Winner Team Memorial Respondent Rgnul National Moot 07 201 Krishnaaghav Mnlumumbaieduin 20240217 122047 1 32

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th
7 RGNUL National Moot, 2018
Winner Team Memorial - Respondent
Before the supreme Court of Indycosis

Appeal - I
(Section 53T of the Competition Act, 2002)
Arnub and Co. and Others … [Appellants(s)];
Versus
Rat Coffee and Another … [Respondent].
And
Appeal - II
[Sec. 136 of the Constitution of Indycosis, 1950)
Arnub and Co. and Others … [Appellants(s)];
Versus
Rat Coffee … [Respondent].
TABLE OF CONTENTS
List of Abbreviations 1
Index of Authorities 2
Statement of Jurisdiction 9
Statement of Facts 10
Issues Raised 12
Summary of Arguments 13
Arguments Advanced 14
Prayer 34
LIST OF ABBREVIATIONS
¶ Paragraph
¶¶ Paragraphs
§ Section
& And
Rs. Rupees
Art. Article
v. Versus
SC Supreme Court
HC High Court
SCC Supreme Court Cases
NCLAT National Company Law Tribunal
CCI Competition Commission of
Indycosis
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RAT Coffee Regional Association for Trade in

Coffee
CA Competition Act
DG Director General
EU European Union
Pvt. Ltd. Private Limited
No. Number
Co. Company
B/w Between
Assn. Association
SLP Special Leave Petition
INDEX OF AUTHORITIES
I. CASES
INDIAN CASES
S.NO. CASE NAME PAGE NO.
1. All Indycosis Tyre Dealers' Federation v. 24
Tyre Manufacturers, 2012 SCC OnLine
CCI 65 : 2013 CCI 12.
2. Arunachala v. State of Madras, AIR 1959 33
SC 300 (304).
3. Ashok Nagar Welfare Assn. v. R.K. 14
Sharma, (2002) 1 SCC 749 : AIR 2002
SC 335.
4. B.P. Khare v. Orissa Concrete & Allied, 25
2013 SCC OnLine CCI 21.
5. Benant Singh v. Union of Indycosis, 17
(1977) 1 SCC 220 : AIR 1977 SC 388.
6. Bengal Immunity Co. v. State Of Bihar, 20
AIR 1955 SC 661.
7. Bennett Coleman v. Union of Indycosis, 15
(1972) 2 SCC 788.
8. Carl Still G.M.B.H v. State of Bihar, AIR 16
1961 SC 84.
9. CCI v. Coordination Committee of 19
Artistes & Technicians of West Bengal
Film & Television, (2017) 5 SCC 17 :
2017 SCC OnLine SC 231.
10. CIT v. Jubliee Mills Ltd., (1963) 48 ITR 23
(SC).
11. CIT, Patiala v. Shahzada Nand & Sons, 20
AIR 1966 SC 1342.
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12. D.L.F Housing Construction v. Delhi 16

Municipality, (1976) 3 SCC 160 : AIR
1976 SC 386.
13. Director General (supplies & Disposal) v. 24
M/s. Puja Enterprises Basti. Ref Case No.
01 of 2012, (2013) 116 CLA 126 (CCI) :
2013 Comp LR 714 (CCI).
14. Dwarka Prasad Agarwal v. B.D Agarwal, 16
(2003) 6 SCC 230 : AIR 2003 SC 2686.
15. Excel Crop Care Ltd. v. CCI, (2017) 8 18, 29
SCC 47.
16. Fast Track Call Cab (P) Ltd. v. Ani 21
Technologies (P) Ltd., (2016) 66
taxmann.com 2 (CCI).
17. Financial Software & Systems (P) Ltd. v. 27
CCI, (2016) 69 taxmann.com 254
(Derry).
18. Google Inc. v. CCI, (2015) 56 21
taxmann.com 56 (Derry).
19. Hanif v. State of Bihar, AIR 1958 SC 73. 33
20. Haridas Exports v. All Indycosis Glass 19
Manufacturers' Assn., (2002) 6 SCC
600 : AIR 2002 SC 2728.
21. In Re, Aluminum Phosphide Tablets 26
Manufacturers, 2012 Comp LR 753
(CCI) : 2012 SCC OnLine CCI 25.
22. In re, Bengal Tools Ltd, (1988) 63 Comp 24
Cas 468 (MRTPC).
23. In Re, Indycosis Foundation of Transport 28
Research & Trading & Shri Bal Malkait
Singh, President All Indycosis Motor
Transport Congress (AIMTC) & G.P.
Singh Spokesperson, AIMTC, 2015 Comp
LR 377 (CCI) : 2015 SCC OnLine CCI
33 .
24. In Re, Shivam Enterprises & Kiratpur 28
Sahib Truck Operators Coop Transport
Society Ltd. & Its Members, 2015 Comp
LR 232 (CCI) : 2015 SCC OnLine CCI 27.
25. In re, LPG cylinder manufacturers, 2012 25
Comp LR 197 (CCI).
26. Indycosis Handicap Emporium v. Union 33
of Indycosis, (2003) 7 SCC 589 : AIR
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2003 SC 3240.
27. J.P Builders v. A. Ramadas Rao, (2011) 1 14
SCC 429.
28. Jai Singh v. Union of Indycosis, (1977) 1 15, 16
SCC 1 : AIR 1977 SC 898.
29. K.S Rashid & Son v. Income Tax 16
Investigation Commission, (1983) 1 SCC
393 : AIR 1984 SC 207.
30. Kottayam Co-Operative Land Mortgage 18
Bank Ltd. v. CIT, (1988) 172 ITR 443
(Ker.).
31. Krishna Praveen Kumar v. State of 32
Rajasthan, (1981) 4 SCC 550 : AIR 1982
SC 29.
32. Krishnan Kakkanth v. Govt. of Kerala, 33
(1997) 9 SCC 495 : AIR 1997 SC 178.
33. M/s International Cylinder (P) Ltd. v. 29
CCI, (2014) 122 CLA 41 (CAT) : 2014
Comp LR 184 (Comp AT).
34. MDD Medical Systems Indycosis Pvt. Ltd. 29
v. Foundation for Common Cause, 2013
Comp LR 327 (CompAT).
35. Meru Travel Solution (P) Ltd. v. CCI, 21
(2017) 77 taxmann.com 90 (Cat).
36. Mohd. Laiquiddin v. Kamala Devi Misra, 15
(2010) 2 SCC 407.
37. Mrs. Manju Tharad, Proprietress & M/S 19
Manoranjan Films, Kolkata v. Eastern
Indycosis Motion Picture Association
(EIMPA), Kolkata & The Censor Board of
Film Certification, Kolkata, (2012) 110
CLA 136 (CCI) : 2012 Comp LR 1178
(CCI) : (2012) 114 SCL 20 (CCI), Per.
Prasad (Dissenting).
38. Narendra Kumar Maheshwari v. Union of 31
Indycosis, 1990 Supp SCC 440 : AIR
1989 SC 2138.
39. Narendra Kumar v. Union of Indycosis, 33
AIR 1960 SC 430.
40. Nitin Radheyshyam Agarwal v. CCI, 2015 24
SCC OnLine Comp AT 1121 : 2015 Comp
AT 910.
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41. O.N.G.C. v. Association of Natural Gas 32

Consuming Industries of Gujarat, 1990
Supp SCC 397 : AIR 1990 SC 1851.
42. P.K. Krishnan v. Paul Madavana, 2016 28
Comp LR 83 (CCI).
43. Papanasam Labour Union v. Madura 34
Coats Ltd, (1995) 1 SCC 501 : AIR 1995
SC 2200
44. Pratap Pharma v. Union of Indycosis, 33
(1997) 5 SCC 87.
45. Pritam Singh v. State, 1950 SCC 189 : 15
AIR 1950 SC 169 : 1950 SCR 453.
46. Rajkumar Dyeing & Printing Works (P) 5, 21, 27
Ltd. v. CCI, (2014) 51 taxmann.com 465
(Derry).
47. Ram Singh v. State of Derry, AIR 1951 15
SC 2720.
48. Ramashre Chandrakar v. Dena Bank, 19
(1996) 86 Comp Cas 147 (MP) : 1994
MPLJ 610.
49. Rashid Ahmed v. Municipal Bd., AIR 32
1950 SC 163 (165).
50. Reliance Agency v. Chemists & Druggists 27
Association of Baroda (CDAB), Baroda,
(2018) 89 taxmann.com 31 (CCI).
51. Rustom Cavasjee Cooper (Bank 15
Nationalisation) v. Union of Indycosis,
(1970) 1 SCC 248.
52. S.P Sampath Kumar v. Union of 16
Indycosis, (1987) 1 SCC 124 : AIR 1987
SC 386.
53. Sir Chunilal V. Mehta & Sons Ltd v. The 14
Century Spinning, AIR 1962 SC 1314.
54. Sodhi Transport Co. v. State of U.P, 26
(1986) 1 SCR 939.
55. Southern Eastern Railway v. M/S. Orissa 25
Concrete & Allied Industries Ltd., (2013)
114 CLA 280 CCI.
56. Southern Pipeline Contractors v. 18
Competition Commission, 2011 SCC
OnLine ZACAC 5.
57. Southern Pipeline Contractors v. The 28
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Competition Commission, Case No.

