Travel Agents Association of India Vs Competition Commission of India & Ors. (NCLAT Delhi)
Conclusion: Department of Expenditure, Government of India did not qualify as an “enterprise” under Section 2(h) of the Competition Act, 2002, being a “consumer” of air ticketing services. Therefore, Tribunal dismissed Travel Agents Association of India ( TAAI )’s allegations of anti-competitive practices.
Held: Assessee- TAAI filed the appeal under Section 53B of the Competition Act, 2002, challenging the Competition Commission of India‘s (CCI) order dated 8.05.2020 alleging that the Department of Expenditure, Government of India, the Respondent No. 2, Balmer Lawrie & Co. Ltd., Respondent No. 3, and Ashok Travels and Tours, Respondent No. 4 engaged in anti-competitive practices under Section 3(4) and Section 3(1) of the Competition Act, 2002 through exclusionary market practices that denied market access to private travel agents for official air travel bookings. Assessee had alleged that Respondent No. 2 had issued an Office Memorandum which contained direction to all government officials including the employees of the public sector companies to exclusively use the services of either Respondent No. 3 or 4 while booking air tickets for official travel and in this manner, foreclosed the market to the private sector travel agents. Assessee had filed an information earlier to challenge memorandum, which Respondent No. 1 closed vide its order dated 15.09.2010 under Section 26(2) on the ground that Respondent No. 2 was not an “Enterprise” and the Government being the consumer for such services was entitled to make the choice for booking of air tickets through its authorised travel agents only. Assessee in the second information had prayed that an enquiry under Section 26(1) might be initiated against Respondent No. 2 and 3 to ascertain whether the OMs issued by the R1 had caused an appreciable adverse effect on competition (AAEC) in the market in India. CCI in the impugned order closed the information under Section 26(2) of the Act, leading to the appeal. Respondents alleged that the second information filed by assessee was barred by the principle of res judicata (Section 11 of the Code of Civil Procedure, 1908) because the same issues had already been decided on merit between the same parties in the first information submitted by assessee. It was held that assessee approached the Respondent No. 1 by filing second information on the same facts and circumstances against the same opposite parties with the same prayer which had already been declined in the first information filed by the Appellant and the order of the CCI was tested and upheld by the Appellate Authority when the appeal of the Appellant was dismissed and no further appeal by the Appellant was carried to the Hon’ble Supreme Court which seal the fate of the Appellant in so far as this litigation was concerned. In this view of the matter the salutary principle / legal maxim that nemo debet lis vexari pro una et eadem causa would spring in to the action that no man should be vexed twice for the same cause which had been adjudicated in the present case by assessee because even if it was presumed that the economic activities were dynamic, as stated by assessee, the fact remains that the two courts had already held that the Respondent No. 2 was not an enterprise and OM1 was not an agreement in violation of Section 3(4) of the Act, therefore, these issues could not be reagitated and the court could not be called upon to decide the same by passing a lengthy judgment and the wasting time which might be used for disposal of a genuine case, therefore, the present appeal was found without any merit and while dismissing this appeal, assessee was saddled with costs of Rs. 5 lacs which should be deposited by assessee in the Prime Minister Relief Fund within a period of 15 days from the date of passing of this order.
