Lakshmikumaran & Sridharan (New Delhi)

L. Badri Narayanan

Lakshmikumaran & Sridharan (New Delhi)
Partner

Badri Narayanan advises clients in the area of tax and investment laws. He has worked in multiple jurisdictions including the US and India. He leads the Digital L&S initiative. Badri routinely advises our corporate clients, financial institutions, and Corporations across a broad range of contentious situations, in both a representative and advisory capacity, from internal or regulatory investigations, through to formal court or arbitral proceedings. Badri has particular interest and experience in cross-border investment and tax laws. He has been advising several companies on a variety of issues such as consortiums and joint ventures, valuation, secondment, royalties and license fee arrangements, contract manufacturing scenarios, software as a service offering, and outsourcing. He has worked with clients from a wide range of industries including several technology and services companies. In the area of E-commerce and software, Badri has handled several issues including protection of software and business methods in India, shrink-wrap and click-wrap contracts, new business models for the distribution of software and services, open-source software, transfer pricing, and custom valuation studies.

Linked authors

Lakshmikumaran & Sridharan (New Delhi)
Lakshmikumaran & Sridharan (New Delhi)
Lakshmikumaran & Sridharan (New Delhi)

Articles

4198 Bulletin

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority fines renewable energy firm for gun-jumping (Adani Green / SB Energy)

137

Adani Greens Energy Limited (“Adani Green/Acquirer”) was served with a show cause notice (“SCN”) on 14 August 2021 in relation to its acquisition of S.B. Energy Holding Limited (“S.B. Energy/Target”) (“Combination”). The notice for the Combination was filed on 18 May 2021, pursuant to the execution of (...)

L. Badri Narayanan, Neelambera Sandeepan, Charanya Lakshmikumaran The Indian Competition Authority orders an investigation into abuse of dominance by a national broadcasting company through discriminatory discounts (Asianet Digital Network /Star India Private /Disney Broadcasting (India) /Asianet Star Communications)

111

BRIEF FACTS: An information was filed by Asianet Digital Network (P) Ltd. (“Asianet”) against Star India (P) Ltd. (“Star”), Disney Broadcasting (India) Limited (“Disney”) and Asianet Star Communications Private Limited (“ASC”) alleging abuse of dominance. Asianet, is a multi-system operator engaged in (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan The Indian Competition Authority issues a cease and desist order against a limestone logistics company for anti-competitive price determination, limitation and control of supply (CJ Darcl Logistics / Dumper Truck Union)

110

BRIEF FACTS: An information was filed by CJ Darcl Logistics Ltd. (“CJD”) against Dumper and Dumper Truck Union Lime Stone (“DTU”) and All Members of Dumper and Dumper Truck Union Lime Stone (“AMDTU”), collectively (“OPs”) for restrictions imposed by DTU and its members by not letting CJD, a logistics (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan The Indian Competition Authority fines 7 advertising enterprises for bid rigging and geographical market allocation

99

KEY POINTS Actual participation in the tender is not a mandatory for a finding of bid rigging in terms of the Act. the absence of loss to the tendering authority due to alleged conduct does not rebut the presumption of an appreciable adverse e-ect on competition (“AAEC”). BRIEF FACTS The case (...)

Neelambera Sandeepan, L. Badri Narayanan, Charanya Lakshmikumaran The Indian Competition Authority approves the acquisition of the Asian marketing subsidiary of a major pharmaceutical company by its UK and global healthcare subsidiaries (GSK Healthcare Overseas / GSK Healthcare UK / GSK Asia)

110

GlaxoSmithKline Consumer Healthcare Overseas Limited (“GSK Healthcare overseas”) and GlaxoSmithKline Consumer Healthcare UK Trading Limited (“GSK Healthcare UK”), (collectively referred to as “Acquirers”) are wholly owned subsidiaries of GlaxoSmithKline Consumer Healthcare Holdings (No.2) Limited (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority reprimands the Indian National Egg Co-ordination Committee for price fixing, and issues a cease and desist order (T.Chandran / National Egg Co-ordination Committee)