105/CAC/Dec 10, (106/CAC/Dec 10).
58. State of Assam v. Sristikar Dowerah, AIR 32
1957 SC 414.
59. State of Gujarat v. Mirzapur Moti Kureshi 15
Kassab Jamat, (2005) 8 SCC 534 : AIR
2006 SC 212.
60. State of Kerala v. N.M. Thomas, (1976) 2 33
SCC 310.
61. State of Orissa v. Radhey Shyam Meher, 32
(1995) 1 SCC 652 : AIR 1995 SC 855.
62. State of U.P v. Bahadura Singh, (1983) 3 16
SCC 73 : AIR 1983 SC 84.
63. State of U.P v. Gir Prasad, (2004) 15 ILD 26
441 (SC).
64. State of West Bengal v. Subodh Gopal 15
Bose, AIR 1954 SC 52.
65. S. Rajkumar Dyeing & Printing Works (P) 21, 27
Ltd. v. CCI, (2014) 51 taxmann.com 465
(Derry).
66. Tamil Nadu Film Exhibition Association v. 20
(Madras).
67. Telefonaktiebolaget Lm Ericsson (Publ) v. 18
(Delhi).
68. Thansingh v. supdt. Of Taxes, AIR 1964 16
SC 1419.
69. Tika Ramji v. State of U.P., AIR 1956 SC 32
676 (710).
70. Travel Agents Association of Indycosis v. 19
Balmer Lawrie & Co., (2013) 113 CLA
415 (Cat) : 2013 Comp LR 11 (COMP
AT) : (2013) 118 SCL 174 (CAT).
71. Ujagar Singh v. State (Delhi 17
Administration), (1979) 4 SCC 530.
72. Union of Indycosis v. Hindustan 22
Development Corporation, (1993) 3 SCC
499 : AIR 1994 SC 988.
73. Union Of Indycosis v. Sankalchand, 20
(1981) 4 SCC 173 : AIR 1981 SC 1922.
74. Union of Indycosis v. T.R Verma, AIR 16
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1957 SC 882.
75. United States v. Romer, 148 F.3d 359 20
(4th Cir. 1998).
76. United States v. United States Gypsum 23
Company, 333 US 364 (1948).
77. Vipul A. Shah v. All Indycosis Film 23
Employee Confederation, (2017) 87
FOREIGN CASES
78. Anderton v. Ryan, (1985) 2 All ER 355, 20
P. 359 (HL).
79. Arizona v. Maricopa County Medical 22
Society, 457 US 332 (1982).
80. Ashton v. CIR, (NZ) 75 ATC 6001. 27
81. Dalton Industrial Propertie v. Elsem, 2 All 18
ER 30 QBD.
82. Federal Trade Comm'n v. Ruberoid Co., 30
343 US 470 (1952), 473.
83. FTC v. Borden Co., 383 US 637 (1966). 29
84. Jacob Siegel Co. v. FTC, 327 US 608 30
(1946)-611.
85. In Re Brand Name Prescription Drugs 20
Antitrust Litig., 123 F.3d 599, 606 (7th
Cir. 1997).
86. Knevelbaard Dairies v. Kraft Foods, Inc., 20
232 F.3d 979 (9th Cir. 2000).
87. Labor Board v. Express Pub. Co., 312 US 30
426 (1941)
88. Le Baron v. Rohm and Haes Co., CA-9, 23
1971.
89. Reid Bros. Logging Co. v. Ketchikan Pulp 20
Co., 699 F.2d 1292 (9th Cir. 1983).
90. RRTA v. W.H. Smith & Sons Ltd., (1969) 24
3 All ER 1065.
91. Summit Health v. Pinhas, 500 US 322 26
(1991).
92. Swift & Co. v. United States, 196 US 375 20
(1905).
93. United States v. Crescent Amusement 20
Co., 323 US 173 (1944).
II. STATUTES
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1. Constitution of Indycosis, 1950.

2. The Competition Act, 2002.
3. The Companies Act, 2013.
4. The Civil Procedure Code, 1908.
5. MRTP Act, 1969, No. 54, 1969
III. BOOKS
1. D.P. MITTAL, Competition Law & Practice, (3rd Edition, 2011).
2. JUSTICE G.P. SINGH, Principles of Statutory Interpretation, Page no.
124 (12th Edition, 2011).
3. M. FURSE, Competition Law of the EC and UK 135 (New York :
Oxford University Press, 2004).
4. VERSHA VAHINI, Indycosis Competition Law, (2016).
5. 1 ARIJITI PASAYAT & SUDHANSHU KUMAR, Guide to Competition Law,
th
(6 Edition, 2016).
6. RICHARD G. LIPSEY & COLIN HARBURY : Principles of Economics,
nd
(2 Edition. Oxford University Press, New Derry).
7. MICHAEL A. UTTON, Market Dominance and Antitrust Policy, (2nd
Edition, et al Edward Elgar Publishing Ltd. 2003).
8. NUNO PIRES DE CARVALHO, The TRIPS Regime of Antitrust &
Undisclosed Information (The Hague, The Netherlands : Kluwer
Law International, c2008).
th
9. 1 Durga Das Basu, Shorter Constitution of Indycosis, (14
Edition, Hon'ble Dr. Justice AR Lakshmanan eds.).
10. 2 Durga Das Basu, Shorter Constitution of Indycosis, (14th
Edition, Hon'ble Dr. Justice AR Lakshmanan eds.).
IV. ARTICLES
1. Peter C. Carstensen, Buyer Cartels v. Buying Groups : Legal
Distinctions, Competitive Realities and Antitrust Policy, 1 Wm. &
Mary Bus. L. Rev. 1, 9-10 (2010);
2. Jo Novus IP User, Transcript Of The VIII NLSIR Symposium on
Competition Law, NLSIR, Page no. 5 & 6, 2015.
3. T.N. Pandey, Competition Law in Indycosis- Highlights Outlined by
SC, (2016) 19 Cpt 506 (Cpt).
4. Novus IP User, Penalising Anti-Competitive Agreements & Abuse
of Dominance, (2014) 7 NUJS LR 225 3, 4-8.
STATEMENT OF JURISDICTION
I. APPEAL I
The appellant have humbly approached this Hon'ble Court under §
1
53T of Competition Commission Act, 2002.
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II. APPEAL II
The Petitioner have humbly approached this Hon'ble Court u/a 136 of
2
Constitution of Indycosis.
CLUBBING OF APPEALS
The Hon'ble supreme Court under the inherent power and clubbed
the appeals together under order “LV”, Rule 5 of the supreme Court
rules 2013.
“Where there are two or more appeals arising out of the same
matter, the Court may at any time either on its own motion or on the
application of any party, order that the appeals be consolidated.
Unless otherwise ordered by this Court the liability of the parties to
pay separate Court-fees shall not be affected by order for
consolidation”.
SUMMARY OF FACTS
PART I : INTRODUCTION
Indycosis is a democratic, socialist country which is heavily
dependent on its local manufacturers- primarily agriculture. Indycosis
is also a country that loves its coffee as sold in every corner of the
country. ‘RAT Coffee’ was an organisation which strived to look after the
interests of the farmers by charging a one-time membership fee and
lobbying for their rights.
One amongst many is the rare, exotic blend of Mongrè Coffee.
Primarily grown during the monsoon, it must be cultivated under
special conditions- a high concentration of sunlight, water and it is
easily perishable. The coffee reaches the consumers through retailers
who source it from the traders who initially purchase it from the
farmers.
PART II : SITUATION PRIOR TO ALLEGED AGREEMENT
The three main players in this business- Arnub & Co. Ltd., Rajdip
Pvt. Ltd. and Barka Industries. Barka quoted a premium price, well
above the normal price and in the following year Arnub, proceeded to
quote an even higher price and secured the Mongrè Beans all for
himself.
This ensured that a competition ensued but despite the farmers
benefiting from the high price, the Mongrè Traders were displeased with
the price war and the rising costs and were eager to find a permanent
solution to this problem. This solution presented itself to then when the
three of them were coincidentally seated together at the wedding and
they began talking about their predicament.
PART III : FORMATION OF ALLEGED AGREEMENTS
Amidst their complains and qualms about the instability in the
market, Arnub contributed to the conversation with what he thought
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was a good idea- fix the quantity each trader purchased- 1/3rd and
proportionately fix the price quoted as well- Rs. 500 for 333 kg each.
Rajdip readily agreed to this idea as he wanted to survive in the
market. Upon arrival of the Mongrè Season, Arnub via email
correspondence reached out to reaffirm their commitment to the price
and bid rigging agreement.
PART IV : EFFECT OF ALLEGED AGREEMENTS
Upon beginning of the bidding process, to the dismay and shock of
the farmers, all three traders demanded identical quantities at the
same price- Rs. 500 for 333 kgs. While the farmers conveyed their
discontent with this price to the traders, the traders were adamant and
owing to the perishable nature of the coffee beans, they farmers had no
choice but to accept this price. Now in possession of Mongrè Beans,
they sold the product in their respective geographic markets and the
traders also making a profit.
As the next season of Mongrè came around, the traders quoted the
same prices and demanded the same quantities. This time, the farmers
choose to oppose the pricing which they deemed as unfair and pre-
decided by the buyers. RAT Coffee approached the CCI through a
written complaint and the CCI was of the opinion that a prima facie
case existed. The DG's investigation concluded that there was collusion
and meeting of minds by the traders and that despite a reduction in the
price of Mongrè, the cost to the final consumer was still on the rise.
PART V - COMMENCEMENT OF COURT PROCEEDINGS
The CCI upon perusal of the report and further inquiry concluded
that the conduct of the Mongrè Traders was anti-competitive and
thereby penalised them by imposing a monetary penalty amounting to
10% of the average turnover of the preceding three financial years and
restrained them from buying Mongrè Coffee from the farmers or from
accessing the market of Mongrè coffee in any other manner for a period
of five years. Aggrieved by this decision, the traders appealed before
the NCLAT who accordingly reduced the period of restraint from five
years to one year.
Unhappy with the decision of the NCLAT, the traders filed an appeal
before the SC. Concurrently, a writ petition was also preferred to the HC
contending a violation of fundamental rights, but this petition was
dismissed in limine. When the matters came before the SC, it clubbed
both matters and posted it for final hearing.
ISSUES RAISED
I. WHETHER THE PETITION BEFORE THE SC u/a 136 IS
MAINTAINABLE?
1. No substantial question of law
2. No grave injustice
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3. No matter of public importance.

