Op (MC19)

OP MC19
1st VSL-CCI NATIONAL MOOTCO freshers’ moot
BEFORE THE HON’BLE SUPREME COURT OF INDISHI
Case N
JURISDICTION UNDER ARTICLE 136 OF CONSTITUTION OF
INDISHI,1950
SPECIAL LEAVE PETITION NO. /202X
CPLC & KITTN ….… Petitioner
Versus
CCI.....................................................................................................Respondent
MEMORIAL FILED ON BEHALF OF THE RESPONDENT

1st VSL-CCI NATIONAL MOOTCOURT COMPETITON ON COMPETITION LAW 2023
Contents
LIST OF ABBREVIATIONS....................................................................................................ii
INDEX OF AUTHORITIES......................................................................................................v
STATEMENT OF JURISDICTION.........................................................................................ix
STATEMENT OF FACTS........................................................................................................x
ISSUES FOR CONSIDERATIONS.......................................................................................xiii
SUMMARY OF ARGUMENTS............................................................................................xiv
ARGUMENTS ADVANCED...................................................................................................1
CONTENTION I: THAT THE SLP IS NOT MAINTAINABLE.........................................1
[1] The appropriate appellate body to approach was NCLAT and not Supreme Court.....1
[2] CCI has Appropriate Jurisdiction to allow case no. 23.................................................2
[3] Clubbing of cases by CCI was not illegal.....................................................................2
CONTENTION II: THAT THERE IS ABUSE OF DOMINANT POSITION AND

PREDATORY PRICING BY CPLC......................................................................................4
[1] They are part of the Same Relevant Market..................................................................4
ii

[2] CPLC Holds a Domi1nant Position in the Relevant Market.........................................6
[3] That There Has Been Abuse of Dominant Position by CPLC......................................8
CONTENTION III: THE CONDUCT OF AKK MOBI LTD, VVNR CELTEC PVT. LTD
AND ADS TECHLIFE PVT LTD AMOUNTS TO ANTI-COMPETITIVE AGREEMENT
IN VIOLATION OF SECTION 3(3) READ WITH SECTION 3(1) OF THE ACT..........13
[1] The parties have not colluded to form a cartel............................................................13
[2] Assuming arguendo, the conduct of the parties has caused not AAEC......................17
[3] The defense of objective justification and the rule of reason is applicable.................18
PRAYER...............................................................................................................................XVI
1
AIR 1997 SUPREME COURT 3011, 1997 AIR SCW 3043, 1997 LAB. I. C
iii

LIST OF ABBREVIATIONS
Sl. No. Abbreviations Meaning
1. § Section
2. ¶ Para
3. & And
4. % Percentage
5. AAEC Appreciable Adverse Effect on

Competition
6. AIR All India Reporter
7. Anr Another
8. Art Article
9. CCI Competition Commission of India
10. Co. Company
11. CPLC Comtel Private Limited Company
12. ECJ European Court of Justice
13. EU European Union
14. HC High Court
15. KITTN Keep In Touch Telecommunication &

Network Incorporation
16. Ltd Limited
17. Ors Others
18. Pvt. Private
19. SC Supreme Court
iv

20. SCC Supreme Court Cases
21. SLP Special Leave Petition
22. UOI Union of India
23. V. Verses

INDEX OF AUTHORITIES
Indian CASES
1. Ajay Devgun Films v. Yash Raj Films (P) Ltd, 2012 SCC OnLine Comp AT 233----------18
2. All India Tyre Dealers' Federation v. Tyre Manufacturers, 2012 SCC OnLine CCI 65----16
3. B.Santoshamma v. D. Sarala,2020 (19) SCC 80---------------------------------------------------3
4. Belaire Owners' Association vs DLF Limited, HUDA & Ors. Case No, 19/2010------------7
5. Brickwork Ratings India Pvt. Ltd. and CRISIL Ltd. and Others, Case No. 47 of 2019------2
6. CCI v. Bharti Airtel, AIR 2019 SC 113. 2
7. CCI v. Coordinate Committee of Artists and Technician of West Bengal, C.A. No. 6691 of
2014 (SC). 4
8. Chief Materials Manager v. Milton Industries Ltd., Reference Case No. 02/2014, CCI- - -17
9. Chitivalasa Jute Mills Vs. Jaypee Rewa Cement, AIR 2004 SC 1687--------------------------3
10. Fast Track Call Cab Pvt. Ltd. v. ANI Technologies Pvt. Ltd., Case No. 6 & 74 of 2015
(CCI). 6
11. Federation of Indian Airlines, Case No. RTPE 3/2008, CCI----------------------------------17
12. Google LLC v. CCI 39/2018. 1
13. Indian Sugar Mills Association v. Indian Jute Mills Association, [2014] CCI 90---------14
14. Jyoti Swaroop Arora v. Tulip Infratech Ltd., 2015 SCC OnLine CCI 26-------------------14
15. Kapoor Glass v. Schott Glass India Pvt. Ltd., Case No. 22 of 2010 (CCI)--------------8, 12
16. M/s. HCL Infosystems Limited Vs State of Rajasthan, CW Case No. 8304 of 2016-------1
17. Mahalaxmi Coop. Housing Society Ltd. v. Ashabhai Atmaram Patel, (2013) 4 SCC 404 3
18. MCX Stock Exchange Limited v. National Stock Exchange of India Ltd., Case No. 13 of
2009 (CCI).
Passim
International view
1. Neeraj Malhotra v. Deutsche Post Bank Home Finance Ltd., [2010] CCI 32.-------------14
2. Neeraj Malhotra, Advocate v. Deustche Post Bank Home Finance Limited, C. No. 05 of
2019 (CCI) 6
3. Prem Lata Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551-------------------------------3
4. Prints India v. Springer India Pvt. Ltd., (2012) 109 CLA 411---------------------------------4
5. Ratnagiri Gas & Power Pvt. Ltd. v. RDS Projects Ltd, (2013) 1 SCC 524: AIR 2013 SC
2000 (India) 9
vi

6. Royal Bank of Scotland Plc v. Impressions, 2018 SCC OnLine Cal 4497-------------------3
7. Saint Gobain Glass Ltd v. Gujarat Gas Company Ltd, AIR 2013 Case No.20 (2022)------4
vii

8. Shailesh Kumar v. Tata Chemicals Limited, Case No. 66/2011, CCI-------------------14, 17

9. Shri Avtar Singh v. Ansal Township & Land Development Ltd., Case No. 03 of 2014
(CCI). 5
10. Shri Shamsher Kataria and Honda Siel Cars India Ltd., Case No. 03 of 2011 (CCI)-------6
11. Sugar Mills, Case No. 1 of 2010 (CCI) 14
STATUTES
1. Competition Act, 2002, § 19(7)(c), No. 12, Acts of Parliament, 2002 (India)----------------6
2. Competition Act, 2002, § 2(s) No. 12, Acts of Parliament, 2002 (India)----------------------5
3. Competition Act, 2002, §19(4), No. 12, Acts of Parliament, 2002 (India)-------------------11
4. Competition Act, 2002, §19(6), No. 12, Acts of Parliament, 2002 (India)---------------------5
5. Competition Act, 2002, §4(1), No. 12, Acts of Parliament, 2002 (India)----------------------8
ONLINE RESOURCES
1. Publication Office Of EU, https://www.op.europa.eu/en/publication (last visited Mar. 2,