23

KEY POINTS The knowledge among members that prices have to be followed strictly to avoid adverse action in itself creates an ecosystem where the requirement of strict adherence permeates to each nook and corner. BRIEF FACTS Two separate informations were filed by Mr. T. R. Chandran (“Mr. (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority orders an investigation into a Big Tech firm for allegedly abusing its dominant position by forcing certain practices on digital publishers (Google / Digital News Publishers Association)

148

KEY POINTS In a well-functioning democracy, the critical role played by news media cannot be undermined, and it needs to be ensured that digital gatekeeper firms, such as Google, do not abuse their dominant position to harm the competitive process of determining a fair distribution of revenue (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority launches an investigation into a mining company for alleged abuse of dominance by excessive pricing (Kalpit Sultania / IREL)

130

KEY POINTS The thrust of the definition of the term ‘enterprise’ under the Act is on the economic nature of the activities discharged by the entity concerned. BRIEF FACTS An information was filed by Mr. Kalpit Sultania (“Informant”) against IREL (India) Ltd. (“IREL/OP”) alleging abuse of (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority initiates probe into a Big Tech firm for potential abuse of dominance in the app store market (Apple / Together We Fight Society)

130

KEY POINTS Unlike traditional ‘single-brand’ markets or aftermarkets, the present digital ecosystems including app stores operate as a platform connecting two or multiple different sets of market participants, such as, app developers and users. The multisided nature of this market needs to be (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan The Indian Competition Authority approves the merger between two power generation companies active in the upstream and downstream sectors as not likely to impact on competition (Jindal Power / Worldone)

45

Worldone Private Limited (“Worldone/Acquirer”) is an investment holding company, engaged in various businesses including the business of manufacturing steel and captive thermal power generation. Worldone presently has shareholding in various entities, including Jindal Power Limited (“JPL / (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority approves the acquisition of over 70% equity stake in a health and safety company by an investment fund (Forbes Enviro Solutions / Lunolox)

34

Lunolox Limited (“Lunolux / Acquirer”) is a special purpose vehicle incorporated by AI Global Investments (Cyprus) PCC Limited (“AI Global”) for the purposes of the proposed combination. AI Global operates as the investment hub for Asia for all the funds managed by Advent International Corporation (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan The Indian Competition Authority unconditionally approves merger between two solar renewable energy companies (Reliance Solar / Sterling and Wilson solar)

34

Reliance New Energy Solar Limited (“Reliance Solar / Acquirer”), a wholly owned subsidiary of Reliance Industries Limited (“RIL”), a newly incorporated entity and does not offer any products or services in India. Recently it has announced the acquisition of a stake in REC Solar, which is engaged in (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority closes an investigation into a chip manufacturer for allegedly abusively refusing to share product design information with a business partner (Velankani Electronics / Intel)

53

BRIEF FACTS Velankani Electronics Pvt. Ltd. (“Velankani/Informant”), a company engaged in the business of designing and manufacturing electronic products in India, including ‘servers’, filed an information against Intel Corporation (“Intel/OP”) alleging abuse of dominant position. Velankani, for the (...)

Charanya Lakshmikumaran, L. Badri Narayanan, Neelambera Sandeepan The Indian Competition Authority approves interconnected transaction between a national and international logistics services company whereby they will share amongst themselves national and international shipments respectively (Fedex India / Delhivery)

35

FedEx Express Transportation and Supply Chain Services (India) Private Limited (“FedEx India”) is a subsidiary of Federal Express Europe Inc., which is ultimately held by FedEx Corporation, USA (“FedEx”), one of the largest express transportation companies in the world. Delhivery Limited (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority fines paper manufacturers for using a trade association to collude and increase prices (Paper Cartel)

63

KEY POINTS Mere attendance in meetings where commercially sensitive information such as pricing is discussed, influences and takes away the independent decision making ability of the competitors. They can no longer independently decide the price related policies in the market and therefore, (...)

Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority clears 71.25% purchase of a national asset manager by a newly minted Singaporean company which itself is owned by large global asset manager (BCP TopCo XII Pte / ASK Investment Managers)

59

A notice was filed by BCP TopCo XII Pte Ltd. (“Acquirer”) pursuant to a Share Purchase Agreement (“SPA”) between itself and ASK Investment Managers Limited (“Target”), persons set out in the SPA and the Shareholders Agreement, inter alia between the Acquirer and the Target. The Acquirer and the (...)

Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority closes an investigation into possible cartelisation and bid rigging amongst road construction firms (Uttar Pradesh Road Construction Cartel)

61

KEY POINTS Mere commonality of ownership of participating firms is not sucient to conclude bid rigging in the absence of any material indicating collusion. BRIEF FACTS Based on an audit report by Comptroller and Auditor General (“CAG”) on construction management in road works in Uttar Pradesh (...)

Charanya Lakshmikumaran, Aditya Bhattacharya, L. Badri Narayanan, Neelambera Sandeepan The Indian Competition Authority unconditionally approves merger between two life insurance companies without finalizing the market definition because the merger would have low market shares in all potential relevant markets (HDFC Life Insurance / Exide Life Insurance)

50

A notice was filed by HDFC Life Insurance Company Limited (“Acquirer/HDFC Life”) pursuant to the execution of a Share Purchase and Share Swap Agreement, between HDFC Life, Exide Life Insurance Company Limited (“Target/Exide Life”), and Exide Industries Limited (‘Exide Industries’). The Acquirer and (...)

Aditya Bhattacharya, Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority unconditionally approves the acquisition of shareholding in a general insurance company by a commercial bank (HDFC Bank / HDFC Ergo General Insurance)

44

A notice was filed by HDFC Bank Limited (“HDFC Bank/Acquirer”) pursuant to the execution of a Binding Term Sheet between HDFC Bank and Housing Development Finance Corporation Limited (“HDFC”). It envisages an acquisition by HDFC Bank of 4.99% of the outstanding equity share capital, on an undiluted (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya The Indian Competition Authority approves joint acquisition of 100% shareholding in a biopharmaceutical outsourcing company by global investment companies (Parexel / Goldman Sachs / EFMS)

42

A notice was filed by Phoenix Parentco, Inc. (“Phoenix”) pursuant to the execution of the Interim Investors Agreement inter alia between Phoenix, EQT Investors and GS Investors; and Agreement and Plan of Merger inter alia between Phoenix, Phoenix Merger Sub Limited and Parexel Investment (...)

Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority clears the purchase by a Dutch healthcare provider of the healthcare outsourcing arm owned by national healthcare company (Betaine / HGS)

47

A notice was given pursuant to execution of a Master Framework Agreement, inter alia, between Betaine B.V. (“Acquirer”) and Hinduja Global Solutions Limited (“HGS/ Seller”), and India Business Transfer Agreement between HGS and Betaine. The notice envisages the acquisition of 100% interest in the (...)

Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority clears acquisition of an investment manager by an online trading platform (Nextbillion / Indiabulls)

57

Nextbillion Technology Private Limited (“Acquirer/Nextbillion”), and Indiabulls Asset Management Company Limited (“Indiabulls AMC”) and Indiabulls Trustee Company Limited (“Indiabulls Trustee”), collectively (“Targets”), jointly filed a notice pursuant to execution of Share Purchase Agreement between (...)

Neelambera Sandeepan, Aditya Bhattacharya, Charanya Lakshmikumaran, L. Badri Narayanan The Indian Competition Authority unconditionally approves takeover of a national ICT distribution company by competitor (Savex Technologies / Inflow Technologies)

47

A notice was filed by Savex Technologies Private Limited, India (“Savex/ Acquirer”) pursuant to Share Purchase Agreement executed between Savex, Inflow Technologies Private Limited, India (“Inflow”) and the existing shareholders of Inflow; and Shareholders Agreement executed between Savex, Inflow (...)

