I FSAs have not violated the provisions of Section 3(3) read with Section 3(1) Oof the

Competition Act, 2002 (Act).

It is humbly submitted that Section 3(1) of the Act provides that any agreement which causes
or is likely to cause an appreciable adverse effect on competition 1 shall be void. Section 3(3)
of the Act provides that any agreement amongst persons or enterprises at the same levels of
the production chain shall be in contravention of Section 3(1) if it causes or is likely to cause
AAEC. It is submitted that the agreement between the Foodservice aggregators (FSAs) and
authorized Partner restaurants has not and is not likely to cause an AAEC. Therefore, it does
not contravene Section 3(3) read with Section 3(1) of the Act.

In order to prove that there exists an anti-competitive agreement between the FSAs and the
partner restaurant one needs to fulfil 4 pre-conditions there is a need to prove 4 basic
conditions through which the presence of anti-competitive agreements can be proved in a
horizontal market. Firstly an association of persons, or any association of enterprises should
directly or indirectly determine purchase or sale prices. Secondly, there needs to be a
limitation or control on production, supply of the product needs to be proved. Thirdly, the
alleged firm should share the market or source of production and lastly The firm should be
indulge in direct or indirect Bid Rigging or Collusive bidding which is presume to have
adverse appreciable effect on the competition.

1.1 That there is no determination of purchase or sale prices directly or indirectly by

FSAs

1.1.1 As provided in Para no.¶7 (g)2 provides that FSAs have entered into a unique
arrangements on relating to ‘Across platform parity agreements’3, whose whereby the
primary objective of this agreement is to maintain the price parity of all the items offered by
the restaurants  across different platforms, be it on some other competitor’s website or even
restaurant’s individual website. The Aappellants have not no where influenced or
manipulated the purchase or sale price that the restaurants quote to their customers. The The
only thing that the particular agreement merely tries to tries to do is to bring uniformity in the
price of the items offered by the respective restaurants.

1.1.2 It is well established that It has also been observed by the High Court of Madras in the
case of K. Poomalai and Ors. v. Director of Sugar, Chennai and Ors. 4 ,“Aany agreement
that is likely to cause an appreciable adverse effect on competition within India is
1
Hereafter AAEC.
2
Moot Problem, Page [•]
3
Hereafter APPA.
4
MANU/TN/1996/2012.
declared as void under Section 3(1) read with Section 3(2) of the Act. The word "cartel"
is used in Section 3(3) of the Act. Section 3(3)(a) of the Act states that even indirect
determination of sale price pursuant to the agreement between enterprises shall be
presumed to have an appreciable adverse effect on competition. Agreement between
enterprises even indirectly resulting in bid-rigging or collusive bidding is also presumed
to have an appreciable adverse effect on competition. 5” In the present case there is no
formation of cartel since there is no agreement between FSAs and Restaurant to fix the
purchase or sell price.

1.2 That there is no limitation or control over the production or provision of services by
the FSAs

1.2.1 Second condition which needs to be fulfilled in order to prove horizontal anti
competitive agreement is by limiting or controlling production, supply, markets, technical
development, investment or provision of services which is not at all alleged from the side of
respondent and nowhere the appellant have indulge in this kind of agreement since the only
task of FSAs is to act as a acting link between the restaurant and the customers and can’t be
anywhere held liable for limiting or controlling production since that task is solely in control
of the restaurants itself.

1.2.2 In the case of RRTA v. Incheck Tyres & others6 In respect of general code of conduct for
the ‘Members of the Automotive Tyre Industry in India’, which sought to regulate the
production, distribution and sale of tyres and tubes with a view to completely eliminate
competition in the industry. But same is not the case with FSAs which are nowhere involved
in contravention of S. 3(3)(b).

1.3 That there is no sharing/Division of market or source of production between FSAs

and Restaurants

1.3.1 There is absolutely no point in alleging that FSAs are sharing market or source of
production with their partner restaurants since these FSAs are only acting as a connecting link
between these restaurants and the customers who are ordering their meal from the online
market. The FSAs are merelyjust acting as a different channel of distribution for these
restaurants and are just a platform for interface.