2022) 4
FOREIGN CASES
1. Akzo Chemie BV v. Commission, (1991) 1 ECR 3359---------------------------------------6, 7

2. Aspen Skiing v. Aspen Highlands Skiing, 472 US 585 (1985)--------------------------------10
3. Bayer AG v. Commission, [2001] 4 CMLR 176-------------------------------------------------13
4. Benzine en Petroleum Handelsmaatschappij BV v. Commission of the European
Communities, 1978 ECR 1513 (UK). 19
5. Board of Trade of City of Chicago v. The US, 246 U.S. 231 (1918---------------------------20
6. Case C-360/92 P. Publishers Association, [1995] ECR I-23-----------------------------------17
7. Case COMP/C-3/37.792, EC Commission v. Microsoft, 2004 ECR 345---------------------12
8. Case T-201/04, Microsoft Corporation v. Commission, [2007] ECR II-360-----------------12
9. Case T-86/95, Compagnie Generale Maritime, [2002] ECR II-1011-------------------------17
10. Case-T-340/03, France Telecom Sa v. Commission, [2009] 4 C.M.L.R. 25---------------11
11. Coleman v. Cannon Oil Co., 849 F.Supp.1458-------------------------------------------------19
12. Compagnie Royale Asturienne des Mines SA and Rheinzink GmbH v. Commission of the
European Communities, (1984) 1 ECR 01679---------------------------------------------------14
13. Dyestuffs, Imperial Chemical Industries v. Commission of the European Communities,
(1972) ECR 619. 16
viii

14. Greek Telecommunications Organization (OTE) v. National Commission, (2005) E.C.C.

2 (UK). 9
15. Hilti AG v. Commission of the European Communities, 1990 ECR 2 (UK)---------------19
16. Hilti AG v. Commission, C. No. T-30 of 89 (CFI)----------------------------------------------6
17. Hoffmann La Roche & Co. AG v. Commission, 1979 ECR 461 (UK)----------------------19
18. Hoffmann v. South African Airways, (2002) 12 BLLR 1365 (CC)---------------------------6
19. Irish Sugar plc v. Commission of the European Communities, (1999) 2 ECR 2969 (UK).
19
20. M.A.P Oil Co. v. Taxaco Inc., 691 F2d 1303 (9th Cir 1982) ---------------------------------
10
21. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574---------------------------14
22. Métropole Télévision (M6) & Co v. Commission, 2001 ECR 2001 (UK)------------------20
23. Newmann v Reinforced Earth Co., 786 F.2d 424 (D.C. Cir. 1986)--------------------------10
24. United Brands v. Commission, 1978 ECR 207 (UK)---------------------------------------6, 19
25. Virgin Atlantic v. British Airways (2000) OJ L 30/1--------------------------------------------8
BOOKS
1. Albertina Albors-Llorens, Refusal to Deal and Objective Justification in EC Competition

Law, 65 CLJ 24, 24-27 (2006). 12
2. Atilano Jorge Padilla, The Role of Supply-Side Substitution In The Definition Of The
Relevant Market Inmerger Control (Nera 2001)---------------------------------------------------5
3. D.P. Mittal, Competition Law and Practice 172 (3d ed. 2011)---------------------------------20
4. D.P. Mittal, Competition Law and Practice 178 (3d ed. 2011)----------------------------17, 20
5. Guidance on the Commission's Enforcement Priorities in applying Article 82 of the EC
Treaty to Abusive Exclusionary Conduct by Dominant Undertakings, (2009/C45/02), ¶15.
12
6. Michael L. Katz, Carl Shapiro, Systems Competition and Network Effects, JRNL. ECO.
PERSP. 101, 108 (1994). 10
7. P.D. Sudhakar & K.K. Sharma, Competition law and policy in India, (CCI) OECD on
Indian Competition Law 6
8. R.S. Khemani and D.M. Shapiro, Glossary of Industrial Organization Economics and
Competition Law, Directorate for Financial, Fiscal and Enterprise Affairs, OECD, 1993
http://www.oecd.org/regreform/sectors/2376087.pdf--------------------------------------------10
9. Richard Posner, Antitrust Laws 2351 (2d ed. 2006)---------------------------------------------19
ix

10. Richard Whish & David Bailey, Oxford’s Competition Law 561 (7th Ed. 2012)---------15
OTHER AUTHORITIES
1. EUROPEAN COMMISSION - PRESS RELEASE, BRUSSELS, Commission Press

Release No. IP/78/111 (12 Jan. 2018). (UK)------------------------------------------------------10
2. Organisation for Economic Co-Operation and Development, Glossary of Industrial
Organisation Economics and Competition Law 26 (1993) available
at http://www.oecd.org/regreform/sectors/2376087.pdf-----------------------------------------16
3. ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT,
POLICY ROUND TABLES 1 (1999) available at https:
//www.oecd.org/daf/competition/1920526.pdf---------------------------------------------------15
4. Raghavan Committee Report, 1999. 6

STATEMENT OF JURISDICTION
The Petitioners have approached the Hon'ble Supreme Court of INDISHI under ARTICLE
136 OF THE CONSTITUTION OF INDISHI. THE SPECIAL LEAVE PETITION
HAS BEEN ADMITTED AS CIVIL APPEAL UNDER SECTION ARTICLE 136 OF
THE CONSTITUTION:
136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order in
any cause or matter passed or made by any court or tribunal in the territory of India.
The Respondent, CPLC submit to the jurisdiction of this Hon'ble Court.
xi

STATEMENT OF FACTS
{Background Information}
1. Keep In Touch Telecommunication & Network Incorporation (‘KITTN’) is United States
of Aarika (a Country with the highest GDP growth in our World) based company engaged
in doing business of (i) manufacturing and selling of mobiles, electronic gadgets, and (ii)
providing tele-communication services and holds 65% market share and control in the
market of United State of Aarika.
2. KITTN is having many Wholly Owned Subsidiary (‘WOS’) Companies across the Globe
one similar company is Comtel Private Limited Company (‘CPLC’) in the country of
Indishi under the provisions of the Companies Act, 2013. In field of mobile
manufacturing and providing telecom services in Indishi it holds 40% of the market and
therefore is considered 2nd largest private telecom service provider in the Country of
Indishi.
3. Another telecom company in Indishi incorporated under Companies act, 1956 is Sree
Telecommunication & Network Private Limited (‘STNPL’) holding 20% share in the
market of Indishiupto 2020. In 2021, due to the drastic changes in STNPL’s management
and its hasty and aggressive decisions, STNPL runs into losses and market holding fell
from 20% to 15%.
4. In the year 2021, in a meeting conducted by STNPL passed a resolution to merge STNPL.
After thorough research, they at learnt that KITTN is vehemently seeking for
flourishment of its stake in the market of Indishi and envisaged its interest in the merger
or acquisition of other telecom service provider companies through CPLC. In the said
context, the STNPL representative had approached KITTN and expressed its intention to
xii

