XIV ILNU ANTITRUST MOOT COURT COMPETITION, 2025

COMPENDIUM for RESPONDENT NO. 2 TEAM CODE: CARTIER_R

Before

THE HON’BLE NATIONAL COMPANY LAW APPELLATE TRIBUNAL OF INDRI

UNDER § 53B OF THE COMPETITION ACT, 2002

COMPETITION APPEAL (AT) 16 OF 2024

AI DEVELOPERS FORUM APPELLANT NO.

1

FANTASTIC INNOVATIONS APPELLANT NO.

2

STARK INDUSTRIES APPELLANT NO.

3

versus

COMPETITION COMMISSION OF INDRI RESPONDENT NO.

1

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NOVA A.I. PVT. LTD. RESPONDENT NO.
2

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 TABLE OF CONTENTS

Balasubramanian v. M. Arockiasamy, (2021) 12 SCC 529 (India)...........................................4

Bangalore Woollen Cotton and Silk Mills Corp. Ltd. v. B. Dasappa, AIR 1960 SC 1352
(India).........................................................................................................................................4

Cadila Healthcare Ltd. v. Competition Comm’n of India, 2018 SCC OnLine Del 11229
(India).........................................................................................................................................4

Christophe Carugati, The Generative AI Challenges for Competition Authorities, 59

INTERECONOMICS 14 (2024).......................................................................................................5

Competition Comm’n of India Regulations, 2024.....................................................................5

Competition Comm’n of India v. Artistes & Technicians of W.B. Film & Television, (2017)
5 SCC 17 (India)........................................................................................................................7

Competition Comm’n of India v. Steel Auth. of India Ltd., (2010) 10 SCC 744 (India)........10

Crowder v. LinkedIn Corp., No. 22-cv-00237-HSG (N.D. Cal. Mar. 8, 2023).......................11

Dhanraj Pillay v. Hockey India, [2013] CCI 35 (India)...........................................................12

Flipkart Internet Pvt. Ltd. v. Competition Comm’n of India, W.A. No. 562/2021 and W.A.
No. 563/2021 (Karnataka High Court July 23, 2021) (India)..................................................12

Ghanshyam Dass Vij v. Bajaj Corp. Ltd., 2015 SCC OnLine CCI 174 (India)......................13

GMR Hyderabad Int’l Airport Ltd. v. Competition Comm’n of India, 2022 SCC OnLine TS
2659 (India)..............................................................................................................................13

Google LLC v. Competition Comm’n of India, 2023 SCC OnLine NCLAT 147 (India).......18

Gujarat Indus. Power Corp. Ltd. v. Competition Comm’n of India, 2016 SCC OnLine Comp
AT 404 (India)..........................................................................................................................18

HT Media Ltd. v. Super Cassettes Indus. Ltd., 2014 SCC OnLine CCI 120 (India)...............19

Humza Naveed et al., A Comprehensive Overview of Large Language Models, ARXIV (2023),
[Link]

Hyundai Motor India Ltd. v. Competition Comm’n of India, 2018 SCC OnLine NCLAT 513
(India).......................................................................................................................................21

Jitendra Bathla v. DLF Gayatri Developers, 2023 SCC OnLine CCI 16 (India).....................22

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Madhusudan Das v. Narayanibai, (1983) 1 SCC 35 (India)....................................................25

Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79 (India)..................................................26

Meloria Meschi, Montek Mayal, & Avinash Mehrotra, Assessing the Importance of Market
Power in Competition Investigations, COMPETITION COMMISSION OF INDIA (2018),
[Link]
[Link].................................................26

Narinder Singh v. State of Punjab, (2000) 4 SCC 603 (India).................................................26

Naseema v. Ramlath Seythudeen, 2013 SCC OnLine Ker 3640 (India).................................27

Nirmal Kumar Manshani v. Ruchi Soya Indus. Ltd., 2016 SCC OnLine CCI 81 (India).......27

Oracle Am., Inc. v. Google Inc., 810 F. Supp. 2d 1002 (N.D. Cal. 2011)...............................28

Perfect Infraengineers Ltd. v. L.G. Elecs. India (P) Ltd., 2023 SCC OnLine CCI 13 (India).29

Reprographic India v. Competition Comm’n of India, 2019 SCC OnLine NCLAT 729 (India)
..................................................................................................................................................29

Saint Gobain Glass India Ltd. v. Gujarat Gas Co. Ltd., 2015 SCC OnLine CCI 65 (India).. .31

Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 (India).........................................32

Shamsher Kataria v. Honda Siel Cars India, 2014 SCC Online CCI 95 (India)......................33

Singhania & Partners LLP v. Microsoft Corp. India, (P) Ltd., [2012] Comp AT 238 (India) 34

Synco Indus. Ltd. v. Hero FinCorp Ltd., 2023 SCC OnLine CCI 21 (India)..........................34

Toloka Team, Difference between AI, ML, LLM, and Generative AI, TOLOKA (Aug. 27,
2023), <[Link]

Vijay Halder v. Chetan, 2024 SCC OnLine CCI 5 (India)......................................................36

Vithal Kashinath Bhor v. Ramchandra Gopala Tembekar, 2016 SCC OnLine Bom 9494
(India).......................................................................................................................................36

Xiang Li et al., FLM-101B: An Open LLM and How to Train It with $100K Budget, ARXIV
(2023), [Link]

XYZ (Confidential) v. H.N.B. Garhwal Univ., 2023 SCC OnLine CCI 24 (India)................37

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Balasubramanian v. M. Arockiasamy, (2021) 12 SCC 529 (India)
13.2. In Ramathal v. Maruthathal [(2018) 18 SCC 303], the issue considered was as to
whether the High Court was wrong in interfering with the question of fact in the second
appeal. It was a case where both the courts below had arrived at a concurrent finding of fact
and both the courts had disbelieved the evidence of witnesses. In such a case where such
concurrent factual finding was rendered by two courts and in such situation, it had been
interfered by the High Court in a second appeal, this Court was of the view that the
interference was not justified. However, it is appropriate to notice that in the said decision
this Court had also indicated that such restraint against interference is not an absolute rule but
when there is perversity in findings of the court which are not based on any material or when
appreciation of evidence suffers from material irregularity the High Court would be entitled
to interfere on a question of fact as well.

Bangalore Woollen Cotton and Silk Mills Corp. Ltd. v. B. Dasappa, AIR 1960 SC 1352
(India)
9. The matter was again considered in Martin Burn Ltd. v. R.N. Banerjee [(1958) SCR 514,
530] where this Court observed, after setting out the materials on the record in that case:
“The Labour Appellate Tribunal had to determine on these materials whether
a prima facie case had been made out by the applicant for the termination of
the respondent's service. A prima facie case does not mean a case proved to
the hilt but a case which can be said to be established if the evidence which is
led in support of the same were believed. While determining whether a prima
facie case had been made out the relevant consideration is whether on the
evidence led it was possible to arrive at the conclusion in question and not
whether that was the only conclusion which could be arrived at on that
evidence.”

Cadila Healthcare Ltd. v. Competition Comm’n of India, 2018 SCC OnLine Del 11229
(India)
36. A plain reading of Section 26(1) shows that at the opinion formation stage regarding
existence of a prima facie case needing investigation, CCI should consider the contents of
inter alia, information supplied under Section 19(1)(a) and the documents, if any, received
with the reference or information. This is a sine qua non for a direction to the DG to
investigate into the matter. Consequently while exercising power under Section 26(1), CCI
cannot adjudicate upon the merits and de-merits of the allegations in the information. If after
examining the contents of the reference or information, the Commission finds that the
material produced along with it is not sufficient for forming an opinion about the existence or
otherwise of a prima facie case or it wants some clarification on any particular aspect of the
matter/issue, it seeks a preliminary conference and invites the complainant/information or
other person as is considered necessary for the preliminary conference (Regulation 17 of the
2009 regulations). Thereafter, CCI can pass an order under Section 26(1) briefly stating the

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reasons for forming an opinion regarding existence of a prima facie case warranting DG's
investigation.

Christophe Carugati, The Generative AI Challenges for Competition Authorities , 59

INTERECONOMICS 14 (2024)
Nevertheless, running and deploying GenAI requires developers to access three main
components in the value chain: computing resources, machine learning models and data
(Carugati, 2023b). Despite various players in the field, certain sectors face competition
concerns due to market features and potential issues, such as tying.
Computing resources, including graphic cards and cloud computing, are pivotal in the
development and deployment of machine learning models. However, access to these
resources is primarily provided by a limited number of tech firms. To secure access, some
model developers enter into partnerships with large cloud computing providers, exchanging
access to their models for access to cloud computing resources. Although these collaborations
might foster competition, they may also give rise to problematic practices such as tying
(Carugati, 2023c).
Machine learning models generate output based on input data, such as text, images, videos or
music. Despite claims that models are concentrated in the hands of a few large online
platforms (Coyle, 2023), there is no substantive evidence supporting this assertion. On the
contrary, thousands of closed-source and open-source models compete on various parameters
like task requirements, language specifications and model size.
Data, another essential component, raises concerns about a potential competitive advantage
for models provided by large online platforms with access to vast proprietary datasets
(Riekeles and von Thun, 2023). However, as in the case of models, there is no substantive
evidence supporting this concern. Model developers can leverage thousands of public and
proprietary datasets, differentiated based on task requirements, language specifications and
domain specificity.
Computing Resources:
The cloud computing sector is an essential infrastructure for deploying models (Carugati,
2023c). Cloud computing providers and model developers nurture a close, interdependent
relationship. Model developers need cloud computing providers to run and deploy their
models at scale without investing in the infrastructure. Accordingly, some cloud providers
have established partnerships with model developers (see, e.g. Microsoft Corporate Blogs,
2023).
Partnerships take various forms. Some are exclusive, like the partnership between Microsoft
and OpenAI, while others are non-exclusive, like the partnership between Amazon and
Anthropic (Anthropic, 2023). The partnership generally enables the cloud computing
provider to invest in cloud infrastructure. Some providers even develop an infrastructure
dedicated to the partners’ needs, as Microsoft did by developing a specific computer to run
OpenAI models (Langston, 2020). In exchange, the cloud provider can host, exclusively or
non-exclusively, the partner on its cloud service and use the models in related services.

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Competition Comm’n of India Regulations, 2024
10. Contents of information or the reference.
(1) The information or reference filed under section 19 of the Act shall, inter alia, separately
and categorically state the following in seriatum-
(a) legal name of the person or the enterprise giving the information or the reference;
(b) complete postal address in India for delivery of summons or notice by the
Commission, with Postal Index Number (PIN) code;
(c) contact details (telephone number, mobile number including country/ city/ area code,
electronic mail address);
(d) legal name and address of the counsel or other authorized representative, if any; and
(e) legal name and address(es) of the enterprise(s) alleged to have contravened the
provisions of the Act.
(2) The information or reference referred to in sub-regulation (1) shall contain –
(a) a statement of facts with chronology of events;
(b) details of the alleged contraventions of the Act together with a list enlisting all
documents, affidavits and evidence, as the case may be, in support of each of the
alleged contraventions;
(c) the date on which the cause of action had arisen;
(d) a succinct narrative in support of the alleged contraventions;
(e) whether same or substantially same facts and issues raised in the information or
reference, as the case may be, have already been decided by the Commission in any of
its previous order(s), along with details thereof;
(f) relief sought, if any;
(g) details of litigation or dispute pending, if any, between the informant and parties
before any court, tribunal, statutory authority or arbitrator in respect of the subject
matter of information; and
(h) such other particulars as may be required by the Commission.
(3) If the information or reference referred to in sub-regulation (1) is filed after three years
from the date on which the cause of action had arisen, it shall be accompanied with an
interlocutory application seeking condonation of delay demonstrating sufficient cause for the
delay, together with applicable fee in terms of sub-regulation (2) of regulation 50 of these
regulations.
(4) The contents of the information or the reference mentioned under sub-regulations (1) and
(2), along with the appendices and attachments thereto, as well as application under sub-
regulation (3), shall be complete and duly supported with an affidavit of the person
submitting it duly verifying the contents of the same.
17. Opinion on existence of prima facie case.
(1) The Secretary, after scrutiny and removal of defects, if any, in an information or
reference, as the case may be, shall place the same before the Commission to form its opinion
on the existence of a prima facie case.
(2) In cases of alleged anti-competitive agreements and/ or abuse of dominant position, the
Commission shall, as far as possible, record its opinion on the existence of a prima facie case
within 60 (sixty) days.

