Orders and Judgments Duration – November 8 to 22, 2018
THE ANIMALS ARE NOT AS STUPID AS ONE THINKS- THEY HAVE NEITHER DOCTORS NOR LAWYERS
L. Docquier, French Aphorist
COMPETITION COMMISSION OF INDIA(‘CCI’)
- Velankani Electronics Private Limited (‘Informant’) v. Intel Corporation (‘OP’)
The CCI, based on the analysis of the facts and materials presented by the Informant and the OP, was of the opinion that there was a prima facie case of contravention of the provisions of Section 4 of the Competition Act, 2002 (‘Act’) by the OP in the matter. The Commission holds that the OP being in a dominant position in the market for “Processors for Servers in India” has, by refusing to provide access in a non-discriminatory manner to the complete set of files/information necessary for the Informant to design its own Server-Boards which are compatible with the Micro-Processor manufactured by the OP, prima facie, denied market access to the Informant in contravention of Section 4 (2) (c) of the Act. Further, the OP through its conduct has also prima facie, limited and restricted the production of Servers and the market therefor and has also limited the technical/scientific development relating to Servers in the market in violation of Section 4 (2) (b) of the Act. Consequently, the DG is directed to cause an investigation into the matter to ascertain whether the OP has abused its dominant position in contravention of the provisions of Section 4 of the Act by denying to the Informant access to its reference design files for Server-Boards and/or simulation files for the same, in a discriminatory manner, not at par with the ODMs/OEMs, without any reasonable justification for the same.
[November 9, 2018] For more information, please access –https://www.cci.gov.in/sites/default/files/16-of-2018.pdf
- Meet Shah and Mr. Anand Ranpara (‘Informants’) v. Union of India, Railway Ministry (‘OP1’) and Indian Railway Catering and Tourism Corporation Ltd. (‘OP2’) (collectively ‘OPs’).
The present information has been filed by the Informants under section 19(1)(a) of the Competition Act, 2002 (‘Act’) against the OPs, alleging contravention of the provisions of Section 4 of the Act. The OP2 is, inter-alia, engaged in online ticketing operations of Indian Railways. The Informants have averred that the Opposite Parties are in a dominant position in the relevant market as they are the only players but are empowered to determine the pricing of e-tickets. It has been alleged that consumers have no choice other than agreeing to the arbitrary, unreasonable and unfair terms and conditions of the Opposite Parties. Based on the analysis and discussions, prima-facie, a case of contravention of the provisions of Section 4 of the Act is made out against the Opposite Parties. Accordingly, the Director General is directed to cause an investigation into the matter.
[November 9, 2018] For more information, please access –https://www.cci.gov.in/sites/default/files/30-of-2018.pdf
- M/s K.C. Marketing (‘Informant’) v. OPPO Mobiles MU Private Limited (‘OP’)
The present information was filed by the Informant, a proprietorship firm in Pune, under Section 19 (1) (a) of the Competition Act, 2002 (‘Act’), the OP, a private limited company registered under the provisions of the Companies Act, 2013, alleging contravention of the provisions of Sections 3 and 4 of the Act. The OP is stated to be the Super Distributor of the company OPPO Mobiles India Private Limited in India and engaged in the business of trading and distribution of mobile phones and its accessories under the brand name ‘OPPO’ in India. The Informant entered into a Sub-Super Mobile Distributorship Agreement with the OP whereby it was appointed as the exclusive Sub-Super Mobile Distributor of OPPO mobiles in South and Central Maharashtra. However, the Informant has primarily alleged that since 30.11.2017, the OP has unilaterally stopped supplying the products/ mobile phones and accessories to the Informant for sale as the OP seeks to terminate the Sub-Super Distributorship Agreement of the Informant. However, upon analysis, the CCI was of the opinion that no case of contravention of Section 3 and/or 4 of the Act is made out against the OP.
[November 8, 2018] For more information, please access –https://www.cci.gov.in/sites/default/files/34-of-2018.pdf
- Venugopal Reddy (‘Informant’) v. Trans Union CIBIL Limited. (‘CIBIL/OP1’) and Sri Satish Kumar Pillai, Managing Director/CEO (‘OP2’)
The present information has been filed under Section 19(1)(a) of Competition Act, 2002 (‘Act’) by the Informant against OP1’) and OP2, alleging contravention of the provisions of Section 4 of the Act. As per the information, OP1 is India’s largest credit information bureau which maintains credit information of more than 550 million individuals and business consumer accounts and has a membership base of over 2400 banks and credit institutions, which includes banks, financial institutions, non-banking financial companies and housing finance companies. It has been submitted that financial institutions accord a lot of importance to CIBIL Credit Reports for judging the credit worthiness of an individual/company. It has been alleged by the Informant that he is being denied credit approvals in the form of loans, credit cards, etc. by banks and financial institutions on the basis of CIBIL’s Credit Report dated 18.05.2018. Based on the material available on record, the CCI was of the view that there is no prima-facie case of contravention of Section 4 of the Act by the OPs, and the issues raised by the Informant are beyond the purview of the CCI as it does not raise any competition issue.
