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The explanation to section 4 of the Act defines dominant position to mean a position of strength enjoyed by an enterprise in the relevant market in India which enables it to operate independent of competitive forces prevailing in the relevant market or affect its competitors or consumers or the relevant market in its favour. On examining the dominant position of the OP, it was seen that the OP had no legal existence in India and did not engage in any business in India. Further, the relevant market was fragmented with many players engaging in the activity of production/ manufacture of ARV drugs in India. Accordingly, the OP was not a dominant player in the relevant market in India and therefore, no abuse as envisaged under section 4 of the Act could exist.
The Regulations now do not require a notice to be filed for acquisition of shares or voting rights of companies if the acquisition is less than five percent of the shares or voting rights of the company in a financial year, where the acquirer already holds more than twenty five percent but less than fifty percent of the shares or voting rights of the company.
In the present case, indisputably all the participating opposite parties i.e. 28 Part-I firms and 1 Part-II firm quoted an all-inclusive rate of Rs. 66.50 each for the supply of the tendered material. Further, the quantity quoted by the each of the bidders was less than 50% of the total quantity. These facts have not been denied or disputed by any of these opposite parties. Coupled with the facts that the bid documents containing same handwriting, same format with common omissions and commissions of language, past conduct etc., it is safe to infer that such conduct is reflective of meeting of minds or concerted action to establish that the firms have directly or indirectly tried to determine or influence the price of the tender/ project.
With regard to section 3 of the Act, the informant stated that OP1 (in its board meeting held on 16.04.2012) decided that Joint Plant Committee (JPC) would be collecting and furnishing price data to OP 1 so as to enable it to have a long term pricing methodology. This, along with existence of price parallelism resulted in a collusion under section 3 (3)(a) of the Act.
The informant herein was trying to experiment with an innovative way to have premier of its movie in India through DTH so as to have reach to maximum number of consumers/viewers at a premier show through DTH medium. The decision of the OP not to exhibit this movie or any other movie released before it was released to theatres, through DTH or any other technology prima facie has an effect of limiting the market of exhibition of films for the benefit of viewers at large in the territories under its control. The decision prima facie also seems to be restricting informant from taking advantage of technological development in the relevant industry at a timing of its choice. Such a decision of OP prima facie seems to be anti competitive as it deters a producer from providing to consumers an opportunity of watching premiere show in an economic manner in the comforts of his home. It also has the potential of adversely affecting the competition and depriving benefit to producers and consumers of newer technologies.
In this case Nothing has been pointed out that the bank was not within its right to firstly levy those charges or that it was acting beyond the rules. In levying those charges, the bank has fully justified as it relied on the Reserve Bank Rules and the banking practice. After all the bank had to maintain the accounts and it was by way of an agreement between the complainant and the bank that the bank was levying Rs. 250 per bill per quarter. Therefore, on this account there was no fault on the part of the bank.
By no stretch of imagination, Lakme can be considered as dominant either in the geographical market of Delhi or of Gurgaon. There are innumerable branded and non-branded saloons exclusively for women in Delhi alone looking at the population of Delhi being 1.26 crore and the same is the situation with regard to the number of exclusive saloons for women within district Gurgaon which covers a large area within it.In view of the presence of such a large number of beauty saloons exclusively for women in these areas having 7 saloons or so would not give a dominant status to Lakme under any circumstance. Thus, the question of abuse of dominance by Lakme would not arise.
On a plain reading of the aforesaid circulars/letters, it is evident that the opposite party associations through these circulars/letters tried to limit/control the supply of the film in contravention of the provision of section 3 (1) read with section 3(3)(b) of the Act. By virtue of the provisions contained in section 3(3) of the Act, any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which (a) directly or indirectly determines purchase or sale prices;
In so far as the specific instances of the abuse of agreement in question are concerned, it is obvious that there has been a settlement between the original complainant and the respondents. Because the complainant does not have any more complaint/grievance of any boycott or the compulsory undertakings which he is to give under the authority of either FMC or FDC so that question will clearly be foreign to the present enquiry.
The role and functioning of BCCI have already been examined in detail earlier in this order. An analysis of the position clearly brings out that there is an overlap between the way BCCI is discharging its regulatory and commercial roles respectively, and the modus operandi/decision making process does not clearly separate the two roles.