Neelambera Sandeepan, Charanya Lakshmikumaran, Rishabh Chopra, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority opens an investigation into potential anti-competitive conduct by a company engaged in the manufacturing and sale of commercial vehicles (Tata Motors)

197

KEY POINTS Even if there is a delay in the filing of information on behalf of the informants, the Act does not envisage any period of limitation as inquiries conducted by CCI are proceedings in rem. There can be no limitation period in competition law as in a changing and evolving market (...)

Neelambera Sandeepan, Charanya Lakshmikumaran, Rishabh Chopra, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority dismisses a complaint against two regional development authorities and clarifies that a statutory body exercising economic functions cannot be guilty of abuse of dominance for policy-making decisions which apply equally to all market participants (Greater Noida Industrial Development Authority / New Okhla Industrial Development Authority)

720

KEY POINTS A statutory body exercising economic functions can not be said to have abused its dominant position in a particular relevant market for any decisions taken as part of the policy-making process, which apply equally to all market participants. BRIEF FACTS Three separate informations (...)

Neelambera Sandeepan, Charanya Lakshmikumaran, Rishabh Chopra, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority dismisses antitrust complaint against a paint manufacturer because simply filing a criminal complaint against its competitor is not considered abuse of dominance (Asian Paints)

196

KEY POINTS Filing a criminal complaint against another enterprise in the same sector cannot be said to have been done with a view to oust competition from the relevant market in the absence of any additional evidence to indicate contraventions of Section 3 and/or 4 of the Act. BRIEF FACTS (...)

Neelambera Sandeepan, Charanya Lakshmikumaran, Rishabh Chopra, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority dismisses complaints against the State of Tamil Nadu’s road department on an alleged anticompetitive tender process because sufficient bids were received and the procurement process was found to benefit both the procurer and the public (Trichy Superintendent Engineer of Highways Department)

312

KEY POINTS The consumer, based on his requirements / commercial considerations, has the freedom to specify and choose the kind of service, machineries, timelines, mode, and the manner in which it requires the same, provided that no provision of the Act is violated. The public procurement (...)

Neelambera Sandeepan, Charanya Lakshmikumaran, Rishabh Chopra, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority finds an abuse of dominance in the market for wholesale procurement of branded alcoholic beverages within the State of Uttarakhand (International Spirits and Wines Association of India / Uttarakhand Agricultural Produce Marketing Board)

195

KEY POINTS Cutting off supply/distribution of particular brands, thereby allowing market access to only a dominant entity leads to abuse of its dominant position by such entity. An effective push to competition happens when the efficiency of slower-moving products is enhanced such that a (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority initiates an investigation into a Big Tech company’s new privacy policy and user agreement that do not let users opt out (WhatsApp)

41

KEY POINTS CCI is empowered to initiate an investigation into any conduct which may contravene the provisions of the Act if the CCI knows that such conduct is about to be committed. The CCI is obligated to prevent practices from having an adverse effect on competition. BRIEF FACTS CCI (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of cartelization within a professional association in the corrugated box manufacturing industry (Gujarat Paper Mills Association / Indian Corrugated Case Manufacturers’ Association)

22

KEY POINTS A no presumption of appreciable adverse effect on competition (“AAEC”) cannot arise without first establishing the existence of an agreement in terms of the provisions Act. BRIEF FACTS An information was filed before CCI by the Gujarat Paper Mills Associations (“GPMA / Informant”), (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority finds evidence of and imposes a fine for bid-rigging by three sewing machine suppliers in public procurement for Picofall-cum-Sewing Machines (Klassy Computers / Nayan Agencies / Jawahar Brothers)

32

KEY POINTS (i) Although CCI and the DG have the powers to investigate the representatives of the tenderer/procurer to understand and ascertain the tender design, tendering mechanism including the eligibility of the bidders in terms of tender conditions by requisitioning the relevant records. (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority grants interim relief, ordering online travel agencies to re-list hotel properties on certain platforms (MMT-Go / Treebo / FabHotels)