merge with CPLC. If the proposed merger is successful, CPLC will hold 55% of the share
in providing telecom services in the market of Indishi.
5. Before the date of signing of the merger, on 31.08.2021, CPLC made a public
announcement in the market of Indishi that CPLC is going to provide free telecom
services for Eighteen Months from the date of purchase subject to the purchase of any
model among the 10 models of Chaplus Smart Mobiles which are manufactured by CPLC
with effect from 01.09.2021.
6. Consequent to the merger and the public announcement made by CPLC there is
aphenomenal rise in the business of CPLC and CPLC has raised to 65% of users in the
telecom service market and 49% of the mobile manufacturing market in Indishi due to
which the entire market of othertelecom services and mobile manufacturing companies
went into a great depression.
7. The other telecom service providing companies such as Lareify, Glore hitch and PBS
Telecommunications in a confidential meeting decided to offer telecom services to the
public and its users at a cheaper rate than the market prices with an object to secure their
businesses. However, the decision of taken in the meeting remained futile.
8. Other companies like AKK Mobi Ltd, VVNR Celtec Pvt. Ltd and ADS Techlife Pvt Ltd
(collectively hold a market share equivalent to 48%) in a confidential meeting decided to
offer special discounts to the public on their products which are more competitive to
Chaplus Smart Mobiles in the market to secure their businesses. The decision of AKK
Mobi Ltd, VVNR Celtec Pvt. Ltd and ADS Techlife Pvt Ltd. remained effective and
impacted the sales of CPLC’s Chaplus Smart Mobiles.
9. Article published in news-paper Indishi Today on 01-11-2021 disclosing that
(i) CPLC has acquired a dominant position in the telecom service market with
65% of telecom subscribers in the Country of Indishi
xiii

(ii) CPLC has acquired phenomenal growth to its business after merging of
STNPL with CPLC
(iii) CPLC is targeting to own 90% of telecom subscribers and Mobile users in the
Country of Indishi by the end of the year 2022.
(iv) AKK Mobi Ltd, VVNR Celtec Pvt. Ltd and ADS Techlife Pvt Ltd. are
intended to monopolise the market and thereby increase the prices of mobile
phones by the end of the year 2022.
{PROCEEDING BEFORE CCI}
(i) Case No. 23 of 2021
10. Lareify, Glore hitch and PBS Telecommunications filed a Complaint before the
Competition Commission of Indishi (CCI) at Amarashala for abuse of dominant position and
predatory pricing.
(ii) Case No. 42 of 2021
11. CPLC filed a Complaint against other mobile manufacturing companies such as AKK
Mobi Ltd, VVNR Celtec Pvt. Ltd and ADS Techlife Pvt Ltd. against forming cartelization
and entering into an Anti-Competitive Agreement and the same is numbered as Case No. 42
of 2021.
{PRESENT STATUS}
(i) CCI dismissed Case No. 23 of 2021 and allowed Case No. 42.
(ii) CPLC has challenged before the Supreme Court of Indishi.
(iii) Final hearing is about to come.
xiv

ISSUES FOR CONSIDERATIONS
I.
WHETHER THE SLP IS MAINTAINABLE OR NOT?
II.
WHETHER CPLC IS IN VIOLATION OF SECTION 4(1) OF THE COMPETITION ACT?
III.
WHETHER AKK MOBI LTD, VVNR CELTEC PVT. LTD AND ADS TECHLIFE PVT
LTD. IS IN VIOLATION OF SECTION 3(3) READ WITH SECTION 3(1) OF THE ACT?
xv

SUMMARY OF ARGUMENTS
CONTENTION I: THAT THE SLP IS NOT MAINTAINABLE
Counsel for the respondent humbly submits before the Hon’ble Supreme Court that the
special leave petition should be dismissed as the appropriate body to approach was NCLAT
and not the Supreme Court. The NCLAT is the appellate body formed under Section 53A of
the Competition Act, 2002 to address matters against the orders of the CCI. Furthermore, all
alternative remedies should be exhausted before Supreme Court’s jurisdiction under Article
136 is invoked. Further in the present case the CCI shall have authority over TRAI in hearing
case no. 23 because CCI has the expertise in dealing with the competition-related matters and
it has also been mentioned under Section 18 of the Competition Act. The power to
consolidate cases arise where two or more matters are pending and it appears to the court that
some common question of law or fact arises in both or all of the suits. In the present case,
even if the matter was not entirely similar, the clubbing of the suits was valid because both
cases were filed before jurisdiction of CCI, Amarshala. CPLC is the common party in both
the cases and the matter in both the cases ultimately arose because of the merger of CPLC
with STNPL.
CONTENTION II: THAT THERE IS ABUSE OF DOMINANT POSITION AND
PREDATORY PRICING BY CPLC
Counsel for the respondent humbly submits before the Hon’ble Supreme Court that CPLC
has engaged in abuse of dominant position and predatory pricing as they are part of the same
relevant market and CPLC holds a dominant position in the relevant market. It is necessary to
define relevant market. The relevant product market is the telecom sector of the country of
Indishi. Further an enterprise could be regarded as dominant if it enjoys a position of strength
xvi

in the relevant market which enables it to operate independently of competitive forces. In the
present case CPLC has a dominant positon in the relevant market as it has a high share in the
relevant market, it is capable of operating independently of other competitive forces previling
in the market and consumers have a preference for CLPC’s product. Further the Competition
Act prohibits the abuse of dominant position. Under section 4(2) of the Act places a special
responsibility on any enterprise which enjoys a dominant position. CPLC has abused the
dominant position in the market as it has engaged in predatory pricing, CPLC used its
dominant position in one relevant market to enter inti other relevant market and the conduct
of CPLC is not justified.
CONTENTION III: THE CONDUCT OF AKK MOBI. LTD, VVNR CEL TEC PVT.
LTD AND ADS TECHLIFE PVT LTD AMOUNTS TO ANTI-COMPETITIVE
AGREEMENT IN VIOLATION OF SECTION 3(3) READ WITH SECTION 3(1) OF
THE ACT
Counsel for the respondent humbly submits before the Hon’ble Supreme Court that the
conduct of AKK Mobi Ltd, VVNR Celtec Pvt. Ltd and ADS Techlife Pvt Ltd do not amount
to an anti-competitive agreement violating section 3(3) of the Act as the parties have not
colluded from the cartel. The conduct of the parties has caused not AAEC. The defence of
objective justification and the rule of reason is applicable. There is no exclusive supply
agreement. There is no horizontal market led to price fixing. The parties have not colluded
because there is no agreement between the parties and the circumstantial evidence is
insufficient. Further, the mobile manufacturing market reflects oligopolistic characteristics
and price parallelism cannot be regarded to be an evidence of cartel agreement.
xvi
i
ARGUMENTS ADVANCED
CONTENTION I: THAT THE SLP IS NOT MAINTAINABLE
1. It is humbly submitted before this Hon’ble Supreme Court the respondents contend that
the SLP should be dismissed as [1] The appropriate appellate body to approach was
NCLAT and not Supreme Court; [2] CCI has appropriate jurisdiction to allow case no.
23; [3] The clubbing of case no. 23 of 2021 and case no. 42 of 2021 by CCI was not bad
in law.
[1] The appropriate appellate body to approach was NCLAT and not Supreme Court
2. National Company Law Appellate Tribunal (NCLAT) is the appellate body formed under
Section 53A of the Competition Act, 2002 to address matters against the orders of the
Competition Commission of India. In the case of M/s. HCL Infosystems Limited Vs State
of Rajasthan1, doctrine of exhaustion of remedies prevents a litigant from seeking a
remedy in a new court or jurisdiction until all claims or remedies have been exhausted
(pursued as fully as possible) in the original one. In the case of Google LLC v. CCI2,
Supreme Court held that as the appeal is pending before NCLAT, this court is desisting
from entering a finding on the merits of the rival submissions which have been urged on
behalf of the contesting parties.
3. It is most humbly submitted that in the present case as well the SLP should be dismissed
as the appropriate appellate body for filing the petition was NCLAT. Furthermore, all
alternate remedies should be exhausted before Supreme Court’s jurisdiction under Article
136 is invoked.
1
M/s. HCL Infosystems Limited Vs State of Rajasthan, CW Case No. 8304 of 2016.
2
Google LLC v. CCI 39/2018.
1

