CCI- FIMT 3rd National Moot Court Competition- 2024

TEAM CODE : 28

CCI- FIMT 3rd NATIONAL MOOT COURT COMPETITION- 2024

BEFORE THE SUPREME COURT OF ORIENTA

SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF ORIENTA

COMLINK ENTERPRISES INTERNATIONAL……………………………..APPELLANT

UNITED TECH CONNECT ENTERPRISES…………………………………APPELLANT

VERSUS

LAREIFY……………………………………………………………………..RESPONDENT

GLORE HITCH……………………………………………………………….RESPONDENT

PBS TELECOMMUNICATIONS…………………………………………….RESPONDENT

AKK MOBI LTD………………………………..…………………………….RESPONDENT

VVNR CELTEC PVT.

LTD…………………………………………………...RESPONDENT

ADS TECHLIFE PVT LTD…………...………………………………………RESPONDENT

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-WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT-

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TABLE OF CONTENTS

I. LIST OF ABBREVIATIONS
3
II. INDEX OF AUTHORITIES
4
III. SUMMARY OF FACTS
8
IV. STATEMENT OF JURISDICTION
10
V. STATEMENT OF ISSUES
10
VI. SUMMARY OF ARGUMENTS
11
VII. ARGUMENTS ADVANCED
13
1. WHETHER THE SUPREME COURT HAS THE JURISDICTION TO HEAR THIS CASE.
13
1.1. NON-INTERFERENCE IN THE DECISION OF THE LOWER COURTS:
1.2. SCOPE OF POWERS UNDER ARTICLE 136:
1.3. GROUNDS ON WHICH APPEAL ARE GRANTED NOT SATISFIED:
1.4. GROUNDS OF REJECTION.

2. WHETHER CEI AND UTCE HAVE ABUSED ITS DOMINANCE IN THE

RELEVANT MARKET THROUGH PREDATORY PRICING.
16
2.1. THE RELEVANT MARKET IN THE PRESENT CASE IS MARKET OF
TELECOMMUNICATION SERVICES AND PRODUCTION OF MOBILE DEVICES IN
ORIENTA.
2.2. CEI IS AT THE DOMINANT POSITION IN THE IDENTIFIED RELEVANT
MARKET.
2.3. CEI HAS ABUSED ITS DOMINANT POSITION IN THE RELEVANT MARKET.

3. WHETHER THE ACTS AND OMISSIONS ON PART OF CEI WERE SUFFICIENT TO

CONCLUDE THAT THEY ENTERED IN AN ANTI-COMPETITIVE AGREEMENT.
21
3.1. THE RELEVANT MARKET IN THE PRESENT CASE IS
MARKET OF TELECOMMUNICATION SERVICES IN ORIENTA.

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3.2. CEI IS AT THE DOMINANT POSITION IN THE IDENTIFIED RELEVANT

MARKET.

4. WHETHER AKK MOBI LTD, VVNR CELTEC PVT. LTD. & ADS TECHLIFE
PVT. LTD. FORMED CARTELIZATION AND ENTERED INTO AN ANTI-
COMPETITIVE AGREEMENT.
26
4.1. 4.1 THE PARTIES HAVE NOT FORMED A CARTEL

VIII. PRAYER……………………………………………………………………….31

LIST OF ABBREVIATION

S. No. ABBREVIATION DESCRIPTION

1. & And
2. § Section
3. ¶ Paragraph
4. % Percentage
5. AAEC Appreciable Adverse Effect on Competition
6. AIR All India Reporter
7. Anr. Another
8. Apl. Appeal
9. CCO Competition Commission of ORIENTA
10. Co. Company
11. COMPAT Competition Appellate Tribunal
12. DG Director General
13. EC European Commission
14. EU European Union
15. Hon’ble Honourable
16. Ltd. Limited
17. M/s Messieurs
18. Ors. Others
19. Pvt. Private
20. SCC Supreme Court Cases

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21. v. Versus
22. SC Supreme Court of India
23. Ed. Edition
24. UOI Union of India
25. SCR Supreme Court Report
26. u/s Under Section
27. No. Number
28. HHI Herfindahl–Hirschman Index
29. MoU Memorandum of Understanding

INDEX OF AUTHORITIES

INDIAN CASES

1. N. SURIYAKALA V. A. MOHANDOSS, (2007) 9 SCC 196

2. PRITAM SINGH V. THE STATE, AIR 1950 SC 169

3. A.V. PAPAYYA SASTRY V. GOVERNMENT OF ANDHRA PRADESH, AIR 2007 SC

1546

4. ZAHIRA HABIBULLAH SHEIKH V. STATE OF GUJARAT, AIR 2004 SC 3467

5. M.C. MEHTA V. UNION OF INDIA, AIR 2004 SC 4618

6. AERO TRADERS PRIVATE LIMITED V. RAVIDER KUMAR SURI, AIR 2005 SC 15

7. SECRETARY, STATE OF KARNATAKA V. UMADEVI, AIR 2006 SC 1806

8. SHIVANAND GAURISHANKAR BASWANTI V. LAXMI VISHNU TEXTILE MILLS,

(2008) 13 SCC 323

9. UNION OF INDIA V. ERA EDUCATIONAL TRUST, AIR 2000 SC 1573

10. DCM V. UNION OF INDIA, AIR 1987 SC 2414

11. MEHAR SINGH V. SHRI MONI GURUDWARA PRABANDHAK COMMITTEE, AIR 2000

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SC 492

12. NAIN SINGH BHAKUNI V. UNION OF INDIA, AIR 1998 SC 622

13. ASST. CONTROLLER, CENTRAL EXCISE V. N T CO., AIR 1972 SC 2563

14. PANCHANAN MISRA V. DIGAMBAR MISHRA, AIR 2005 SC 1299

15. TAHERKHATOON V. SALA,BIN MOHAMMAM, AIR 1999 SC 1104

16. KUNHAYAMMED V. STATE OF KERALA, (2000) 245 ITR 360 (SC)

17. CHIEF ADMINISTRATOR CUM JT. SECRETARY, GOVERNMENT OF INDIA V. D. C.

DASS, AIR 1999 SC 186

18. SIEMENS ENG & MFG CO. V. UNION OF INDIA, AIR 1976 SC 1785

19. CLERKS OF CALCUTTA TRAMWAYS V. CALCUTTA TRAMWAYS CO. LTD., AIR 1957

SC 78

20. CITY CORNER V. P.A. TO THE COLLECTOR, AIR 1976 SC 143

21. MOHAN LAL V. MANAGEMENT, BHARAT ELECTRONICS LTD., AIR 1981 SC 1253

22. KUNHAYAMMED AND OTHERS V. STATE OF KERALA AND ANOTHER, (2000) 6 SCC

359

23. VIKRANT BHAGI V. MEDIA VIDEO LIMITED, 2013 SCC ONLINE CCI 58

24. PRINTS INDIA V. SPRINGER (INDIA) PRIVATE LIMITED, 2012 SCC ONLINE CCI 45

25. CCI V. COORDINATE COMMITTEE OF ARTISTS AND TECHNICIAN OF WEST BENGAL,

C.A. NO. 6691 OF 2014 (SC).