1.3.2 In the matter of Samir Agrawal v. ANI Technologies Pvt. Ltd. and Ors. 7 The
Competition Commission of India (CCI) has repeatedly emphasized observed that the
existence of an agreement, understanding or arrangement, demonstrating/indicating meeting
of minds, is a sine qua non for establishing a contravention under Section 3 of the Act. 8
Where as in the present case there exists no such is no such type of agreement or
arrangement. present.
5
K. Poomalai and Ors. v. Director of Sugar, Chennai and Ors.
6
RTP Enquiry No. 1/1971, order dated 19-4-1976.
7
2018 CompLR 1114 (C C I).
8
Samir Agrawal v. ANI Technologies Pvt. Ltd. and Ors. 2018 CompLR 1114 (CCI).
1.4 That there is no agreement between FSAs and restaurant owners which directly or
indirectly results in bid rigging or collusive bidding

1.4.1 S.3 (3) clause (d) of the act defines ‘bid rigging’ to mean an agreement amongst the
competitors joining hands together at the time of bidding with the object to distort
competition. Such agreements are referred to as ‘knock out’ generally.

1.4.2 In case of Jyoti v. Jhowmull9 court held that a combination intending bidders to refrain
from bidding against each other has been held not to be illegal. Also, the point to be taken
care is that in this particular case there is not at all any bidding or such type of arrangement
that took place so there is absolutely no point of raising the issue of bid rigging in the very
first place.

II FSAs haven’t violated the provisions of Section 3(4) (e) and Section 3(3) read with
Section 3(1) by way of their APPAs.

It is contended that under S. 3(4) (e) of the competition act defines ‘resalethe meaning of
‘Resale Pprice mMaintenance’ as an the agreement between manufacturer of goods and
seller of goods whereby the seller can’t sell the product of the manufacturer lower than the
price stipulated by the manufacturer in the agreement itself. Violation of section 3(4)(e) only
comes into picture when there is a appreciable adverse effect of such agreement on the
competition as well on the market. Resale price maintenance means a situation is provision
wherein by which the final price charged to customers is not set by the distributor but
imposed by the producer.10Under the resale price agreement, those agreements come into the
picture whose main element is that the buyer is obliged or induced to resell not below a
certain price, at a price which is certain and not above the price which is stipulated.11

2.1 That there is no Resale price Maintenance Agreement between FSAs and
Restaurants therefore there is no violation of S. 3(4)(e).

2.1.1 An The counsel for appellant would like to discuss about the essential pre-condition as
to when the agreement to be categorised under the Resale Price Maintenance agreement is
when the Rresale of the goods by the seller takes place. Whereas, in But in the present case
FSAs are only acting as a distribution channel for the Restaurants listed on these FSAs and
9
(1909) 36 Cal 134.
10
Abir Roy Competition law in India Second edition pg. No. 138
11
Guidelines on Vertical Restraints, OJ (2000)
are nowhere involved in the resale of the goods. In the case at hand, the It is just that these
FSAs are merely facilitating in delivery of food item ordered from the respected partner
restaurants listed on their platform to the doorstep of the customers and tio offering better
deals to them so as to promote customer service and services to them.

2.1.2 It is submitted that although S. 3(4)(e) of the Act doesn’t make it explicit that there are
three categories of Resale Price Maintenance which can be considered anti-competitive
namely, First Fixed Price whereby the manufacturer and reseller agree and decide upon the
price on which the product is to be sold and not below it and if done so might attract some
penalty. Secondly Minimum Resale Price as the term suggest there is a minimum price
below which the product couldn’t be sold and thirdly Maximum resale price whereby goods
by reseller can’t be sold above certain price fixed through agreement between manufacturer
and reseller.12

2.1.3 It is contended that since the agreement between the FSAs and Restaurants Owners
doesn’t fall under any of the categories explained above hence the said agreement can’t be
held to be in violation of the provisions of Competition Act.

2.1.4 In Mohit Manglani v.V Flipkart India Private Limited and Ors.13 Commission
observed that online distribution channel by the OPs provide an opportunity to the consumers
to compare the prices as well as the pros and cons of the product. Furthermore, through the
option of delivery right at their door steps consumers have the opportunity to accept the
purchase at their convenience and do not need to set aside a couple of hours at a stretch to
make the purchase through a brick-and-mortar retail outlet. Therefore, at this stage, it does
not appear that the exclusive arrangement between manufacturers and OPs lead to AAEC in
the market. Similarly, in the respective case FSAs are aimed to help customers as well as the
restaurant owners to connect to the online distribution of their product.

2.1.5 In the same case mentioned above OPs 14 submitted that they are third party platforms
and offer ready to use environment to potentially large number of customers and
manufactures. It was submitted that an e-commerce portal's business is based on a market
place model where the manufacturer/supplier is the owner of the products sold through online
retail portals and the customer making such purchase is the end consumer of the product, the
online retail portals merely acting as a platform that bring the two sides together for
12
Abir Roy Second Edition Pg. 144.
13
2015 131 SC L18 (C C I).
14
Operating Platforms.
facilitating the transaction. Similarly, in the concerned case FSAs are just the platform
through which customer can place the order and the restaurants can list their product there
these FSAs act as a two sided market15 and are nowhere involved in the resale of the product.