II. WHETHER THERE EXISTED A Prima facie case BEFORE CCI?
1. Disqualifications of traders as to traders or enterprises
2. Concept of Buyers' cartel : recognized in all over the world
3. Violations of § 3 of CA, 2002 by the traders.
III. WHETHER THE AGREEMENT B/w THE TRADERS WAS AN
ANTI COMPETITIVE AGREEMENT?
1. Formation of Cartel by Price Fixing and Bid Rigging
2. Agreements btw Traders leads to presence of AAEC.
IV. WHETHER CCI AND NCLAT CAN EXERCISE POWERS
UNDER§27 OF THE COMPETITION ACT, 2002 TO DENY MARKET
ACCESS AND IMPOSE HEAVY PENALTIES ON THE MONGRè
TRADERS?
1. Mitigating facts & circumstances were considered while imposing
heavy penalties
2. CCI & NCLAT can exercise powers to pass orders to deny market
access to traders.
V. WHETHER THE CCI CAN BE HELD LIABLE FOR VIOLATING
FUNDAMENTAL RIGHTS OF THE MONGRE TRADERS?
1. The CCI did not violate the Fundamental Rights
2. Denial of Market access by the CCI.
SUMMARY OF ARGUMENTS
ISSUE 1: It is humbly submitted before this Hon'ble Court that the
present petition under Article 136 is not maintainable. There exists no
substantial question of law as the as the restrictions imposed were
reasonable. Further the dismissal by the High Court was justified as a
case was already pending before a statutory body and as a result, there
was no grave injustice. Additionally, the orders passed by the CCI do
not contain question law having public importance as the powers
themselves were exercised to safeguard the interests of the public.
CCI and the NCLAT have correctly ordered an investigation into this
matter after careful consideration of the prevalent facts and
circumstances as there did exist a prima facie case. They correctly
exercised jurisdiction over as their actions amounted to a violation of §3
of the CA, 2002.
agreement between the traders does in fact constitute an anti-
competitive agreement as it caused an appreciable adverse effect on
competition and such agreement satisfies the requirements
enumerated under §3 of the CA, 2002.
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CCI and subsequently the NCLAT have ample authority in the form of
residuary powers to pass an order restraining the traders from the
market. Their orders were made in the interest of the general public
and within their jurisdictional competence under §27 of the CA, 2002.
CCI cannot be held liable for violating the fundamental rights of the
traders as the orders so passed were reasonable restrictions which were
within their jurisdictional competence to pass. The order so passed was
also made with the intent to safeguard the interests of the general
public.
ARGUMENTS ADVANCED
I. WHETHER THE PETITION BEFORE THE SC u/a 136 IS MAINTAINABLE ?
It is humbly submitted before this Hon'ble Court that in the present
matter, the SLP sought u/a 136 is not maintainable u/a 136 of the
Constitution of Indycosis. The respondents humbly submit their
arguments in three folds viz., [1] No substantial question of law, [2] No
grave injustice and [3] No matter of public importance.
1. NO SUBSTANTIAL QUESTION OF LAW
1.1 The respondents humbly submit that the jurisdiction of the SC
has been invoked u/a 136 of the Constitution of Indycosis which allows
the apex court to exercise its discretion and entertain matters except
on appeal. This discretionary power does not end just upon granting of
special leave but also at the stage when the appeal comes up for
3
hearing. These grounds for which leave is granted by the SC include- a
substantial question of law, commission of grave injustice and or
matters of public interest.
1.2 The SC is empowered to hear matters before it pertaining to
substantial questions of law. There can be no straightforward test for
substantial question of law and it must be understood that substantial
questions of law stem from the facts and circumstances in a particular
4
case.
1.3 The scope of a substantial question of law may include5, but is
not restricted to:
• A question of general public importance.
• Questions which directly and substantially affects the rights of the
parties.
• Questions which have not been finally settled by the supreme
Court
• Questions not free from difficulties.
• Questions which call for discussion of alternate views.
1.4 In this instant case, the alleged violation of fundamental rights
by the appellants pertains to a question that directly and substantially
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affects the rights of the parties. Further the rights conferred upon an
6
individual under Part III are not absolute in nature and they can be
curtailed when reasons allow for the justification for their curtailment-
the justification in this case is required to be coordinated with the
object sought to be achieved7. It is humbly submitted before this
Hon'ble Court that in this particular case, the Mongrè traders were
found to be engaging in anti-competitive practices and were
8
accordingly punished for such transgression reasonably.
1.5 Upon analysis of the prevalent facts and circumstances in this
particular case, it is understood that the CCI was merely acting within
9
its authority to bring into effect the very reason for its existence.
1.6 Thus, the respondents humbly submit that the orders passed by
the CCI were well-reasoned and within its competence to pass and that
there was no violation of fundamental rights as contended by the
appellants which would give rise to a substantial question of law.
1.7 Therefore, it is humbly submitted before this Hon'ble Court that
10
there exists no substantial question of law in this instant matter and
this petition is liable to be dismissed for the want of the same.
2. NO GRAVE INJUSTICE
2.1 The counsel for the respondent would like to humbly submit that
there exists no grave injustice in the present case and this appeal is
therefore not maintainable. It is a well-established rule of procedure
that the person contending grave injustice is required to establish and
prove the same.11
2.2 In this instant case, the contentions of the appellant that
through the Derry HC dismissing the petition in limine resulted in a
grave injustice, required to be answered by this Hon'ble Court are
bound to fail.
2.2.1 STATUTORY REMEDY ALREADY EXERCISED AND PENDING
12
2.3 In the case of Jai Singh v. Union of Indycosis ., the SC said
aside the order of the HC entertaining a writ petition u/a 226 and 227
while a petition was pending before the Election Commission as the
matter related to a suit pending for determination of disputed questions
of fact13, on which the petition rests.
2.4 Further in the case of State of U.P v. Bahadura Singh14., the SC
has upheld the dismissal by the HC of the petition as the matter was
already pending before another statutory authority and the HC declined
to intervene.
2.5 Additionally, in the case of K.S Rashid and Son v. Income Tax
15
Investigation Commission , the HC when a petition was preferred
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before it u/a 226, but the HC dismissed the petition as it deemed that
the statutory remedies provided within the act were sufficient and
recourse must first be sought to these remedies.
16
2.6 The HC exercises its authority u/a 226 as an advisory authority
and thus it would not interfere in a matter when the parties have
already resorted to seeking the statutory remedy.17 The HC thus was
correct in dismissing the petition.
2.2.2 THE STATUTORY REMEDY WAS EQUALLY EFFICIENT AND
EFFICACIOUS.
2.7 It is additionally submitted before this Hon'ble Court that the
order from which the appellants were aggrieved was already in appeal
before the NCLAT and the NCLAT could have passed an order in their
favour and by effect removed the alleged violation.
2.8 The contentions by the appellants that the alternate remedy was
18
not equally efficient or efficacious are bound to fail because in the
19
case of Jai Singh , the court has found that in this case, the petition
pending before the HC was in regard to a determination of a question of
fact, one which determined the continuance of the petition itself. It was
thus correct that the HC dismissed the petition.
2.9 The cases cited before indicating the legal position very
succinctly- should an alternate statutory remedy have already been
preferred, then a concurrent writ remedy cannot be pursued and the
same is liable to be dismissed.
3. NO MATTER OF PUBLIC IMPORTANCE
3.1 The scope of the term “public importance” is a relevant
consideration in this particular case as it defines whether the appeal is
maintainable u/a 136. It is one of the grounds for seeking special leave
by the Apex Court.
3.2 The court in Ujagar Singh v. State (Delhi Administration)20,
found that in order for a case to be entertained u/a 136 the prerequisite
would include “A question of law of general public importance or a
decision which shock the conscience of the court”. The interference by
the SC is also justified when there exists a matter of general or public
importance or the injustice suffered by a party must be so gross that it
21
would touch the conscience of the SC.
3.3 The very purpose of the enactment of this legislation was
ultimately to secure the interests of the consumers, the general public
as well as the economy. The passing of the orders was in pursuance of
that said public interest and the reasonable restriction imposed on the
Mongrè Traders right to trade also arose from the said premise.
3.4 There exists no question of law which is of public importance in
the present case as the facts of the present case and the judgement
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delivered in light of such facts makes it abundantly clear that the