26. BELAIRE OWNER'S ASSN. V. DLF LTD., CASE NO. 19 OF 2010 (CCI).

27. HNG FLOAT GLASS LTD. V. SAINT GOBAIN GLASS INDIA LTD., C. NO. 51 OF 2011

(CCI).

28. TATA POWER DELHI DISTRIBUTION LTD. V. CCI, CASE NO. 20 OF 2017.

29. MCX STOCK EXCHANGE LIMITED V. NATIONAL STOCK EXCHANGE OF INDIA LTD.,

CASE NO. 13 OF 2009 (CCI).

30. KAPOOR GLASS (INDIA) PRIVATE LIMITED V. SCHOTT GLASS INDIA PRIVATE

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LIMITED, CASE NO. 22 OF 2010 (CCI).

31. ATOS WORLDLINE INDIA PVT. LTD. V. VERIFONE INDIA SALES PVT. LTD., 2015

COMPLR 327 (CCI).

32. THREE D INTEGRATED SOLUTIONS LTD. V. VERIFONE INDIA SALES (P) LTD., 2015

COMPLR 464 (CCI).

33. SAMEER AGARWAL V. CCI, APPEAL NO. 73/2016, COMPAT.

34. IN RE: ALLEGED CARTELIZATION BY STEEL PRODUCERS, CASE NO. RTPE NO.

09/2008, CCI

35. IN RE: SUO-MOTO CASE AGAINST LPG CYLINDER MANUFACTURERS, CASE NO.

03/2011, CCI.

36. IN RE: ALL INDIA TYRE DEALER'S FEDERATION V. TYRE MANUFACTURERS, CASE

NO. 20/2008, CCI

37. SHAILESH KUMAR V. TATA CHEMICALS LTD., CASE NO. 66/2011, CCI

38. BUILDERS ASSOCIATION OF INDIA V. CEMENT MANUFACTURERS' ASSOCIATION &

ORS., CASE NO. 29/2010, CCI

39. IN RE: FEDERATION OF INDIAN AIRLINES, CASE NO. RTPE 3/2008, CCI; CHIEF

MATERIALS MANAGER V. MILTON INDUSTRIES LTD., REFERENCE CASE NO.

02/2014, CCI

FOREIGN CASES

1. HOFMANN-LA ROCHE & CO. AG V. COMMISSION OF THE EUROPEAN

COMMUNITIES, [1979] ECR 461

2. AKZO CHEMIE BV V. COMMISSION, (1991) 1 ECR 3359.

3. MICROSOFT, CASE NO. COMP/C-3/37.792.

4. EUROFIX-BAUCO V. HILTI, CASE NO. IV/30.787 AND 31.488.

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5. UNION BRANDS COMPANY V. COMMISSION OF EU, [1978] ECR 207

6. E. ON RUHRGAS V. COMMISSION, CASE NO. T-360 OF 2009 (GC).

7. T-83/91, TETRA PAK II V. COMMISSION OF EUROPEAN COMMUNITIES, ECLI : EU :

T : 1994 : 246.

8. T-340/03, FRANCE TÉLÉCOM SA V. COMMISSION OF THE EUROPEAN

COMMUNITIES, ECLI : EU : T : 2007 : 22.

9. C-23/14, POST DENMARK A/S V. KONKURRENCER ÅDET, ECLI : EU : C : 2015 :

651.

10. CASE T-83/91, TETRA PAK II V. COMMISSION OF EUROPEAN COMMUNITIES, ECLI :

EU : T : 1994 : 246.

11. CASE-T-340/03, FRANCE TELECOM SA V. COMMISSION, [2009] 4 C.M.L.R. 25

12. FISHMAN V. ESTATE OF WIRTHZ, 807 F.2D 520, 536 (9TH CIR. 1986).

13. CASE T-201/04, MICROSOFT CORPORATION V. COMMISSION, [2007] ECR II-3601

14. RE: AUSTIN MOTOR CAR CO. LTD., (1957) LR 1 RP 6.

15. IN RE: FLAT GLASS ANTITRUST LITIG., 385 F.3D 350

16. COLEMAN V. CANNON OIL CO., 849 F.SUPP.1458.

17. IN RE: HIGH FRUCTOSE CORN SYRUP ANTITRUST LITIG., 295 F.3D 662

STATUTES/ LEGISLATIONS

S.NO NAME OF STATUTES/ LEGISLATION

1. The Competition Act, 2002.
2. The Sherman Antitrust Act, 1890.
3. The Indian Contract Act, 1872.

BOOKS, REPORTS, GUIDELINES

S.NO NAME OF THE BOOKS, REPORTS, GUIDELINES, REGULATIONS

1. Guide To Competition Act, 2002 (7th ed. 2018).
2. Competition Laws Manual with Case Laws Digest (9th ed. 2022).

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3. Merger Control in India (1st ed. 2018).

4. Richard Whish & David Bailey Competition Law 684 (OUP 157).
5. CCI (General) Regulations, 2009.
6. U.S. Department of Justice & Federal Trade Commission, Antitrust Guidelines
For Collaborations Among Competitors.
7. Treaty on the Functioning of the European Union.
8. NCLAT Rules, 2016.
9. JONATHAN FAULL & ALI NIKPAY, THE EU LAW OF COMPETITION,
(3rd Ed. 2014).
10. OECD On Indian Competition Law 14 11 2008, CCI.GOV.IN.
11. P.D. Sudhakar & K.K. Sharma, Competition Law and Policy in India, (CCI).
12. Raghavan Committee Report, 1999.
13. Consolidated Version of the Treaty on European Union art. 101(1),
(2010/C83/01).

SUMMARY OF FACTS

1. United Tech Connect Enterprises (UTCE) is a legally incorporated entity in Zentoria,

focusing on mobile device production and distribution, and telecommunication
services. With a 65% market share, it contributes to the thriving Zentorian market.

2. UTCE has a global network of Wholly Owned Subsidiary Companies, including

Comlink Enterprises International (CEI), established in Orienta, complying with local
regulations and enhancing its presence and influence in the Oriental market. CEI, a
leading mobile manufacturing and telecommunications company in Orienta, has
secured a significant 40% market share in the flourishing Oriental market.

3. Surya Connect Networks Limited, a significant telecom services player, experienced a

significant decline in market share in 2021 due to changes in management and
aggressive decision-making. This highlights the importance of strategic decision-

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making in maintaining a strong market position, despite its previously significant 20%
market share.

4. In 2021, Surya Connect Networks Limited (SCNL) passed a resolution to merge with
United Tech Connect Enterprises (UTCE), a thriving telecommunication service
provider. SCNL's representatives discovered UTCE was actively exploring mergers or
acquisitions with other providers, primarily through its subsidiary, Comlink
Enterprises International (CEI).

5. CEI plans to merge with Orientan to secure a 55% share in the telecom services
market. This strategic move reflects the dynamism of the industry and the need for
sustained growth. CEI announced a 18-month complimentary telecom service offer,
contingent on the acquisition of any model from its Chaplus Smart Mobiles, aiming to
capture market attention and stimulate consumer engagement.

6. Following the merger of Chaplus Smart Mobiles and Comlink Enterprises

International (CEI), the company experienced a significant surge in business, gaining
65% of the user base and a 49% market share in mobile manufacturing in the Orientan
region. This led to a downturn for other telecom services and mobile manufacturing
companies, causing economic depression. Rival providers Lareify, Glore Hitch, and
PBS Telecommunications attempted to offer lower rates, but their efforts were futile
due to CEI's dominance.