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(3) The Commission shall, as far as possible, hold its first ordinary meeting to consider
whether prima facie case exists, within 15 (fifteen) days of the date of placement of the
matter by the Secretary under sub-regulation (1).

Competition Comm’n of India v. Artistes & Technicians of W.B. Film & Television,
(2017) 5 SCC 17 (India)
32. While inquiring into any alleged contravention, whether by the Commission or by the
DG, and determining whether any agreement has an appreciable adverse effect on
competition under Section 3, factors which are to be taken into consideration are mentioned
in sub-section (3) of Section 19, which are as follows:
33. The word “market” used therein has reference to “relevant market”. As per sub-section
(5) of Section 19, such a relevant market can be a relevant geographic market or relevant
product market. The factors which are to be kept in mind while determining the relevant
geographic market are stipulated in sub-section (6) of Section 19 and the factors which need
to be considered while determining the relevant product market are prescribed in sub-section
(7) of Section 19. These two subsections read as under:
“19. (6) The Commission shall, while determining the “relevant geographic market”, have
due regard to all or any of the following factors, namely—
(a) regulatory trade barriers;
(b) local specification requirements;
(c) national procurement policies;
(d) adequate distribution facilities;
(e) transport costs;
(f) language;
(g) consumer preferences;
(h) need for secure or regular supplies or rapid after-sales services.
(7) The Commission shall, while determining the “relevant product market”, have due regard
to all or any of the following factors, namely—
(a) physical characteristics or end use of goods;
(b) price of goods or service;
(c) consumer preferences;
(d) exclusion of in-house production;
(e) existence of specialised producers;
(f) classification of industrial products.”
It is for this reason, the first and foremost aspect that needs determination is: “What is the
relevant market in which competition is affected?”
34. Market definition is a tool to identify and define the boundaries of competition between
firms. It serves to establish the framework within which competition policy is applied by the
Commission. The main purpose of market definition is to identify in a systematic way the
competitive constraints that the undertakings involved face. The objective of defining a
market in both its product and geographic dimension is to identify those actual competitors of
the undertakings involved that are capable of constraining those undertakings behaviour and
of preventing them from behaving independently of effective competitive pressure.
35. Therefore, the purpose of defining the “relevant market” is to assess in a systematic way
the competitive constraints that undertakings face when operating in a market. This is the
case in particular for determining if undertakings are competitors or potential competitors and

8
when assessing the anti-competitive effects of conduct in a market. The concept of relevant
market implies that there could be an effective competition between the products which form
part of it and this presupposes that there is a sufficient degree of interchangeability between
all the products forming part of the same market insofar as specific use of such product is
concerned.
36. While identifying the relevant market in a given case, CCI is required to look at evidence
that is available and relevant to the case at hand. CCI has to define the boundaries of the
relevant market as precisely as required by the circumstances of the case. Where appropriate,
it may conduct its competition assessment on the basis of alternative market definitions.
Where it is apparent that the investigated conduct is unlikely to have an adverse effect on
competition or that the undertaking under investigation does not possess a substantial degree
of market power on the basis of any reasonable market definition, the question of the most
appropriate market definition can even be left open.
37. The relevant market within which to analyse market power or assess a given competition
concern has both a product dimension and a geographic dimension. In this context, the
relevant product market comprises all those products which are considered interchangeable or
substitutable by buyers because of the products' characteristics, prices and intended use. The
relevant geographic market comprises all those regions or areas where buyers would be able
or willing to find substitutes for the products in question. The relevant product and
geographic market for a particular product may vary depending on the nature of the buyers
and suppliers concerned by the conduct under examination and their position in the supply
chain. For example, if the questionable conduct is concerned at the wholesale level, the
relevant market has to be defined from the perspective of the wholesale buyers. On the other
hand, if the concern is to examine the conduct at the retail level, the relevant market needs to
be defined from the perspective of buyers of retail products.
38. It is to be borne in mind that the process of defining the relevant market starts by looking
into a relatively narrow potential product market definition. The potential product market is
then expanded to include those substituted products to which buyers would turn in the face of
a price increase above the competitive price. Likewise, the relevant geographic market can be
defined using the same general process as that used to define the relevant product market.
39. Bearing in mind the aforesaid considerations, we concur with the conclusion of the
Tribunal. It is the notion of “power over the market” which is the key to analysing many
competitive issues. Therefore, it becomes necessary to understand what is meant by the
relevant market. This concept is an economic one.
40. In the instant case, the geographic market is the State of West Bengal and to this extent
there is no quarrel as much as activities of the Coordination Committee were limited to the
said State. The dispute is as to whether the relevant market would cover “broadcast of TV
serial” or it would take within its sweep “film and TV industry of the State of West Bengal”.
The TV serial in question was produced in Hindi. It was thereafter dubbed in Bangla. When
the two channels, namely, CTVN+ and Channel 10, decided to broadcast this TV serial in
dubbed form i.e. in Bangla language, this move was opposed by the Coordination Committee
and Eimpa. The Tribunal has upheld the minority view of CCI in saying that nature of the
information does not show anything which could even be distinctly connected with the whole
“film and television industry in the State of West Bengal”. The information is only against
showing the dubbed serial on the television and it has no relation whatsoever with
production, distribution, etc. of any film or any other material on the TV channels.

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41. We feel that this is a myopic view taken by the Tribunal which ignores many other vital
aspects of this case, most important being the width of the effect of the aforesaid cause on
which the agitation was led by the Coordination Committee. The effect is not limited to the
telecast or broadcast of the television serial. No doubt, the Coordination Committee was
against the broadcast of the television serial “Mahabharat” on the aforesaid two channels, in
the dubbed form. However, even as per the agitators, the said broadcast was going to
adversely affect the TV and film industry of West Bengal and the alleged purport behind the
threats was to save the entire TV and film industry. The Coordination Committee itself
mentioned so in its letter dated 18-2-2012 as under:
“We came to know that you are publicising in your channel that Bengali dubbed
version of “Mahabharat” will be telecasted in your channel, shortly this is for your
kind information that the whole TV and film industry had fought back ruthlessly
against telecast of Bengali dubbed versions of Hindi serials in DD-1 slot in 1997 and
since that agitation DD National network has stopped telecasting any Bengali dubbed
version of Hindi programmes. At the same time, it is to be noted that the film industry
was also successful in debarring the release of Bengali dubbed version of Hindi
Movie “Luv Kush” produced by Mr Dilip Kankaria of Deluxe Films in the year 1997.
We have done this to stop withering away of the prestigious and internationally
acclaimed Bengali film and television industry, thereby creating job for artistes,
workers and allied people associated with this industry.
Hence, we would request you to stop telecast of dubbed Bengali version of
“Mahabharat” in your channel.”
(emphasis supplied)
42. The relevant market was, therefore, not limited to the broadcasting of the channel but the
entire film and television industry of West Bengal. Whether it was the misgiving of the
Coordination Committee that telecast of dubbed version of “Mahabharat” is going to affect
Bengali film and television industry or it was a genuine concern, is not the relevant factor
while defining the “relevant market” [ It may be observed that majority view of CCI has
rejected the plea of the Coordination Committee as well as Eimpa that allowing the dubbed
film will take away jobs from Bengali artistes according to CCI: “If the Bengali films and TV
serials are preferred over the non-Bengali content as a result of competitive process,
ultimately the Bengali artistes will get benefited. The protectionist policies which are being
followed will not come to the aid of Bengali artistes, if on content they cannot compete. Such
policies are antithesis of the principles of free market.”] . It is the sweep of the aforesaid
action which is to be considered. Even in the perception of the Coordination Committee,
telecast of the Bengali dubbed version of “Mahabharat” was going to affect the whole
television and film industry. In view thereof, it was hardly a matter of debate as to what
would be the relevant market.
44. At the outset, it may be noticed that the entities which are roped in, whose agreements can
be offending, are enterprise or association of enterprises or person or association of persons
or where the agreement is between any person and an enterprise. The expression “enterprise”
may refer to any entity, regardless of its legal status or the way in which it was financed and,
therefore, it may include natural as well as legal persons. This statement gets further
strengthened as the agreement entered into by a “person” or “association of persons” are also
included and when it is read with the definition of “person” mentioned in Section 2(l) of the
Act. Likewise, the definition of “agreement” under Section 2(b) is also very widely worded.
Not only it is inclusive, as the word “includes” therein suggests that it is not exhaustive, but

10
also any arrangement or understanding or even action in concert is termed as “agreement”. It
is irrespective of the fact that such arrangement or understanding is formal or informal and
the same may be oral as well and it is not necessary that the same is reduced in writing or
whether it is intended to be enforceable by legal proceedings or not. Therefore, the
Coordination Committee would be covered by the definition of “person”. However, what is
important is that such an “agreement”, referred to in Section 3 of the Act has to relate to an
economic activity which is central to the concept of Competition Law. Economic activity, as
is generally understood, refers to any activity consisting of offering products in a market
regardless of whether the activities are intended to earn a profit. Some examples may be
given which would not be covered by Section 3(3) of the Act. An individual acting as a final
consumer is not an enterprise or a person envisaged, as he is not carrying on an economic
activity.

Competition Comm’n of India v. Steel Auth. of India Ltd., (2010) 10 SCC 744 (India)
21. When such information is received, the Commission is expected to satisfy itself and
express its opinion that a prima facie case exists, from the record produced before it and then
to pass a direction to the Director General to cause an investigation to be made into the
matter.
31. The Commission is expected to form such prima facie view without entering upon any
adjudicatory or determinative process. The Commission is entitled to form its opinion
without any assistance from any quarter or even with assistance of experts or others. The
Commission has the power in terms of Regulation 17(2) of the Regulations to invite not only
the information provider but even ‘such other person’ which would include all persons, even
the affected parties, as it may deem necessary. In that event it shall be ‘preliminary
conference’, for whose conduct of business the Commission is entitled to evolve its own
procedure.
37. As already noticed, in exercise of its powers, the Commission is expected to form its
opinion as to the existence of a prima facie case for contravention of certain provisions of the
Act and then pass a direction to the Director General to cause an investigation into the matter.
These proceedings are initiated by the intimation or reference received by the Commission in
any of the manners specified under Section 19 of the Act. At the very threshold, the
Commission is to exercise its powers in passing the direction for investigation; or where it
finds that there exists no prima facie case justifying passing of such a direction to the Director
General, it can close the matter and/or pass such orders as it may deem fit and proper. In
other words, the order passed by the Commission under Section 26(2) is a final order as it
puts an end to the proceedings initiated upon receiving the information in one of the specified
modes. This order has been specifically made appealable under Section 53-A of the Act.
38. In contradistinction, the direction under Section 26(1) after formation of a prima facie
opinion is a direction simpliciter to cause an investigation into the matter. Issuance of such a
direction, at the face of it, is an administrative direction to one of its own wings
departmentally and is without entering upon any adjudicatory process. It does not effectively
determine any right or obligation of the parties to the lis. Closure of the case causes
determination of rights and affects a party i.e. the informant; resultantly, the said party has a
right to appeal against such closure of case under Section 26(2) of the Act. On the other hand,

11
mere direction for investigation to one of the wings of the Commission is akin to a
departmental proceeding which does not entail civil consequences for any person,
particularly, in light of the strict confidentiality that is expected to be maintained by the
Commission in terms of Section 57 of the Act and Regulation 35 of the Regulations.
97. At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the
Commission may not really record detailed reasons, but must express its mind in no uncertain
terms that it is of the view that prima facie case exists, requiring issuance of direction for
investigation to the Director General. Such view should be recorded with reference to the
information furnished to the Commission. Such opinion should be formed on the basis of the
records, including the information furnished and reference made to the Commission under the
various provisions of the Act, as afore-referred. However, other decisions and orders, which
are not directions simpliciter and determine the rights of the parties, should be well reasoned
analyzing and deciding the rival contentions raised before the Commission by the parties. In
other words, the Commission is expected to express prima facie view in terms of Section
26(1) of the Act, without entering into any adjudicatory or determinative process and by
recording minimum reasons substantiating the formation of such opinion, while all its other
orders and decisions should be well reasoned.