39

KEY POINTS (i) In deciding applications for interim relief under Section 33 of the Act, CCI must form a higher degree of satisfaction than the prima facie requirements under Section 26(1) of the Act. (ii) Denial of market access need not be complete or absolute in nature to result in an (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority fines a national publishing association for restricting its members’ maximum discounts and participation in procurement advertisements (Federation of Publishers’ and Booksellers’ Associations in India)

29

KEY POINTS The practice of restricting the maximum discount and issuing advisories for members to not participate in certain procurement advertisements amounts to anti-competitive conduct, especially if coercive action is taken by the governing body to ensure adherence by its members. BRIEF (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority orders closure of an investigation into the alleged cartelization in the airlines industry because the observed price parallelism was not proven to have occurred through cartelization (Jet Airways / Indigo / Spice Jet / Go Air / Air India)

31

KEY POINTS Mere price parallelism does not amount to cartelization, if: (i) the market prices have fluctuated, at times with significant margins, (ii) new players are easily able to establish themselves; (iii) all players offer more or less similar kinds of services, and (iv) the prices depend (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority finds upon further investigation no evidence of bid-rigging in tenders issued by the Government Department of Printing for the services of printing, packing and dispatch of confidential documents (Chandraprabhu / Saraswati Offset Printers / United India Tradex)

30

KEY POINTS (i) The mere fact that participants to a tender have common directors/shareholders is not sufficient evidence to return a finding that the parties are engaging in bid-rigging. (ii) Commercial transactions between related parties, such as sale/purchase of goods and loan exchanges, (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of abuse of dominance by a Delhi based mall developer for absence of dominance in the relevant market (Buildwell / Classic Care Utilities)

28

KEY POINTS An inquiry into whether certain practices by a firm amount to abuse is not required to be undertaken when the concerned firm does not hold a dominant position in the relevant market by virtue of there being other prominent firms within the relevant market that provide the same (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of abuse of dominance against a Big Tech company for integrating a video calling app into its email app, because email users were not forced to use the video app (Google Meet)

44

KEY POINTS Merely adding more functionality to an internet-based app in the name of product improvement and enhancing benefit to consumers would not amount to leveraging dominance if the users are not compelled to utilize the new features to the exclusion of all other services offering similar (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of cartelization and abuse of dominance by a provider of home loan services (ICICI Bank)

31

KEY POINTS Existence of large number of players in the home loan market shows that ICICI Bank (“ICICI”) cannot operate independently in the market and, hence cannot be considered to be in a position of dominance in the relevant market. In the absence of any evidence indicating an agreement or (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of abuse of dominance by a reinsurance company as its client insurance companies retain the freedom to decide their premium rates as well as their reinsurer under national law (Automotive Tyres Manufacturers Association / General Insurance Corporation of India)

44

KEY POINTS The markets for insurance and reinsurance exist as separate markets and insurance companies have the commercial freedom to price their policies as they deem fit according to the market conditions and decisions taken in the reinsurance market do not place any restriction on insurance (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority holds that the national statutory body in charge of carrying out regulatory functions in respect of the legal profession as well as legal education is not an ‘enterprise’ within the definition of the competition law (Bar Council of India)

31

KEY POINTS An entity falls within the definition of the term ‘enterprise’ only if it is engaged in any economic and commercial activity specified within Section 2 (h) of the Act. BRIEF FACTS An information was filed before CCI alleging contravention of the provisions of Section 4 of the Act by (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority approves a merger between two retailers active in the sales of apparel, footwear and accessories but forbids both companies from entering into an exclusive distribution agreement for the online sale of certain branded products (Aditya Birla Fashion and Retail / Flipkart Investments)