7. Mobile manufacturing companies AKK Mobi Ltd, VVNR Celtec Pvt. Ltd, and ADS
Techlife Pvt Ltd, holding a 48% market share, decided to offer exclusive discounts to
the public, giving them a competitive edge over Chaplus Smart Mobiles. This strategy
impacted CEI's sales and shifted market dynamics. In October 2021, Lareify, Glore
Hitch, and PBSTelecommunications filed a complaint with the Competition
Commission of Orienta (CCO) alleging abuse of dominant position and predatory
pricing. CEI retaliated by filing a counter-complaint against AKK Mobi Ltd, VVNR
Celtec Pvt. Ltd, and ADS Techlife Pvt Ltd, accusing them of forming cartelization
and entering into an Anti-Competitive Agreement.

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8. In November 2021, Orienta Today published an article revealing CEI's dominance in

the telecom service market, capturing 65% of subscribers. The article also highlighted
CEI's business growth post-merger with STNPL and its ambitious aspirations to
control 90% of subscribers by 2022. The article also accused AKK Mobi Ltd,
VVNRCeltecPvt. Ltd, and ADS Techlife Pvt Ltd. of monopolizing the market and
potentially increasing mobile phone prices.

9. Fight For a Cause (FC), a renowned NGO in Orienta, initiated a Public Interest
Litigation against telecom giants UTCE and CEI, focusing on consumer welfare and
market dynamics. Despite efforts, the litigation was dismissed by the High Court,
highlighting the complexities of high-stakes corporate disputes and market dominance
in the legal landscape.

10. The Competition Commission of Orienta consolidated two cases, Case No. 23 and
Case No. 42, and issued a unified order on November 15, 2021. Case No. 23 was
approved, while Case No. 42 was dismissed, setting the tone for subsequent legal
proceedings. CEI contested the decision, and the case is scheduled for a final hearing.

STATEMENT OF JURISDICTION

THE APPELLANT HAS APPROACHED THE HON'BLE SUPREME COURT OF ORIENTA UNDER
ARTICLE 136 OF THE CONSTITUTION:

136. (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 India.

STATEMENT OF ISSUES

1. Whether the Supreme Court has the jurisdiction to hear this case.

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2. Whether CEI and UTCE have abused its dominance in the relevant market through
predatory pricing.
3. Whether CEI have used their dominant position in the relevant market by leveraging
its position to enter another market.
4. Whether AKK Mobi Ltd, VVNR Celtec Pvt. Ltd. & ADS Techlife Pvt. Ltd. formed
cartelization and entered into an Anti-Competitive Agreement.

SUMMARY OF ARGUMENTS

1. Whether the Supreme Court has the jurisdiction to hear this case.
The petition for Special Leave is not maintainable under Article 136, which does not
confer a Right of Appeal. Article 136 is a discretionary power to the Supreme Court
to satisfy justice demands under exceptional circumstances. The Supreme Court has
criticized the approach of settling private disputes under Article 136, stating that it
would lead to confusing results and lack of precedents. The petitioners argue that
there was no error in the CCO's judgement and that there is no pressing matter or
question of law for which the intervention of the Court would be necessary. The
Supreme Court does not interfere with the decision of lower courts, and the petitioner
argues that the Supreme Court should dismiss the petition for Special Leave and allow
the matter to be first heard by an appellate tribunal. The court has exercised its
jurisdiction under Article 136 under circumstances such as the Tribunal's failure to
exercise its patent jurisdiction, apparent error, erroneous application of jurisprudence,
or approach to natural justice.

2. WHETHER CEI AND UTCE HAVE ABUSED ITS DOMINANCE IN THE

RELEVANT MARKET THROUGH PREDATORY PRICING.

The respondents argue that CEI and UTCE have not abused their dominant position in
the market for the production and distribution of mobile devices and electronic
gadgets, as well as telecommunication services. The relevant market is the Republic
of Orienta, where the conditions of competition for demand and supply are similar.
The relevant product market is the market for telecommunication services and mobile

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devices. CEI is not in a dominant position in the market due to its market share being
less than 50%, the presence of competitors, and not having any significant effect on
competitors, consumers, or the relevant market. The presence of strong competitors,
such as Lareify, Glore Hitch, PBS Telecommunication, AKK Mobi Ltd., VVNR
Celtec Pvt. Ltd., and ADS Techlife Pvt. Ltd., also does not indicate dominance. CEI
has not abused its dominant position because it did not impose unfair prices and
conditions, and predatory intent cannot be established. The distribution agreement
does not amount to an abuse of dominance, as it does not impose unfair prices and
conditions.

3. Whether CEI have used their dominant position in the relevant market by
leveraging its position to enter another market.
The respondents argue that the respondents have used their dominance in the relevant
market of 'Telecommunication Services' to enter another market, contravening §4(2)
(e) of the Act. The relevant market is the market of telecommunication services in
Orienta, where the conditions of competition for demand and supply are similar. CEI,
a company with a large market share, enjoys great market power and acts
independently of competition. The company has affected its competitors and
consumers in its favor through the dependence of consumers on CEI. CEI has also
entered the market for production and distribution of mobile devices and electronic
gadgets, which are interconnected. The conduct of CEI is not objectively justified, as
the services of one market act as an input for another market. The respondents argue
that CEI has used its dominance in the relevant market by leveraging its position to
enter another market, contravening §4(2)(e) of the Act.

4. Whether AKK Mobi Ltd, VVNR Celtec Pvt. Ltd. & ADS Techlife Pvt. Ltd.
formed cartelization and entered into an Anti-Competitive Agreement.
The mobile devices manufacturing industry is oligopolistic, with the parties
controlling 48% of the market share. To establish a cartel, there must be a clear
agreement or collusion between the parties, and there are no factors of collusion
established. The standard of proof required in an oligopolistic market is different from
other types of cases, and economic circumstantial evidence is required. Price
parallelism and alleged market allocation are also factors to consider. The conduct of

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parties has not caused AAEC, as the non-competitive nature of a market does not
imply an agreement. Interdependent behaviour is not an agreement, even in an
oligopolistic market, and factors of Section 19(3) of the Act are not attracted. In the
present case, the parties' strategy was similar but not interdependent on each other,
demonstrating that they did not form a cartel.

ARGUMENTS ADVANCED

1. Whether the Supreme Court has the jurisdiction to hear this case.

1.1. Irrespective of the locus standi of the petitioners, the Petition for Special
Leave is not maintainable

1.1.1. Article 136 does not confer a Right of Appeal

2. Article 136 does not confer a Right of Appeal but merely, a discretionary power to the
Supreme Court to be exercised for satisfying the demands of justice under exceptional
circumstances1. In Pritam Singh v. The State2, the Supreme Court held that the power
under Article 136 is to be exercised sparingly and in exceptional cases only. In
concluding the discussion on Article 136 in the same case, it was held the by the
Supreme Court that ‘Generally speaking, this court will not grant Special Leave,
unless it is shown that exceptional and special circumstances exist, that substantial
and grave injustice has been done and that the case in question presents features of
sufficient gravity to warrant a review of the decision appealed against.’