Crowder v. LinkedIn Corp., No. 22-cv-00237-HSG (N.D. Cal. Mar. 8, 2023)

Pg. *4. The first category of alleged anticompetitive conduct is entering “agreements with
hand-selected ‘partners’ to purchase user data through LinkedIn's APIs.” Opp. at 6; Compl.
¶¶ 22–24, 261-87. The complaint describes APIs as interfaces that allow developers to
request and receive information from LinkedIn, and as a way “for developers to build apps
that could interact with LinkedIn's network of professionals.” Compl. ¶¶ 188–96. Plaintiffs
allege that in 2015, LinkedIn stopped offering general access to its APIs and began requiring
that developers apply and register to become API “partners.” Id. ¶¶ 199–207. Since then,
LinkedIn allegedly sells data to these selected, unidentified “partners.” Id. ¶¶ 261–65.
Plaintiffs assert that these data sale agreements provide no value to Premium subscribers,
who cannot opt out, and that the exposure of this data is a “massive security vulnerability.”
Id. ¶¶ 23, 266–87.
Although Plaintiffs' complaint is long on facts about the security and privacy risks of API
access, it does not plausibly allege a theory for why the practice of sharing data through APIs
with partners is anticompetitive. Putting aside whether the practice of selling data is
desirable, it is unclear how increasing access to data fortifies a barrier to market entry that
includes, as one of its primary components, a “critical mass of user data.” See id. ¶¶ 212–28.
As Defendant points out, Plaintiffs themselves endorse the argument that the restriction of
data increases the barrier. See, e.g., Opp. at 12 (arguing that restricting access to public data
prevents potential competitors from “gaining a data foothold”). Plaintiffs' arguments in
opposition to the motion shed no light on the question. Plaintiffs seem to simultaneously
imply that Defendant should not be providing API access at all because of the security risks,
and that restricting access to selected partners “prevent[s] rivals or potential entrants from
obtaining LinkedIn user data.” See Opp. at 7.

12
Plaintiffs also have not plausibly alleged that the way Defendant provides access to its APIs
is anticompetitive. To the extent Plaintiffs argue that “hand-selecting” undisclosed partners—
as opposed to allowing general API access—is exclusionary, it is well established that there
is no “duty to deal” with one's rivals except under narrowly limited circumstances. See
Qualcomm Inc., 969 F.3d at 993. “The Sherman Act aims to preserve the right of freedom to
trade, and it does not infringe upon a company's right freely to exercise [its] own independent
discretion as to parties with whom [it] will deal.” [Link], LLC v. Google LLC, 54
F.4th 1130, 1141 (9th Cir. 2022) (quotations omitted). Plaintiffs make no effort to establish
that the API agreements fall into the narrow exception to this rule. See Aerotec Int'l, Inc., 836
F.3d at 1184 (citing Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585
(1985)). Nor do the API agreements constitute “exclusive dealing,” because they do not
involve “an agreement between a seller and a buyer where the buyer agrees to purchase only
the seller's product and refrains from doing business with the seller's competition.” See
Simon & Simon, PC v. Align Tech., Inc., 533 F. Supp. 3d 904, 915 (N.D. Cal. 2021).
Pg. *5. Plaintiffs also argue that the specific terms of the API agreements are anticompetitive.
Opp. at 8–9. But there are no allegations in the complaint to support this theory: the
complaint does not address or describe the API terms of use at all. See Broam v. Bogan, 320
F.3d 1023, 1026 n.2 (9th Cir. 2003) (noting that courts “may not look beyond the complaint
to a plaintiff's moving papers” in deciding a Rule 12(b)(6) motion to dismiss, and that facts
raised for the first time in opposition should be considered only in deciding whether to grant
leave to amend).
Because Plaintiffs will have a chance to amend, the Court notes for the sake of efficiency
that, at least as currently described in the opposition, the API terms of use do not constitute
“exclusive dealing” or other anticompetitive conduct. The terms appear to prohibit API users
from getting LinkedIn data from third parties or through particular methods, such as scraping
and crawling. See Opp. at 9. Plaintiffs do not allege that the terms prevent developers from
dealing with competitors altogether. They also do not explain why what appears to be “a
focused prohibition” on the means of access to LinkedIn's own data rises to the level of
market interference that would violate Section 2. See New York v. Facebook, 549 F. Supp.
3d 6, 31–34 (D.D.C. 2021) (rejecting a “conditional dealing” theory based on an API access
policy because it was a “far cry” from a policy requiring that developers only build apps for
Facebook).
In sum, Plaintiffs have not plausibly alleged that Defendant's API agreements constitute
anticompetitive conduct, whether because Defendant offers access to data in the first place,
restricts access to select “partners,” or imposes the terms of use Plaintiffs describe.

Dhanraj Pillay v. Hockey India, [2013] CCI 35 (India)

10.13.3. There the Commission held that for concluding that a vertical agreement has caused
an appreciable adverse effect on competition, the person imposing the vertical restriction
should be in a dominant position and the intent behind the restriction should be foreclosure,
without any obvious efficiency justifications.

13
Flipkart Internet Pvt. Ltd. v. Competition Comm’n of India, W.A. No. 562/2021 and
W.A. No. 563/2021 (Karnataka High Court July 23, 2021) (India)
33. The CCI has found out a prima facie case for initiating the process and motion. The
‘prima facie case’ as defined in the case of Management of the Bangalore Woollen Cotton
and Silk Mills Co. Ltd., v. B. Dasappa, reported in AIR 1960 SC 1352, reads as under:
“9. A prima facie case does not mean a case proved to the hilt but a case
which can be said to be established if the evidence which is led in support of
the same were believed. While determining whether a prima facie case had
been made out the relevant consideration is whether on the evidence led it
was possible to arrive at the conclusion in question and not whether that was
the only conclusion which could be arrived at on that evidence.” In the
aforesaid case, the Hon'ble Supreme Court has placed reliance upon its
earlier judgment delivered in the case of Martin Burn Ltd., v. R.N. Banerjee,
reported in 1958 SCR 514. Keeping in view the aforesaid definition of prima
facie case and after going through the material on record, this Court is of the
opinion that the CCI has rightly exercised its jurisdiction based upon the
prima facie information on receipt of a complaint and therefore, in the
considered opinion of this Court, the quashment of the same does not arise.”

Ghanshyam Dass Vij v. Bajaj Corp. Ltd., 2015 SCC OnLine CCI 174 (India)
75. Before analyzing whether the alleged conduct of OP-1 caused appreciable adverse effect
on competition, it will be important at this stage to appreciate as to what is exclusive
distribution agreement and how it affects the market. Exclusive distribution agreement in
broader sense means an arrangement between the supplier and distributor wherein the
distributor sells the product/s within a defined area or to a particular group / category of
customers. Such arrangements particularly affect intra-brand competition as they restrict
entry of another player into the market. It may also affect the inter-brand competition since
the outlets of distribution are limited thereby impeding competition amongst players engaged
in several similar services. However, it may be noted that such arrangement can be
objectively justified on certain grounds like protection from free riding, efficient management
of sales of products, economic efficiency, etc.
81. It should be noted that as per the provisions of section 3(4) of the Act, only agreements
which cause or are likely to cause an Appreciable Adverse Effect on Competition (AAEC) on
competition in India shall be within the discipline of section 3(1) of the Act. Hence, in order
to determine if the agreements entered between OP-1 and the authorized dealers are in the
nature of an „exclusive distribution agreement‟ or „refusal to deal‟ or „resale price
maintenance‟ under section 3(4)(c) and 3(4)(d) and 3(4)(e) of the Act respectively, the
Commission needs to determine if such agreements cause an AAEC in the market based upon
the factors listed in section 19(3) of the Act. It is pertinent to note that clauses (a)- (c) of
section 19(3) deal with factors which restrict the competitive process in the markets where
the agreements operate (negative factors) while clauses (d)-(f) deal with factors which
enhance the efficiency of the distribution process and contribute to consumer welfare
(positive factors). An agreement which creates barriers to entry may also induce
improvements in promotion or distribution of goods or vice-versa. Thus, whether an
agreement restricts the competitive process is always an analysis of the balance between the

14
positive and the negative factors listed under section 19 (3)(a)-(f). Even considering the effect
of the impugned agreement on the touchstone of factors elucidated under section 19(3) of the
Act, the Commission is of the view that the DG has not been able to demonstrate
satisfactorily that the impugned agreements are adversely affecting the competition in the
markets. It is not conclusively borne out that the arrangements have either created entry
barriers for new entrants or drove existing competitors out of the market, nor is there any
appreciable effect on the benefits accruing to the ultimate consumers.

GMR Hyderabad Int’l Airport Ltd. v. Competition Comm’n of India, 2022 SCC
OnLine TS 2659 (India)
21. Further, a Division Bench of the Karnataka High Court in Flipkart Internet Pvt. Ltd. v.
CCI explained the scope of prima facie opinion under S.26(1) and the limited interference of
High Courts under Article 226 of the Constitution of India. It is relevant to note that the said
decision of the Division Bench was upheld by the Supreme Court vide order dated
09.08.2021 in SLP(C) No. 11558 of 2021. The relevant paragraphs are extracted below:
19. The Hon'ble Supreme Court has held that in order to avoid anti
competitive agreements, which causes harm to consumers by fixing the prices,
limits outputs or allocating the markets, the Indian Parliament has enacted
Competition Act 2002. The competition law enforcement deals with
anticompetitive practices and in those circumstances, once the CCI forms a
prima facie opinion on receipt of a complaint which is given under Section
26(1) of the Act of 2002, directs the Director General to conduct an
investigation, at that initial stage, it cannot foresee and predict whether any
violation of the Act would be found upon investigation and what would be the
nature of violation revealed through investigation. If the investigation process
is to be restricted in the manner projected by the appellants, it would defeat
the very purpose of the Act, which is to prevent practices having appreciable
adverse effect on the competition. Therefore, at this stage, in the considered
opinion of this Court, the issues and grounds raised in respect of
anticompetitive practices as argued by the learned counsel for the appellants
does not arise. The appellants are certainly entitled for opportunity of hearing
as provided under the Statute and the present petitions/appeals are certainly
premature.
21. In the light of the aforesaid, in order to achieve the object of the Act of
2002, the question of interference does not arise. The appellants do have a
right to participate in the proceedings and/or under an obligation to produce
all the material as desired during the enquiry by the Director General. The
appellants want to crush the proceedings at a preliminary stage in a similar
manner like quashing of FIR as prayed in a petition filed under Section 482 of
the Cr.P.C. Earlier, almost in every criminal case, petitions were filed for
quashment of the First Information Report (FIR) and in those circumstances,
the Hon'ble Supreme Court has laid down parameters for quashment of the
criminal proceedings/FIR in the case of State of Haryana v. Bhajan Lal,

15
reported in 1992 Supp (1) SCC 335 : AIR 1992 SC 604. Similarly, in Revenue
matters as well as in case of violation of other Statutes on issuance of show
cause notices, the aggrieved persons started rushing to Courts and in those
circumstances, the Hon'ble Supreme Court in the case of Union of India v.
Kunisetty Satyanarayana, reported in (2006) 12 SCC 28, has passed the
following:
“13. It is well settled by a series of decisions of this Court that
ordinarily no writ lies against a charge sheet or show-cause
notice vide Executive Engineer, Bihar State Housing Board v.
Ramesh Kumar Singh ((1996) 1 SCC 327 : JT (1995) 8 SC
331), Special Director v. Mohd. Ghulam Ghouse ((2004) 3
SCC 440 : AIR 2004 SC 1467), Ulagappa v. Divisional
Commissioner, Mysore ((2001) 10 SCC 639), State of U.P. v.
Brahm Datt Sharma ((1987) 2 SCC 179 : AIR 1987 SC 943)
etc.
14. The reason why ordinarily a writ petition should not be
entertained against a mere show-cause notice or charge-sheet is
that at that stage the writ petition may be held to be premature.
A mere charge-sheet or show-cause notice does not give rise to
any cause of action, because it does not amount to an adverse
order which affects the rights of any party unless the same has
been issued by a person having no jurisdiction to do so. It is
quite possible that after considering the reply to the show-cause
notice or after holding an enquiry the authority concerned may
drop the proceedings and/or hold that the charges are not
established. It is well settled that a writ lies when some right of
any party is infringed. A mere show-cause notice or charge-
sheet does not infringe the right of anyone. It is only when a
final order imposing some punishment or otherwise adversely
affecting a party is passed, that the said party can be said to
have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence
such discretion under Article 226 should not ordinarily be
exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High
Court can quash a charge-sheet or show-cause notice if it is
found to be wholly without jurisdiction or for some other
reason if it is wholly illegal. However, ordinarily the High
Court should not interfere in such a matter.”
22. The Hon'ble Supreme Court in the aforesaid case has held that unless and
until the show cause notice is vague or has been issued by an authority not
competent to do so, interference can be done in the matter. In the present
case, the order passed by the CCI directing an enquiry is the first stage of
initiating process under the CCI Act and the enquiry is yet to commence. The