[2] CCI has Appropriate Jurisdiction to allow case no. 23
4. The preamble of Competition Act states its objective which is to prevent practices having
adverse effect on competition, to promote and sustain competition in markets, to protect
the interests of consumers and to ensure freedom of trade carried on by other participants
in markets, in India, and for matters connected therewith or incidental thereto. Section 18
of the Act states that it shall be the duty of the Commission to eliminate practices having
adverse effect on competition, promote and sustain competition, protect the interests of
consumers and ensure freedom of trade carried on by other participants, in markets in
India.
5. In the case of CCI v. Bharti Airtel3, the Court had explained that the ‘CCI is not a sector-
based body but has the jurisdiction across which transcends sectoral boundaries, thereby
covering all the industries.’ In Re: Brickwork Ratings India Pvt. Ltd. and CRISIL Ltd. and
Others4, it was held that mere presence of a sectoral regulator, viz. SEBI, does not
extinguish the jurisdiction of the CCI. Although the subject matter of CRAs falls within
the domain expertise of SEBI, examining any conduct of a CRA alleged to be anti-
competitive is within the jurisdictional ambit of the CCI.
6. It is most humbly submitted that in the present case as well CCI shall have the authority
over TRAI in hearing case no. 23 as the expertise in dealing with the competition related
matters is with CCI and the same has also been enunciated in the preamble and section 18
of the Competition Act.
[3] Clubbing of cases by CCI was not illegal
7. The power to consolidate cases arise where there are two or more matters or causes
pending in the court and it appears to the court that some common question of law or fact
3
CCI v. Bharti Airtel, AIR 2019 SC 113.
2

4
Brickwork Ratings India Pvt. Ltd. and CRISIL Ltd. and Others, Case No. 47 of 2019.

arises in both or all the suits or that the rights to relief claimed in the suits are in respect of
or arise out of the same transaction or series of transactions; or that for some other reason
it is desirable to make an order consolidating the suits. Consolidation of suits can be done
under S. 151 of CPC.
8. In the case of B. Santoshamma v. D. Sarala5, SC held that clubbing of suits for hearing
them together and disposal thereof by a common judgment and order is for practical
reasons. Such clubbing together of the suits does not convert the suits into one action. The
suits retain their separate identity as was also held in Mahalaxmi Coop. Housing Society
Ltd. v. Ashabhai Atmaram Patel6 The clubbing together is done for convenience, inter
alia, to save time, costs, repetition of procedures and to avoid conflicting judgments."
9. In the case of Chitivalasa Jute Mills Vs. Jaypee Rewa Cement 7,the cause of action alleged
by one party as foundation for the relief prayed for and the decree sought for in one case
is the ground of defence in the other case. It was held that almost the same set of oral and
documentary evidence would be needed to be adduced for the purpose of determining the
issues of facts and law arising for decision in the two suits before two different courts and
hence clubbing of cases was allowed. In the case of Prem Lata Nahata v. Chandi Prasad
Sikaria8, it was held that the main purpose of consolidation is to save costs, time and
effort and to make the conduct of several actions more convenient by treating them as one
action.
10. In the case of Royal Bank of Scotland Plc v. Impressions9, the Court observed that
although the issues may not be the same; but the same set of evidence and witnesses
would be required to prove the respective issues. In the case of M/s Mahaveer Enterprises
5
B.Santoshamma v. D. Sarala,2020 (19) SCC 80.
6
Mahalaxmi Coop. Housing Society Ltd. v. Ashabhai Atmaram Patel, (2013) 4 SCC 404.
7
Chitivalasa Jute Mills Vs. Jaypee Rewa Cement, AIR 2004 SC 1687.
8
Prem Lata Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551.
9
Royal Bank of Scotland Plc v. Impressions, 2018 SCC OnLine Cal 4497.
4

v. Nsoft India Services Private Ltd. a writ petition challenging the clubbing of cases was
dismissed as similar questions of fact would arise for consideration in both the suits.
11. In the present case, it is most humbly submitted that clubbing of the suits by CCI was
valid even when the matter was not entirely similar. In the present case, (i) both the cases
were filed before the jurisdiction of CCI, Amarshala; (ii) CPLC is the common party in
both the cases; (iii) the matter in both the cases ultimately arose because of the merger of
CPLC with STNPL and furthermore because of the public announcement made by CPLC.
Therefore, to save the time and expenses of the court and to meet the ends of justice, Case
No. 23 of 2021 and Case No. 42 of 2021 were clubbed by CCI for speedy dispensation of
justice.
CONTENTION II: THAT THERE IS ABUSE OF DOMINANT POSITION

AND PREDATORY PRICING BY CPLC
12. It is humbly submitted that CPLC has engaged in abuse of dominant position and
predatory pricing as [1] they are part of the same relevant market; [2] CPLC holds a
dominant position in the relevant market; and [3] CPLC has abused its dominant position
in the relevant market under §4 of the Act.
[1] They are part of the Same Relevant Market
13. To establish any enterprise as dominant it is necessary 10 to identify relevant market11. The
objective of defining the relevant market is to identify the actual competitors 12 and to
identify those who can place constraints on fair competition. In the case of Saint Gobain
Glass Ltd v. Gujarat Gas Company Ltd.13, the CCI in order to determine the “relevant
10
Prints India v. Springer India Pvt. Ltd., (2012) 109 CLA 411.
11
Publication Office Of EU, https://www.op.europa.eu/en/publication (last visited Mar. 2, 2022).
12
CCI v. Coordinate Committee of Artists and Technician of West Bengal, C.A. No. 6691 of 2014 (SC).
13
Saint Gobain Glass Ltd v. Gujarat Gas Company Ltd, AIR 2013 Case No.20 (2022).
5

market” took note of the factors to be considered while determining relevant product
market and relevant geographic market.
14. It is humbly submitted that in the present case the relevant market is the telecom sector of
the country of Indishi.
[a] Relevant Geographic Market is country of Indishi
15. The relevant geographic market14 is the area in which the conditions of competition for
demand and supply of goods or services are similar and can be distinguished from the
other neighbouring area.15 It is important to consider certain factors like “regulatory trade
barriers, local specification requirements & consumer preference while delineating the
relevant geographic market.”16
16. In the present case, the condition throughout the Country of Indishi is homogenous.
Therefore, considering the above, the relevant geographic market should be restricted to
the Country of Indishi.
[b] Relevant Product Market is telecommunication sector
17. In economics, a market is defined by a set of primitives: namely, consumer preferences
and technology.17 All those products or services which are regarded as interchangeable or
substitutable by the consumer form part of the same relevant product market.
18. It is humbly submitted that the relevant product market in this case is the telecom sector
of country of Indishi.
14
Competition Act, 2002, § 2(s) No. 12, Acts of Parliament, 2002 (India).
15
Shri Avtar Singh v. Ansal Township & Land Development Ltd., Case No. 03 of 2014 (CCI).
16
Competition Act, 2002, §19(6), No. 12, Acts of Parliament, 2002 (India).
17
Atilano Jorge Padilla, The Role of Supply-Side Substitution In The Definition Of The Relevant Market
Inmerger Control (Nera 2001).
6