1
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196
2
Pritam Singh v. The State, AIR 1950 SC 169

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3. Although the power has been held to be plenary, limitless 3, adjunctive, and
unassailable4, in M. C. Mehta v. Union of India 5 and Aero Traders Private Limited v.
Ravider Kumar Suri6, it was held that the powers under Article 136 should be
exercised with caution and in accordance with law and set legal principles.
4. In the cases of Secretary, State of Karnataka v. Umadevi7 and Shivanand
Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills 8, the Supreme Court has
criticized the approach of settling private disputes under Article 136, stating that it
would lead to confusing results and lack of precedents.
5. It is humbly submitted to this Hon’ble Court that there was no error in the judgement
of the CCO. The counsel for the Respondents would also like to submit to this
Hon’ble Court that there is no pressing matter or question of law, for which, the
intervention of this Court would be necessary, i.e. there is no necessity to invoke the
jurisdiction conferred upon this Hon’ble Court under Article 136.

1.1. Non-interference in the decision of the lower courts:

6. If it appears prima facie that the order in question cannot be justified by any judicial
standard, the ends of justice and the need to maintain judicial discipline require the
Supreme Court to intervene9; the Supreme Court in this case pointed out the errors of
the High Court, but, did not interfere in the decision of the High Court. The Supreme
Court does not interfere with the conclusion arrived at by the Tribunal if it has taken
all the relevant factors into consideration and there has been no misapplication of the
principle of law10.
7. Normally, in exercising its jurisdiction under Article 136, the Supreme Court does not
interfere with the findings of the fact concurrently arrived at by the tribunal and the
High Court unless there is a clear error of law or unless some important piece of
evidence has been omitted from consideration11.
3
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546
4
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467
5
M.C. Mehta v. Union of India, AIR 2004 SC 4618
6
Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15
7
Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806
8
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323
9
Union of India v. Era Educational Trust, AIR 2000 SC 1573
10
DCM v. Union of India, AIR 1987 SC 2414
11
Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492

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8. A question is not allowed to be raised for the first time in an appeal before the
Supreme Court12. It would refuse a question to be developed before it when it had
neither been urged before the High Court nor before the Appellate Tribunal13.
9. Though Article 136 is conceived in widest terms, the practice of the Supreme Court is
not to interfere on questions of fact except in exceptional cases when the finding is
such that it shocks the conscience of the court14.
10. The Supreme Court in the instant case need not interfere in the decision of the CCO.
The specific section of the Competition Act, 2002, that mentions appeals against CCI
orders is Section 53B(1).This section grants the right to any "aggrieved person" to
appeal a CCI order before the NCLAT. 15 Hence, it is humbly submitted to this
Hon’ble Court to dismiss the Petition for Special Leave and allow the matter to be
first heard by an appellate tribunal 16, subsequent to which, an appeal might be
preferred in this Hon’ble Court.

1.2. Scope of Powers under Article 136:

11. It is humbly submitted that if Special Leave is granted, the matter is registered as an
appeal and the Court does not take into cognizance all the points that may arise on
appeal and decide them on Merits 17. The Supreme Court has also held that “it is not
bound to go into merits and even if we do so and declare the law or point out the error
– still we may not interfere if the justice of the case on facts does not require
interference or if we feel that the relief could be moulded in a different fashion.” 18
12. The Supreme Court in Kunhayammed v. State of Kerala19 held that Article136
consists of two distinct stages, the first stage where the matter is merely being decided
if it is to be accepted as an appeal or not; if the Supreme Court decides to adjudicate
the matter, it becomes an appeal, if otherwise, the matter was never an appeal.

12
Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622
13
Asst. Controller, Central Excise v. N T Co., AIR 1972 SC 2563

14
Panchanan Misra v. Digambar Mishra, AIR 2005 SC 1299
15
§53(B) of Competition act, 2002
16
§53A of Competition act, 2002
17
Taherkhatoon v. Sala,bin Mohammam, AIR 1999 SC 1104
18
Supra note 17
19
Kunhayammed v. State of Kerala, (2000) 245 ITR 360 (SC)

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13. Hence, it is humbly submitted to this Hon’ble Court that by reason of lack of any
specific matter that requires the intervention of this Hon’ble Court, the Court need not
entertain the matter.

1.3. Grounds on which appeal are granted not satisfied:

14. The Supreme Court has exercised its Jurisdiction under Article 136 under the
following circumstances-
 When the Tribunal ostensibly fails to exercise its patent jurisdiction.20
 When there is an apparent error on the face of the decision21.
 The tribunal has erroneously applied well-accepted principles of
jurisprudence.22
 The tribunal acts against the principles of Natural Justice 23, or has approached
the question in a manner likely to cause injustice24.

15. In the instant case, the CCO has not committed any error in law. There is no breach in
law or natural justice; to say the decision of CCO was wrong would be wrong because
the matter has not been adjudicated on merits whatsoever. Hence, it is humbly
submitted to this Hon’ble Court that no grounds can be made out for accepting this
petition for Special Leave.

1.4. Grounds of rejection:

16. In Kunhayammed and Others v. State of Kerala and Another25, it was held that a
petition seeking grant of special leave to appeal may be rejected for several reasons
The question raised by the petitioner for consideration by this Court being not fit for
consideration or deserving being dealt with by the Apex Court; it is humbly submitted
that there is no ground for invoking this Hon’ble Court’s jurisdiction under Article
136.
20
Chief Administrator cum Jt. Secretary, Government of India v. D. C. Dass, AIR 1999 SC 186
21
Siemens Eng & Mfg Co. v. Union of India, AIR 1976 SC 1785
22
Clerks of Calcutta Tramways v. Calcutta Tramways Co. Ltd., AIR 1957 SC 78
23
City Corner v. P.A. to the Collector, AIR 1976 SC 143
24
Mohan Lal v. Management, Bharat Electronics Ltd., AIR 1981 SC 1253
25
Kunhayammed and Others v. State of Kerala and Another, (2000) 6 SCC 359

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2. WHETHER CEI AND UTCE HAVE ABUSED ITS DOMINANCE IN THE

RELEVANT MARKET THROUGH PREDATORY PRICING.

17. It is the humble submission of the petitioners that CEI and UTCE have abused its
dominant position in the market. In order to substantiate the same, reliance have been
put forth on the following sub-contention i.e. [2.1] The relevant market in the present
case is the “production and distribution of mobile devices and electronic gadgets, as
well as telecommunication services”. [2.2] CEI and UTCE is dominant in the
identified relevant market [2.3] CEI and UTCE has abused its dominant position in
the market.

2.1. The Relevant Market In The Present Case Is Market of

Telecommunication services and production of Mobile Devices In Orienta.

18. In order to determine whether an enterprise is abusing its dominant position or not, it
is necessary to first determine the relevant market in which that particular enterprise
was alleged to be in a dominant position.26

19. To establish any enterprise as dominant it is necessary27 to identify relevant market.

The objective of defining the relevant market is to identify the actual competitors and
to identify those who can place constraints on fair competition. ‘Relevant market’ 28
can be determined with reference to relevant product market and relevant geographic
market.