16
appellants do not want to participate in the enquiry for the reasons best
known to them.
23. The present case is not a case where the mala fides are alleged against
the Regulator, nor there is any jurisdictional infirmity. The order passed
under Section 26(1) is neither an adjudication, nor determinative, but merely
an inquisitorial, departmental proceedings in the nature of a direction to the
Director General to make an investigation. It is neither a judicial nor a quasi
judicial proceedings as held by the Hon'ble Supreme Court in the case of CCI
v. SAIL.
24. Keeping in view Sections 19 and 26 of the Act of 2002, the order is
certainly administrative in nature and has been passed at a
preliminary/preparatory stage.
25. Learned Senior counsel appearing for the appellants have argued before
this Court that they should have been granted an opportunity of hearing by
the CCI before passing an order under Section 26 does not help the
appellants in any manner and the Statute does not provide for grant of an
opportunity of hearing before passing an order under Section 21 of the Act of
2002 and the order under Section 26(1) is passed at the pre-enquiry stage, as
held by the Hon'ble Supreme Court in the case of CCI v. SAIL. The CCI is
only required to see whether a prima facie opinion exists or not while passing
an order under Section 26(1) of the Act of 2002. The order under Section
26(1) of the Act of 2002 can be passed when there is prima facie material to
direct an enquiry and elaborate reasons are not required, as the CCI is
required to express only a tentative view. In case, elaborate reasons are
provided in the order passed under Section 26(1), it will certainly prejudice
the case of the person against whom a complaint has been made and
therefore, the Statute has provided a safeguard for holding an enquiry after
an order is passed under Section 26(1) and the Director General is certainly
required to grant an opportunity of hearing while holding an enquiry in the
matter. Therefore, the petitions filed by the appellants before the learned
Single Judge were certainly premature petitions and without permitting the
Director General of the CCI to look into various agreements executed by the
appellants with the other persons, the appellants want this Court to hold that
the appellants have not committed breach of the statutory provisions as
contained under the Act of 2002. In the considered opinion of this Court,
unless and until a detailed enquiry is conducted by the CCI, the question of
giving a finding in respect of the violation of the statutory provisions, does not
arise.
27. Keeping in view the law laid down by the Hon'ble Supreme Court in the
case of CCI v. SAIL, the order passed under Section 26(1) does not set into
motion an unstoppable process that necessarily culminates into an
adjudication against the entity against whom an enquiry is initiated. In fact,
Section 26 of the Act of 2002 read as a whole, discloses a comprehensively
and thoughtfully construed, stepwise scheme which contemplates not only a

17
fair hearing to the concerned parties at the appropriate stage, but it is
characterized by an inherent robustness by which the proceedings may
culminate in closure.
28. In the present case, earlier also there was an information submitted
against the appellants and the matter is ended in closure (AIOVA case). The
Director General after conducting an enquiry recommended closure by
submitting an investigation report and the same was accepted by the CCI.
Therefore, the appellants should not feel shy in participating in the enquiry,
which is yet to commence by the Director general and all the grounds raised
by the appellants shall be available before the Director General as well as
before the CCI. The order passed under Section 26(1) is only the starting
point of the process and the appellants want to crush the process at the
threshold and the CCI is not being permitted by the appellants to proceed
ahead in the matter.
30. The Hon'ble Supreme Court in the case of CCI v. SAIL has held that the
threshold requirement for establishing a prima facie case under Section 26(1)
is a low threshold and what constitutes a prima facie case at the stage of
Section 26(1) must be gleaned from the stand point of setting the process into
motion and not from point of view of granting any interim measure or
adjudicating the matter.
31. In the light of the aforesaid, it is apparent from a reading of the CCI order
dated 13.1.2020 that the prima facie case was in existence and keeping in
view the prima facie case, an enquiry has been ordered by passing an order
under Section 26(1) of the Act of 2002 by the CCI. In the considered opinion
of this Court, the learned Single Judge was justified in holding that the order
passed by the CCI does not warrant an interference.
32. In the considered opinion of this Court, the other ground raised in respect
of violation of Section 3 cannot be looked into as various agreements
executed by the appellants with different parties, relevant material in respect
violation of Section 3 is yet to be produced before the Director General,
hence, the petitions/appeals are premature and there cannot be an
adjudication in respect of violation of Section 3 at this stage, as argued by the
learned counsel for the appellants.
33. The CCI has found out a prima facie case for initiating the process and
motion. The ‘prima facie case’ as defined in the case of Management of the
Bangalore Woollen Cotton and Silk Mills Co. Ltd., v. B. Dasappa, reported in
AIR 1960 SC 1352, reads as under:
“9. A prima facie case does not mean a case proved to the hilt
but a case which can be said to be established if the evidence
which is led in support of the same were believed. While
determining whether a prima facie case had been made out the
relevant consideration is whether on the evidence led it was
possible to arrive at the conclusion in question and not whether
that was the only conclusion which could be arrived at on that

18
 evidence.” In the aforesaid case, the Hon'ble Supreme Court
has placed reliance upon its earlier judgment delivered in the
case of Martin Burn Ltd., v. R.N. Banerjee, reported in 1958
SCR 514. Keeping in view the aforesaid definition of prima
facie case and after going through the material on record, this
Court is of the opinion that the CCI has rightly exercised its
jurisdiction based upon the prima facie information on receipt
of a complaint and therefore, in the considered opinion of this
Court, the quashment of the same does not arise.”
24. From the above decisions, it is clear that an order passed under S. 26(1) of the Act,
directing investigation by the Director General is an administrative order passed only to
determine whether the allegations made by the informant under S. 19(1) of the Act, about
possible violations of competition law are true. Once information is received under Section
19(1) of the Act, CCI, based on the material produced by the informant, has to form a prima
facie opinion regarding the possible competition law violations. It is relevant to note that
while forming a prima facie opinion, CCI has to only determine if the allegations along with
the material produced are taken to be true, will that result in breach of competition law. CCI
cannot determine the legality or correctness of the allegations by going into the merits of the
case. It only has to see whether the allegations, prima facie, constitute violation of
competition law.

Google LLC v. Competition Comm’n of India, 2023 SCC OnLine NCLAT 147 (India)
150. From the foregoing discussion, we are of the view that conclusion of the Commission, as
recorded in Para 614.3, 614.4 and 614.5 regarding contravention of Section 4(2)(e) are based
on relevant materials and reasons which does not warrant any interference in exercise of our
appellate jurisdiction.

Gujarat Indus. Power Corp. Ltd. v. Competition Comm’n of India, 2016 SCC OnLine
Comp AT 404 (India)
21. A reading of Section 26(1) makes it clear that at the stage of forming an opinion that there
exists a prima facie case which requires investigation, the Commission is required to consider
the contents of the reference made by the Central Government or the State Government or the
statutory authority or an information filed under Section 19(1)(a) and the documents, if any,
received with the reference or information. This exercise constitutes a condition precedent for
issue of a direction to the Director General to cause an investigation to be made into the
matter necessarily implies that while exercising power under Section 26(1), the Commission
cannot adjudicate upon the merits and de-merits of the reference made by the Central
Government or the State Government or the statutory authority or the averments/allegations
contained in the information.”
22. To put it differently, the exercise required to be undertaken by the Commission for
forming an opinion whether or not there exists a prima facie case which requires
investigation, the Commission is required to take cognizance of the averments contained in
the reference or an information and the documents supplied with the reference or information.

19
In an appropriate case, the Commission may also hold preliminary conference and ask the
informant or the person against whom allegation of anti-competitive conduct has been
levelled to produce the relevant documents. In a given case, the Commission may, after
examining the contents of the reference or information and/or holding preliminary
conference, opine that there exists a prima facie case for investigation. In that event, the
Commission is required to pass an order under Section 26(1) of the Act. In another case, the
Commission may, after undertaking the exercise of examining the contents of the reference or
the information and holding preliminary conference, if any, opine that no prima facie case has
been made out warranting an investigation. In that event, the Commission may pass an order
under Section 26(2) and close the case. However, in either case the Commission cannot make
detailed examination of the allegations contained in the information or reference,
evaluate/analyse the evidence produced with the reference or information in the form of
documents and record its findings on the merits of the issue relating to violation of Section 3
and/or 4 of the Act because that exercise can be done only after receiving the investigation
report. If the reference or the information contains an allegation relating to violation of the
provisions of Section 3 and the Commission does not feel satisfied that the material placed
before it gives a prima facie indication of violation of that provision then it may close the
case under Section 26(2). Likewise, if the reference or information contains an allegation of
abuse of dominant position within the meaning of Section 4(2) and its various clauses and the
Commission finds that the material produced with the reference or information does not
prima facie show the dominance of the person against whom allegation of abuse of
dominance has been levelled, then too it may close the case under Section 26(2) of the Act.
However, as mentioned above, the Commission cannot make an adjudication on violation of
Section 3 and/or 4 of the Act.

HT Media Ltd. v. Super Cassettes Indus. Ltd., 2014 SCC OnLine CCI 120 (India)
99. Market share is an important factor in assessing dominance of an enterprise. As per the
DG Report, the opposite party owns more than half of the popular content that has become
the staple diet for music played by FM stations run by the informant. There has been a
considerable dispute between the parties as to the opposite party's market shares in the
relevant market. The opposite party has questioned the veracity of the data but it has never
requested cross-examination of any radio station though such a request is provisioned for
under the Act. The opposite party should not be allowed to question the veracity of the data
provided while at the same time having given up its right to cross-examine all the radio
stations which provided evidence.
100. Market shares in terms of playout are relevant and important basis on which dominance
can be assessed. The opposite party's own evidence shows that its market share of total
playout on 210 private FM radio stations licensed by it is between 32.5% to 34.1%. This
evidence however, includes radio stations licensed with the opposite party but which do not
play much Bollywood music, such as stations in South India which may play a few
Bollywood songs, but focus on South Indian music. Therefore, when analyzing the opposite
party's market shares in the relevant market, all stations which broadcast non-Bollywood
music should be excluded. The informant also submits that calculating market shares on the
basis of all licensed FM stations is inaccurate because radio stations licensed with the
opposite party are a better reflection of the opposite party's position in the market because

20
they are more likely to constitute the relevant market. Radio stations which play no or
minimal Bollywood music should be excluded from the relevant market. Consequently, by
reducing the number of radio stations to more accurately account for the relevant market, the
opposite party's share of the same would consequently be higher.
101. Furthermore, an analysis of the opposite party's market share based on the most popular
songs may be an even better and more accurate indicator of the opposite party's market power
as this would focus on the relevant market. Data provided by AirCheck shows that the
opposite party held rights to 46% of the top 100 songs played in 18 A category cities between
July 2011 and June 2012. It is important to reiterate that broadcasting the Top 100 and Top
20 songs per week are essential for radio stations to remain viable in the business and
therefore, highlights the market power of the opposite party.
102. The informant submitted that the opposite party acquires the rights for the maximum
number of films (almost 4 times that of its nearest competitor, YRF) and that CBFC data is
only for films certified and not released and the number of films in a year are likely to be
fewer than the number of films certified for release. Furthermore, any discrepancy between
the two is likely to be minimal and the opposite party's market share of approximately 38% as
a result of the data submitted by private FM stations is not inconsistent with the data provided
by the opposite party itself. The opposite party focuses its attention on films of bankable
‘superstars’ which maximize the possibility of the music being a hit and minimizes the risk of
losses.
170. As per the DG Report, the information gathered during the investigation has confirmed
that the radio stations are dependent upon the opposite party. The data provided by the
opposite party itself shows that as per AirCheck Top 100 and Top 20 songs/music broadcast
on radio, the opposite party owns majority of the music labels and that it has 58% share of the
top 100 songs played on private FM channels. If the radio stations were to discontinue
playing the opposite party's music, there being no demand side substitutability of latest
Bollywood songs, it would cause irreparable damage to the market share of the radio station
as customers would immediately switch to other radio stations. This aspect was confirmed by
the radio stations during the course of the investigation.
171. According to the opposite party, there is data which shows that there are many radio
stations that have not received any license from the opposite party and these radio stations are
experiencing higher growth levels than other radio stations that have licenses from the
opposite party. DG has merely relied upon statements made by radio stations to arrive at a
finding about over dependence of the radio stations on the opposite party. However,
responses filed by radio stations are contradictory and not supported by verifiable data.
172. The DG has noted that although there are no major entry barriers to become a music
company or music producer in the Indian music industry and to grant license in the relevant
market, yet in Bollywood music Industry it is not easy to obtain the ownership rights on
account of the huge cost and distribution network is required. Every film producer want to
either sell his music at a higher price which may go up to 10 crores for a film and also wants
to take advantage of distribution network of companies like the opposite party. According to
the DG Report, the opposite party is the only independent music company which holds a
lion's share in the Bollywood film music and due to its dominance has the ability and the
bargaining power to deal with broadcasters, independent of industry organizations and
copyright societies.
174. As per the informant, the opposite party has failed to explain why in an industry with no
barriers to entry or expansion and where the opposite party's prices are considerably higher