2.1.6 In M/s Fx Enterprise Solutions India Pvt. Ltd v. M/s Hyundai Motor India
Limited16 CCI found that Hyundai placed restrictions on its dealers on the maximum
permissible discount that may be given by a dealer to the end-consumer, coupled with the
practice of price monitoring put in place by Hyundai wherein the dealers were penalized on
account of any deviation. Also, Hyundai imposed restriction the maximum permissible
discount that may be given by a dealer to the end-consumer amounted to resale price
maintenance. But the same condition is not applicable in the respective case since the FSAs
have nowhere penalized or enforced some anti competitive condition on the restaurants.

2.2 That there is no violation of S. 3(3) read with S. 3(1) by FSAs Across platform parity
agreements (APPAs).

2.2.1 It is contended by the counsel for appellant that APPAs entered between FSAs and
Restaurants owners is nowhere in contention with the provision of S. 3(3) read with S. 3(1) of
Act since the respective agreement is not resulting into the horizontal anti competitive
agreement. The only purpose which is served by this agreement is to bring price uniformity
as well as to promote healthy competition in the market.

2.2.2 This agreement doesn’t influence or manipulate or force the restaurant owners to keep
the selling or purchasing price as suggested by the FSAs and therefore doesn’t lead to
violation of S. 3(3)(a) of the Act. It’s just that the basic term of this agreement is the price
quoted on each FSA should be identical and doesn’t lead to any appreciable adverse effect on
the competition. In Express Industry Council of India v. Jet Airways, Indigo Airways
and Spice Jet airways17 CCI penalized all the three airlines for fixing fuel surcharge which is
a component of the air cargo price. But in present appellant is nowhere involved in fixing
price under a agreement with the restaurants listed on their platform.

15
¶ 2 of moot prop.
16
Case No. 36 of 2014.
17
CCI Case No. 30 of 2013
3.WHETHER THE FSAs VIOLATED PROVISIONS OF SECTION 4 OF THE ACT,
INDIVIDUALLY (ON PART OF TRIMATO AND/OR AS PART OF SINGLE
ECONOMIC ENTITY)?

It is submitted that the relevant market in the present matter is the market which consists of
Food Services Aggregators (FSAs).Trimato is one of the FSAs in the relevant market and
hence, possesses limited market share. Therefore, they do not exercise a position of
dominance in the relevant market. Moreover, the Trimato has not abused its position of
dominance as had not imposed discriminatory pricing, or used its position in the relevant
market of the FSAs to leverage its position in the downstream as well as the conventional
market. Moreover, Trimato’s conduct did not lead to the denial of market access to any of the
competitor or different FSAs since there is are still four to five more FSA present in the
market.

3.1. THAT THE FSAs DID NOT CONSTITUTE SINGLE ECONOMIC ENTITY.

3.1.1. The counsel for appellant would like to contend that the FSAs(Trimato, Ziggy,
NomRhino) did not constitute a single economic entity. In the present case, the iron bank has
an investment of 15%, 5%, and 8% respectively in Trimato, Ziggy and NomRhino, with a
board seat in each18. But can’t be said to possess the decisional power in all three companies
respectively. And hence can’t form a single economic entity.

3.1.2. Also in the case of Kapoor Glass Private Limited v Schott Glass India Private Ltd.19, It
was held by the court that in order to determine Single Economic Entity, inter alia, factors
like legal control, single-center of decision making, unity in economic decisions and exercise
of decisive influence has been considered. In the present case there is no element of the single

18
Proposition¶ 7
19
CCI March 29,2012
economic entity present between FSAs and Iron Bank. It is evolved from the concept of
holding company and subsidiaries as given in Companies Act, 2013. Subsidiary companies
are those in which holding company can exercise control in the composition of the Board of
Directors and exercises or controls more than one-half of the total share capital20.

3.1.3. In the instant case, the IronBank shareholding is only 15%, 5%, and 8% in these three
FSAs and is a minority shareholder with a board seat in each of the FSAs and so doesn’t pass
the criteria imposed by the Companies Act, 2013. In the Judgement of Fuji Electric Co.Ltd v.
Commission21, It was held by the General Court, that the minority shareholder Shareholding,
the representation on the board of the directors of the company, the ability to influence the
Business policy and actual evidence of attempts will be relevant, also in the same judgment,
It was held that to exercise decisive influence that 30% of minimum shareholding is required.