2.1.1 The relevant geographic market is Orienta.

20. The relevant geographic market29 is the area in which the conditions of competition
for demand and supply of goods or services are similar and can be distinguished from

26
Vikrant Bhagi v. Media Video Limited, Case No. 28 of 2013; Brown Shoe Co. v. US, 370 US 294
(1962); US v. Grinnell Corp, 384 US 563 (1966).
27
Prints India v. Springer India Pvt. Ltd., (2012) 109 CLA 411.
28
The Competition Act, 2002, § 2(r), No. 12, Acts of Parliament, 2002 (India).
29
The Competition Act, 2002, § 2(s) No. 12, Acts of Parliament, 2002 (India)

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the other neighbouring area.30 It is important to consider certain factors like

“regulatory trade barriers, local specification requirements & consumer preference
while delineating the relevant geographic market.”31
21. In the present case, the condition throughout the Republic of Orienta is homogenous.
Therefore, in light of the above, the relevant geographic market should be restricted to
the Republic of Orienta.

2.1.2 The relevant product market is the market for telecommunication services and
mobile devices.

22. In economics, a market is defined by a set of primitives: namely, consumer

preferences and technology.32 All those products or services which are regarded as
interchangeable or substitutable by the consumer form part of the same relevant
product market. It is submitted that in the present case the relevant product market is
the market for the telecommunication services and mobile devices.

2.2. CEI is at the dominant position in the identified relevant market.

23. Dominant position refers to a condition where an enterprise has a position of strength
and when it can operate independently of the competitive forces33. Under § 4, it is a
prerequisite condition that the enterprise is dominant in the relevant market. 34

2.2.1 CEI enjoys great market power and is acting independent of competition.

24. The Commission considers that market power is essentially measured by reference to
the power of the undertaking concerned to raise prices by restricting output without
incurring a significant loss of sales or revenues.
25. In the present case, CEI witnessed a growth in the user base and market share after
they decided to provide free telecommunication services for Eighteen months along
with the acquisition of any model from the array of 10 Chaplus Smart Mobiles,
30
Shri Avtar Singh v. Ansal Township & Land Development Ltd., Case No. 03 of 2014 (CCI).
31
The Competition Act, 2002, §19(6), No. 12, Acts of Parliament, 2002 (India).
32
ATILANO JORGE PADILLA, THE ROLE OF SUPPLY-SIDE SUBSTITUTION IN THE DEFINITION OF THE RELEVANT
MARKET INMERGER CONTROL (Nera 2001).
33
The Competition Act, 2002, § 4(2), No. 12, Acts of Parliament, 2002 (India).
34
S M DUGGAR, GUIDE TO COMPETITION ACT, 540 Lexis Nexis 2018.

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exclusively manufactured by them. This is a clear indicator of dominance of CEI in

the relevant market.

2.2.2. The market share of CEI is adequate to establish dominance.

26. The Commission has held that although the importance of the market shares may
vary, large shares are in themselves, evidence of the existence of a dominant
position.35 Maintenance of large market shares puts the enterprise in a position of
strength and makes it an unavoidable trading partner, which are features of being in a
dominant position.36
27. This position was reiterated in AKZO37, where a market share of 50% was found to be
indicative of dominance. The current position of law as laid out in Microsoft38, is such
that the presence of market power, though not conclusive raises a strong presumption
of dominance. In the present case the market share of CEI was 65%.39
28. Therefore, apart from CEI large market share, it’s necessary to further evaluate the
factors laid down in Section 19(4) of the Act.

2.2.3 The size and resources of CEI give it a competitive advantage.

29. The Commission40 has considered, the factor of ‘indisputable technological lead’.
This implies that a technologically sound undertaking will possess the means to
distinguishing its products and will be able to improve overall productivity and
efficiency.41

2.2.4 Vertical integration of CEI and creation of entry barriers

30. Vertical integration42 can be a factor to determine dominant position in the

market.43 The commission is required to check vertical integration of enterprise
especially those made by contracts. It can foreclose access to a segment of the market,

35
Hofmann-La Roche & Co. AG v. Commission of the European Communities, [1979] ECR 461
36
Id.
37
AKZO Chemie BV v. Commission, [1991] ECR I-3359.
38
Microsoft, Case No. COMP/C-3/37.792.
39
Case Study, Annexure.
40
United Brands Company & United Brands Continental BV v. Commission, [1978] ECR 207.
41
Eurofix-Bauco v. Hilti, Case No. IV/30.787 and 31.488.
42
The Competition Act, 2002, §19(4)(e), No. 12, Acts of Parliament, 2002 (India).
43
Belaire Owner's Assn. v. DLF Ltd., Case No. 19 of 2010 (CCI).

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since competitors of the integrating firm often can no longer deal with such an
enterprise.
31. In the present case, CEI acquired SCNL which had 15% of market share and after the
merger the market share of CEI became 55% and with their strategic move of
providing complimentary telecom services with their mobile devices which is a tie-in
arrangement, the market share of CEI swiftly ascended to 65% in telecom service
market and 49% in mobile manufacturing market which eventually restrict other
players from entering into the market and thus, increases dominance of CEI in the
market. Hence due to this vertical integration of CEI, it is at dominant position in the
identified market.

2.2.5 CEI has affected its competitors and consumers in its favour.

32. It is submitted that if an enterprise is able to affect its consumers in its favour, then it
should be considered dominant.44 It is submitted that CEI has affected its competitors
and consumers in its favour through dependence of consumers on CEI.
33. The dependence of consumers on an enterprise is an important factor to determine
dominant position. Court held that “due to the largest network of processors and
distributors chain along with a brand image with largest acceptance with the
customers, enabled enterprise to operate independently in the market and to influence
consumers in its favour”45 In the DLF case46, CCI took “dependence of customers” as
an important factor to attribute dominance.
34. In the present case, CEI gives consumer complimentary telecom services exclusively
with the purchase of mobile devices manufactured by CEI themselves. As, it led to
rise in market share shows the dependency of the consumers on CEI.

2.3. CEI has abused its dominant position in the relevant market.

35. The Competition law allows an enterprise to be in a dominant position since

dominance per-se is not illicit, but bars it from abusing it. The Competition Act, 2002
lays down the various means employed an enterprise to abuse its dominant position.47

44
The Competition Act, 2002, §4, No. 12, Acts of Parliament, 2002 (India).
45
HNG Float Glass Ltd. v. Saint Gobain Glass India Ltd., C. No. 51 of 2011 (CCI).
46
Belaire Owner's Assn. v. DLF Ltd., Case No. 19 of 2010 (CCI)
47
THE COMPETITION ACT, §4, No. 12, Acts of Parliament, 2002 (India).

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2.3.1. CEI has abused its dominance by way of discriminatory pricing.

36. In the case of Tata Power Delhi Distribution Limited v. Competition Commission of
India48, the CCI observed that the seminal issue in an abuse of dominance case is
harm to consumers. Imposition of discriminatory pricing on the purchase/sale of
goods or services and unfair pricing (including predatory pricing) amounts to abuse of
dominance.49 Unfair conditions are those that give rise to unfair trade practice which
causes loss or injury to the consumer.