21
than its ‘significant competitors’, the market shares of those competitors have not increased
dramatically as a result of a shift in demand. The conduct of the opposite party in increasing
acquisition costs, focus on superstar films and imposing performance license fees and MCC
on radio stations are significant barriers to entry and expansion in the market.
177. The market share of the opposite party in terms of playout of Bollywood music on FM
channels across the country is disputed by the opposite party. The Commission notes that
based on the information collected by the DG, the market share of the opposite party in terms
of playout cannot be determined with any kind of exactitude. Even if the contention of the
opposite party is accepted and the market share in terms of playout of music of 25% is
accepted, this does not detract from the fact that songs of the opposite party played on all the
FM channels across the country varies from between 25% and 60% from one station to other,
and that the opposite party has been able to maintain this share over the last few years.
178. It is important to consider that market shares provide information about a firm's past
market success in relation to its competitors. Market shares provide useful first indications of
the market structure and of the competitive importance of various undertakings active on the
market. In most markets, an enterprise's absolute market share is an important factor that
allows for initial indications about its market power. However, market shares alone do not
determine whether an undertaking is dominant or has substantial market power. Therefore,
these initial indications are put in perspective by other factors when making an overall
assessment of the market power of the firm under investigation.

Humza Naveed et al., A Comprehensive Overview of Large Language Models , ARXIV

(2023), [Link]
The LLMs abilities to solve diverse tasks with human-level performance come at the cost of
slow training and inference, extensive hardware requirements, and higher running costs. Such
requirements have limited their adoption and opened up opportunities to devise better
architectures and training strategies. Parameter efficient tuning, pruning, quantization,
knowledge distillation, and context length interpolation among others are some of the
methods widely studied for efficient LLM utilization.
In the very first stage, the model is trained in a self- supervised manner on a large corpus to
predict the next to- kens given the input. The design choices of LLMs vary from encoder-
decoder to decoder-only architectures with different building blocks and loss functions in
sections.
Transfer Learning: The pre-trained LLMs perform well for various tasks. However, to
improve the performance for a downstream task, pre-trained models are fine-tuned with the
task-specific data, known as transfer learning.
Pre-trained LLMs have excellent generalization abilities to unseen tasks. However, because
they are generally trained with the objective of next token prediction, LLMs have limited
capacity to follow user intent and are prone to generate unethical, toxic or inaccurate
responses. For their effective utiliza- tion, LLMs are fine-tuned to follow instructions and
generate safe responses, which also results in increasing zero-shot, few-shot, and cross-task
generalization, with minimal compute increment, e.g., 0.2% of the total pre- training for
PaLM 540B.
3.4.1. Retrieval Augmented LLMs

22
LLMs may have limited memory and outdated information, leading to inaccurate responses.
Retrieving relevant informa- tion from external up-to-date storage enables the LLMs to
accurately answer with references and utilize more informa- tion. With retrieval
augmentation, smaller models have been shown to perform at par with larger models. For
instance, the 11B model can become competitive to 540B PaLM in and 7.5B to 280B Gopher
in. Retrieval augmented language modeling (RALM) has two major components, shown in
Figure 12, namely: 1) retriever and 2) language model. In RALM, the retriever plays a crucial
role in driving LLM response, where incorrect information can steer LLMs to false behavior.
This leads to the development of various methods to retrieve accurate information and fuse
with the query for better performance.

Hyundai Motor India Ltd. v. Competition Comm’n of India, 2018 SCC OnLine NCLAT
513 (India)
37. The ‘DG's’ report is merely an opinion primarily to assist the ‘Commission’ for
appreciation of evidence in arriving at a final conclusion during the inquiry. The ‘DG's’
report is not binding on the ‘Commission’. The ‘Commission is expected to analyse the
evidence and the report and required to read it in conjunction with other evidence on record
and then to form its final opinion as to whether such report is worthy of reliance or not. The
‘Commission while making inquiry under Section 26 for passing the order under Section 27
cannot merely depend the finding of the ‘DG’ to hold alleged violation of Sections 3 and 4 of
the Act.

Jitendra Bathla v. DLF Gayatri Developers, 2023 SCC OnLine CCI 16 (India)
15. Pursuant to the delineation of the relevant market, the next step is to assess whether the
OP holds a dominant position in the relevant market delineated supra. The underlying
principle in the assessment of the dominant position of an enterprise is linked to the market
power of the enterprise in question, which allows an enterprise to act independently of
competitive constraints. Such independence affords an enterprise the capacity to affect the
relevant market in its favour and to the economic detriment of its competitors and consumers.
At the outset, the Informant has not disclosed any kind of material to demonstrate that the OP
is dominant in the relevant market. In the present case, based on the information available in
the public domain currently, it is observed that residential plots in townships/projects are
available in Mahbubnagar District of the State of Telangana. Further, there are a number of
RERA-approved projects of real-estate developers such as Girdhari Constructions, Ashoka
Ventures, Siri Sampada Homes, Sri Rama Bhoomi Developers, Vardhan Developers, etc.,
having residential plots available for sale in various areas/localities in district Mahbubnagar
of comparable size and similar amenities. Several of these real-estate developers have had
presence in the sector for many years. Accordingly, the Commission is of the prima facie
view that the OP does not enjoy a dominant position in the relevant market defined supra.
16. Since the OP is not in a dominant position in the relevant market, the question of abuse of
a dominant position by it within the meaning of the provisions of Section 4 of the Act does
not arise. Accordingly, no case of abuse of dominance in terms of Section 4 of the Act is

23
made out against the OP in the present matter. As such, the Information is ordered to be
closed forthwith in terms of the provisions contained in Section 26(2) of the Act.

Schott Glass (India) (P) Ltd. v. CCI, 2014 SCC OnLine Comp AT 3
20. This brings us to the second issue about the Appellant being a dominant player in the
market. We must at this juncture point out that the CCI has taken into consideration the
definition of the term ‘dominant position’. It has considered all the factors enumerated in
Section 19(4) of the Act and has come to the conclusion that in so far as the ‘market share’
was concerned, the Appellant's market share both in ‘sale quantity’ and ‘sale value’ was the
highest in comparison to its competitors Nipro/Triveni, as also the material imported. We
agree with the observation of the CCI that the Appellant is the market leader. The CCI has
relied on some judgments of the European Court of Justice (ECJ) like Hoffmann-La Roche &
Co. AG v. Commission [Case 85/76] as also United Brands and Co. and Continental v.
Commission [Case 27/76]. The CCI has also quoted the AKZO v. Commission, Case C-
62/86. It has also found that the market share of the Appellant in the upstream relevant
market exceeded its nearest competitors and has remained significantly high for a period of
three years and this was indicative of the position and strength of the Appellant. The CCI also
noted that the Appellant has a downstream market in Schott Kaisha. It was observed that
Schott Packaging, which was a subsidiary of Schott group entered into a Joint Venture
Agreement with a downstream ampoule manufacturer Kaisha Manufacturers Pvt. Ltd., which
was the biggest Indian ampoule manufacturer in 2008. Thus Schott Kaisha was virtually a
subsidiary of the Appellant. The CCI also noted that Schott Kaisha was the leading player in
the market of ampoules and therefore, it was held that the Appellant together with JV Schott
Kaisha, a related group concern, enjoys a position of strength in the upstream as well in the
downstream relevant market. The CCI also noted the size and the resources of the Appellant
and came to the conclusion that the Appellant's Schott Group enjoyed the global sales of 2.85
billion Euros and that group employed 17,500 employees worldwide. Number of other details
were also considered and the CCI ultimately commented that the Appellant and its group
companies provided tremendous market power in the upstream relevant market due to which
it has been able to deploy huge resources in terms of investment.
21. While considering the size and importance of the competitors, the CCI considered the sale
and size of Nipro, the only competitor in the Indian market. It also noted the imports from
other major tube manufacturers in the global market and came to the conclusion that in both
the aspect, the Appellant enjoyed the strong position.
22. Similarly in so far as economic power of enterprise of the Appellant and its commercial
advantage over the competitors was concerned, the CCI took the view that the size and
economic power of the Appellant gave it a huge commercial advantage over any of the
competitors and contributed to its position of dominance in the relevant market.
23. So far as advantage of the Appellant being vertically integrated was concerned, the CCI
took the view that its arrangement with Schott Kaisha gave it a specific advantage.
24. Similar is the situation about the other factors, like dependence of consumer, about which
the CCI held that consumers were heavily dependent on the Appellant in view of Appellant's

24
product range, preference of the pharmaceutical companies for its products and lack of viable
alternative options.
25. The CCI has also commented on the entry barriers, particularly in view of heavy capital
requirement, huge running cost, high gestation period and economies of scale in the
production of the upstream relevant products. It was also held that these entry barriers made
the position of the Appellant and its JV a formidable one in both upstream and downstream
relevant markets.
60. This takes us to the next issue pertaining to tying-in, resulting in breach of section 4(2)
(d). The CCI has considered this issue as Sub-Issue No. 5, more particularly from paragraphs
9.104 to 9.115. The defence of the Appellant to this allegation was that out of all the
Converters, only three Converters namely M/s. Kishore Industries, M/s. Adit Containers and
M/s. Mak Ampoules raised the allegation and that there was no documentary evidence
produced to bring out that it made the sale of amber borosilicate glass tubes contingent upon
the Converters purchasing clear borosilicate glass tubes. The allegation appears to be that the
Appellant in order to supply the clear borosilicate glass tubes, also insisted upon the
Converters to purchase the amber borosilicate glass tubes compulsorily and thus engaged into
tying-in exercise. The Appellant had submitted before the DG that its glass tubes were far
more superior in quality and much in demand in the market. The CCI while appreciating the
statement of Shri Krishan Mehra of M/s. Kishore Industries seem to have relied on a straight
sentence to the effect as stated “They would also insist on purchasing NGC tubes from them
(Schott Glass) even when we required only NGA tubes from them”. Similarly, the CCI also
relied on a letter dated 18.08.1999 by one Adarsh Industries, which mentioned “we have
announced some quantity based discount scheme for neutral glass tubes, but you can't avail
quantity base discount. As per our policy decision that scheme is applicable only on mix
purchases of clear and amber tubings only”. The CCI also relied on the reply dated
04.11.2011 to the questioner wherein the Appellant had specifically mentioned that “NGA
and NGC tubes were from the same production tanks and the functioning of the production
tanks on continued and stable basis requires a stable demand for both NGC and NGA glass
tubes. For ensuring stable demand for both these varieties, the NGC and NGA are marked
jointly with common incentives for its customers”. The CCI has deduced from this that the
products are tied and marketed together and a bundled discount was given to the customer
and considering the large market share of the Appellant, the Appellant leveraged its position
for sale of amber tubes contingent upon sale of clear tubes. The CCI then relied on the so
called leveraging power of the Appellant along with the TMLA and the overall discount
policy of the Appellant to hold that the discount offered was a bundled discount. In paragraph
9.110, the CCI referred to statements of some of the Converters, more particularly Indian
Scientific Glass Industries that it was difficult for them to import amber tubes NGAs, as they
were costly compared to the price of amber tubes produced by the Appellant. In para 9.112,
the CCI observed that the policy of the Appellant to market both the product jointly with
common incentives, appeared to be designed with a view to protect its dominance in the
upstream market. It also observed:—
“It is the pressure from the potential manufacturers which forces it to bundle
its products for discounts as a measure of quantity forcing which in a way