actions taken by the CCI were in the interest of the general public and
thus may not be called into question through a petition u/a 136.
II. WHETHER THERE EXISTED A PRIMA facie case BEFORE CCI?
It is humbly submitted before the Hon'ble SC that CCI has the
jurisdiction to adjudicate the matters of the buyers under CA, 2002.
The respondent humbly submits the arguments in three folds, viz., [1]
Disqualifications of traders as to traders or enterprises, [2] Concept of
Buyers' cartel : recognized in all over the world, [3] Violations of § 3 of
CA, 2002 by the traders.
1. DISQUALIFICATIONS OF TRADERS AS TO TRADERS OR
ENTERPRISES
1.1 § 322 of the Competition Act, 2002, are applicable to enterprises.
23
The term “enterprise” has been defined by § 2(h) .
1.2 To qualify as an enterprise, it is required that any person or
department is or has been engaged in any activity relating to the
production, storage, supply, distribution, acquisition, holding,
underwriting or dealing with shares, debentures or other securities of
any other body corporate.24 The activity in Explanation (a) to § 2(h)
has been given inclusive definition to include profession or
25
occupation.
1.3 In the view of explanation (a), activity covers the activities
relating to any profession or occupation like doctors, advocates,
chartered accountants, etc. thus, the scope of definition extends to all
26
professions and occupations having any business activity. In order
that any entity falls within the meaning of enterprise as per § 2(h) of
the Act, it is necessary that it is or has been “engaged in any activity”
of the nature defined therein. The activities mentioned in the said
section have to be economic and commercial in nature.27 Further it is
contended that the expression “business” connotes some real and
28
organized course of an activity with a definite object and purpose.
29
1.4 Further under §2(l) of The CA, 2002, “person” is defined & to
constitute an anticompetitive agreement that “person” should also
engaged in some “economic activity”.30 The definition of “person” is
inclusive and it includes an association of persons or body of individuals
whether incorporated or not and whether in Indycosis or outside
31
Indycosis.
1.5 In the case of CCI v. Coordination Committee of Artistes &
technicians of West Bengal Film & television32, the expression
“enterprise” may refer to any entity, regardless of its legal status or the
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way in which it was financed and therefore, it may include natural as

well as legal persons. Likewise, definition of “agreement” under § 2(b)
is also very widely worded. Not only it is inclusive, as the word
“includes” therein suggests that it is not exhaustive, but also any
arrangement or understanding or even action in concert is termed as
“agreement”.
1.6The respondent contends here that the appellants fall under the
ambit of “enterprises” as well as “persons”, as all the three companies
were engaged in trading of “Mongrè coffee”. They purchase Mongrè
coffee from the farmers and supply it to the retailers to earn the profits.
Further, the main purpose of the agreement made b/w the traders was
to earn profit and to eliminate the competition. The traders formed
cartel like behaviour33 and this case needed further investigation. This
case was a prima facie case and the directions were correctly by the
CCI under § 26 of the act.
2. CONCEPT OF BUYERS' CARTEL : RECOGNIZED ALL OVER THE
WORLD
34
5.1 §33(1)(d) of MRTP Act, 1969, says an agreement to purchase
goods or to tender for the purchase of goods only at prices or on terms
or conditions agreed upon between the purchasers forms a Buyers'
cartel & an agreement to sell goods or to tender for the sale of goods
only at prices or on terms or conditions agreed upon between the
sellers forms sellers' cartel.35
5.2 Not only in Indycosis, Buyers' cartel is recognized in many other
common law countries. In the Sherman law, in which Buyers' cartel is
36
strictly prohibited. In the case of United States v. Crescent
37
Amusement Co., it was held that “It is a felony, as well as a basis for
treble damage liability, for buyers to agree on what they will pay for
goods or services that they buy, or that they will not bid against each
other for particular items at an auction.”
5.3 It is further contended that to determine the intention of the
legislation, in case when the material words are capable of bearing two
or more constructions the most firmly established rule of construction
of such words “of all statues in general” is the rule laid down in
Heydon's case.38 The rule which is also known as “purposive
39
construction” or “mischief rule”
5.4 It is contended before the court that in the instant case, Buyers'
cartel is inclusive under the law as the purpose of the competition law
is to abolish the restrictive trade practices and cartel like behaviour.
Further it is submitted that any form of cartel has the power to
eliminate competition and therefore, Buyers' cartel is thus included in
the competition law and this arises a prima facie case which intervene
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the provision of § 3 of the Act.

3. VIOLATION OF § 3 OF THE CA, 2002
3.1 §26 indicates the procedure for inquiry under §19. The
Commission is empowered under sub-sections (1) and (2) of §26
either to direct the Director General to cause an investigation or to close
the matter, as the case may be, depending upon whether a prima facie
case exists or not.40
3.2 In the case of Google Inc. v. CCI,41 The CCI, before it passes an
order under § 26(1) directing the DG to cause an investigation to be
made into the matter, is required to, on the basis of the reference
received from the Central or the State Government or a statutory
authority or on the basis of the information/complaint under § 19 or on
the basis of its own knowledge, form an opinion that there exists a
prima facie case of contravention of § 3(1) or § 4(1). Without forming
such an opinion, no investigation by the DG can be ordered to be made.
3.3 It is humbly submitted that it is clear that Commission, in his
opinion thinks that prima facie case is made out then they apply § 26
42
(1) of CA, 2002.
3.4 Commission has the discretionary power to decide whether the
case is prima facie or not and in the case of the infringement of § 3 & §
4 of the CA, 2002, the commission in the view of his opinion should
consider the case as prima facie and direct the DG to cause further
43
investigation.
3.5 In the instant case, there was a prima facie case where the
respondents filed a complaint under § 19 and the commission, as it
was required, directed the DG to further investigate into the matter. It
is humbly submitted before the court that the appellants violated § 3 of
the act and eliminated competition from the market by making anti-
competitive agreement. Thus, there existed a prima facie case and
commission took the right decision and made no error in directing the
DG to investigate in the present case.
VI. WHETHER THE AGREEMENT B/w THE TRADERS WAS AN ANTI
-COMPETITIVE AGREEMENT?
It is contended on behalf of the respondents that the agreement b/w
the traders was an anticompetitive agreement, it was a prohibited
agreement under §3 CA, 2002. It can be concluded in two folds : [1]
Formation of Cartel by Price Fixing and Bid Rigging, [2] Agreements
btw Traders leads to presence of AAEC.
1. FORMATION OF CARTEL BY PRICE FIXING AND BID RIGGING
a) Cartel Formed by Traders -
1.1 It is humbly submitted that in the present case, to prove Anti-
competitive agreement the Per se illegal approach is applied which
-----------------------------------------------------------------------------------------------------------------------------------------------------------
elaborates as, that an agreement is presumed to be unreasonable and

