Agarwal v. ANI Technologies, 2018 SCC OnLine CCI 86.
148
IgaMałobęcka, Hub-and-spoke cartel — how to assess horizontal collusion in disguise?, 8, AKADEMIA
LEONA KOŹMIŃSKIEGO 64, 64-78 (2016).
149
Fx Enterprise Solutions India (P) Ltd. v. Hyundai Motor India Ltd., Case No. 36 of 2014 (CCI).
150
All India Distillers' Association v. Haidyn Glass Ltd., [2010] CCI 1.
151
Interstate Circuit, Inc. v. United States, 306 US 208 (1939).
152
Argos Ltd. and Littlewoods Ltd. v. Office of Fair Trading and JBB Sports plc., [2006] EWCA Civ 1318.
153
Case T-99/04, AC-Treuhand v. Commission, [2008] ECR II-1501, ¶ 130.

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80. However, in absence of these evidences the DG has come to the conclusion that the FSAs and
some of the restaurants formed a hub and spoke cartel complementing to which the CCV
wrongly imposed a penalty on the FSAs.
ISSUE IV- THAT THE VAR, ALONG WITH ITS MEMBER RESTAURANTS, VIOLATED
PROVISIONS OF §3(3) READ WITH §3(1) OF THE ACT.
81. It is respectfully contended that VAR along with its member restaurants has violated §3 of the
Act by way of a hub and spoke cartel because of two reasons, first, there was collusion
amongst the members of VAR [A] and second, the hub and spoke cartel amongst the VAR
and its member restaurants has caused an AAEC in Vormir[B].
[A] VAR FELICITATED COLLUSION AMONGST ITS MEMBER RESTAURANTS.
82. In this vein, the APPELLANTS contend that first, there is a tacit agreement amongst the
members of VAR [4.1.1] and second, the fact that there has been an exchange of sensitive and
confidential information is a proof of collusion [4.1.2].
1.There exists a tacit agreement amongst the restaurants felicitated by VAR
83. It is contended that there exists an agreement between enterprises which might cause an
AAEC is barred by the mandate of the act under §3. It is submitted that the agreement must
be a contract is not essential, but a formal understanding. 154 The fact that the members of
VAR agreed upon certain anti-competitive practices can be gathered by their motive and
conduct.155 It is also to be noted that a presence of an association is also a threat to
competition as they might provide a platform to agree on anti-competitive practices 156 and
VAR as an association, is also prone to cartelization.157
84. An agreement which leads to cartelization is condemned across the globe by world
competition authorities158 and the CCI also condemns it. The VAR and its members have
felicitated an agreement to collude which can be inferred by the abnormal increase in prices
on the FSA's platforms.
85. It is contended that the fact that there were marginal differences in the cost of productions,
but just to hamper the competition VAR felicitated this increase in price being the hub. It is
154
NeerajMalhotra v. Deutsche Bank, Case No. 5 of 2009 (CCI).
155
JyotiSwaroopArora v. Tulip Infratech, Case No. 59 of 2011 (CCI).
156
Builders Associations v. Cement manufacturers Association, Case no. 29 of 2010 (CCI).
157
Rajasthan Cylinders v. Union of India, 2018 SCC OnLine SC 1718.
158
Indian Sugar Mills Association v. Indian Jute Mills Association, [2014] CCI 90.

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submitted that the fact that parties involved have expressed their joint intention to conduct
themselves in fashion which harms competition is a proof of an agreement.
86. Accordingly, it is submitted that VAR and its member restaurants are collectively indulged
into anti-competitive activities such as serving sub-standard quality of food and beverages,
non-cooperation on part of their servers with the FSAs delivery personnel and use of sub-
standard infrastructure etc., for delivery orders which depicts the presence of horizontal
agreement.
2.The mere fact of exchange of sensitive & confidential information leads to collusion
87. The exchange of information is a relevant factor which contributes to collusion. 159 The EU
commission of competition has penalized numerous cartels where exchange of information
was illegal160 and unlawful.161 Collusion is akin to a secret conspiracy to do something against
the law162 which the VAR is felicitating for the restaurants by the way of bi-annual meetings.
88. It is submitted that the exchange of strategic data is detrimental to competition and also most
likely to violate Article 101(1) of the TFEU.163 In the instant case, there is explicit exchange
of strategic data leading to collusion which is regarding pricing policies & services which was
felicitated by the hub which is VAR.
B. THERE IS A CONSPIRACY AMONGST VAR AND ITS MEMBER RESTAURANTS TO FIX

PRICES.
89. APPELLANTS respectfully contend that first, price parallelism can be considered as a valid
proof of fixing prices [1.] and second, the increment of prices by VAR member restaurants
cannot be objectively justified [2.].
1. Price parallelism amounts to price fixing
90. Price parallelism is an additional economic circumstantial evidence which is a ‘plus factor’
while determining the presence of cartelization by enterprises placed at the same level of
production chain.164 Parallel Pricing does not require uniform prices, and permits prices
within an agreed upon range.165 Moreover, price parallelism in the context of cartelization is a
159
Film & Television Producers Guild of India v. MAI, Case No. 37 of 2011 (CCI).
160
Areca v. Commission, (2011) ECR-II-63 (EU).
161
162
SubhasChanda v. Ganga Prasad, AIR 1967 SC 878.
163
Treaty on the Functioning of the European Union, art. 101.
164
William E. Kovacicet. al., Plus Factors and Agreement in Antitrust Law, 110, MICH. L. REV. 393, 398-400
(2011).
165
United States v. Socony-Vacuum, 310 US 150 (1940).