25
 reduces the demand for products of rival competitors by giving incentives to
the Converters to get their entire requirements from Appellant only.”
61. On this basis, the CCI found the Appellant guilty of breach of section 4(2)(d). The CCI
also quoted section 4(2)(d), which is as under:—
“4(2) There shall be an abuse of dominant position by an enterprise or a group, if an
enterprise or a group,
(d) makes conclusion of contracts subject to acceptance by other parties of
supplementary obligations which by their nature or according to commercial usage,
have no connection with the subject of such contracts.”
(emphasis supplied)
62. The emphasis portion itself shows that NGA, which is also the product of the same tanks
as NGC, could not have been said to be an entirely different material. The only differences in
the two tubes is that some drugs, requires protection from sun rays and therefore are required
to be kept and stored in dark colored vials, while others are kept in clear vials. If that is so,
the two products cannot be said to be entirely different from each other. This is apart from the
fact that the Appellant has 90% market in the amber tubes as they are comparably cheaper to
the imported amber tubes. There would be therefore, no necessity of pushing the amber tubes
along with the clear tubes. The very language of section 4(2)(d) and more particularly the
emphasised portion renders the interpretation on the part of the CCI to be incorrect.
63. The second reason is, that in rushing to the conclusion by the CCI, (that there was such
insistence on the part of the Appellant for tying-in) has no basis of any documentary evidence
whatsoever. If there was any such insistence on the part of the Appellant, surely there would
have been some evidence somewhere apart from the stray, untested oral statements of some
parties, who were clearly enemically disposed towards the Appellant. The minority judgment
highlights this fact that there was absolutely no evidence of any kind. For this reason too, we
reject the claims of M/s. Kishore Industries, M/s. Adit Containers and M/s. Mak Ampoules.
64. There is still another reason why this theory of tying-in has to be rejected. The CCI has
chosen to rely on a letter dated 18.08.1999 which pre-dates the enforcement of section 3,
which came into effect on 20.05.2009. Such letters could not have been taken into
consideration for that simple reason.
65. Again according to us, merely because the NGC and NGA were the product from
common tanks and because the same were being marketed by the same Appellant, does not
mean that the Appellant was insisting on any tying-in arrangement in respect of NGC and
NGA tubes.
66. We are also not impressed by the observations of CCI in paragraph 9.114 to the effect
that the Appellant was imposing unfair conditions of sales of tubes, which compelled
Converters to procure both kinds of tubes from the Appellant to avail common discount.
What is to be remembered is that even in the aforementioned letter of 18.08.1999, it was only
in respect of the discount policy and it stated that the discount was available only on mix
purchases of clear and amber tubing. If the discount policy has not been found in error of any
provisions, there is no question of linking it with the aforementioned question of tying-in. In
short, if the parties wanted, they could purchase the amber tubes or ignore the purchase. It
was only a discount which was being mentioned in the aforementioned letter. The minority
judgment has exonerated the Appellant of section 4(2)(d).

26
Madhusudan Das v. Narayanibai, (1983) 1 SCC 35 (India)
8. The question whether the appellant was in fact adopted by Jagannathdas and Premwati has
been determined essentially on the basis of oral testimony, and reference has been made to a
few documents only in supplementation of the oral evidence. At this stage, it would be right
to refer to the general principle that, in an appeal against a trial court decree, when the
appellate court considers an issue turning on oral evidence it must bear in mind that it does
not enjoy the advantage which the trial court had in having the witnesses before it and of
observing the manner in which they gave their testimony. When there is a conflict of oral
evidence on any matter in issue and its resolution turns upon the credibility of the witnesses,
the general rule is that the appellate court should permit the findings of fact rendered by the
trial court to prevail unless it clearly appears that some special feature about the evidence of a
particular witness has escaped the notice of the trial court or there is a sufficient balance of
improbability to displace its opinion as to where the credibility lies. In this connection,
reference may usefully be made to W.C. Macdonald v. Fred Latimer [AIR 1929 PC 15, 18 :
29 Mad LW 155 : 112 IC 375] where the Privy Council laid down that when there is a direct
conflict between the oral evidence of the parties, and there is no documentary evidence that
clearly affirms one view or contradicts the other, and there is no sufficient balance of
improbability to displace the trial court's findings as to the truth of the oral evidence, the
appellate court can interfere only on very clear proof of mistake by the trial court. In Watt v.
Thomas [LR 1947 AC 484, 486 : (1947) 1 All ER 582 : 176 LT 498] it was observed: “…it is
a cogent circumstance that a judge of first instance, when estimating the value of verbal
testimony, has the advantage (which is denied to courts of appeal) of having the witnesses
before him and observing the manner in which their evidence is given.” This was adverted to
with approval by the Privy Council in Sara Veeraswami alias Sara Veerraju v. Talluri
Narayya [AIR 1949 PC 32 : 75 IA 252 : 1948 All LJ 479] and found favour with this Court in
Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh [1950 SCC 714 : 1950 SCR 781,
783 : AIR 1951 SC 120 : 1950 SCJ 583] . It seems to us that this approach should be placed
in the forefront in considering whether the High Court proceeded correctly in the evaluation
of the evidence before it when deciding to reverse the findings of the trial court. The principle
is one of practice and governs the weight to be given to a finding of fact by the trial court.
There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the
trial court suffers from a material irregularity or is based on inadmissible evidence or on a
misreading of the evidence or on conjectures and surmises the appellate court is entitled to
interfere with the finding of fact. Our attention has been drawn by the respondents to the
Asiatic Steam Navigation Co. Ltd. v. Sub-Lt. Arabinda Chakravarti [AIR 1959 SC 597 : 1959
Supp 1 SCR 979 : 1959 SCJ 815] but nothing said therein detracts, in our opinion, from the
validity of the proposition enunciated here.

Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79 (India)

27. The Labour Appellate Tribunal had to determine on these materials whether a prima facie
case had been made out by the appellant for the termination of the respondent's service. A
prima facie case does not mean a case proved to the hilt but a case which can be said to be

27
established if the evidence which is led in support of the same were believed. While
determining whether a prima facie case had been made out the relevant consideration is
whether on the evidence led it was possible to arrive at the conclusion in question and not
whether that was the only conclusion which could be arrived at on that evidence. It may be
that the Tribunal considering this question may itself have arrived at a different conclusion. It
has, however, not to substitute its own judgment for the judgment in question. It has only got
to consider whether the view taken is a possible view on the evidence on the record. (See
Buckingham & Carnatic Co., Ltd. [(1952) Labour Appeal Cases 490] .

Meloria Meschi, Montek Mayal, & Avinash Mehrotra, Assessing the Importance of
Market Power in Competition Investigations , COMPETITION COMMISSION OF INDIA
(2018), [Link]
[Link]
7.5. Our other finding relates to the use of market share for assessing market power. The
analysis of the theoretical relationship between the two strengthens the argument against
solely relying on market share for the assessment of market power. We also identify markets
and instances where market share is most likely to lead to misleading conclusions about
market power and welfare effects.

Narinder Singh v. State of Punjab, (2000) 4 SCC 603 (India)

13. We have examined the evidence in this case and we are of the view that the High Court
was right in overturning the judgment of acquittal of the Court of Session. Perversity is writ
large on the face of the judgment of the trial court. Its appreciation of evidence is wholly
inappropriate and it has acted with material irregularity. It has taken into consideration
inconsequential circumstances to record acquittal of the appellants. It was submitted that
Hardip Singh resided in Jagatpur, native village of the deceased Gurdev Singh while Gurdev
Singh himself was residing in Village Talwandi Fattu being Granthi of the Gurudwara there.
Mr Gupta said that it was improbable that Hardip Singh would meet Gurdev Singh on the
date of the occurrence and would take him to Jagatpur. We do not find there is anything
unnatural about it. When Gurdev Singh deceased had to withdraw money from the
Cooperative Bank in Village Jagatpur, his son was taking him there on cycle. This version of
Hardip Singh is disputed on the ground that the cycle as well as the passbook of the Bank
were not taken into possession by the police and that no evidence had been led if Gurdev had
any account in the Cooperative Bank. Hardip Singh was not cross-examined if he was not
telling the truth that his father had an account in the Bank in Jagatpur. He was not questioned
if he was not going on the cycle with Gurdev Singh sitting on the carrier. He was asked a
question about the passbook of the Bank and his reply was that the passbook was in the bag
which was slung on the handle of the cycle and that he did not produce the passbook before
the police. No question was asked from Sub-Inspector Man Singh, Investigating Officer as to
why he did not take into possession the cycle or the passbook. In fact, there has been no
cross-examination by the appellant of the statement of Sub-Inspector Man Singh. Nothing has
come out from the cross-examination of Sub-Inspector Man Singh by appellant Ravinder

28
Singh alias Khanna. Sub-Inspector Man Singh gave a coherent picture of the investigation
conducted by him, his recording of the FIR and the statement of the witnesses and recovery
of the kirpan on the disclosure statement made by the appellant Ravinder Singh alias Khanna
under Section 27 of the Evidence Act.

Naseema v. Ramlath Seythudeen, 2013 SCC OnLine Ker 3640 (India)

5. Apparently, the Tribunal has heavily relied on the wound certificate, which does not
specifically state that the appellant was a pillion rider. The wound certificate was drawn up at
11.20 a.m. on 12.12.2004. The document relied upon by the appellant is also dated
12.12.2004 itself. In the same, in bracket it is stated that the appellant claimed to be a pillion
rider of a scooter. As such, we find some material irregularity in appreciation of evidence by
the Tribunal. We are also of opinion that the appellant should be given an opportunity to
adduce oral evidence to prove negligence on the part of the 1st respondent in riding the
vehicle. Correspondingly, the insurance company should also be given an opportunity to
rebut that evidence appropriately. For that purpose, we are inclined to remand the matter to
the Tribunal. But we make it abundantly clear that we have not considered the admissibility
of any document either marked or produced, but not marked before the Tribunal and it is
entirely for the parties to adduce evidence to prove all the documents on record. Accordingly,
the impugned award of the Tribunal is set aside and O.P.(M.V). No. 611/2005 before the
Motor Accidents Claims Tribunal, Perumbavoor, is remanded to the Tribunal for fresh
consideration after affording an opportunity for adducing evidence to both sides. The parties
shall appear before the Tribunal for further proceedings in the O.P.(M.V). on 25.2.2013.

Nirmal Kumar Manshani v. Ruchi Soya Indus. Ltd., 2016 SCC OnLine CCI 81 (India)
102. At the outset, it would be appropriate to note that the definition of ‘agreement’ as given
in Section 2(b) of the Act requires inter alia any arrangement or understanding or action in
concert whether or not formal or in writing or intended to be enforceable by legal
proceedings. The definition, being inclusive and not exhaustive, is a wide one. The
understanding may be tacit and the definition covers situations where the parties act on the
basis of a nod or wink. There is rarely a direct evidence of action in concert and in such
situation the Commission has to determine whether those involved in such dealings had some
form of understanding and were acting in co-operation with each other. In the light of the
definition of the term ‘agreement’, the Commission has to find sufficiency of evidence on the
basis of benchmark of preponderance of probabilities.
103. In view of the above and further considering the fact that since the prohibition on
participating in anti-competitive agreements and the penalties the offenders may incur being
well known, it is normal that such activities are conducted in a clandestine manner, where the
meetings are held in secret and the associated documentation reduced to a minimum. Even if
the Commission discovers evidence explicitly showing unlawful conduct between enterprises
such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is
often necessary to reconstruct certain details by deduction. In most cases, the existence of an
anti-competitive practice or agreement must be inferred from a number of coincidences and

29
indicia which, taken together, may, in the absence of any other plausible explanation,
constitute evidence of the existence of an agreement.
104. Thus, the element of mutual understanding needs to be proved through the investigation
as the enterprises will try to avoid leaving any “smoking gun” evidence.
134. In the written submissions dated 14.03.2016 of OP-1, it was stated that the DG has not
been able to adduce/produce any evidence worthy of any credence in the form of e-mails,
statements, facts etc. to show any collusion or concerted action between OP-1 and OP-2
groups except the above noted “solitary e-mail”. The Commission notes that it is not the
quantity but the quality of evidence that matters and particularly in cartel cases such single e-
mail would be considered as a sterling evidence where direct evidence is difficult to obtain.
In the present case, there are too many such solitary instances to hold the collusive conduct
between OP-1 and OP-2. It is the quality and not the quantity of evidence which is required
for establishing contravention. In the matter of appreciation of evidence, it is not the number
of documents or witnesses but quality of their evidence which is important, as there is no
requirement under the law that any particular number of documents is to be exhibited or any
particular number of witnesses is to be examined to prove/disprove a fact. It is a time-
honoured principle that evidence must be weighed and not counted. The test is whether the
evidence is cogent, credible and trustworthy or otherwise.