therefore, illegal and no argument are needed to justify its
reasonableness. Cartel is an association of producers who, by
agreement amongst themselves, attempt to control production to
obtain a monopoly in any particular industry or commodity44.
1.2 The emphasis should be placed on association of persons and
the agreement btw them, which provides to purchase at fixed price,
such agreements aims at price or market sharing or both. Such
arrangement or understanding in an action whether in formal or writing
it should be intended to be enforceable by legal proceedings. In a
cartel, the group as a whole acts like a monopoly firm that tends to
keep then total profits of all participants higher than would be the sum
of individual profits in a competitive market.45 The anti-competitive
potential in all such agreements justifies their facial invalidation even if
46
pro-competition justifications are offered for some.
1.3 It is crystal clear from the facts, that there was an agreement
b/w the traders, as they have discussed about the pricing behavior
prevailing in the market and also regarding the current market
scenario47. During such discussion creating ideas regarding sending
identical quotation of prices, also, demanding only specific amount of
Mongrè Coffee. And then coordinated their actions after receiving of
mail. All these series of action are conducive in nature to prove that
there was an implicit agreement btw the traders.
1.4 Although, the evidence of agreement is not necessary when it is
decided on the facts of the case that they must be acting together.48 It
is further submitted that, reaping large profits by raising prices during
a period of declining costs and granting price reduction only when
competition from other assets itself constitute probative evidence of
49
price fixing conspiracy , which in present case is reflected by profits in
the balance sheet of traders. It is conclusive that when a group of
competitors enters into a series of separate but similar agreements with
the competitors or others, a strong inference arises that such
agreements are the results of concerted actions.50
1.5 It is humbly submitted that there are various conditions
conducive to formation of Cartels51 recognized and also used to arrive
at the final conclusion in various cases, are satisfied in the present
case. Also, these factors enable traders to co-ordinate their behavior.
The factors which are explicitly conducive in present case are as
follows:—
i. Nature of Market- In the present case it is evident that the nature
52
of market is oligopoly since these three traders were the major
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traders and are less in number hence it is easy for them to form
as well as maintain cartel.
ii. Homogeneity of Product- In the present case it is clear that the
Mongrè Coffee has its substitutes and hence it is a homogenous
product. Since the demand for coffee is high in Indycosis Mongrè
Coffee is only a kind of coffee, if it is not available the other coffee
substitutes are always available and thus market players have all
incentive to collude rather than compete.
iii. Demand for the product is inelastic- Price elasticity of demand is
defined as the measure of responsiveness in the quantity
demanded for a commodity.53The facts of the case provides a
clear picture that since, coffee is one of the major products of
Indycosis and sold widely across the nation. It is a highly
demanded product in the nation, hence not affected by the
change in price. Therefore, it can be concluded that the demand
for coffee is ineffective to its price and hence the demand for
coffee is inelastic.
b) Price Fixing Agreement of Traders
1.6 It is humbly submitted that the traders have an implicit price-
fixing agreement. In the absence of explicit agreements, circumstantial
evidence is necessary to prove horizontal price fixing54. The
understanding may be tacit and the definition covers situations where
55
the parties act even on the basis of a nod or a wink (metaphorically).
1.7 In the light of the definition of the term “agreement”, the
Commission has to find sufficiency of evidence on the basis of
56
benchmark of “preponderance of possibilities” .
1.8 In our case, the nature of information exchange that is
prohibited as there was a expressed intention to buy Mongrè at the
rd
same price and demand only 1/3 of Mongrè to which they have
implied agreement as they have acted consonance of the agreed plan.57
It is pertinent to note how the agreement or understanding was made
or even how effective it is, but that competitors are working out their
prices collectively and not individually. Hence, the exchanged
information was prohibited, because unlike other forms of collusion
exchange of information can have pro-competitive effects. Therefore,
the arrangement between the traders has formed a cartel which is
fixation of prices before buying from the farmers.
58
1.9 In the case of Bengal Tools Ltd , the respondents were found
to have quoted identical rates for various items even though their cost
of production varied. The Commission observed that in spite of the fact
that no positive evidence of the parties having met and decided on the
rates was forthcoming, yet the onus of establishing existence of concert
-----------------------------------------------------------------------------------------------------------------------------------------------------------
stood discharged by circumstantial evidence. This raised a presumption

in favor of a cartel and the onus of disproving the cartel stood shifted to
the respondent.
59
1.10 In another case of Excel Industries Ltd. , the Commission
had held that in the absence of the agreement, the respondents would
have competed with each other in respect of the price they were
required to quote depending upon their cost of production, the margin
of profit and other market considerations. Therefore, answer the issue
in the affirmative and hold that the respondents have indulged in the
restrictive trade practice as stated in the notice of enquiry.
c) Traders Involved In Bid Rigging-
1.11 It is submitted that bid rigging or collusive bidding is
specifically under §3, as an agreement amongst the competitors joining
hands together at the time of bidding with the object to distort
competition. In the present case, bid rigging has occurred in form of
identical pricing in an open bidding process, as traders have
consecutively quoted identical price of Rs. 500 and demanded only 330
kgs. of Mongrè.
1.12 It has been observed by the commission that big rigging is
more likely to occur when a small no., of companies supply the goods
and services and such suppliers are repetitive bidders. The fewer the no
of sellers and the repetitive the bidding, the condition becomes more
conducive for bidders to reach an agreement to rig bids. When the
product or services sold or rendered are identical or very similar and
there are few or no substitutes, it is easier for bidders to reach an
agreement on a common price structure.60
1.13 In relevant case of Bomb Containers, it was held that a
number of typical market conditions strongly indicated that the market
was very conducive to competition : the small number of
manufacturers, their geographical proximity, the absence of new
entrants, predictable and stable demand stringently standardized
product and the non-availability of substitutes.61 In the present case, it
is a process of open bidding, to which the traders have formed an
agreement where they have settled a price in according to which they
have submitted identical bids. And hence are liable for Price Bid
Rigging.
1.14 Heavy reliance can placed on the case of, B.P. Khare v. Orissa
62
Concrete and Allied In the result, the Commission is of the view that
conduct of the opposite parties amounts to bid rigging within the
meaning of the said expression as given in explanation to § 3(3) of the
Act as the impugned agreement being an agreement between
enterprises or persons engaged in identical or similar production or
-----------------------------------------------------------------------------------------------------------------------------------------------------------
trading of goods or provision of services, had the effect of eliminating or

reducing competition for bids/adversely affecting or manipulating the
process for bidding. Thus, the opposite parties have contravened the
provisions contained in § 3(3)(d) r/w § 3(1) of the Act.
1.15In the relevant case of, Aluminum Phosphide Tablets
63
Manufacturers , the CCI recognized that collusive tendering takes
many forms. At its simplest, the firms simple agree to quote identical
prices, the hope being that in the end each will receive its fair share of
orders. This kind of tendering is normally not resorted to because it is
extremely suspicious and is most likely to attract the attention of
competition authorities. This is also the crudest form of big rigging.
2. AGREEMENT LEADS TO PRESENCE OF AAEC-
2.1 It is submitted that the phrase in the CA, 2002 uses “shall
64
presume” which imposes an obligation on court to raise presumption.
It implies that the complainant, who files for anti-competition
horizontal agreements, need not prove the anti-competitive effects.
Only the existence of horizontal agreements needs to be proved, which
is already proved earlier.
2.2 It is sufficient that the likely effect is the consequence of the
persons' conduct or business arrangements, because the essence of
violation is illegal agreement, the proper analysis focuses upon the
potential harm that would ensue if the conspiracy is successful and no
65
upon the actual consequences.
2.3 An agreement can be said to have AAEC, if it significantly
reduces the level of competition existing at the time the agreement is
given effect to, but where the effect is not significant, it can be
66
exempted from the application of competition law. the fixing of price,
even one which merely constitutes a target, affects competition
because it enables all the participants to predict with a reasonable
degree of certainty what the pricing policy pursued by their competitors
will be.67
2.4 In present case the agreement btw the traders was formed for
the purpose of survival in the market for which the overt act of fixing of
purchase prices and limiting the quantities amongst themselves,
resulted in the elimination of the competition between the traders and
if an agreement has a particular purpose then it will be its intended
68
effect.
IV. WHETHER CCI AND NCLAT CAN EXERCISE POWERS UNDER §
27 OF THE COMPETITION ACT, 2002 TO DENY MARKET ACCESS
AND IMPOSE HEAVY PENALTIES ON THE MONGRè TRADERS?
The respondents humbly pleads that CCI & NCLAT can exercise the
power and give such orders under § 27 of the CA, 2002 to deny market
-----------------------------------------------------------------------------------------------------------------------------------------------------------
access and impose penalties up to 10% on the Mongrè traders. The

