NCLAT affirms CCI decision, says no abusive conduct established against Kerala Agro

NCLAT affirms CCI decision, says no abusive conduct established against Kerala Agro                                                                                    

As per the Tribunal's observation, it was apparent that the Appellant had approached its own competitor for supply of material and was then making various grievances

The Appeal filed under Section 53B of the Competition Act, 2002(Act) against impugned Order of Respondent No. 1(Competition Commission of India/CCI) passed under Section 26 (2) of the Act has been dismissed by the National Company Law Appellate Tribunal.

In this matter, the Appellant (M/s. Sowil Ltd.) claimed that it had approached Respondent No. 2 (Hexagon Geosystems India Pvt. Ltd.) for supply of rolling stock mounted GPR for ballast inspection at high speeds to compete for the said RDSO(Ministry of Railways Research Designs & Standards Organisation) Tender.

According to the Appellant, it did amarkets' survey of the cost of the said product with foreign players and found out that the same is available at Rs. 1,41,69,824 at the conversion rate of Rs. 92.20.

The Appellant in its submission stated that it tried to negotiate with Respondent No. 2 but Respondent No. 2 did not agree to give a discount of more than 17 percent. Even after discount, the price quoted was 200 percent higher than the cost that Respondent No. 2 was offering to other players.

The CCI considered the information submitted by the Appellant under Section 19 (1) (a) of the Act and after collecting further information as required from the RDSO and after hearing the Appellant, held that no case of contravention of the provisions of the Act was made out and ordered to close the information.

The Appellant contested this decision by submitting that Respondent No. 1 erred in not getting the investigation done from the Director General and thus, the present Appeal was required to be filed.

The Appellate Tribunal observed that the CCI found that the Appellant failed to define or suggest the relevant market. It found it is neither necessary nor feasible to delineate the relevant market in the absence of requisite data on record, particularly in the light of market emerging out of the RSDO's reply which the CCI received.

According to the Tribunal, the CCI deciphered that apart from Respondent No. 2,there were at least four other major global players in the market for rolling stock mounted GPR for ballast inspection in India.

The Appellant in this Appeal claimed that when allegations of abuse of dominant position under Section 4 of Act were made, the CCI was bound to follow a three step process i.e. delineation of relevant market; establishing dominant position in the delineated relevant market; and establishing prima facie case for abuse of dominant position.

The Appellate Tribunal on this aspect elucidated that the Appellant was trying to put the burden on the CCI to find out the relevant market instead of itself defining or suggesting the relevant market with prima facie material. Apart from this, the order of the CCI showed that there were other players available in the market. Also, no material was shown that the Appellant had approached the other players.

The Appellant submitted that even Respondent No. 2 was one of the competitors who responded to the Railways for the Tender Notice which the Railways floated.

As per the Tribunal's observation, it was apparent that the Appellant approached its own competitor for supply of material and was then making various grievances.

Going through the impugned Order passed by the CCI, the Appellate Tribunal concluded that there was no reason to interfere and no case was made out to entertain the Appeal.