3.1.4. Further, in the present case, the shareholding of the IronBank is not even 30% if we
combine all three FSAs. The U.S. Supreme Court in Copperweld Corp v Independent Tube
Corp 22held that parent-corporation and its wholly-owned subsidiary would be considered as
Single Economic Entity. Also if subsidiary has no independent authority to take any decision
on its own and they are out and out guided only by holding company, would be in a position
to hold that subsidiary and holding company constitute a single economic unit23

3.1.5. In the Present case, The IronBank does not have minimum required shareholding for
decisive control24 and neither the DG nor the VAR Report has any evidence that IronBank is
acting as Single- centre for the decision making for all three FSAs and it has only 1 board
seat in three FSAs which is not enough to influence the decision of all the FSAs. Thus, it is

20
Section 2(87), Companies Act,2013
21
(2011) ECR-II-4091
22
467 U.S. 752 (1984)
23
Samayanallur Power Investment (P) Ltd v Covanta Energy India(Balaji) Ltd,2005 SCC Online Mad 619
24
Supra 4
submitted that Trimato, Ziggy and NomRhino cannot be termed as single economic entity
only due to common shareholding of IronBank.

3.2 That there are all the necessary conditions present for the RELEVANT MARKET
of FSAs to exist.

3.2.1. It is humbly submitted that Section 2(r) of the Act 25 defines “relevant market” as “the
market which may be determined by the Commission with reference to the relevant product
market,” Further Section 2(t) of the Act defines “relevant product market” as “a market
comprising of all those products or services which are regarded as interchangeable or
substitutable by the consumer, by reason of characteristics of the products or services, their
prices and intended use;

3.2.2. The ascertainment of the relevant market is essential for analyzing a case of abuse of
dominance.26 The dominant position of an enterprise or a group within an identified ‘relevant
market’ has to be established first.27 When determining what constitutes as the relevant
market, due regard must be given to both the relevant product as well as relevant geographic
market28.

3.2.3. All those products or services which are regarded as interchangeable or substitutable by
the consumer form part of the same relevant product market 29. Relevant product market is

25
The Competition Act,2002
26
Prints India v Springer India Pvt.Ltd, Case 16/2010 ¶9 (CCI)
27
Explanation 2, §4(2), Competition Act, 2002
28
§19(5), Competition Act, 2002
29
§2(t), Competition Act, 2002
primarily determined by gauging product substitutability from a consumer’s perspective 30 In
the instant case, the relevant product iis the service provided by the Trimato. Here it is
necessary to differentiate between the upstream market where food items are prepared, from
the downstream market of the conventional restaurants31

3.2.4.The appellant would further put reliance on the judgment of Aberdeen Journals Ltd. v
Director General of Fair Trading32 in which it was clearly held that a relevant market shall
be decided strictly depending upon the facts of the case. In the present matter, the relevant
market is the service provided by the FSAs and the regular restaurants and the relevant
product is Food provided to the customers. Therefore, Trimato is not the only FSA in the
relevant market and there are other FSAs which are present in the relevant market .A better
explanation in this regard can be sought from a broader classification of the nature of FSAs
services where they can be termed as a mere extension of delivery services of the restaurants.
Thus, creating a separate marketplace for FSAs and VAR would practically mean to
distinguish between the walks in sales and delivery sales of the same restaurants.

3.2.5. The ‘relevant geographic market 33 should also be taken into consideration to identify
the

relevant market34. CCV should pay due regard to the factors such as the price of goods and
service35consumer preferences36 inter alia while identifying the relevant geographic market.
The geographic market for the FSAs is usually defined on the basis of national or linguistic

30
F.Wijckmans&F.Tuytschaever, Vertical Agreements IN EU COMPETITION LAW.106, (2nd edn., 2011).

31
SamsherKataria v Honda Seil Car India Ltd. AND Ors ,Case no. 3/2011,, ¶19.4 (CCI)
32
: [2003] CAT 21 ,Case no. 1005/1/1/01
33
§2(s), Competition Act, 2002
34
§19(5), Competition Act, 2002
35
§19(7), Competition Act, 2002
36
§19(6)), Competition Act, 2002
criteria and is therefore national in scope. This is primarily due to the differences in the
regulatory regimes, language barriers and other conditions of competition prevailing in the
different nations and while determining the relevant geographical market, one of the factors
that Tribunal should pay regard is the local specification requirement. From the facts, one
could find out the business of FSAs has spread to the whole of the Vormir and also 90% of
the market share is held by these three FSAs i.e., Trimato, Ziggy and NomRhino. These
factors suggest that the relevant geographic market for FSAs is not limited to any particular
region(s) but to the whole of the Vormir.