37. Charging a price is considered to be excessive if there is no reasonable relation to the

economic value of the product supplied and is said to constitute abuse of dominance.50

2.3.2. CEI has engaged in predatory pricing and has violated Section 4(2) a of the act.

38. It is the humble submission of the petitioners that CEI has abused their dominant
position by indulging into predatory pricing, violating Section 4 of the act. Pricing of
a product below the costs which are incurred by an enterprise for the purpose of
production can be termed predatory in nature if the price is below average variable
costs.51

39. The instances wherein the price of the product/service is kept below average total
costs,52 the test of no commercial sense53 is applied and additionally the predatory
intent54of the dominant enterprise has to be proven.55

40. In this vein, the appellant submission that is three-fold, first, the [2.3.2.1] are
providing their services below cost prices, [2.3.2.2] the pricing policy makes no
commercial sense and predatory intent.

Pricing below cost price

48
Tata Power Delhi Distribution Ltd. v. CCI, Case No. 20 of 2017.
49
The Competition Act, 2002, § 4, No. 12, Acts of Parliament, 2002 (India).
50
United Brands Co and United Brands Continental BV v. Commission, [ 1978] ECR 207.
51
Case C-62/86, AKZO Chemie BV v. Commission of European Communities, ECLI : EU : C : 1991 : 286; See
also : Case T-83/91, Tetra Pak II v. Commission of European Communities, ECLI : EU : T : 1994 : 246.
52
Case T-340/03, France TÉlÉcom SA v. Commission of the European Communities, ECLI : EU : T : 2007 :22.
53
Christopher R. Leslie, Predatory Pricing and Recoupment, 113 CLR 1695, 1708-1710 (2013).
54
Gregory Gundlach, Predatory Practices in Competitive Interaction : Legal Limits and Antitrust
Considerations, 9, Journal of Public Policy and Marketing 129, 136-137 (1990).
55
Case C-23/14, Post Denmark A/S v. KonkurrencerÅdet, ECLI : EU : C : 2015 : 651.

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41. It is submitted that CEI have priced their services below the average variable costs
incurred by them and accordingly, it can be presumed that CEI have indulged in
predatory pricing policy and there is no requirement of proving the predatory intent.
CEI has in an attempt to increase its market share decided to provide telecom services
free of cost for eighteen months.

Test of no commercial sense and predatory intent

42. Alternatively, it is submitted that ‘no commercial sense’ test for prices below costs is
a test of intent56 and the modus operandi of the CEI is in consonance of a plan for
eliminating competitors with an intention to eliminate competition in the relevant
market.

43. Moreover, the conduct of the CEI also leads to the foreclosure of competition in the
neighbouring market57 as it will eliminate competition in the market.

3. Whether CEI have used their dominant position in the relevant market by
leveraging its position to enter another market.

44. It is humbly submitted that the APPELANTS have used their dominance in the
relevant market by leveraging its position to enter another market and have
contravened §4(2)(e) of the Act as first, they have a dominant position in the relevant
market of ‘Telecommunication Services [i], second, the CEI is operating in two
separate but interconnected markets [ii] and third, the conduct of CEI is not
objectively justified[iii].

3.1. THE RELEVANT MARKET IN THE PRESENT CASE IS MARKET

OF TELECOMMUNICATION SERVICES IN ORIENTA.
45. It is humbly submitted that the RESPONDENTS have used their dominance in the
relevant market by leveraging its position to enter another market and have
contravened §4(2)(e) of the Act as first, they have a dominant position in the relevant
market of ‘Telecommunication Services [i], second, the CEI is operating in two
56
(JONATHAN FAULL & ALI NIKPAY, THE EU LAW OF COMPETITION 48 ¶1.148, (3rd ed. 2014).
57
Case T-83/91, Tetra Pak II v. Commission of European Communities, ECLI : EU : T : 1994 : 246.

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separate but interconnected markets [ii] and third, the conduct of CEI is not
objectively justified [iii].
The Relevant Market In The Present Case Is Market of Telecommunication
services In Orienta.
46. In order to determine whether an enterprise is abusing its dominant position or not, it
is necessary to first determine the relevant market in which that particular enterprise
was alleged to be in a dominant position.58
47. To establish any enterprise as dominant it is necessary 59 to identify relevant market.
The objective of defining the relevant market is to identify the actual competitors and
to identify those who can place constraints on fair competition. ‘Relevant market’ 60
can be determined with reference to relevant product market and relevant geographic
market.
3.1.1 The relevant geographic market is Orienta.
48. The relevant geographic market61 is the area in which the conditions of competition
for demand and supply of goods or services are similar and can be distinguished from
the other neighbouring area.62 It is important to consider certain factors like
“regulatory trade barriers, local specification requirements & consumer preference
while delineating the relevant geographic market.”63
49. In the present case, the condition throughout the Republic of Orienta is homogenous.
Therefore, in light of the above, the relevant geographic market should be restricted to
the Republic of Orienta.
3.1.2 The relevant product market is the market for telecommunication services.
50. In economics, a market is defined by a set of primitives: namely, consumer
preferences and technology.64 All those products or services which are regarded as
interchangeable or substitutable by the consumer form part of the same relevant
product market. It is submitted that in the present case the relevant product market is
the market for the telecommunication services and mobile devices.

58
Vikrant Bhagi v. Media Video Limited, Case No. 28 of 2013; Brown Shoe Co. v. US, 370 US 294
(1962); US v. Grinnell Corp, 384 US 563 (1966).
59
Prints India v. Springer India Pvt. Ltd., (2012) 109 CLA 411.
60
The Competition Act, 2002, § 2(r), No. 12, Acts of Parliament, 2002 (India).
61
The Competition Act, 2002, § 2(s) No. 12, Acts of Parliament, 2002 (India)
62
Shri Avtar Singh v. Ansal Township & Land Development Ltd., Case No. 03 of 2014 (CCI).
63
The Competition Act, 2002, §19(6), No. 12, Acts of Parliament, 2002 (India).
64
ATILANO JORGE PADILLA, THE ROLE OF SUPPLY-SIDE SUBSTITUTION IN THE DEFINITION OF THE RELEVANT
MARKET INMERGER CONTROL (Nera 2001).

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3.2. CEI is at the dominant position in the identified relevant market.

51. Dominant position refers to a condition where an enterprise has a position of strength
and when it can operate independently of the competitive forces 65. Under § 4, it is a
prerequisite condition that the enterprise is dominant in the relevant market. 66
3.2.1 CEI enjoys great market power and is acting independent of competition.
52. The Commission considers that market power is essentially measured by reference to
the power of the undertaking concerned to raise prices by restricting output without
incurring a significant loss of sales or revenues.
53. In the present case, CEI witnessed a growth in the user base and market share after
they decided to provide free telecommunication services for Eighteen months along
with the acquisition of any model from the array of 10 Chaplus Smart Mobiles,
exclusively manufactured by them. This is a clear indicator of dominance of CEI in
the relevant market.
3.2.2. The market share of CEI is adequate to establish dominance.
54. The Commission has held that although the importance of the market shares may
vary, large shares are in themselves, evidence of the existence of a dominant
position.67 Maintenance of large market shares puts the enterprise in a position of
strength and makes it an unavoidable trading partner, which are features of being in a
dominant position.68
55. This position was reiterated in AKZO69, where a market share of 50% was found to be
indicative of dominance. The current position of law as laid out in Microsoft70, is such
that the presence of market power, though not conclusive raises a strong presumption
of dominance. In the present case the market share of CEI was 65%.71
56. Therefore, apart from CEI large market share, it’s necessary to further evaluate the
factors laid down in Section 19(4) of the Act.
3.2.3 The size and resources of CEI give it a competitive advantage.