Oracle Am., Inc. v. Google Inc., 810 F. Supp. 2d 1002 (N.D. Cal. 2011)
1. APPLICATION PROGRAMMING INTERFACES (APIS):
Conceptually, an API is what allows software programs to communicate with one another. It is a
set of definitions governing how the services of a particular program can be called upon,
including what types of input the program must be given and what kind of output will be returned.
APIs make it possible for programs (and programmers) to use the services of a given program
without knowing how the service is performed. APIs also insulate programs from one another,
making it possible to change the way a given program performs a service without disrupting other
programs that use the service.
APIs typically are composed of “methods,” also known as “functions,” which are software
programs that perform particular services. For example, a programmer might write a software
program method A, which calculates the area of a room when given the shape and
dimensions of the room. A second programmer then could write a program method called B,
which calculates the square footage of an entire house when given the shape and dimensions
of each room. Rather than reinventing a new way to calculate area, the second programmer
could simply write an instruction *1006 in B, “for each room, ask program A to calculate the
area; then add all of the return values,” using, of course, real programming language. As long
as the second programmer knows what A is named, what type of “arguments” A must be
given as inputs, and what return A outputs, the second programmer can write a program that
will call on the services of A. The second programmer does not need to know how A actually
works, or is “implemented.” There may in fact be multiple ways to implement A—for
example, different ways to divide an oddly shaped room into geometric components—and the
first programmer may refine his implementation of program A without disrupting program B.

30
Perfect Infraengineers Ltd. v. L.G. Elecs. India (P) Ltd., 2023 SCC OnLine CCI 13
(India)
16. With regard to market share, the Commission notes that, on the basis of information
available in the public domain, Daikin is the largest player in the VRF/VRV AC systems. In
its submissions OP has also stated that Daikin has been the market leader during the last 3
years, i.e., 2020, 2021, and 2022, with an average market share of 44%, and OP had only an
average market share of 16% during the said period. The Informant has not provided any
information about the dominance of OP. In view of the aforesaid, the Commission notes that
the OP does not appear to be dominant in the relevant market. The presence of large number
of players makes the market contestable and provides several options for the consumers and
therefore, acts as a competitive constraint for OP. In the absence of dominance, no case of
contravention of the provisions of Section 4 of the Act is made out.
17. The Commission notes that, though the Informant has alleged violation of Section 3 of
the Act, the Informant has not provided any information as to how the said conduct of the OP
falls under the purview of Section 3 of the Act. Be that as it may, looking at the market
construct and the nature of allegations, the question of contravention of provisions of Section
3(1) of the Act is also ruled out.
18. Resultantly, the Commission is of the opinion that no case of contravention of the
provisions of the Act is made out, and the Information filed is directed to be closed forthwith
in terms of the provisions of Section 26(2) of the Act. Consequently, no case for grant for
relief(s) as sought under Section 33 of the Act arises, and the same also stands dismissed.

Reprographic India v. Competition Comm’n of India, 2019 SCC OnLine NCLAT 729
(India)
4. On a plain reading of the aforesaid provision it is abundantly clear that Section 3(1)
prohibits agreements, inter-alia in respect of supply of goods between enterprises and persons
and their associations which causes or is likely to cause an appreciable adverse effect on
competition within India. It lays down that such agreements shall be void. Such agreements
between enterprises, persons or their associations including cartels engaged in identical or
similar trade of goods or provisions of services which determine purchase or sale price, limit
or control, production, supply, markets, shares the market or source of production, etc. by
allocating geographical areas of markets or type of goods or services or number of customers
in market in any conceivable manner or directly or indirectly results in bid rigging or
collusive bidding is presumed to have an appreciable adverse effect on competition. Joint
venture agreements designed to increase efficiency in production, supply, distribution,
storage, acquisition or control of goods or provisions of services have been kept out of
purview of Sub-section (3) which means that the presumption relating to such agreement
shall not be available qua joint venture agreements. The explanation appended to Sub-section
(3) provides that an agreement between such enterprises or persons engaged in identical or
similar production or trading of goods or provisions of services shall fall within the definition
of ‘bid rigging’, if it has the effect of eliminating or reducing competition or bids or adversely
affecting or manipulating the process for bidding. A bare look at the provision engrafted in

31
Section 3 brings it to fore that anti-competitive agreements in respect of certain activities
involving production, supply, distribution, etc. which adversely affects competition, at a
given time or where there is likelihood of its affecting competition in future are presumed to
have an appreciable adverse effect on competition if such agreements or decisions taken in
pursuance thereof determine prices, control or limit production, supply, markets or results in
sharing market or source of production, etc. or entails bid rigging or collusive bidding. This
includes cartels but excludes joint venture agreements. Therefore, it would be imperative for
an Informant to demonstrate that there was an agreement between enterprises or persons or
their associations engaged in identical or similar business which inter-alia resulted in bid
rigging or collusive bidding, directly or indirectly. Agreement postulates meeting of minds.
The Informant shall have to lay evidence, direct or circumstantial, before the CCI that an
agreement was entered into between such enterprises, persons or their associations engaged
in identical or similar trade in respect of the prohibited activity which resulted in bid rigging
or collusive bidding. It is only then that such agreement can be presumed to have an
appreciable adverse effect on competition.
8. CCI is empowered to inquire into any alleged contravention of provisions contained in
Section 3(1) or Section 4(1) of the Competition Act, 2002 on its own motion or on receipt of
an information from any person, consumers or their associations or trade associations or upon
a reference made to it by the Central Government, State Government or Statutory Authority.
Section 26 of the Act provides that upon receipt of a reference or upon its own knowledge or
upon information received from any person, the Commission, if of opinion that there exists a
prima facie case, shall direct the Director General (DG) to cause an investigation to be made
into the matter. On a bare reading of this provision, it is abundantly clear that causing of
investigation to be conducted by Director General is entirely dependent on existence of a
prima facie case warranting such investigation. Unless the Commission is satisfied that a
prima facie case exists, the Informant (where information has been received from any person)
has no vested right to seek investigation into alleged contravention of provisions Section 3(1)
or Section 4(1) of the Act. The Informant has to demonstrate that there is substance in the
allegations leveled in the information and he will fairly succeed in establishing that the
Respondents are engaged in anti-competitive agreements. Raising of competition concerns on
the strength of bald allegations without any shred of evidence would not absolve the
Informant of his obligation to make out a prima facie case warranting causing of investigation
by DG. It is indisputable that direct evidence would seldom be available in cases of bid
rigging or collusive bidding. However, inference of complicity in anti-competitive activities
would be available only on the basis of proved facts. Merely because the bidders while
exercising their choice of quoting products, opt for a particular manufacturer, which may be
attributable to a variety of factors, would not necessarily justify meeting of minds. This
observation equally applies in the facts and circumstances of instant case where Respondent
No. 2 emerged as L-1 in the bidding process while he was found to have quoted quite a few
products of HP for Group-A Items. The successful bidder had not only the choice to quote
product of a particular OEM but also was required to attend to the service and maintenance
besides providing spare parts etc. during the entire lease period. The choice for a particular
product may have emanated out of this consideration as well. The Respondent No. 2 was
entitled to exercise his choice of quoting products of a particular manufacturer so long he did

32
not come in conflict with the terms and conditions of the tender. There may have been
business linkages inter-se Respondents 2 and 3 but in absence of any material to suggest that
these Respondents were engaged in the practice of bid rotation, no adverse inference
suggestive of collusive bidding could be drawn against them.

Saint Gobain Glass India Ltd. v. Gujarat Gas Co. Ltd., 2015 SCC OnLine CCI 65
(India)
7.23 The Commission observes from the DG report that in the relevant market players such
as GSPC, IOCL, GAIL, etc. are operating and competing with the Opposite Party so far as
the customers requiring more than 50000 SCMD gas are concerned. As the DG has
calculated the market share of the Opposite Party in terms of total value and volume of sale
taking into account the entire spectrum of customers of the Opposite Party and at the same
time excluding the supply of APM gas by GAIL and IOCL in the relevant geographic market
the conclusion drawn by the DG may not be depicting true picture of the market shares of the
parties. Further, even the Informant has stated the market share of the Opposite Party is in the
range of 47-52% in the relevant market and as per DG report the shares of IOCL and GAIL
were in the range of 23-31% and 10% respectively in the same period. Further, the GAIL is
supplying gas to the Opposite Party. The cumulative result of all these factors shows that on
the one hand the market share of the Opposite Party has been calculated without applying any
equaliser and on the other the presence of two heavy weights, i.e., IOCL and GAIL
commanding consistently close second and third rank is definitely a factor which would
constrain the behaviour of the Opposite Party. The Commission also notes that the Opposite
Party has only one customer in its kitty which requires more than 1,00,000 SCMD gas and
that is SGL/Informant. With the presence of such large companies including some of the
‘Navratna’ public sector undertakings of the government of India in the relevant market the
Opposite Party, merely on the basis of questionable higher market share (based on the
volume and value of sales of gas), the Opposite Party cannot be considered to be in a
dominant position in the relevant market. Further, in terms of scale of operation, size,
resources and economic power competitors of the Opposite Party are far ahead of the
Opposite Party. It is amply clear from the following table that in terms of reserves and
surplus, turnover, and total assets of the competitors of the Opposite Party such as GAIL,
IOCL, and GSPC are much larger than that of the Opposite Party.

Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 (India)

15. A perusal of the judgment of the trial court shows that it has extensively dealt with the
oral and documentary evidence adduced by the parties for deciding the issues on which the
parties went to trial. It also found that in support of his plea of adverse possession on the
disputed land, the defendant did not produce any documentary evidence while the oral
evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance.
The first appellate court has, in a very cryptic manner, reversed the finding on question of
possession and dispossession as alleged by the plaintiff as also on the question of adverse
possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or
affirm the findings of the trial court. First appeal is a valuable right of the parties and unless

33
restricted by law, the whole case is therein open for rehearing both on questions of fact and
law. The judgment of the appellate court must, therefore, reflect its conscious application of
mind and record findings supported by reasons, on all the issues arising along with the
contentions put forth, and pressed by the parties for decision of the appellate court. The task
of an appellate court affirming the findings of the trial court is an easier one. The appellate
court agreeing with the view of the trial court need not restate the effect of the evidence or
reiterate the reasons given by the trial court; expression of general agreement with reasons
given by the court, decision of which is under appeal, would ordinarily suffice (See
Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would,
however, like to sound a note of caution. Expression of general agreement with the findings
recorded in the judgment under appeal should not be a device or camouflage adopted by the
appellate court for shirking the duty cast on it. While writing a judgment of reversal the
appellate court must remain conscious of two principles. Firstly, the findings of fact based on
conflicting evidence arrived at by the trial court must weigh with the appellate court, more so
when the findings are based on oral evidence recorded by the same Presiding Judge who
authors the judgment. This certainly does not mean that when an appeal lies on facts, the
appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a
matter of law if the appraisal of the evidence by the trial Court suffers from a material
irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate
court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai
[(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is — and it is nothing more than a rule of
practice — that when there is conflict of oral evidence of the parties on any matter in issue
and the decision hinges upon the credibility of witnesses, then unless there is some special
feature about the evidence of a particular witness which has escaped the trial Judge's notice or
there is a sufficient balance of improbability to displace his opinion as to where the
credibility lie, the appellate court should not interfere with the finding of the trial Judge on a
question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950
SCC 714 : AIR 1951 SC 120] ) Secondly, while reversing a finding of fact the appellate court
must come into close quarters with the reasoning assigned by the trial court and then assign
its own reasons for arriving at a different finding. This would satisfy the court hearing a
further appeal that the first appellate court had discharged the duty expected of it. We need
only remind the first appellate courts of the additional obligation cast on them by the scheme
of the present Section 100 substituted in the Code. The first appellate court continues, as
before, to be a final court of facts; pure findings of fact remain immune from challenge
before the High Court in second appeal. Now the first appellate court is also a final court of
law in the sense that its decision on a question of law even if erroneous may not be vulnerable
before the High Court in second appeal because the jurisdiction of the High Court has now
ceased to be available to correct the errors of law or the erroneous findings of the first
appellate court even on questions of law unless such question of law be a substantial one.