3.2.6. The relevant product market comprises all the products which are perceived to be
substitutable by the consumers by the reason of the products’ basic characteristics and
intended use. The products, to be part of the same market, not need to be perfect substitutes.
In the present case, the customers have option substitutes for Trimato such as Ziggy,
NomRhino that constitute the relevant product market of FSAs.

Thus, the geographic relevant market should be restricted to the Vormir. Therefore, it is
humbly submitted that the market of FSAs is the relevant market in Vormir.

3.3. Trimato did not exercise a position of dominance in the relevant market

3.3.1.It is submitted that Section 4 of the Act defines “dominant position” as, “a position of
strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to: (i)
operate independently of competitive forces prevailing in the relevant market; or (ii) affect its
competitors or consumers or the relevant market in its favour.” Explanation of the same has
been provided below.

A. Trimato did not Function Independently in the relevant market.

3.3.2. In the present matter, the relevant market is the food service provided by the Trimato
and others FSAs as well as by the regular restaurants. It is an established principle that a firm
would be able to behave independently of competitive forces if it has acquired a position of
economic strength37. This position of economic strength can be understood to be one of the
substantial market powers38. Here Trimato did not function independently in the relevant
market due to the presence of the other FSAs and regular restaurants and also each of them
has a limited market share of their own.

3.3.3. It is also alleged that Trimato and Ziggy with their newly formed cloud kitchens
leverage their interest in the downstream market as well as in the conventional market of the
regular restaurants. However, the Expansion of the business from one relevant market to
other is cannot be termed as abuse of dominance39 and also Trimato is not functioning
independently without any competition as there are several other players such as Ziggy as
well as regular restaurants present in the market. It is Submitted that Trimato cannot function
independently of the Competitive forces prevalent in the market.

B. Trimato cannot affect Consumers, Competitors or the Relevant market in the its
favour.

37
United Brands Co. v. Commission, 1978 ECR 207, ¶65 (ECJ) [hereinafter, United Brands]; Hoffmann-La
Roche & Co. AG v. Commission, 1979 ECR 461, ¶4 (ECJ)

[hereinafter, Hoffmann].

38
Guidance on Article 102 Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary
Conduct by Dominant Undertakings, OJ 2009 (C 45)7, ¶10 [hereinafter, Enforcement Guidance]; Art. 102,
TFEU.

Page | 6

39
Abir Roy, Competition Law in India,(3rd edition)
3.3.3. It is humbly contended that an enterprise should have the ability to engage in a conduct
that excludes competition or prevent entry of the new comers into the relevant market and
should be able to influence the relevant market in its favor 40. Here in this particular case,
Trimato did not involve in any activity that exclude competition or prevent entry of the new
comers since there are five or six more FSAs which exist in the market along with the
Trimato41

3.3.4. Additionally, any anti-competitive practices by the Trimato will not affect the
consumers as there are other Substitutes available to the consumers in the identified market.
The buyers have contervailing buying power because of the competitive market 42. In
Conclusion, It is submitted that the Trimato does not hold a dominant position in the relevant
market. Therefore, Trimato cannot held liable for violation of Section 4 the Act.

3.4. Trimato is not abusing its dominant position under Section 4(2)(a) of the Vormiran
competition act,2002.

3.4.1 The appellant humbly submits that without prejudice to the above contentions, Section
4 of the Act prescribes types of conduct that will be considered abusive if carried out by a
dominant enterprise. In the instant case, it is contended that Trimato’s conduct was not in
violation of (I) Section 4(2)(a), (ii) Section 4(2)(c), and, (iii) Section 4(2)(e) of the Act.

3.4.2. It is submitted that Section 4(2)(a) of the act prohibits the (a) unfair or discriminatory
condition in the sale of goods and services and,(b) unfair or discriminatory price in the
purchase of goods or services. The explanation for Section 4(2) (a) states that any
discriminatory or unfair pricing or condition imposed “shall not include such discriminatory
condition or price which may be adapted to meet the competition.

40
BBI/Boosey and Hawkes:Interim Measures,1987 OJ (L 286) 36,¶18 (EC) [Hereinafter,Boosey]
41
Clarifications ¶ 5
42
Saurabh Tripathyv.Great Eastern Energy corp.Ltd , Case No. 63/2014, ¶18 (CCI)
3.4.3. In the present Matter, the Trimato have entered into a double-sided agreement with (a)
the restaurants who list their food products on its platform; (b) and the customers who order
food products from its platform. The purpose of entering into the agreement is to tap into the
growth of the Vormir’s FSAs which helps restaurants to increase their target audience and it
helps the Trimato to increase its profit, also it contributes to the growth of the economy of the
Vormir43

3.4.4. It is alleged by the VAR that Trimato is charging excessive commissions from its
partner restaurants, while the newly formed cloud kitchens that are owned by Trimato are not
being charged the same commissions44. It is submitted that the less commission charged by
the Trimato from the newly formed cloud Kitchen is not discriminatory as these cloud
kitchens are newly formed, in order to survive in the market and build its consumer base, it is
important to charge less commission from these cloud kitchens 45. These kitchens have just
been introduced in the market and can’t be charged with the same amount of commission that
is charged from the already established restaurants.