[November 8, 2018] For more information, please access –https://www.cci.gov.in/sites/default/files/36-of-2018.pdf
NEWS – SUPREME COURT
- Tamil Nadu Dr. MGR Medical University v. SVS Educational and Social Trust
The request of the First Respondent for continuance of provisional affiliation for admission of students in Bachelor of Homeopathy Medicine and Surgery (BHMS) degree course for the academic year 2016-2017 was rejected by the Appellant. In a Writ Petition filed by the First Respondent assailing the said order, the High Court directed the Appellant to permit the First Respondent to participate in the counselling for admission to Homeopathic Colleges for the academic year 2017-2018. The Division Bench of the High Court of Madras upheld the said interim order. Hence, present Appeal. When consent to affiliation is subject to approval from Central Government, request for continuance of provisional affiliation cannot be granted The First Respondent-University does not have the requisite approval from the Central Government as provided in Section 12A of the Homeopathy Central Council Act, 1973. As the consent to affiliation was granted subject to the approval from the Central Government for the period of one year, the request made by the First Respondent for continuance of provisional affiliation was rightly rejected by the Appellant.As the First Respondent did not have provisional affiliation, there was no question of continuance of the provisional affiliation to the First Respondent. The First Respondent is not entitled for the relief that was granted by the High Court for admission of students to the first BHMS degree course for the academic year 2017-2018 as it has neither approval from the Central Government nor affiliation from the Appellant.
[November 12, 2018] – For more information, please access ReadMore
- E.C. Limited v. Austbulk Shipping SDN BHD
In present matter, the judgment of the High Court directing enforcement and execution of a foreign award is challenged. The High Court rejected the submissions made on behalf of the Appellant that, there was no arbitration agreement. Issue raised in present matter is whether an application for enforcement under Section 47 of the Arbitration and Conciliation Act, 1996 is liable to be dismissed if it is not accompanied by the arbitration agreement and that, whether there is a valid arbitration agreement between the parties and what is the effect of a party not signing the Charter Party. The term “agreement in writing” in Article II is very wide. An arbitral Clause need not necessarily be found in a contract or an arbitral agreement. It can be included in the correspondence between the parties also. In the present case, the arbitration agreement is found in the Charter Party which has been accepted by both the Arbitrator and the High Court. The judgment of the High Court is upheld and the appeal is dismissed.
[November 14, 2018] – For more information, please access ReadMore
- Vimla Devi and Ors v. National Insurance Company Limited and Ors
Present appeal is filed by the claimants against the final judgment passed by the High Court whereby the High Court dismissed the appeal filed by the claimants and affirmed the award passed by the Tribunal. By award, the Tribunal held that, the claimants failed to prove the accident for want of evidence and the one adduced was not exhibited and hence was of no use. The claimants felt aggrieved and filed appeal in the High Court. By impugned order, the High Court dismissed the appeal, which has given rise to filing of the present appeal by way of special leave by the claimants in present Court. The Appellants were able to prove the factum of the accident so also the factum of rash and negligent act of the driver causing the accident. It is also proved that, the offending Truck was insured with Respondent No. 1 at the time of accident and was owned by Respondent No. 3. Impugned order is set aside. The Appellants’ claim petition is allowed in part. Respondent No. 1-Insurance Company is directed to deposit the awarded sum within 3 months with the Claims Tribunal for being paid to the Appellants after proper verification.
[November 16, 2018] – For more information, please access ReadMore
NEWS – HIGH COURT AND TRIBUNALS
- Tapan Dey v. Union of India – (Railway Claims Tribunal)
The Applicant has filed present claim petition under Section 16 of the Railway Claims Tribunal Act, 1987 seeking compensation for an amount of Rs. 4,00,000 along with cost and interest for himself as well as on behalf of his wife, as dependants for the death of his unmarried son, Tanmoy Dey who stated to have died in an untoward railway accident. It is claimed that, Tanmoy Dey, since deceased was travelling from Sealdahto Shyamnagar Railway Stations by local train and he accidentally fell down from the said running train near Shyamnagar Railway Station, sustained severe injuries on his person and with the help of local people was taken to Hospital, where he declared brought dead. In view of the facts, evidences, circumstances and documents available in the record, since the Applicant has miserably failed to prove that his son died due to a reason which may fall within the ambit of ‘untoward incident’, as per provision of Section 123(c) (2) of the Railways Act, as alleged by the Applicant and as the Applicant has also been failed to establish that the victim was a bona fide passenger on the date of the alleged incident, the Tribunal is absolutely helpless to consider the Issues in favour of the Applicant. Instant claim applications dismissed.
[November 21, 2018] – For more information, please accessReadMore
- Ashraf and Ors v. State of J&K – (High Court of Jammu and Kashmir)
Present Criminal Appeal is preferred by the Appellants who have been convicted by the learned Sessions Judge, vide impugned judgment and sentenced to undergo rigorous imprisonment for a term of three years under Sections 324/34 of Ranbir Penal Code (RPC) and to pay fine of Rs. 5000 each and in default of payment of fine, the accused would further suffer rigorous imprisonment for one year. Whether the argument of counsel for Appellants that, all the witnesses are related witnesses and their statements cannot be relied is tenable.The fact that the witnesses are related to each other is no ground for disbelieving their evidence. There is no general rule that the evidence of the relations of the victim, must be corroborated for securing the conviction of the offender. Each case depends upon its own facts and circumstances. Further, the deposition of the injured witnesses should be relied upon, unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies. The Evidence of the hostile witness cannot be discarded as the relevant fact of the statement is admissible; corroborated part of evidence of hostile witness regarding the commission of offence is admissible. It has no justification to reject his evidence as a whole. The credibility of hostile witness can form the basis of conviction. There is no infirmity of law and facts in the judgment of Court below. However, Appellants have been awarded 3 years imprisonment each under Section 324 of RPC, which is maximum under this section; but taking in view the fact that occurrence had taken place in the year 1994 and accused have faced trauma of trial upto 2004 before trial court for ten years and the present appeal is pending since 14 years, these are mitigating circumstances for imposing lesser sentence of 1 year instead of three years under Section 324 of RPC. Imprisonment already undergone shall be set off. Sentence of fine is upheld. Appeal disposed off accordingly.
[November 16, 2018] – For more information, please access ReadMore