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situation wherein the prices of a commodity changed due to the concerted effort of enterprises
in order to form a cartel in the market.166
91. It is submitted that in the present matter, in comparison to 2018, there is almost 200%
increment of the prices in 2019 by the VAR members on the FSAs platform which lead to a
necessary inference of the practice of price parallelism. Further, it is submitted that the
increase in the prices of food services by the member restaurants of VAR is unwarranted as
there is no evidence of hyper-inflation or other change in circumstance which justifies an
overall increase of 200% in prices of the food services by the members restaurants of VAR.
92. Accordingly, it is submitted that in light of the aforesaid, there is a need to further investigate
upon the price behaviour of member of VAR restaurants as there is presence of plausible
economic evidence.167
2.The increment of prices by VAR member restaurants cannot be objectively justified &
cause AAEC
93. There is no change in demand of food in Vormir and yet increase in prices is something
which goes beyond the preview of a reasonable person, and hence not a logical thing to do. 168
The fact that the consumers will not have an option to switch as VAR members are the big 5
of all the restaurants in Vormir and the FSA’s brick and mortar outlet is less than 5% of the
entire market.
94. It is submitted that the conduct of the parties has caused AAEC in the relevant market of
provision of food service aggregation in the State of Vormir, making the agreement between
the VAR and its member restaurants anti-competitive 169 and in contravention of §3(3) read
with §3(1) of the Act.170
95. Once existence of prohibited agreements, practice or decision enumerated under §3(3) of the
Act is established there is no further need to show an effect on competition because then a
rebuttable presumption is raised that such conduct has an AAEC and is therefore
anticompetitive.171
96. In the present matter, agreement between VAR and member restaurants forms price fixing
cartel. An agreement for the provision of services which directly or indirectly determines sale
166
In Re, Sheth& Co., Case No. 04 of 2013 (CCI).
167
Samir Agarwal and ANI Technologies (P) Ltd., 2018 SCC OnLine CCI 86
168
In Re, Manufacturers of Asbestos Cement Products Suo-Moto Case No. 01 of 2012 (CCI).
169
Builders Association of India v. Cement Manufacturers' Association, Case No. 29 of 2010 (CCI).
170
Competition Act, supra note 2, §19(3).
171
All India Organisation of Chemists and Druggists v. CCI, Appeal No. 21 of 2013 (COMPAT).

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prices is presumed to have AAEC.172 Price fixing in the food service sector is also subject to
Article 101(1) of the TFEU.173 Price fixing may be achieved indirectly by agreeing on certain
elements of price like increment of price.174
97. It is submitted that the VAR along with member restaurants indirectly yet jointly determined
the price of each item which results in consistently increment of 200% of price. Determining
or fixing the price in the market form cartelization and cause violation of §3(3)(a) and led to
AAEC.175
172
Competition Act, supra note 2, §3(3)(a).
173
174
In Re, Cartelisation in respect of zinc carbon dry cell batteries market in India v. Eveready Industries India
Ltd., SuoMotu Case No. 02 of 2016 (CCI).
175
FICCI-Multiplex Association of India v. United Producers/Distributors forum, Case No. 1 of 2009 (CCI),
¶23.9 & ¶23.52.

UID- SM0117057
PRAYER
WHEREFORE IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES

CITED,
THE COUNSEL OF THE APPELLANTS MOST RESPECTFULLY PRAY THAT THIS HON'BLE
TRIBUNAL MAY BE
PLEASED TO:
a. Hold that the FSAs have not violated the provisions of the §3(3) read with §3(1)of the Act;
b. Hold that the FSAs have not violated the provisions of the §3(4)(e) and §3(3)read with
§3(1) of the Act;
c. Hold that the FSAs do not constitute a single economic entity;
d. Declare that Trimato individually is not dominant in the relevant market ofprovision of
online food aggregation in the State of Vormir;
e. Hold that the FSAs neither collectively nor individually have violated theprovisions of §4 of
the Act;
f. Set aside the order of CCV in Case No. 01 of 2020 and penalty imposed thereof;
g. Set aside the order of CCV in Case No. 02 of 2020 and direct the DG to hold
aninvestigation into the anti-competitive activities of VAR and its memberrestaurants.
AND/OR
Permit any other relief that this Hon'ble Tribunal may be pleased to grant inthe interest of
justice, equity and good conscience.
And for this demonstration of kindness, the Appellants shall forever be dutybound ever
humble pray.
XIII