3.4.5. Further, in the case of Ashish Ahuja v Snapdeal46, it was clearly held by the CCI that
the e-commerce in India is still in its infancy and in order to sustain and gain buyers and to
establish a position in the market, there is need to charge less commission. Further, the
allegation of charging less commission from cloud kitchens is only directed towards Trimato
which is unfair, as the similar strategy is used by the other restaurants and in order to meet
competition in the market, Trimato is forced to adopt the same strategy and it comes within
the ambit Meeting competition defense. The ECJ in United Brand47s, case acknowledged the
right of any firm, even those in dominating position, to take action in protecting its
commercial interest.
43
. Proposition ¶ 2
44
Proposition ¶ 7
45
New e-commerce report,2019
46
13 CCI ,Case No. 17 of 2014
47
United Brands Co. v Commission (1978) ECR 207
3.4.6. It is contended although Trimato in the present case, has a market share of 60% from
the past 11 months48, it has not abused its dominant position in the relevant market. The term
unfair has not defined anywhere in the Act 49 and it has to be examined in the context of
unfairness in relation to customers and competitors 50. In the explanation of Section(4)(2)(a) it
is mentioned that predatory pricing is the subset of unfair pricing 51. Predatory pricing takes
place when an enterprise intentionally lower the price of its product with an intention of
eliminating the competitor52 or have an appreciable adverse effect on the competition in India
as It is inferred from the facts of the case that Economy of the Vormir is Booming at
significant rate and there is not any evidence put forth by the DG as well as the informant that
practices of Trimato are causing appreciable adverse effect on competition in Vormir and
also it is not inferred from the conducts of the Trimato that its conduct is causing elimination
of any FSAs from the market.

3.4.7. The report of the DG, as well as the informants, has also not put forth any evidence
with respect to the possibility of recoupment. The rationality for a recoupment rule is that
without recoupment, even if predatory pricing causes the target painful losses, it produces
lower aggregate prices in the market, and consumer welfare is enhanced and. Hence it is
contended that in order to crystalize any liability on the Trimato under Section 4 of the act it
is important to establish that the Trimato would be able to recoup any loss suffered during the
predation53. Therefore, any price or condition adopted by the FSAs is not in contravention of
section 4(2)(a) and it has adopted to meet the market condition.

48
Proposition ¶ 7
49
MCX stock exchange v NSE India Ltd, 2011 SCC online CCI 52
50
Ibid
51
Supra 29
52
Newmann v Reinforced Earth Co.F2D 424 (SC Cir 1986)
53
Brooke Group Ltd v Brown & williamson Tobacco Corporation, 509 U.S. 209 (1993)
3.4.8 It is contended that the Trimato cannot be held for denial of market access under
Section4 (2)(c) of the Act. Denial of market access is a conduct by dominant enterprises
which led to the foreclosure of the market access or defer entry of new player in the market54

3.4.9 The U.S Case of Dentsplay55 held that there should always be scope for a rival to access
the market on a scale sufficient to be a viable competitor. In the instant case, Trimato,
although it has a market share of 60% from the past 11 months charging less commission
from the newly formed cloud kitchens, is not discriminatory, and it is important for the
promotion as well as establishment of the cloud kitchens in the market.

3.4.10. In the case of Snapdeal56, the CCI observed that distributed circulars only clarified
that the warranty services offered by the manufacturer were limited to those products brought
from its authorized distributors, genuine spare parts and services of the same. The CCI further
stated that “the conduct of SanDisk in issuing such circular can only be considered as part of
normal business practice and cannot be termed as abuse of dominance”. Moreover, Ziggy and
NomRhino has market share of 30% and rest 10% is shared between two or three FSAs
which shows that there is no foreclosure of markets for the new entrants and also there is no
evidence put Neither by the VAR nor any prima facie evidence found by DG which led to
conclude that there is denial of market access.