[2] CPLC Holds a Dominant Position in the Relevant Market
19. An enterprise could be regarded as dominant if it enjoys a position of strength in the
relevant market, which enables it to operate independently of competitive forces
prevailing in the relevant market; or affect its competitors or consumers or the relevant
market in its favor.18
20. In the present case, it is humbly submitted that CPLC has a dominant position in the
relevant market as [a] it has a high share in the relevant market; [b] sizes and resources of
CPLC; [c] it is capable of operating independently of other competitive forces prevailing
in the market; and [d] consumer’s preference for CPLC’s product.
[a] Market Share of CPLC
21. Market share indicates the dominance of an enterprise in a relevant market. 19 It provides
useful first indications of the market structure and helps in understanding the competition
in the market. Market share20 can be considered a factor to determine dominance. 21 It may
not be the sole criterion to determine dominance in the market but holds a high persuasive
value.22 The courts have held the firm's dominance on the basis of high market share. 23 A
market share above 50% should be considered very high 24. EU held that25 “absence of
exceptional circumstances pointing the other way, an undertaking with such a market
share will be presumed dominant”26.
18
Shri Shamsher Kataria and Honda Siel Cars India Ltd., Case No. 03 of 2011 (CCI).; Fast Track Call Cab Pvt.
Ltd. v. ANI Technologies Pvt. Ltd., Case No. 6 & 74 of 2015 (CCI).
19
United Brands v. Commission, 1978 ECR 207 (UK).
20
P.D. Sudhakar & K.K. Sharma, Competition law and policy in India, (CCI) OECD on Indian Competition
Law; Raghavan Committee Report, 1999.
21
Competition Act, 2002, § 19(7)(c), No. 12, Acts of Parliament, 2002 (India).
22
Neeraj Malhotra, Advocate v. Deustche Post Bank Home Finance Limited, C. No. 05 of 2019 (CCI).
23
Hoffmann v. South African Airways, (2002) 12 BLLR 1365 (CC).
24
Akzo Chemie BV v. Commission, (1991) 1 ECR 3359.
25
Hilti AG v. Commission, C. No. T-30 of 89 (CFI).
26
7

22. It is humbly submitted that in the present case, CPLC held 40% of the market share in
providing telecommunication services which has further increased to 65% after the public
announcement and merger with STNPL.27 This is a determinative factor to establish that
CPLC operates as a dominant player.
[b] Size, Resources and Economic Power of CPLC
23. The European Court of Justice observed that “Market Share, while important, is only one
of the indicators from which the existence of a dominant position may be inferred.28 In
the NSE Case29, due consideration was given to the overall financial strength in the stock
market. Similarly, while determining the issue of dominance in the DLF case 30, due
consideration was given by the CCI to various factors other than market share such as
statements issued by DLF Limited in the public domain, DLF’s vast amounts of fixed
assets and capital, turnover, brand value, strategic relationships, wide sales network, etc.
24. It is humbly submitted that CPLC is a wholly owned subsidiary of KITTN which holds
65% of the market in United States of Aarika (a country with highest GDP growth). 31
Therefore, the size and resources of CPLC are huge. Also, the public announcement made
by CPLC and the merger entered into by CPLC have further raised the size and resources
of CPLC. Therefore, CPLC is operating as a dominant player in the market.
27
See Moot Problem No. 3 and 7.
28
29
MCX Stock Exchange Limited v. National Stock Exchange of India Ltd., Case No. 13 of 2009 (CCI).
30
Belaire Owners' Association vs DLF Limited, HUDA & Ors. Case No, 19/2010.
31
See Moot Problem No. 1 and 2.
8

[c] CPLC Can Operate Independently of The Competitive Forces Prevailing in the Relevant
Market
25. In Kapoor Glass32, the Commission stated “independence in the context of dominance
does not mean absence of any other player in a relevant market, but that the enterprise
whose dominance is being ascertained has market power and is in a position to influence
competitive forces to its own advantage and to the detriment of other.”
26. In the present case, it is humbly submitted that CPLC was the first company to launch an
offer independently of other competitive forces in the market. Such an further was also
capable of putting the whole telecom and mobile manufacturing market in great
depression. This shows that CPLC holds the dominant position in the market.
[d] Consumer Preference for CPLC’s Product
27. In the case of British Airways,33 the Court of First Instance held that the assessment of the
dependence relationship between the undertaking in question and its customers is relevant
for the finding of a dominant position in a classical sense.
28. It is humbly submitted that the consumers naturally have more preference for CPLC’s
product because of the offer provided by them and hence reflects their dominant position.
[3] That There Has Been Abuse of Dominant Position by CPLC
29. The Competition Act, of 2002 prohibits the abuse of a dominant position 34 rather than the
dominance itself. The Act places a special responsibility on any enterprise which enjoys a
dominant position not to conduct its business in a manner prohibited under section 4(2). 35
Abuse of dominant position occurs when a dominant firm in the market engages in
32
Kapoor Glass v. Schott Glass India Pvt. Ltd., Case No. 22 of 2010 (CCI).
33
Virgin Atlantic v. British Airways (2000) OJ L 30/1.
34
9

35
10

conduct that is intended to eliminate or discipline a competitor or to deter future entry by
new competitors, with the result that competition is prevented or lessened substantially.
Several agencies stated that the discounts can be anti-competitive if they effectively
foreclose a large share of the relevant market.36
30. It is submitted that CPLC has abused its dominant position in the relevant market as [a]
CPLC has engaged in predatory pricing; [b] CPLC used its dominant position in one
relevant market to enter or protect another relevant market; [c] CPLC’s conduct was not
justified and; [d] CPLC created barriers for new entrants.
[a] CPLC has Engaged in Predatory Pricing
31. In the instance of MCX Stock Exchange v. National Stock Exchange of India Ltd. &Ors. 37,
the commission gave the essentials for claiming predatory pricing. “The first one being
demonstration that the scheme could actually drive the competitor out of the market the
second one being that there must be evidence that the surviving monopolist could then
raise prices to consumers long enough to recoup his cost without drawing new entrants to
the market.” It is submitted that CPLC has engaged in Predatory Pricing as [i] The
Scheme can Drive the Competitors out of the Market; [ii] Recoupment Standard Test
applies.
[i] The Scheme can Drive the Competitors out of the Market
32. Since the direct proof of such condition is difficult to accrue, an analysis of finding abuse
of dominance is the sacrifice test.38 It questions whether a monopolist is willing to
sacrifice short term profits in order to reap the benefits in exchange of a long-term impact
36
Greek Telecommunications Organization (OTE) v. National Commission, (2005) E.C.C. 2 (UK).
37
38
Ratnagiri Gas & Power Pvt. Ltd. v. RDS Projects Ltd, (2013) 1 SCC 524: AIR 2013 SC 2000 (India).
11