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UID- SM0117057

BEFORE THE HON'BLEVORMIRIAN COMPANY LAW APPELLATE TRIBUNAL APPEAL (AT)

(COMPETITION) NOS. 1-2 OF 2020

(FILED UNDER SECTION 53-B OF THE COMPETITION ACT, 2002)

FOOD SERVICE AGGREGATORS …

COMPETITION COMMISSION OF VORMIR&VORMIRIAN ASSOCIATION OF RESTAURANTS …

ON SUBMISSION TO THE HON'BLEVORMIRIAN COMPANY LAW APPELLATE TRIBUNAL APPEAL

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS

COUNSEL FOR THE APPELLANTS

MEMORIAL ON BEHALF OF THE APPELLANTS ii

MEMORIAL ON BEHALF OF THE APPELLANTS iii

MEMORIAL ON BEHALF OF THE APPELLANTS iv

21. EU European Union

MEMORIAL ON BEHALF OF THE APPELLANTS v

49. UP Uttar Pradesh

1. All India Distillers' Association v. Haidyn Glass Ltd., [2010] CCI.

6. AshishAhuja v. Snapdeal and Ors., Case No. 17 of 2014 (CCI).

8. Belaire Owners' Association v. DLF Ltd. Haryana Urban Development Authority

9. Builders Association of India v. Cement Manufacturers' Association, Case No. 29 of

11. CCI v. Artistes & Technicians, (2017) 5 SCC 17.

MEMORIAL ON BEHALF OF THE APPELLANTS vi

17. DLF v. State of Haryana, (2003) 5 SCC 622.

18. Excel Corp Care v. CCI, (2017) 8 SCC 47.

21. FICCI-Multiplex Association of India v. United Producers/Distributors Forum, Case No.

27. H.M.M. Ltd. v. Director General, MRTPC, (1998) 6 SCC 485.

MEMORIAL ON BEHALF OF THE APPELLANTS vii

MEMORIAL ON BEHALF OF THE APPELLANTS viii

53. NeerajMalhotra v. Deutsche Bank, Case No. 5 of 2009 (CCI).

EUROPEAN UNION CASES

MEMORIAL ON BEHALF OF THE APPELLANTS ix

2. Areca v. Commission, (2011) ECR-II-63 (EU).

MEMORIAL ON BEHALF OF THE APPELLANTS x

UNITED STATES CASES

2. American Tobacco Co. v. United States, 328 US 781 (1946).

3. Copperweld Corp. v. Independence Tube Corp., 467 US 752 (1984).

4. Dr. Miles Medical Co. v. John D. park, 220 US 373 (1911).

5. Interstate Circuit, Inc. v. United States, 306 US 208.

6. Jefferson Parish Hospital v. Hyde, 466 US 2 (1984).

7. Ohio v. American Express Co., 585 US 201 (2018).

8. United States v. Socony-Vacuum, 310 US 150 (1940).

LEGISLATIONS AND STATUTES REFERRED

MEMORIAL ON BEHALF OF THE APPELLANTS xi

MEMORIAL ON BEHALF OF THE APPELLANTS xii

GUIDELINES, REPORTS AND REGULATIONS

MEMORIAL ON BEHALF OF THE APPELLANTS xiii

THE APPELLANTS HAVE PREFERRED AN APPEAL BEFORE THE HON'BLEVORMIRIAN

§53-B OF THE COMPETITION ACT, 2002

“Appeal to Appellate Tribunal

MEMORIAL ON BEHALF OF THE APPELLANTS xiv

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Food Service Aggregators [for brevity ‘FSAs’ &/Or ‘APPELLANTS’] namely,

MEMORIAL ON BEHALF OF THE APPELLANTS xv

MEMORIAL ON BEHALF OF THE APPELLANTS xvi

MEMORIAL ON BEHALF OF THE APPELLANTS xvii

MEMORIAL ON BEHALF OF THE APPELLANTS xviii

MEMORIAL ON BEHALF OF THE APPELLANTS xix

The APPELLANTS respectfully contend that there is indeed a requirement of investigation

MEMORIAL ON BEHALF OF THE APPELLANTS xx

ISSUE I:—WHETHER THE FSAS VIOLATED PROVISIONS OF §4 OF THE ACT,

which are regarded as interchangeable or substitutable by the consumer, by reason of the

2. The relevant geographic market is the State of Vormir

MEMORIAL ON BEHALF OF THE APPELLANTS 2

B. THAT THE FSAS COLLECTIVELY CANNOT BE TERMED AS DOMINANT WITHIN THE

MEMORIAL ON BEHALF OF THE APPELLANTS 3