respondent humbly submits his arguments in two folds, viz., [1]
Mitigating facts & circumstances were considered while imposing heavy
penalties, [2] CCI & NCLAT can exercise powers to pass orders to deny
market access to traders.
1. MITIGATING FACTS & CIRCUMSTANCES WERE CONSIDERED
WHILE IMPOSING HEAVY PENALTIES
1.1 § 27 of the CA, 2002 talks about the orders by commission after
69
inquiry into agreements or abuse of dominant position. § 27(b) of the
act empowers the commission to impose penalty:
a- Upon each of the person or enterprises which are parties to illegal
agreements or abuse which shall not be more than ten per cent of
70
the average turnover for the three last preceding financial years;
b- In case of cartel upon each producer seller, distributor, trader or
service provider included in that cartel up to three times of its
profits or ten per cent of its turnover whichever is higher, for each
year of the continuance of the agreement.71
1.2 Penalty is related to and levied up to 10% of, the average
turnover of three last preceding financial years. Ten percent is the
maximum.72
1.3 In assessing the penalty, the commission takes into account all
relevant facts of the case as to the gravity of the offence, the degree of
co-operation. The assessment of penalty involves a legal and economic
appraisal of each case.73
1.4 In the case of cartel, law is stringent. It has to be up to 10% of
74
turnover of each year of continuance of the agreement. If that
amount is less than three times the amount of profits made out of such
agreement, it is that amount of profits. The alternative criterion appears
more direct as it is based on the financial benefits derived from the
contravention. Further, in case of an anti-competitive conduct
committed by a company, including a firm or other association of
individuals, the commission may proceed under § 48 of the act to
penalise the individuals responsible for the anti-competitive conduct.75
1.5 In In Re, Shivam Enterprises76 , it was alleged that the truck
owners through the opposite party KSTOCTS are in violation of § 3(3)
(a), as the members have agreed with each other to fix prices for
supply of services of freight transport by trucks in Kiratpur region.
Thus, the CCI found it violating § 3(3)(a). The CCI imposed a fine of
Rs. 228,540 on the KSTOCTS at 10% of the average turnover for the
last three years. The CCI also imposed a fine on eight officer bearers of
KSTOCTS for being the person responsible at 5% of the average income
-----------------------------------------------------------------------------------------------------------------------------------------------------------
for the last three years.

1.6 In the case of In Re, Indycosis Foundation,77 The informant
had alleged that the AIMTC has uniformly increased the truck freight by
15% across the country which was in clear violation of § 3(3)(a) of the
CA. CCI noted that members to increase the freight rate could directly
or indirectly result in determination of prices services and is thus
violative of § 3(3)(a). The CCI imposed a fine of Rs. 1,424,521 on the
AIMPT at 10% of the average turnover for the last three years.
1.7 Further it is contended that the penalty of 10% on average
turnover is appropriate as all the three companies are single-product
companies In the case of Southern Pipeline Contractors v. The
Competition Commission,78 it was held that the appropriate amount of
penalty had to be determined keeping in consideration the damage
caused and the profits which accrue from the cartel activity.
1.8 Again in the case of Excel Crop Care Ltd. v. Competition
79
Commission of Indycosis, it was argued before the tribunal that the
commission while imposing a penalty of 9% of turnover on for cartel
activity in violation of § 3(3)(d) should have taken in to account the
relevant turnover and not the average turnover. 1.9The first contention
is humbly submitted before the Hon'ble SC that the Mongrè traders
were indulged in an anti-competitive practice and formed a cartel and
violated § 3 of the Act. In the report of DG, he concluded that there
was a prior meeting of minds and collusion between the traders.80 In
the present case, CCI & NCLAT passed the orders in accordance with
the mitigating factors and circumstances of the case and impose a
penalty of 10% on the average turnover of the traders. The order is
appropriate as, all the three companies were engaged in a cartel and
violated § 3 of the act. Also, the penalty was imposed on the relevant
product. Therefore, penalty imposed on the average turnover was
appropriate.
b. CCI & NCLAT CAN EXERCISE POWERS TO PASS ORDERS TO
DENY MARKET ACCESS TO TRADERS:
2.1 This is the residuary power of the Commission to pass any order,
not covered in aforesaid clauses which may be deemed fit in the facts
and circumstances of a particular case and § 27(g) empowers the
Commission to pass any order as it deems fit other than those
mentioned in the preceding clauses, if it finds that any agreement is
81
anti-competitive or there is an abuse of dominant position.
2.2 The respondent here contends that the order to deny market
access was in accordance with the facts and circumstances of the case
as it was justifiable and required in the present case as the conduct of
the traders was such that it was distorting market forces, acting in a
-----------------------------------------------------------------------------------------------------------------------------------------------------------
manner that was prejudicial and to the detriment of the producers and
seeking to eliminate the Competition that is required to be present in
any healthy trading ecosystem. It is to be noted that while in the
Indycosis context, it is setting precedent by denying market access, it
is not the first time that competition regulators have imposed such
penalties.
2.3 The American SC of the Fifth Circuit, while hearing a plea and
82
petition for a writ of certiorari, in the case of FTC v. Borden Co., had
to adjudicate on matters of predatory pricing and geographical price
discrimination to wipe out the competition and create severely high
barriers to entry in the market of evaporated milk. The supreme Court
considering all the facts and circumstances, thus passed appropriate
orders, banning them from selling their lead brand in any market
for a period of 7 years below its average variable cost.83
2.4 A similar approach was seen to be taken by the Saudi Arabia
Monetary Authority, when they banned three insurance providers
and four insurance agencies - from the issuing, renewing or
selling compulsory auto insurance policies as their policy
formulation had a number of irregularities and their practices were such
that they could be causing detriment to the policy holders and
additionally resulted in a disruption of the pricing system, resulting in
unfair pricing and disrupting the market forces and the competition
prevalent in the market.
2.5 With respect to the questions raised on the power of the
Commission to issue orders which are not expressly elucidated within
the statute but form a discretionary part of its residuary powers,
reliance is sought to the ratio in Jacob Siegel Co. v. Federal Trade
Comm'n,84., where the courts have found that it vests with the
85
commission to pass appropriate remedies .
V. WHETHER THE CCI CAN BE HELD LIABLE FOR VIOLATING
FUNDAMENTAL RIGHTS OF THE MONGRE TRADERS?
It is humbly submitted before this Hon'ble Court that the appellant's
Fundamental Right to trade86, as guaranteed by Part III of the
Constitution of Indycosis, was not violated by the CCI when they
imposed a restraint from dealing in the Mongrè Industry. The appellant
humbly submits their arguments in four folds viz., [1] The CCI did not
violate the Fundamental Rights, [2] Denial of Market access by the CCI.
1. THE CCI DID NOT VIOLATE THE FUNDAMENTAL RIGHTS
1.1 It is humbly submitted before this Hon'ble Court that the
respondents were merely exercising their powers lawfully under the
provisions of the CA, 2002 when imposing penalties upon the Mongrè
traders who were engaging in collusive behaviour Anticompetitive
-----------------------------------------------------------------------------------------------------------------------------------------------------------
practices.
1.2 The judgement was well-reasoned, just and equitable as well as
made in the interest of the producers and the consumers as the
Commission exists in order to safeguard their interests. In the current
case, the appellants are challenging both the width as well as the
exercise of its powers, but the Commission has acted in accordance
with the objectives of the Act.
1.3 “CCI is a part of the State instrumentalities committed to the
endeavours of the Constitutional aspirations to secure justice, inter alia,
social and economic and also the objectives under Article 39(b) and (c)
87
of the Constitution.”
1.4 In the present case, the traders practice was such that it sought
88
to eliminate competition from the market through an agreement to fix
the prices and manipulate the bidding process by quoting
predetermined prices.
2. DENIAL OF MARKET ACCESS BY CCI
2.1 The State can through its orders and or actions impose
restrictions on a person's fundamental rights and the Constitution lays
down some very concise grounds under which it can do so:
• In the interests of the general public
• The state can prescribe certain educational and technical
qualifications
• The state may exercise a monopoly in certain industries
2.2 Upon perusal of the afore cited provisions, it is clear that the
State in this case, The CCI is well within its authority, as vested within
it under §27 (g) of the CA, 2002 that empowers it with residuary
powers to pass orders as it may deem fit.
2.3 In the present case, the counsel for the respondents humbly
submits that the denial of market access is within its statutory powers
and further, its actions were to benefit the interests of the general
89
public. In the case of State of Assam v. Sristikar Dowerah ., the SC
entertained the discussion on the meaning of the expression “interests
of general public” and found that it would necessarily include the
economic stability of the country.
2.4 To substantiate the conclusion arrived at, reference is sought to
the Preamble of the CA, 2002 that determines one of its objectives to
be the welfare of the economy and the welfare of the country and thus,
it was competent to deny the Mongrè traders market access.
2.5 In addition to the authority above cited, the counsel for the
appellant places reliance on the judgement of this Hon'ble Court in the
90
case of Krishna Lal Praveen Kumar v. State of Rajasthan ., where the
court has recognized that a restriction imposed for the purpose of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
economic stability was not violative of Article 19(1)(g).