Shamsher Kataria v. Honda Siel Cars India, 2014 SCC Online CCI 95 (India)
20.6.11. In order to analyze the AAEC caused by such agreements between the OEMs and
OESs, we have noted the factors provided in section 19(3) of the Act. Section 19(3) provides:

34
 19(3) The Commission shall, while determining whether an agreement has an
appreciable adverse effect on competition under section 3, have due regard to all or
any of the following factors, namely:—
(a) creation of barriers to new entrants in the market;
(b) driving existing competitors out of the market;
(c) foreclosure of competition by hindering entry into the market;
(d) accrual of benefits to consumers;
(e) improvements in production or distribution of goods or provision of services;
(f) promotion of technical, scientific and economic development by means of
production or distribution of goods or provision of services.
It should be noted that as per the provisions of section 3(4) of the Act, only agreements which
causes or is likely to cause an AAEC on competition in India shall be subject to the
prohibition contained in section 3(1) of the Act. Therefore, in order to determine if the
agreements entered between the OEMs and the authorized dealers are in the nature of an
‘exclusive distribution agreement’ or ‘refusal to deal’ under section 3(4)(c) and 3(4)(d) of the
Act, the Commission needs to determine if such agreements cause an AAEC in the market
based upon the factors listed in section 19(3) of the Act. It is pertinent to note that clauses (a)-
(c) of section 19(3) deals with factors which restrict the competitive process in the markets
where the agreements operate (negative factors) while clauses (d)-(f) deals with factors which
enhance the efficiency of the distribution process and contribute to consumer welfare
(positive factors). An agreement which creates barriers to entry may also induce
improvements in promotion or distribution of goods or vice-versa. Thus, whether an
agreement restricts the competitive process is always an analysis of the balance between the
positive and the negative factors listed under section 19(a)-(f).
20.6.33. The General Court of the European Union, while considering the exercise that the
European Commission is required to undertake in conducting an analysis under Article
101(3) of the Treaty for the Functioning of the European Union (TFEU) [which is pari
material to section 19(3) of the Act] in its judgment in GlaxoSmithKline Services Unlimited
v Commission [(Case T-168/01) [2006] CMLR 1623, at para 244] held the task to be:
“weighing up the advantages expected from the implementation of the
agreement and the disadvantages which the agreement entails for the final
consumer owing to its impact on competition, which takes form of a balancing
exercise carried out in the light of the general interest appraised at
Community level.”
Therefore, the task of the Commission while analyzing the appreciable adverse effect on
competition caused by any agreement under section 3 of the Act is to balance the anti
competitive and pro competitive factors mentioned under section 19(3) of the Act.

Singhania & Partners LLP v. Microsoft Corp. India, (P) Ltd., [2012] Comp AT 238
(India)
4. On this basis ultimately the Commission went on to hold that there was different pricing
policy adopted by Respondent No. 1 in respect of identical type of licenses and therefore it
was held that three types of licenses which were being sold by respondent no. 1 were not

35
similar to each other. It was also held that the informant had failed to place on record any
material which could suggest that three licenses were identical or in any case similar on the
basis of the intended use of the customer. On the basis of its majority, the Commission took
the view that there was no case made out for making a reference to the Director General for
investigating into the matter. The dissenting Member, however, took a different view. In that
the learned Member held that the matter required investigation.

Synco Indus. Ltd. v. Hero FinCorp Ltd., 2023 SCC OnLine CCI 21 (India)
17. As regards dominance of OP in the aforesaid relevant market, the Commission observes
that apart from NBFCs, there are multiple financial institutions within the category of public
sector banks, private sector banks, regional rural banks, etc. that compete among themselves
for extending loan against property to eligible borrowers. Furthermore, the Informant has not
provided any evidence of OP being dominant. Therefore, the Commission, relying on
information available in public domain, is not inclined to believe that OP is dominant in the
relevant market as delineated supra, in terms of the provision of section 19(4) of the Act. In
the absence of dominance, there is no occasion for the Commission to look into the alleged
abusive conduct.

Toloka Team, Difference between AI, ML, LLM, and Generative AI , TOLOKA (Aug. 27,
2023), <[Link]
Machine Learning vs. AI
Machine Learning is a specific subset or application of AI that focuses on providing systems
the ability to learn and improve from experience without being explicitly programmed. ML is
a critical component of many AI systems. ML algorithms are used to train AI models by
providing them with datasets containing labeled examples or historical data. The model then
learns the underlying patterns in the training data, enabling it to make accurate predictions or
decisions on new, unseen data. By continuously feeding data to ML models, they can adapt
and improve their performance over time.
AI encompasses the broader concept of developing intelligent machines, while ML focuses
on training systems to learn and make predictions from data. AI aims to replicate human-like
behavior, while ML enables machines to automatically learn patterns from data.
A machine learning model in AI is a mathematical representation or algorithm that is trained
on a dataset to make predictions or take actions without being explicitly programmed. It is a
fundamental component of AI performance over time
Generative AI vs. Large Language Models
Generative AI is a broad concept encompassing various forms of content generation, while
LLM is a specific application of generative AI. Large language models serve as foundation
models, providing a basis for a wide range of natural language processing (NLP) tasks.
Generative AI can encompass a range of tasks beyond language generation, including image
and video generation, music composition, and more. Large language models, as one specific
application of generative AI, are specifically designed for tasks revolving around natural
language generation and comprehension.

36
Large language models operate by using extensive datasets to learn patterns and relationships
between words and phrases. They have been trained on vast amounts of text data to learn the
statistical patterns, grammar, and semantics of human language. This vast amount of text may
be taken from the Internet, books, and other sources to develop a deep understanding of
human language.
An LLM can take a given input (a sentence or a prompt) and generate a response: coherent
and contextually relevant sentences or even paragraphs based on a given prompt or input. The
model uses various techniques, including attention mechanisms, transformers, and neural
networks, to process the input and generate an output that aims to be coherent and
contextually appropriate.
Both generative AI and large language models involve the use of deep learning and neural
networks. While generative AI aims to create original content across various domains, large
language models specifically concentrate on language-based tasks and excel in understanding
and generating human-like text.
Large Language Models applications
Large language models can perform a wide range of language tasks, including answering
questions, writing articles, translating languages, and various industries and applications.
By providing prompt or specific instructions, developers can utilize these large language
models as code generation tools to write code snippets, functions, or even entire programs.
This can be useful for automating repetitive tasks, prototyping, or exploring new ideas
quickly.
Code generation with large language models has the potential to greatly assist developers,
saving time and effort in generating boilerplate code, exploring new techniques, or assisting
with knowledge transfer. However, it's important to judiciously use these models in software
development, validate the output, and maintain a balance between automation and
human expertise.
Companies are employing large language models to develop intelligent chatbots. They can
enhance customer service by offering quick and accurate responses, improving customer
satisfaction, and reducing human workload.
Large language models can help businesses automate content creation processes, as well as
save time and resources. Additionally, language models assist in content arrangement by
analyzing and summarizing large volumes of information from various sources.
Businesses process and analyze unstructured text data more effectively with the help of large
language models. They can fulfill tasks like text classification, information extraction,
sentiment analysis, and more. All of this plays a big role in understanding customer behavior
and predicting market trends.

Vijay Halder v. Chetan, 2024 SCC OnLine CCI 5 (India)

10. The Commission considered the Information in its ordinary meeting held on 01.05.2024
and noted that the Informant has not provided sufficient details/material to enable the
Commission to examine the matter. Accordingly, the Commission decided to give an
opportunity to the Informant to file the following details within three (03) weeks' time from
the date of receipt of the order: (a) details of the person(s) and/or enterprise(s) who were

37
alleged to have indulged in the alleged anti-competitive conduct and need to be arrayed as
opposite parties, (b) details of the specific tender(s) in which alleged cartelisation has taken
place; and (c) other relevant details, if any. Despite service of the aforesaid order, no response
was received from the Informant within the stipulated period.

Vithal Kashinath Bhor v. Ramchandra Gopala Tembekar, 2016 SCC OnLine Bom 9494
(India)
7. The petitioners seek to justify the order of the Sub-Divisional Officer which has set aside
the order of the Tahsildar and dismissed the petitioners' application. The Sub-Divisional
Officer, had accepted the petitioners' argument of existence of the joint family on the basis of
the ration card and similar documents produced by them. The Tribunal set aside the finding
of fact with observation that, that the ration card at the highest would indicate joint residence
of the parties, but it cannot establish the status of joint family. Mr. Haridas, submits that, the
Tribunal in its revisional jurisdiction could not have re-appreciated the evidence produced by
the petitioners' to arrive at a different finding. Undoubtedly, in the ordinary circumstances,
revisional jurisdiction does not involve re-appreciation of the evidence. But, the exceptional
circumstance of the finding of fact being perverse would amount to the lower Court having
acted in the exercise of its jurisdiction illegally or with material irregularity. In such
exceptional circumstance, re-appreciation of evidence by the Tribunal, to arrive at a different
finding, would be within its revisional power. Therefore, there is no infirmity in the
impugned order. The petition is dismissed.

Xiang Li et al., FLM-101B: An Open LLM and How to Train It with $100K Budget ,
ARXIV (2023), [Link]
Large language models (LLMs) (Radford et al. 2018; Touvron et al. 2023a; Devlin et al.
2019; Raffel et al. 2020) have consistently demonstrated their efficacy across a spectrum of
applications, especially in language processing (Wang et al. 2022b,a; Fan et al. 2022; Liu et
al. 2022) and multimodal tasks (Zhao et al. 2023; Meng et al. 2023). Despite variations in
architectural designs, a universal challenge confronting all LLMs is the escalating cost
associated with their train- ing. Recent trends indicate a shift towards utilizing larger amounts
of data (e.g., 1.4T tokens for Llama-1 (Touvron et al. 2023a), 2T tokens for Llama-2
(Touvron et al. 2023b), and 15T tokens for Llama-3 (Meta 2024)). Meanwhile, the sizes of
open-sourced models continue to increase (Penedo et al. 2023; Bi et al. 2024; Mistral 2024).
Consequently, a major focus within LLM research is the development of innovative
methodologies that effectively mitigate training expenses, aligning with the broader
objectives of Green AI (Schwartz et al. 2020).

XYZ (Confidential) v. H.N.B. Garhwal Univ., 2023 SCC OnLine CCI 24 (India)
8. On perusal of the Information, the Commission observes that essentially the gravamen of
the Informant emanates from certain alleged restrictive terms and conditions in the tenders
floated by OPs for procurement of books for their libraries. In this regard, the Commission
observes that the Informant, apart from making just a passing reference to violation of the

38
provisions of Section 3 of the Act, has not mentioned any specific conduct of the OPs which
can be examined under the provisions of Section 3 of the Act.
9. Similarly, although the Informant has levelled allegation under Section 4 of the Act against
OPs but has not defined any relevant market or established dominance of any of the OPs. In
this regard, the Commission observes that considering the facts, circumstances, allegations
and for the reasons detailed in the succeeding paras, it is not necessary to delineate relevant
market and to assess dominance of OP(s) therein.
10. The Commission notes on the basis of Information available in public domain that there
are numerous institutional buyers regularly procuring books for libraries apart from the OPs.
In addition, several organisational buyers such as Government departments, judicial bodies,
public libraries, public sector undertakings, professional bodies, private institutions etc., also
procure books. In such a structure of the market, the Informant can supply books to a number
of other institutions/organisations and thus does not seem to be dependent on any of the OPs
for survival of its business.

39