65
The Competition Act, 2002, § 4(2), No. 12, Acts of Parliament, 2002 (India).
66
S M DUGGAR, GUIDE TO COMPETITION ACT, 540 Lexis Nexis 2018.
67
Hofmann-La Roche & Co. AG v. Commission of the European Communities, [1979] ECR 461
68
Id.
69
AKZO Chemie BV v. Commission, [1991] ECR I-3359.
70
Microsoft, Case No. COMP/C-3/37.792.
71
Case Study, Annexure.

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57. The Commission72 has considered, the factor of ‘indisputable technological lead’.
This implies that a technologically sound undertaking will possess the means to
distinguishing its products and will be able to improve overall productivity and
efficiency.73
3.2.4 CEI has affected its competitors and consumers in its favour.
58. It is submitted that if an enterprise is able to affect its consumers in its favour, then it
should be considered dominant.74 It is submitted that CEI has affected its competitors
and consumers in its favour through dependence of consumers on CEI.
59. The dependence of consumers on an enterprise is an important factor to determine
dominant position. Court held that “due to the largest network of processors and
distributors chain along with a brand image with largest acceptance with the
customers, enabled enterprise to operate independently in the market and to influence
consumers in its favour”75 In the DLF case76, CCI took “dependence of customers” as
an important factor to attribute dominance.
60. In the present case, CEI gives consumer complimentary telecom services exclusively
with the purchase of mobile devices manufactured by CEI themselves. As, it led to
rise in market share shows the dependency of the consumers on CEI.

The other relevant market CEI entered by leveraging its position is the market for
production and distribution of mobile devices and electronic gadgets.
61. It is humbly submitted that CEI have used its dominance in the relevant market by
leveraging its position to enter into another market and have contravened §4(2)(e) of
the Act as first, CEI have a dominant position in the relevant market of
‘Telecommunication services [i], second, CEI is operating in two separate but
interconnected markets [ii] and third, the conduct of CEI is not objectively
justified [iii].
(i) CEI is dominant in the relevant market of ‘online food services aggregation’
62. It is humbly submitted that the CEI have a dominant position in the market of
‘Telecommunication Services’.77 The relevant product market comprises of those

72
United Brands Company & United Brands Continental BV v. Commission, [1978] ECR 207.
73
Eurofix-Bauco v. Hilti, Case No. IV/30.787 and 31.488.
74
The Competition Act, 2002, §4, No. 12, Acts of Parliament, 2002 (India).
75
HNG Float Glass Ltd. v. Saint Gobain Glass India Ltd., C. No. 51 of 2011 (CCI).
76
Belaire Owner's Assn. v. DLF Ltd., Case No. 19 of 2010 (CCI)
77
§2(h), The Competition Act, No. 12 of 2003, INDIA CODE (2002) [for brevity ‘Competition Act’].

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products or services which are regarded as interchangeable or substitutable 78 by the

consumers, by reason of characteristics of the product or services, their prices and
intended use.79
63. The dominant position of CEI can be established by its high market share, size and
resources, the dependence of customers on the enterprise, the size of the competitors
and its economic power and commercial advantages enjoyed over its competitors.80
(ii) CEI is operating in two separate but interconnected markets
64. It is humbly submitted that there is a requirement of identifying two distinct relevant
markets81 where the dominant enterprise is operating and these two relevant markets
must also have an associational link82, for the purpose of establishing abuse under
§4(2)(e).83
65. Keeping in view the aforesaid, it is submitted that the CEI is operating in two distinct
relevant markets i.e. the ‘Telecommunication Services in the Republic of Orienta’ and
the ‘production and distribution of mobile devices and electronic gadgets in the
Republic of Orienta’, which are interconnected to one another as the services of one
market acts as an input for another market.84
66. Accordingly, it is submitted that there is an associational link between the two
markets and CEI have entered the conventional market of Mobile devices and
electronic gadgets by way of discounts and complimentary offers with their newly
introduced Mobile devices, thereby leveraging its dominant position in one relevant
market to enter into another market.85
(iii) The conduct of FSAs is not objectively justified
67. It is humbly submitted that objective justification can be afforded by a dominant
enterprise in order to rebut the accusation of leveraging dominant position 86 under
§4(2)(e) of the Act.87 Moreover, the instances wherein there is a foreclosure of

78
Case-T-340/03, France Telecom Sa v. Commission, [2009] 4 C.M.L.R. 25; see also 1 S.M. DUGAR, GUIDE
TO COMPETITION LAW 439 (Arijit Pasayat et al. eds., 6th ed. 2016).
79
MCX Stock Exchange Limited v. National Stock Exchange of India Ltd., Case No. 13 of 2009 (CCI) ¶10.11.
80
§2(h), The Competition Act, No. 12 of 2003, INDIA CODE (2002) [for brevity ‘Competition Act’].
81
Supra note 12
82
MCX Stock Exchange Limited v. National Stock Exchange of India Ltd., Case No. 13 of 2009 (CCI) ¶ 10.78.
83
Kapoor Glass (India) Private Limited v. Schott Glass India Private Limited, Case No. 22 of 2010 (CCI).
84
Fishman v. Estate of Wirthz, 807 F.2d 520, 536 (9th Cir. 1986).
85
Atos Worldline India Pvt. Ltd. v. Verifone India Sales Pvt. Ltd., 2015 CompLR 327 (CCI).
86
Case T-201/04, Microsoft Corporation v. Commission, [2007] ECR II-3601
87
See : Albertina Albors-Llorens, Refusal to Deal and Objective Justification in EC Competition Law, 65 CLJ
24, 24-27 (2006).

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competition in the downstream market the conduct of the dominant enterprise may not
be objectively justified.88
68. Further, a necessary condition for obtaining the effect that there is foreclosure of
competition in the downstream market is that the downstream competitor is unable is
otherwise unable to obtain the input at a cost that would allow it to continue
competing in the downstream market.89
69. Keeping in view the aforesaid and the complimentary telecommunication services
exclusively with their manufactured mobile phones , it is submitted that the conduct
of RESPONDENTS is leading to foreclosure of competition in the downstream
market and cannot be objectively justified.90

4. Whether AKK Mobi Ltd, VVNR Celtec Pvt. Ltd. & ADS Techlife Pvt. Ltd.
formed cartelization and entered into an Anti-Competitive Agreement.

4.1 The parties have not formed a cartel.

70. The parties have not cartelised as there was no agreement or collusion between the
parties and their conduct has not caused any appreciable adverse effect on competition
(AAEC).