on its rival.39 Predation is an “objective concept” and is not normally necessary to prove
intent or guilt.40 Thus, the threat of anti-competitive action may suffice to achieve anti-
competitive effect41 and hence, the defence of no-fault cannot be invoked by the
respondent.
33. It is humbly submitted that the public announcement may by CPLC was such that it had
put the whole telecommunication sector in depression which shows that it has the power
to drive the existing competitors out of the market.42
[ii] Recoupment Standard Test
34. In order to constitute a competition violation, the firm should be found to be using it
discounting strategy for “bidding for future monopoly profits.” 43 In the case of Newmann
v Reinforced Earth Co.44, it was held that when there is a risk that the competitors will be
eliminated, then there is no need for competition authority to prove the possibility of
recoupment.
35. It is humbly submitted that CPLC is subsidizing its losses through its deep pockets which
they can later recover easily after eliminating other competitive forces and acquiring the
monopoly. Deep pocket is an expression used to describe the idea that extensive financial
and other resources of large firms or conglomerates can be used to sell below cost for
extended periods of time.45
39
Aspen Skiing v. Aspen Highlands Skiing, 472 US 585 (1985).
40
M.A.P Oil Co. v. Taxaco Inc., 691 F2d 1303 (9th Cir 1982).
41
EUROPEAN COMMISSION - PRESS RELEASE, BRUSSELS, Commission Press Release No. IP/78/111
(12 Jan. 2018). (UK).
42
See Moot Problem No. 7.
43
Michael L. Katz, Carl Shapiro, Systems Competition and Network Effects, JRNL. ECO. PERSP. 101, 108
(1994).
44
Newmann v Reinforced Earth Co., 786 F.2d 424 (D.C. Cir. 1986).
45
R.S. Khemani and D.M. Shapiro, Glossary of Industrial Organization Economics and Competition Law,
Directorate for Financial, Fiscal and Enterprise Affairs, OECD, 1993
http://www.oecd.org/regreform/sectors/2376087.pdf
12

[b] CPLC Used Its Dominant Position in One Relevant Market To Enter Into, Or Protect,
Other Relevant Market.
36. It is humbly submitted that the petitioners have used their dominance in one relevant
market by leveraging its position to enter another market and have contravened §4(2)(e)
of the Act as [i] they have a dominant position in the relevant market of mobile
manufacturing, [ii] they are operating in two separate but interconnected markets of
telecom and mobile manufacturing and (3) the conduct of CPLC is not objectively
justified.
[i] Dominant Position in Relevant Market of Mobile Manufacturing
37. The relevant product market comprises of those products or services which are regarded
as interchangeable or substitutable46 by the consumers, by reason of characteristics of the
product or services, their prices and intended use. 47The dominant position of FSAs can be
established by its high market share, size and resources, the dependence of customers on
the enterprise, the size of the competitors and its economic power and commercial
advantages enjoyed over its competitors.48
38. It is humbly submitted that CPLC holds a 49% share in the market of mobile
manufacturing and has a huge size and number of resources and thus it can be said to be
in a dominant position.
[ii] Markets of telecom and mobile manufacturing are interconnected
46
Case-T-340/03, France Telecom Sa v. Commission, [2009] 4 C.M.L.R. 25.
47
48
13

39. There is a requirement of identifying two distinct relevant markets where the dominant
enterprise is operating and these two relevant markets must also have an associational
link49, for the purpose of establishing abuse under §4(2)(e).50
40. It is humbly submitted that both the markets are interconnected for telecom services are
majorly used in mobiles.
[c] Conduct of CPLC is not justified
41. It is humbly submitted that objective justification can be afforded by a dominant
enterprise in order to rebut the accusation of leveraging dominant position51 under
§4(2)(e) of the Act.52 Moreover, the instances wherein there is a foreclosure of
competition in the downstream market the conduct of the dominant enterprise may not be
objectively justified.53
42. It is humbly submitted that the conduct of CPLC is not objectively justified as the scheme
offered by it is such that it cannot be matched by other competitors except by incurring
losses to great extent and the same has put all the service providers in depression.
Therefore, the effects cannot be held to pro-competitive in nature.
[d] That CPLC’s conduct has created barriers to entry for new entrants
43. When monopolies are controlling bottlenecks that are contested by new models, there is a
risk of defensive leveraging. This defensive leveraging is not about reaping additional
profits from a second market, but an attempt to defend its primary monopoly position.54
49
50
51
Case T-201/04, Microsoft Corporation v. Commission, [2007] ECR II-3601.
52
Albertina Albors-Llorens, Refusal to Deal and Objective Justification in EC Competition Law, 65 CLJ 24, 24-
27 (2006).
53
Guidance on the Commission's Enforcement Priorities in applying Article 82 of the EC Treaty to Abusive
Exclusionary Conduct by Dominant Undertakings, (2009/C45/02), ¶15.
54
Case COMP/C-3/37.792, EC Commission v. Microsoft, 2004 ECR 345.
14

44. It is most humbly submitted that CPLC has created strategic barriers to entry as its
conduct has already made it difficult for the existing competitors to survive so it can be
reasonably inferred that it will become further more difficult for any new enterprise to
enter the telecommunications sector of country of Indishi.
CONTENTION III: THE CONDUCT OF AKK MOBI LTD, VVNR CELTEC

PVT. LTD AND ADS TECHLIFE PVT LTD AMOUNTS TO ANTI-
COMPETITIVE AGREEMENT IN VIOLATION OF SECTION 3(3) READ
WITH SECTION 3(1) OF THE ACT.
45. It is submitted by the respondent that the conduct of AKK Mobi Ltd, VVNR Celtec Pvt.
Ltd and ADS Techlife Pvt Ltd do not amount to an anti-competitive agreement violating
Sec. 3(3) of the Act as [1] The parties have not colluded to form a cartel. [2] The conduct
of the parties has caused not AAEC. [3] The defence of objective justification and the rule
of reason is applicable.[4] there is no exclusive supply agreement. [5] there is no
horizontal market led to price fixing.
[1] The parties have not colluded to form a cartel.
46. It is submitted by the respondent that the parties have not colluded to form a Cartel as [1]
there is no agreement between the parties. [2] the circumstantial evidence is insufficient.
[3] the mobile manufacturing market reflects oligopolistic characteristics.[4] Price
parallelism cannot be regarded to be an evidence of cartel agreement.
15

[a] There is no agreement between the parties.
47. The sine qua non for violation of Section 3 is the existence of an agreement 55 and it must
be unequivocally established.56 The existence of an agreement cannot be conjectured or
merely even circumstantially adduced.57There must be conclusive evidence of a meeting
of minds58 and two or more persons doing similar acts, which merely would not amount
to an agreement.59 Similarly, where an arrangement does not indicate that the parties to it
accepted mutual rights and obligations, it would not be tantamount to an arrangement.
48. In the present case, it is alleged that AKK Mobi Ltd, VVNR Celtec Pvt. Ltd and ADS
Techlife Pvt Ltd met in a confidential meeting to conspire to form a cartel. 60 Although the
said fact establishes the meeting of minds, however, there is no conclusive proof to show
that an oral or written agreement to form a cartel transpired between them at that time.
[b] The circumstantial evidence is insufficient.
49. The law is settled that proof of consciously parallel business behaviour is circumstantial
evidence but such evidence, is insufficient unless the circumstances under which it
occurred make the inference of rational, independent choice less attractive than that of
concerted action61. Evidence must exclude the possibility that the conspirators acted
independently, in other words, a plaintiff must show an inference of conspiracy is
reasonable in light of the competing inferences of independent action62.
55
Bayer AG v. Commission, [2001] 4 CMLR 176.
56
Neeraj Malhotra v. Deutsche Post Bank Home Finance Ltd., [2010] CCI 32.
57
Compagnie Royale Asturienne des Mines SA and Rheinzink GmbH v. Commission of the European
Communities, (1984) 1 ECR 01679.
58
Sugar Mills, Case No. 1 of 2010 (CCI); Indian Sugar Mills Association v. Indian Jute Mills Association,
[2014] CCI 90.
59
Jyoti Swaroop Arora v. Tulip Infratech Ltd., 2015 SCC OnLine CCI 26.
60
61
Shailesh Kumar v. Tata Chemicals Limited, Case No. 66/2011, CCI.
62
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574.
16