91
2.6 In the case of State of Orissa v. Radhey Shyam Meher ., the
court answered the question of whether the State could in the larger
interest of the public good superseded the fundamental right of the
individuals in an affirmative and held that the action of the State
government with respect to medicine stores.
92
2.7 The SC in the case of Pratap Pharma v. Union of Indycosis ., has
found that the imposition of reasonable restrictions may very well
extend to prohibition and this may not by itself be an unreasonable
restriction if it is in the interest of the general public.
2.8 A similar view was adopted by the courts in the case of Narendra
Kumar v. Union of Indycosis93., where under certain statutory
enactments, traders of copper were absolutely restrained from trading
in the international market. The essential in cases where there exists an
absolute prohibition, as long as the restriction does not surpass the
ambit of reasonableness and passes the test for the same.
2.9 Despite the contentions of the appellants, it is humbly submitted
that the order of the CCI cannot be held to be violating a fundamental
right of the individual merely because it operates harshly against the
aggrieved. In the case of Krishnan Kakkanth v. Govt. of Kerala94, the
SC affirmed this view.
2.10 An order or action cannot be held to be violative of the rights
under Part III of the Constitution without careful contemplation. The
analysis that the courts shall resort to in this case will not be from the
standpoint of the aggrieved individuals but instead from the
perspective of the greater interest that such restriction seeks to
serve.95
2.11 The CCI has also in the present case acted in a manner so as to
execute the Directive Principles of State Policy as found under Part IV of
the Constitution of Indycosis, 1950.
2.12 With regard to the applicability of the Directive Principles of
State Policy in this case, it is the duty of the Government to at all times
act in a manner that will ensure numerous socio-economic, political
objectives to be met.
2.13 Under Article 38 of the Constitution of Indycosis which requires
the state to ensure and promote the welfare of the people, justice,
social, economic and political etc. and the Commission was merely
acting in accordance with the same. By denying the Mongrè traders
market access, the Commission in addition to exercising its powers as a
regulator was also securing economic welfare and it is not violating the
96
fundamental rights of the Mongrè Traders.
PRAYER
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Wherefore, in the light of the facts presented, issues raised,