4.1.1 There is no agreement between the parties.

71. To find the existence of a ‘cartel’ as defined under Section 2(c) of the Act, there has
to be a clear existence of an ‘agreement’ as defined Section 2(b). The definition of the
term ‘agreement’ in Section 2(b) may also include ‘action in concert’, which may be
less formal than arrangement or understanding 91. However, where an arrangement
does not indicate that the parties to it accepted mutual rights and obligations, it would
not amount to an arrangement 92. In the present case AKK Mobi Ltd, VVNR Celtec
Pvt. Ltd. & ADS Techlife Pvt. Ltd. did not have an agreement but merely a strategic

88
Guidance on the Commission's Enforcement Priorities in applying Article 82 of the EC Treaty to Abusive
Exclusionary Conduct by Dominant Undertakings, (2009/C45/02), ¶15.
89
1 S.M. DUGAR, GUIDE TO COMPETITION LAW 541 (Arijit Pasayat et al. eds., 6th ed. 2016).
90
Three D Integrated Solutions Ltd. v. VeriFone India Sales (P) Ltd., 2015 CompLR 464 (CCI).
91
Sameer Agarwal v. CCI, Appeal No. 73/2016, COMPAT.
92
Re: Austin Motor Car Co. Ltd., (1957) LR 1 RP 6.

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move aimed at protecting their business which shows that they have not formed a
cartel.
There are no factors of collusion established between the parties.
72. Though cartelisation can occur in any industry, there are a number of conditions,
which make the market conducive to cartelisation. 93 The mobile devices
manufacturing industry is oligopolistic in nature; the parties’ control 48% of the
market share
Conscious parallelism in an oligopoly.

73. The structural conditions of the market in which oligopolists operate can be such that
they have little or no incentive to compete 94. In these circumstances, parallel conduct
would not be the result of the will or intention of market players but a natural
consequence of the market structure and not any concerted effort95.

74. In Steel Cartel96, it was held: “In an oligopolistic industry, the firms recognize their
mutual interdependence, acknowledge that they are players in a repeated game, and
act according to it. In antitrust decisions, mere conscious parallelism does not suffice
for determination of firms engaged in concerted action because such pricing can
emerge from firms acting non collusively where they understand their role as
players.” To establish the existence of a cartel, the standard of proof required in an
oligopolistic market is substantially different than the proof required for proving
cartelisation in other type of cases97. Courts have been cautious in accepting
circumstantial evidence in cases involving allegations of horizontal cooperation
among oligopolists because the ‘theory of interdependence’ holds that parties may
engage in parallel pricing behavior without an express agreement 98. Hence, it is
required that economic circumstantial evidence goes beyond the parallel movement to
reach a finding that the firms have violated provisions of the Act99.

Circumstantial evidence adduced is consistent with independent conduct.

93
In Re: Alleged Cartelization by Steel Producers, Case No. RTPE No. 09/2008, CCI, [hereinafter, ‘Steel
Cartel’].
94
S M DUGAR, GUIDE TO COMPETITION LAW (LexisNexis, Vol. 1, 6th ed., 2016)
95
Rafael Allendesalazar, Oligopolies, Conscious Parallelism and Concertation, European Competition Law
Annual, 2006
96
In Re: Alleged Cartelization by Steel Producers, Case No. RTPE No. 09/2008, CCI,
97
In Re: Suo-moto Case against LPG Cylinder Manufacturers, Case No. 03/2011, CCI.
98
In Re: Flat Glass Antitrust Litig., 385 F.3d 350
99
In Re: All India Tyre Dealer's Federation v. Tyre Manufacturers, Case No. 20/2008, CCI

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75. The law is settled that proof of consciously parallel business behavior 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 action100.

Price parallelism.

76. If a firm's motivation were merely to meet rival prices, it would constitute only
interdependence. Accordingly, to prove conspiracy, evidence of action that is against
self-interest or motivated by profit must go beyond mere interdependence. Parallel
price-fixing must be so unusual that in the absence of an advance agreement, no
reasonable firm would have engaged in it 101. The products in the mobile industry are a
standardized commodity and companies operate in the same industry using similar
raw material. Accordingly, prices would be similar and broadly move in the same
direction102. These factors have been considered by the CCI in various cases while
assessing reasons for price parallelism103 .

Alleged market allocation.

77. In Christiani104, the establishment of a subsidiary enabled it to provide its services

under the most favourable conditions on Dutch territory, which was seen legitimate
upon mere strategic considerations and did not lead to the necessary qualification of
the subsidiary as an independent economic entity. Commission found the division of
markets to merely constitute an internal distribution of tasks between the companies
of the same economic entity. Therefore, the aspect of an ‘internal distribution of
tasks’ does not amount to an independent prerequisite for the concept of a ‘single
economic entity’105. Rather, the authority emphasized the lacking possibility of the
agreement to restrict competition on the basis of the existing control relationship
between the affiliated companies. Even in the present case, it can be seen that the
parties were formed to tap into favourable business conditions of the Orientan market.

Communication evidence

100
Shailesh Kumar v. Tata Chemicals Ltd., Case No. 66/2011, CCI,
101
Coleman v. Cannon Oil Co., 849 F.Supp.1458.
102
In Re: High Fructose Corn Syrup Antitrust Litig., 295 F.3d 662
103
Builders Association of India v. Cement Manufacturers' Association & Ors., Case No. 29/2010, CCI [
104
Christiani& Nielsen, [1969], OJ Nr. L 165/12, [
105
Christiani& Nielsen, [1969], OJ Nr. L 165/12, [

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78. Evidence must exclude the possibility that the conspirators acted independently, in
other words, a plaintiff must show inference of conspiracy is reasonable in light of the
competing inferences of independent action.

The conduct of parties has not caused AAEC.

79. In a case where no contravention of provisions of Section 3(3) of the Act has been
established and no cogent evidence is made available which can establish the
contravention, presumption of AAEC does not arise106. The non-competitive nature of
a market, standing alone, does not imply an ‘agreement’. Interdependent behaviour is
not an agreement, even in an oligopolistic market, in the absence of which, factors of
Section 19(3) of the Act are also not attracted. 107In the present case the strategy
followed by AKK Mobi Ltd, VVNR Celtec Pvt. Ltd. & ADS Techlife Pvt. Ltd. were
similar but not interdependent on each other though they had the same end goal i.e- to
hold their position in the market

PRAYER

WHEREOF IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, IT IS MOST HUMBLY PRAYED BEFORE THE SUPREME COURT OF

ORIENTA THAT THIS HON’BLE COURT MAY BE PLEASED TO HOLD AND DECLARE:

1. That Supreme Court of Orienta does not have the jurisdiction to hear this case.

2. That the acts of CEI and UTCE have abused its dominance in the relevant market
through predatory pricing.

3. That the acts and omissions on part of CEI were sufficient to conclude that they
entered in an Anti-Competitive Agreement.

4. That AKK Mobi Ltd, VVNR Celtec Pvt. Ltd. & ADS Techlife Pvt. Ltd. Does not
formed cartelization and not entered into an Anti-Competitive Agreement.

AND ALSO, MAY PASS ANY OTHER ORDER THAT THE COMMISSION MAY DEEM FIT.
106
In Re: Federation of Indian Airlines, Case No. RTPE 3/2008, CCI; Chief Materials Manager v. Milton
Industries Ltd., Reference Case No. 02/2014, CCI.
107
Shailesh Kumar v. Tata Chemicals Limited, Case No. 66/2011, CCI.

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FOR THIS ACT OF KINDNESS, THE COUNSELS ON BEHALF OF THE APPELLANT SHALL
DULY BOUND FOREVER PRAY.

Sd/-
(Counsel on behalf of appellant)

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