50. Even if it is assumed that there was an agreement between the parties to act in an illegal
manner, the mere fact that the decision of the parties remained effective and impacted the
sales of CPLC’s Chaplus Smart Mobiles doesn’t exclude the possibility that the
conspirators might have acted independently of the agreement.
[c] The mobile manufacturing market reflects oligopolistic characteristics.
51. An oligopoly is a market where the majority of the market is concentrated in the hands of
few. The market power in the mobile manufacturing market is concentrated in the hands
of few significant players, thereby rendering its oligopolistic nature and pricing.
Presently, the 4 top firms hold 97% market share and this reflects its oligopolistic nature.
Accordingly, firms in an oligopoly might imitate their rivals pricing yet without reaching
an explicit agreement63. Presently, merely because the firms sold their mobiles at a
special discounted price is not indicative of an agreement but shows the oligopolistic
tendency of the market.
52. In an oligopoly a reduction in price would swiftly attract the customers of the other two or
three rivals, the effect upon whom would be so devastating that they would have to react
by matching the cut64. Similarly, an oligopolistic could not increase its price unilaterally,
because it would be deserted by its customers if it did so. Thus, the theory runs that in an
oligopolistic market rival are interdependent and they are acutely aware of each other's
presence and are bound to match one another's marketing strategy 65.Therefore, it can be
inferred that special discounted price by the manufacturers was not due to an agreement
as prohibited by the Act, but a mere feature of the existing oligopolistic market structure.
63
ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, POLICY ROUND
TABLES 1 (1999) available at https: //www.oecd.org/daf/competition/1920526.pdf.
64
Richard Whish & David Bailey, Oxford’s Competition Law 561 (7th Ed. 2012).
65
Richard Whish & David Bailey, Oxford’s Competition Law 561 (7th Ed. 2012).
17

[d] Price parallelism cannot be regarded to be an evidence of cartel agreement.
53. Economic theory has demonstrated convincingly that “conscious parallelism”, is not
uncommon in homogeneous oligopolistic markets. Aware of such outcomes especially
where there is little real difference in product, conscious parallelism may be dictated
solely by economic necessity66.In oligopolistic markets, the burden proof must be higher
than circumstantial evidence of concerned or parallel behaviour and uniform pricing and
output policies. In other words, conscious parallelism in and of itself should not
necessarily be construed as evidence of collusion67. In Dyestuffs, Imperial Chemical
Industries v. Commission of the European Communities68, the European Court held that
parallel behaviour does not, by itself, amount to a concerted practice, though it may
provide a strong evidence of such a practice.
54. Presently, merely because the firms have attempted to gain a share against CPLC, it
cannot be concluded that there was an agreement between these parties, and that by itself
shows the absence of a cartel. Further, the rationale for doing any business is to earn some
profit from it. Earning of zero profit or accumulating losses for an indeterminate period
can never be the goal of any commercial enterprise 69. Presently, the firms intended to
minimize the losses caused by CPLC’s offers and they did so by selling the mobiles at a
special discounted price. Therefore, the petitioner cannot contend that the special
discounted pricing by the manufacturers is indicative of an agreement. In view of the
foregoing reasons, the respondents submit that there is no agreement for the purposes of
Section 3(3) and therefore, Section 3(3) is not attracted.
66
All India Tyre Dealers' Federation v. Tyre Manufacturers, 2012 SCC OnLine CCI 65.
67
Organisation for Economic Co-Operation and Development, Glossary of Industrial Organisation Economics
and Competition Law 26 (1993) available at http://www.oecd.org/regreform/sectors/2376087.pdf.
68
Dyestuffs, Imperial Chemical Industries v. Commission of the European Communities, (1972) ECR 619.
69
18

[2] Assuming arguendo, the conduct of the parties has caused not AAEC.
55. In a case where no contravention of provisions of Section 3(3) of the Act has been
established and no cogent evidence is made available which can establish the
contravention, presumption of AAEC does not arise 70. The non-competitive nature of a
market, standing alone, does not imply an ‘agreement’. Interdependent behavior is not an
agreement, even in an oligopolistic market, in the absence of which, factors of Section
19(3) of the Act are also not attracted71. On the contrary, the agreement has pro-
competitive effects on the market.
56. It is submitted by the respondent that assuming arguendo, the conduct of the parties has
not caused AAEC as [a] the agreement doesn’t drive the existing competitors out of the
market[b] the agreement between the parties causes benefits to the consumers.
[a] The agreement doesn’t drive the existing competitors out of the market.
57. It is submitted that the APPAs entered into by the FSAs does not drive existing
competitors out of the market. The elimination of competition in the market depends on
the degree of competition existing prior to the agreement and on the impact of the
restrictive agreement on competition72. For this purpose, the market share of the parties is
considered73.Further the “effect” must be “appreciably” adverse 74as the principle of de
minimis is the base.
58. It is submitted that consequent to the merger and the public announcement made by
CPLC there is a phenomenal rise in the business of CPLC which raises CPLC’s market
share mobile manufacturing market in Indishi to 49%, which makes it the dominant
70
Federation of Indian Airlines, Case No. RTPE 3/2008, CCI; Chief Materials Manager v. Milton Industries
Ltd., Reference Case No. 02/2014, CCI.
71
Shailesh Kumar v. Tata Chemicals Limited, Case No. 66/2011, CCI.
72
Case T-86/95, Compagnie Generale Maritime, [2002] ECR II-1011.
73
Case C-360/92 P. Publishers Association, [1995] ECR I-23.
74
D.P. Mittal, Competition Law and Practice 178 (3d ed. 2011).
19

player in the relevant market.75 Assuming arguendo, no evidence is established to show
that the action of the parties has “appreciably” affected the market of CPLC or any other
competitors. Moreover, there are also no evidence of driving existing competitors out of
the market or foreclosure of competition by hindering entry into the market or price fixing
and causing adverse effect76. Accordingly, the conduct of the parties does not cause
AAEC in the relevant market.
[b] The agreement between the parties causes benefits to the consumers.
59. AAEC refers not to a particular list of agreements but to a particular economic
consequence that harms the competitors in the consumer welfare sense of economies i.e.
effect on price or output.
60. In the present matter, the special discounts offered by the parties to the public on their
products have impacted the sales of CPLC’s Chaplus Smart Mobiles. However, it is
significant to note that the products offered by the parties are more competitive to
Chaplus Smart Mobiles. Even if it is assumed that the parties attempted to gain market
share against CPLC, the act will be a pro-competitive practice which will lead to non-
price competition and prevent CPLC’s emergence as a monopoly in the future. Such non-
price competition will lead to improvement in the quality of the product and accordingly,
benefits will accrue to the customers.
[3] The defense of objective justification and the rule of reason is applicable.
61. If a firm's motivation were merely to meet rival prices, it would constitute only
interdependence77. Accordingly, to prove conspiracy, evidence of action that is against
75
76
Ajay Devgun Films v. Yash Raj Films (P) Ltd, 2012 SCC OnLine Comp AT 233.
77
Id.
20