argument advanced and authorities cited, it is most humbly prayed
before the Hon'ble supreme Court of Indycosis that it may be pleased
to adjudge and declare that:
1. The SLP Petition before the Hon'ble SC is not maintainable
2. There existed prima facie case before the learned CCI
3. The Competition Act, 2002 does recognize the Concept of Buyers'
cartel
4. The agreement btw the Mongrè Traders was Anti-Competitive in
nature.
5. The CCI and NCLAT acted within the ambit of their powers to deny
market access and impose penalties on Mongrè Traders.
6. There was no violation of Fundamental Rights by the order of CCI
and NCLAT.
The Hon'ble Court may be please to pass any other order as it
deems fit in the interest of Justice, Equity and Good Conscience.
For this act of Kindness, The Petitioner shall duty bound forever
pray.
———
1
“Any person aggrieved by any order of the Appellate Tribunal may file an appeal to the
supreme Court within sixty days from the date of receipt of the order of the Appellate
Tribunal to him on any question of law arising out of such order:
Provided that the supreme Court may, if it is satisfied that the appellant was prevented by
sufficient cause from filing the appeal within the said period, allow it to be filed within a
further period not exceeding sixty days.”
2
(1) Notwithstanding anything in this Chapter, the supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order in
any cause or matter passed or made by any court or tribunal in the territory of Indycosis
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces
3
Ashok Nagar Welfare Assn. v. R.K. Sharma, (2002) 1 SCC 749 : AIR 2002 SC 335.
4
J.P Builders v. A. Ramadas Rao, (2011) 1 SCC 429.
5
Sir Chunilal V. Mehta & Sons Ltd v. The Century Spinning, AIR 1962 SC 1314.
6
Ram Singh v. State of Derry, AIR 1951 SC 2720; Mohd. Laiquiddin v. Kamala Devi Misra,
(2010) 2 SCC 407.
7
Bennett Coleman v. Union of Indycosis, (1972) 2 SCC 788.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
8
Rustom Cavasjee Cooper (Bank Nationalisation) v. Union of Indycosis, (1970) 1 SCC 248.
9
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 : AIR 2006 SC
212; State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 52.
10
Pritam Singh v. State, 1950 SCC 189 : AIR 1950 SC 169 : 1950 SCR 453.
11
Ibid.
12
Jai Singh v. Union of Indycosis, (1977) 1 SCC 1 : AIR 1977 SC 898.
13
D.L.F Housing Construction v. Delhi Municipality, (1976) 3 SCC 160 : AIR 1976 SC 386.
14
State of U.P v. Bahadura Singh, (1983) 3 SCC 73 : AIR 1983 SC 84.
15
K.S Rashid & Son v. Income Tax Investigation Commission, (1983) 1 SCC 393 : AIR 1984
SC 207.
16
Dwarka Prasad Agarwal v. B.D Agarwal, (2003) 6 SCC 230 : AIR 2003 SC 2686.
17
Carl Still G.M.B.H v. State of Bihar, AIR 1961 SC 84.
18
Rashid K.S v. I.T.I Commissioner, AIR 1954 SC 207; Union of Indycosis v. T.R Verma, AIR
1957 SC 882. Thansingh v. supdt. Of Taxes, AIR 1964 SC 1419; S.P Sampath Kumar v. Union
of Indycosis, (1987) 1 SCC 124 : AIR 1987 SC 386.
19
Jai Singh, supra note 12 at para 2.3.
20
Ujagar Singh v. State (Delhi Administration), (1979) 4 SCC 530.
21
Benant Singh v. Union of Indycosis, (1977) 1 SCC 220 : AIR 1977 SC 388.
22
§ 3 of the CA, 2002, No. 12, 2012.
23
§ 2(h) of the CA, 2002, No. 12, 2012.
24
Telefonaktiebolaget Lm Ericsson (Publ) v. CCI, (2016) 67 taxmann.com 378 (Delhi); Excel
Crop Care Ltd. v. CCI, (2017) 8 SCC 47; Southern Pipeline Contractors v. Competition
Commission, 2011 SCC OnLine ZACAC 5.
25
D.P. MITTAL, Competition Law & Practice, 100 (3rd ed. 2011).
26
27
Dalton Industrial Propertie v. Elsem, 2 All ER 30 Qbd; Kottayam Co-Operative Land
Mortgage Bank Ltd. v. CIT, (1988) 172 ITR 443 (Ker.).
28
Ramashre Chandrakar v. Dena Bank, (1996) 86 Comp Cas 147 (MP) : 1994 MPLJ 610.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
29
§2(L) of the CA, 2002, No. 12, 2012.
30
Vipul A. Shah v. All Indycosis Film Employee Confederation, (2017) 87 taxmann.com 49
(CCI); Reliance Big Entertainment Ltd. v. Karnataka Film Chamber of Commerce, (2012) 18
31
Mrs. Manju Tharad, Proprietress & M/S Manoranjan Films, Kolkata v. Eastern Indycosis
Motion Picture Association (EIMPA), Kolkata & The Censor Board of Film Certification, Kolkata,
(2012) 110 CLA 136 (CCI) : 2012 Comp LR 1178 (CCI) : (2012) 114 SCL 20 (CCI), Per. Prasad
(Dissenting).
32
CCI v. Coordination Committee of Artistes & Technicians of West Bengal Film & Television,
(2017) 5 SCC 17 : 2017 SCC Online SC 231; Travel Agents Association of Indycosis v. Balmer
Lawrie & Co., (2013) 113 CLA 415 (Cat) : 2013 Comp LR 11 (COMPAT) : (2013) 118 SCL 174
(CAT).
33
Refer to Page no. 2, 4 & 5 of the Fact sheet.
34
MRTP Act, 1969, No. 54, 1969 (Indycosis).
35
Haridas Exports v. All Indycosis Glass Manufacturers' Assn., (2002) 6 SCC 600 : AIR 2002
SC 2728.
36
Peter C. Carstensen, Buyer Cartels v. Buying Groups : Legal Distinctions, Competitive
Realities and Antitrust Policy, 1 Wm. & Mary Bus. L. Rev. 1, 9-10 (2010); Novus Ip User,
Transcript Of The VIII NLSIR Symposium on Competition Law, NLSIR, Page no. 5 & 6, 2015.;
In Re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 606 (7th Cir. 1997).
37
United States v. Crescent Amusement Co., 323 US 173 (1944); Swift & Co. v. United
States, 196 US 375 (1905); Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979 (9th Cir.
2000); United States v. Romer, 148 F.3d 359 (4th Cir. 1998); Reid Bros. Logging Co. v.
Ketchikan Pulp Co., 699 F.2d 1292 (9th Cir. 1983).
38
JUSTICE G.P. SINGH, Principles of Statutory Interpretation, Page no. 124 (12th ed. 2011).
39
Anderton v. Ryan, (1985) 2 All ER 355, P. 359 (HL); Bengal Immunity Co. v. State Of
Bihar, AIR 1955 SC 661; CIT, Patiala v. Shahzada Nand & Sons, AIR 1966 SC 1342; Union Of
Indycosis v. Sankalchand, (1981) 4 SCC 173 : AIR 1981 SC 1922.
40
Tamil Nadu Film Exhibition Association v. CCI, (2015) 60 taxmann.com 146 (Madras); Meru
Travel Solution (P.) Ltd. v. CCI, (2017) 77 taxmann.com 90 (Cat); T.N. Pandey, Competition
Law in Indycosis- Highlights Outlined by SC, (2016) 19 Cpt 506 (Cpt).
41
Google Inc. v. CCI, (2015) 56 taxmann.com 56 (Derry).
42
Fast Track Call Cab (P) Ltd. v. Ani Technologies (P) Ltd., (2016) 66 taxmann.com 2 (CCI).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
43
Rajkumar Dyeing & Printing Works (P) Ltd. v. CCI, (2014) 51 taxmann.com 465 (Derry).
44
Union of Indycosis v. Hindustan Development Corporation, (1993) 3 SCC 499 : AIR 1994
SC 988.
45
M. FURSE, Competition Law of the EC and UK 135 (New York : Oxford University Press,
2004).
46
Arizona v. Maricopa County Medical Society, 457 US 332 (1982).
47
Refer to Page no. 3 of Factsheet.
48
CIT v. Jubliee Mills Ltd., (1963) 48 ITR (SC).
49
Le Baron v. Rohm and Haes Co., CA -9, 1971.
50
United States v. United States Gypsum Company, 333 US 364 (1948).
51
VERSHA VAHINI, Indycosis Competition Law, 59 (2016).
52
An oligopoly is a market structure in which a few firms dominate. When a market is shared
between a few firms, it is said to be highly concentrated. Although only a few firms dominate,
it is possible that many small firms may also operate in the market.
53 nd
RICHARD G.LIPSEY & COLIN HARBURY : Principles of Economics, p. 62 (2 ed. Oxford
University Press, New Derry).
54
Nitin Radheyshyam Agarwal v. CCI, 2015 SCC OnLine Comp AT 1121 : 2015 Comp AT 910,
All Indycosis Tyre Dealers' Federation v. Tyre Manufacturers, 2012 SCC OnLine CCI 65 :
2013 CCI 12.
55
RRTA v. W.H. Smith & Sons Ltd., (1969) 3 All ER 1065.
56
Director General (supplies & Disposal) v. M/s. Puja Enterprises Basti. Ref Case No. 01 of
2012, (2013) 116 CLA 126 (CCI) : 2013 Comp LR 714 (CCI).
57
Refer to Page no. 4 of Factsheet
58
In re, Bengal Tools Ltd, (1988) 63 Comp Cas 468 (MRTPC).
59
In re, Bengal Tools Ltd, (1988) 63 Comp Cas 468 (MRTPC).
60
Southern Eastern Railway v. M/S. Orissa Concrete & Allied Industries Ltd., (2013) 114 CLA
280 CCI.
61
In re, suo moto case against LPG cylinder manufacturers, 2012 Comp LR 197 (CCI).
62
B.P. Khare v. Orissa Concrete & Allied, 2013 SCC OnLine CCI 21.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
63
In Re, Aluminum Phosphide Tablets Manufacturers, 2012 Comp LR 753 (CCI) : 2012 SCC
OnLine CCI 25.
64
Sodhi Transport Co. v. State of U.P, (1986) 1 SCR 939.
65
Summit Health v. Pinhas, 500 US 322 (1991).
66
State of U.P v. Gir Prasad, (2004) 15 ILD 441 (SC).
67
Vereiniging Van Cementhandelaren v. Commission, Case 8/72 ECJ, 1972 ECR 977 (para
21).
68
Ashton v. CIR, (NZ) 75 ATC 6001.
69
Rajkumar Dyeing & Printing Works (P.) Ltd. v. CCI, (2014) 51 taxmann.com 465 (Derry).
70
Tamil Nadu Film Exhibitors Association v. CCI, (2015) 60 taxmann.com 146 (Madras).
71 rd
D.P. MITTAL, Competition Law & Practice, 467 (3 ed. 2011).
72
Reliance Agency v. Chemists & Druggists Association of Baroda (CDAB), Baroda, (2018) 89
taxmann.com 31 (CCI)
73
74
Financial Software & Systems (P.) Ltd. v. CCI, (2016) 69 taxmann.com 254 (Derry).
75
P.K. Krishnan v. Paul Madavana, 2016 Comp LR 83 (CCI).
76
In Re, Shivam Enterprises & Kiratpur Sahib Truck Operators Coop Transport Society Ltd. &
Its Members, 2015 Comp LR 232 (CCI) : 2015 SCC OnLine CCI 27.
77
In Re, Indycosis Foundation of Transport Research & Trading & Shri Bal Malkait Singh,
President All Indycosis Motor Transport Congress (AIMTC) & G.P. Singh Spokesperson,
AIMTC, 2015 Comp LR 377 (CCI) : 2015 SCC OnLine CCI 33 .
78
Southern Pipeline Contractors v. The Competition Commission, Case No. 105/CAC/Dec 10,
(106/CAC/Dec 10).
79
Excel Crop Care Ltd. v. CCI, (2017) 8 SCC 47; MDD Medical Systems Indycosis Pvt. Ltd. v.
Foundation for Common Cause, 2013 Comp LR 327 (Comp AT); M/s International Cylinder (P)
Ltd. v. CCI, (2014) 122 CLA 41 (CAT) : 2014 Comp LR 184 (Comp AT).
80
Refer to Page no. 5 & 6 of the Factsheet.
81 th
1 ARIJITI PASAYAT & SUDHANSHU KUMAR, Guide to Competition Law, 778 (6 ed. 2016).
82
FTC v. Borden Co., 383 US 637 (1966).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
83 nd
MICHAEL A. UTTON, Market Dominance and Antitrust Policy, 59-171 (2 Edition, et al
Edward Elgar Publishing Ltd. 2003).
84
Jacob Siegel Co. v. FTC, 327 US 608 (1946)-611.
85
NUNO PIRES DE CARVALHO, The TRIPS Regime of Antitrust & Undisclosed Information (The
Hague, The Netherlands : Kluwer Law International, c2008); Federal Trade Comm'n v.
Ruberoid Co., 343 US 470 (1952), 473; Labor Board v. Express Pub. Co., 312 US 426 (1941)
86
INDYCOSIS CONST. ART. 19 cl. (1)(g).
87
Narendra Kumar Maheshwari v. Union of Indycosis, 1990 Supp SCC 440 : AIR 1989 SC
2138.
88
Tika Ramji v. State of UP., AIR 1956 SC 676 (710); Rashid Ahmed v. Municipal Bd., AIR
1950 SC 163 (165); O.N.G.C. v. Association of Natural Gas Consuming Industries of Gujarat,
1990 Supp SCC 397 : AIR 1990 SC 1851.
89
State of Assam v. Sristikar Dowerah, AIR 1957 SC 414.
90
Krishna Lal Praveen Kumar v. State of Rajasthan, (1981) 4 SCC 550 : AIR 1982 SC 29.
91
State of Orissa v. Radhey Shyam Meher, (1995) 1 SCC 652 : AIR 1995 SC 855.
92
Pratap Pharma v. Union of Indycosis, (1997) 5 SCC 87.
93
Narendra Kumar v. Union of Indycosis, AIR 1960 SC 430.
94
Krishnan Kakkanth v. Govt. of Kerala, (1997) 9 SCC 495 : AIR 1997 SC 178; Arunachala v.
State of Madras, AIR 1959 SC 300 (304).
95
Hanif v. State of Bihar, AIR 1958 SC 73.
96
Indycosis Handicap Emporium v. Union of Indycosis, (2003) 7 SCC 589 : AIR 2003 SC
3240; State of Kerala v. N.M. Thomas, (1976) 2 SCC 310; Papanasam Labour Union v.
Madura Coats Ltd, (1995) 1 SCC 501 : AIR 1995 SC 2200 : (1997) 3 LLJ (supp) 938, MRF Ltd.
v. Inspector, Kerala Govt., (1998) 8 SCC 227; Chandra Bhavan Boarding & Lodging v. State
of Mysore, AIR 1970 SC 2042 : (1969) 3 SCC 84.
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liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice
rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All
disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
this text must be verified from the original source.

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Page 1 Saturday, February 17, 2024

Before the supreme Court of Indycosis

RAT Coffee Regional Association for Trade in

12. D.L.F Housing Construction v. Delhi 16

41. O.N.G.C. v. Association of Natural Gas 32

Competition Commission, Case No.

1. Constitution of Indycosis, 1950.

3. No matter of public importance.

delivered in light of such facts makes it abundantly clear that the

way in which it was financed and therefore, it may include natural as

the provision of § 3 of the Act.

elaborates as, that an agreement is presumed to be unreasonable and

stood discharged by circumstantial evidence. This raised a presumption

trading of goods or provision of services, had the effect of eliminating or

access and impose penalties up to 10% on the Mongrè traders. The

for the last three years.

economic stability was not violative of Article 19(1)(g).

Wherefore, in the light of the facts presented, issues raised,

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