3.4.11. Further, It can be inferred from the facts of the case, that Trimato is holding 60%
market share from the past 11 months57 Also there exist 4 to 5 more FSA apart from Trimato
and if going by the respondent allegation that there is a denial of market access by Trimato by
abusing its dominant position then these remaining FSAs by now should have left the market
but that’s not the case here. Instead all these FSAs are competing within themselves.

54
Sh. Dhanraj Pilay&ors. v. M/S Hockey India, Case no 73 of 2011
55
United States v. Dentsply International,Inc 399 F.3d 181 (3rd Cir. 2005)
56
Supra 26
57
Proposition ¶ 7
3.4.12 In JSW Paints Private Limited Vs. Asian Paints Limited58 it was observed that Asian
Paints has denied access to necessary distribution channels in the relevant market and has
limited the availability of alternate products in the relevant market for consumers thereby
reducing the competition in the market in contravention of provisions of Section 4(2)(c) of
the Act. As a result of the conduct of Asian Paints, the final consumers may also be deprived
of the choice to purchase different kinds of paints at competitive prices. But in the present
case, Trimato has never indulge itself in activity or practices which led to denial of market
access to the remaining FSAs and also it means that Customers are preferring Trimato over
other FSAs and it should not be alleged that it affect market and lead to denial of market
access under Section 4(2)(c)59.

3.4.13. It is humbly submitted that Trimato is unable to affect its competition in its favor as
the Ziggy along with other FSAs are offering competitive pricing. Further, they are
constrained by the need to retain customers. Therefore, it is submitted that the Trimato is not
the dominant enterprises in the relevant market and not violating Section 4(2)(c). Therefore,
Trimato cannot be held liable for the Violation pf Section 4(2)(e) of the act.

IV VAR along with its member restaurants have violated provisions of S. 3(3) read with
S. 3(1) of the Act
58
CCI, Case 36 of2019
59
26 ManappuramJewellers Pvt. Ltd. v. Kerala Gold & Silver Dealers Association, Case No. 13 of

2011, Decided on, 23.04.2012.

S. 3(3) of the Act talks about the Horizontal agreements between two or more enterprises that
are at the same stage of production chain and in the same market. Such agreements are often
between the same manufacturers or producers of goods or suppliers of same services and are
presumed to have Appreciable Adverse Effect on the competition. In the present case the
Horizontal agreement between VAR and some Restaurant owners have resulted in fixation of
prices with the consistent increase of nearly 200% which has clearly resulted in the Price
Parallelism and has clearly affected the competition adversely in Vormir 60 and has led to
formation of Hub and Spoke cartel61 between them.

4.1 That the consistent increase in price by VAR members on FSAs platform has led to
Price Parallelism and has hampered FSAs growth perspective in long run.

4.1.1 It is humbly submitted that consistent increase of price by VAR members on FSAs
platform has resulted in Price Parallelism and has hampered growth perspective as well as
reduced the profit of FSAs to great extent. As per S. 3(3) (a) of the Act whereby a horizontal
agreement between enterprises engaged in identical or similar trade of goods which results in
determination of sale as well as purchase price of the goods directly or indirectly will be void
per se.

4.1.2 In General Motors Continental NV v. Commission 62 ECJ63 used the expression

‘excessive price’ for the very first time and decided that ‘the imposition of a price which is
excessive in relation to the economic value of the service provided’ could be abusive under
Article 102(a). And the present case the respondent have clearly imposed excessive pricing
despite minimal increase in the cost price.

4.1.3 In the case Buckelew v. Martens64 it was held that Price fixing agreements, whether in
fact detriment to public or not when entered into by competing firms for the purpose of
maintaining higher prices, are illegal. The public are entitled to have competition, in order
that they may buy at the lowest price, and it makes no difference whether the prices- fixing
agreements are reasonable or unreasonable or tend to monopoly or not.

4.1.4 But in the present case the Increase in the price by nearly 200% from 2018 in 2019
without substantial increase in the cost of production of the same product shows that the price
60
Para 11 (b) of moot proposition.
61
Interstate Circuit, Inc., et al. v. United States, 306 U.S. 208 (1939).
62
1975 ECR 1367.
63
European Court of Justice.
64
108 N.J.L. 339 (N.J. 1931).
increase done by the members of VAR is without any justification and is nowhere for the
benefit of the customers as well as FSAs.

4.1.5 The counsel for the Appellants would also like to place reliance on a recent judgment of
Apex Court in Excel Crop Care Limited v. Competition Commission of India and Anr.65 To
state that price parallelism is inevitable in an oligopoly market where the limited numbers of
sellers/buyers have high degree of control on price, quantity and even identities of awardees
at its discretion. Thus, the very nature of the industry cannot be used as a factor to presume
collusion. But the present market is not Oligopoly since there are large number of restaurants
registered with VAR and customers connected to them.