self-interest or motivated by profit must go beyond mere interdependence78. Parallel
price-fixing must be so unusual that in the absence of an advance agreement, no
reasonable firm would have engaged in it79.
[a] Defence of objective justification
62. It is contended that a cartel is protected from the legal doctrine of “objective justification”
which the respondents are eligible to. It refers to three conceptual categories80:
i. Legitimate business behaviour encompassing “competition on the merits”81 and
“defence of commercial interests”82;
ii. Objective factors out of the control of the dominant company83; and
iii. Efficiency gains.84
63. It is contended that an undertaking is entitled to take reasonable measures to protect its
commercial interests.85 “Meeting competition” defence is applicable when a lower price
was made to meet an equally low price of the competitor. 86 It must comply with the
principle of proportionality, i.e. the conduct has to pursue a legitimate aim, be reasonable
and proportionate to the threat posed by its competitors. 87In United Brands Company v.
Commission88, the European Commission (EC) held that protection of commercial
interests when a firm is attacked is legitimate and crucial for fair competition in the
market.
78
Id.
79
Coleman v. Cannon Oil Co., 849 F.Supp.1458.
80
Hilti AG v. Commission of the European Communities, 1990 ECR 2 (UK).
81
Hoffmann La Roche & Co. AG v. Commission, 1979 ECR 461 (UK).
82
83
Benzine en Petroleum Handelsmaatschappij BV v. Commission of the European Communities, 1978 ECR
1513 (UK).
84
Irish Sugar plc v. Commission of the European Communities, (1999) 2 ECR 2969 (UK).
85
86
Richard Posner, Antitrust Laws 2351 (2d ed. 2006).
87
88
21

64. In the present case, the firms went into a great depression as a consequence of the
promotional price offered by CPLC on their Chaplus smart mobiles. Thus, as a legitimate
response to the rival CPLC, the firms entered into an agreement by which they offered
their more “competitive” products at a special discount to the public. Through this
agreement, the firms intended to protect their commercial interests and secure their
business. Thus, the defense of objective justification is available to the parties.
[b] Rule of Reason.
65. While determining whether the agreement falls within the category of anti-competitive
one or not, the competition Commission can employ the yardstick of the rule of reason.
According to the rule of reason as explained by the United States Supreme Court in the
case of Board of Trade of City of Chicago v. The US, 89 any restraint is of an essence until
it merely regulates and promotes competition. The rule of reason exempts per se
unreasonableness and assesses behavior from its legal and economic perspective 90 and for
the appreciation of its pro and anti-competitive effects.91
66. In the present case, it is humbly submitted that the rule of reason is applicable as the
behaviour of the firm was only reasonable and also had pro-competitive effects.
89
Board of Trade of City of Chicago v. The US, 246 U.S. 231 (1918)
90
D.P. Mittal, Competition Law and Practice 172 (3d ed. 2011).
91
Métropole Télévision (M6) & Co v. Commission, 2001 ECR 2001 (UK).
22

PRAYER
Wherefore in the light of fact stated, the issues raised, argument advanced, reasons given and
authorities cited, it is most humbly and respectfully prayed before this Hon’ble court that it
may be pleased to admit this appeal and declare that:
1. That the SLP is not maintainable.
2. That CPLC is in violation of Section 4(1) of the Act and penalties may be imposed on
CPLC under § 27 of the Act.
3. That AKK Mobi Ltd, VVNR Celtec Pvt. Ltd and ADS Techlife Pvt Ltd. are not in
violation of section 3(3) read with section 3(1) of the act.
AND/OR
Pass any other order or grant any other relief in favour of the appellant, which this
Hon’ble Commission may deem fit in the ends of justice, equity and good conscience.
ALL OF WHICH IS MOST HUMBLY AND RESPECTFULLY SUBMITTED.
Sd/-
(Counsel for the Respondent)
XVI

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OP MC19

1st VSL-CCI NATIONAL MOOTCO freshers’ moot

BEFORE THE HON’BLE SUPREME COURT OF INDISHI

JURISDICTION UNDER ARTICLE 136 OF CONSTITUTION OF

SPECIAL LEAVE PETITION NO. /202X

CPLC & KITTN ….… Petitioner

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

ISSUES FOR CONSIDERATIONS.......................................................................................xiii

CONTENTION I: THAT THE SLP IS NOT MAINTAINABLE.........................................1

[2] CCI has Appropriate Jurisdiction to allow case no. 23.................................................2

[3] Clubbing of cases by CCI was not illegal.....................................................................2

CONTENTION II: THAT THERE IS ABUSE OF DOMINANT POSITION AND

[1] They are part of the Same Relevant Market..................................................................4

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

[3] That There Has Been Abuse of Dominant Position by CPLC......................................8

[1] The parties have not colluded to form a cartel............................................................13

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

Sl. No. Abbreviations Meaning

5. AAEC Appreciable Adverse Effect on

6. AIR All India Reporter

9. CCI Competition Commission of India

10. Co. Company

11. CPLC Comtel Private Limited Company

12. ECJ European Court of Justice

13. EU European Union

14. HC High Court

15. KITTN Keep In Touch Telecommunication &

16. Ltd Limited

17. Ors Others

18. Pvt. Private

19. SC Supreme Court

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

20. SCC Supreme Court Cases

21. SLP Special Leave Petition

22. UOI Union of India

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

8. Shailesh Kumar v. Tata Chemicals Limited, Case No. 66/2011, CCI-------------------14, 17

1. Publication Office Of EU, https://www.op.europa.eu/en/publication (last visited Mar. 2,

1. Akzo Chemie BV v. Commission, (1991) 1 ECR 3359---------------------------------------6, 7

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

14. Greek Telecommunications Organization (OTE) v. National Commission, (2005) E.C.C.

1. Albertina Albors-Llorens, Refusal to Deal and Objective Justification in EC Competition

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

1. EUROPEAN COMMISSION - PRESS RELEASE, BRUSSELS, Commission Press

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

136 OF THE CONSTITUTION OF INDISHI. THE SPECIAL LEAVE PETITION

HAS BEEN ADMITTED AS CIVIL APPEAL UNDER SECTION ARTICLE 136 OF

The Respondent, CPLC submit to the jurisdiction of this Hon'ble Court.

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

1. Keep In Touch Telecommunication & Network Incorporation (‘KITTN’) is United States

market of United State of Aarika.

from 20% to 15%.

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

in providing telecom services in the market of Indishi.

with effect from 01.09.2021.

went into a great depression.

Telecommunications in a confidential meeting decided to offer telecom services to the

businesses. However, the decision of taken in the meeting remained futile.

(collectively hold a market share equivalent to 48%) in a confidential meeting decided to

impacted the sales of CPLC’s Chaplus Smart Mobiles.

9. Article published in news-paper Indishi Today on 01-11-2021 disclosing that