[1] WHETHER THE CURRENT APPEAL TO THE SUPREME COURT IS

MAINTAINABLE?

The current petition is maintainable as there is a [A] Requisite jurisdiction being rested in
supreme court, alongside with the contention being raised that [B] whether the Order by
CCI, subsequently withheld by NCLAT aggrieves the petitioners in this appeal.

[A] Requisite jurisdiction is rested in Supreme Court

It is humbly submitted and thereby pleaded that the current forum is final interpreter of the
constitution and has a constitutional duty of maintaining the rule of law and following the
procedure established by law for upholding the spirit of constitutionalism and ensuring to
foster an environment devoid of malpractices for the sustenance of all.

The councils aver that, the CCI and subsequently NCLAT have through their orders on two
different instances on same facts in issues have aggrieved us, and therefore by virtue of
section 53T, under the Competition Act, 2002, this appeal is being brought up before the
Hon’ble Supreme Court. The councils for the side of petitioner’s place on record that, we
are not satisfied with the order of NCLAT, and the penalty being imposed upon us i.e. the
penalty of INR 6,300 million on PLF which was 7% turnover of PLF and penalty of 50
million on DMK which was 0.3% of the Total Turnover of DMK Builders.

[A.1] Whether the Order by CCI, subsequently withheld by NCLAT aggrieves the
petitioners in this appeal for anti-competitive practices and abuse of dominant
powers.

The Act is designed to follow an inquisitorial structure, in which the Commission is

anticipated to investigate matters containing competition problems in rem rather than
functioning as a mere adjudicator to discover facts and determine rights in personam
originating from competing claims between parties1. The Commission has been vested
with the authority to take cognizance and examine any alleged contravention of Section 3
or Section 4 of the Act on its own initiative 2 and expand the scope of enquiry in the
interest justice and maintain the status quo of markets.

Arguendo, it is submitted that protection of commercial interests of an entity is crucial

for fair competition in the market 3. Fair competition that is devoid of any unnecessary
interference and vexious litigations, is an essential factor for the development of
1
Surendra Prasad v. Competition Commission of India,  [2015] 63 taxmann.com 368 (CAT).
2
Harshita Chawla v. WhatsApp Inc.  , [2020] 118 taxmann.com 421/161 SCL 131 (CCI)
3
Prasar Bharati (Broadcasting Corporation of India) v TAM Media Research Private Limited, CCI Case No. 70
of 2012.
economy and the sustenance of competition in the market. Corporate practises that lead
to quick and efficient results cannot be termed as anti-competition and exercise of
discretion in matters pertaining cannot be abuse of dominant power. If such were to
continue then any contingency for a company and an action taken would be qualified for
imposition of penalties and be termed as anti-competitive and abuse of power. This is the
crux of our submission.

In accordance, we plead reference to paragraph 1 of the moot proposition i.e. “ PLF is a

company incorporated under the provisions of Indusland and is one of the leading
players in the real estate-construction sector with a handful of other enterprises in the
arena”. As evident that there are only a handful companies in this trade area with PLF
alongside DLK, therefore question of dominancy and thence abuse appears to be
redundant. Consequently we plead that the order passed by CCI and subsequently
withheld by NCLAT, is devoid of any explanation as to how the petitioners are dominant
players and be abusive, such as is the reason to make it evident that the dominancy has
been assumed.

We submit that under the Competition Act of Indusland, abuse of dominance can be
assumed only in cases where there is some exploitative and exclusionary conducts by the
dominant market player for its favour. In the present appeal, the CCI is required to
establish a well-reasoned and legally sound nexus between the activities of Petitioners
and the alleged anti-competitive practise.

We plead that 'dominance' and relevant market'- is critical in determining whether or not
an act is anti-competitive. Because firms should be competitive and innovative,
'dominance' is not a bad thing in and of itself. However, in legal terms, 'dominance' refers
to an enterprise's position of strength in the (relevant) market, which allows it to function
independently of competitive dynamics or to influence the behaviour of its competitors
and customers in its favour. The considerations that determine whether or not an
enterprise is 'dominant' are listed in Section 19(4) of the Competition Act. The CCI and
NCLAT did not make any specific observations as to what and on which occasion do the
petitoners fall under the context of dominant players in the relevant market. Such an
assumption is erroneous and vexious in the interests of petitioners. Thence this appeal.
One of the objectives of competition law is to promote efficiency and the term efficiency
includes cost savings, more intensive use of existing capacity, economies of scale or scope, or
demand-side efficiencies such as increased network size or product quality and such business
justification is a valid proof against anti-competitive4

4
Rico Auto Industries Limited and Others v GAIL (India) Limited, Case No. 16 to 20 and 45 of 2016; 02, 59,
62 and 63 of 2017,