4.2 That the Principle of Natural Justice stands to be violated since the FSAs from the
starting of the process haven’t been granted chance to represent themselves.

4.2.1 It is humbly submitted that of Regulation 41(4) of the 2009 Regulations empowers the
DG to call for the parties to lead evidence by way of affidavit or oral evidence. The principles
of natural justice demand the administrator to provide for a reasonable opportunity to be
heard (audi alterum partem) before making a decision concerning quasi-judicial matters.66

4.2.2 In Lafarge India v. CCI & Ors.67, Competition Appellate Tribunal remanded the matter
to CCI for fresh adjudication and further emphasized on the role of Natural Justice.
Competition Appellate Tribunal opined that rule of law remains an important corner stone of
India’s democratic setup and principles of natural justice were required to be followed in each
and every case where an order adversely affecting a person is passed.

4.2.3 The Supreme Court has also emphasized on the due process and the need of the CCI
and Competition Appellate Tribunal to pass speaking orders. In the case of Rangi
International Limited v. Nova Scotia Bank and others68 , a two-Judge Bench of the Supreme
Court considered the question whether the CCI and the Appellate Tribunal should record
reasons in support of their orders. Reliance is time and again placed on a plethora of
authorities across various courts in India and abroad which reiterated the view that denial of a

65
(2017) 8 SCC 47.
66
A.K. Kripak v. Union of India, AIR 1970 SC 150.
67
APPEAL No. 105 of 2012 & I.A. No. 36/2013.
68
(2013) 7 SCC 160.
right to hearing constitutes a serious breach of statutory procedure and violation of rules of
natural justice.

4.3 That there is a leak of confidential information by VAR in their bi annual meetings
which has resulted in revelation of growth strategies of FSAs.

4.3.1 The Information Technology Act, 2000 is the main legislation pertaining to protection
of data and privacy in cyber space. It has provisions relating to civil and criminal liability in
cases where any person tries to secure access to any confidential data. It also provides
consequences for breach of confidentiality. In the present case VAR has shared the
confidential details with the DFI69.

4.3.2 Section 72 of the Act relates to any person who, in pursuance of any of the powers
conferred by the Act or its allied rules and regulations has secured access to any: i) Electronic
record, ii) book, iii) Register, iv) Correspondence, v) Information, vi) Document, or vii)
Other material. If such person discloses such electronic record, book, register,
correspondence, information, document or other material to any other person, he will be
punished with imprisonment for a term, which may extend to two years, or with fine, which
may extend to two years, or with fine, which may extend to one lakh rupees, or both. In the
present case the information was released by the VAR.

4.3.3 The Department of Science and Technology had introduced the Draft National
Innovation Act, 2008. Section 8 of the Draft Act recognizes the contractual right of parties to
set out terms and conditions in respect of confidentiality. In India as well as globally, it is
already common practice to enter into confidentiality and non-disclosure contracts with
employees to prevent them from disclosing trade secrets or confidential information. Also
Section 11 lays down three exceptions to misappropriation of Confidential Information: (a)
availability of the information in the public domain, (b) the information has been
independently derived, and (c) disclosure of the information is held to be in public interest by
a court of law.

4.3.4 Three exceptions laid down under S. 11 of the Draft Act nowhere comes into play in
this particular case where VAR leaked the confidential information to DFI as well as in their
in Bi annual meeting70 to its restaurant partners which had competitively sensitive

69
¶ 6 of moot prop.
70
¶ 11(c) of moot prop.
information. And the point to be taken into consideration is that neither this sensitive and
confidential information was present in public domain nor the information was independently
derived by the VAR. Also the information was of very much significance and importance to
FSAs since it contained the growth strategies and other important points in favour of FSAs.

4.3.5 It should be noted that even if an enterprise provides such price or quantity related
information and the information is merely received tacitly, both the enterprise providing the
information and the enterprise receiving the information would be implicated in
cartelization.71 Also lord Denning in, RRTA v. W.H. Smith and Sons Ltd. 72, observed that,
“People who combine together to keep up prices do not shout it from the housetops. They
keep it quiet. They make their own arrangements in the cellar where no one can see. They
will not put anything into writing nor even into word. A nod or wink will do. Parliament as
well is aware of this. So it included not only an ‘agreement’ properly so called, but any
arrangement’, however informal”. The sharing of confidential information in the meeting has
led to formation of Hub and Spoke cartel.

71
A. Ahlstrom Osakeyhtio v. Commission of the European communities (Judgment of the Court of 27
September 1988.)
72
1914 1 KB 595.