41

Aditya Birla Fashion and Retail Ltd. (“ABFRL / Target”) is a public limited company incorporated under the Companies Act, 1956. ABFRL is engaged in the business of manufacturing and retailing branded apparels, footwear and accessories, through its retail stores, multi-brand outlets, departmental (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority approves a merger between a healthcare company and a hospital network as the operation does not appear to raise any competition concerns (Manipal Health Enterprises / Columbia Asia Hospitals)

26

Manipal Health Enterprises Private Ltd. (“MHEPL / Acquirer”) is part of the Manipal Educational and Medical Group which operates a network of hospitals providing multi-speciality care. Manipal Group has 15 hospitals spread across 7 cities in India under the brand name ‘Manipal Hospitals’. Outside (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority approves a merger between two holding companies active in the power generation sector (Greenko Energy Holdings / Orix)

28

Greenko Energy Holdings (“GEH / Party No. 1”) is a company limited by shares incorporated in Mauritius, engaged principally in the business activity of investment holding. It is the holding company of the Greenko Group of Companies (“Greenko”). GEH has an Indian subsidiary which is primarily (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority launches an investigation into allegations of abuse of dominance by a Big Tech company in the Android app store market (Google)

59

KEY POINTS Even in cases where an information is filed anonymously before the Competition Commission of India (“CCI”), it is within the powers of the Director General (“DG”) to cross-examine the informant; Googles’ market position in the android app market provides it with a significant market (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Supreme Court dismisses the Competition Authority’s special leave petition against the Karnataka High Court’s stay on investigations against two online shopping platforms for alleged anticompetitive conduct in the mobile phone market (Amazon / Flipkart)

35

A three-judge bench of the Supreme Court on October 26, 2020 rejected the CCI’s challenge to the Karnataka HC’s stay on the investigations directed by the CCI against Amazon and Flipkart. In January, 2020, the CCI has ordered investigation into allegation of, inter alia, exclusive arrangements, (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses abuse of dominance allegations against a Big Tech company for entering into exclusive agreements due to the company not being dominant in the market for online fashion merchandise (Lifestyle Equities / Amazon)

41

KEY POINTS Anti-competitive agreements and abuse of dominance issues against e-commerce platforms ought to be analyzed individually in respect of each product on a case-by-case basis. In the absence of dominance, issues of sale of counterfeit products on an e-commerce platform do not raise (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses an allegation of abuse of dominance resulting from the termination of a dealership agreement by a manufacturer of motorcycles and scooters due to lack of dominance (India Yamaha Motor)

28

KEY POINTS An alleged illegal termination of a dealership agreement by a manufacturer who does not command a dominant position does not attract the abuse of dominant position provisions of the Competition Act. BRIEF FACTS Vijay Chaudhary (“Dealer”) was an authorised dealer of India Yamaha (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses abuse of dominance allegations against a retirement home company due to lack of dominance, but notes the parties may direct their grievances to sectoral regulators (Ashiana Housing)

27

KEY POINTS Within the real estate sector, different categories of residential properties are not necessarily substitutable and therefore form separate relevant markets. Further, certain industrial practices though not within the realm of the CCI may require regulatory intervention. BRIEF (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority finds no dominance and therefore dismisses a case against a public transport company for alleged abuse of dominance in the parking services sector (Delhi Metro Rail)

24

KEY POINTS A government-owned corporation is an enterprise within the meaning of the Competition Act if it engaged in economic activity and can be investigated for violation of provisions of the Competition Act. BRIEF FACTS Dhiraj Gupta, a sole proprietor secured the license for parking (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of anticompetitive conduct and abuse of dominance against an information technology company in public procurement by the Ministry of Railways due to lack of evidence (Sowil / Hexagon Geosystems India)

38

KEY POINTS In the absence of any material on record which can suggest collusion, no case of anti-competitive agreement can be made out. In addition, for a case of abuse of dominance, one must take into consideration the market structure and the number of major players including, global players (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses abuse of dominance claims against two online platforms and clarifies that bundling products is not necessarily tying so long as consumers can choose to not use the bundled products (Harshita Chawla / WhatsApp / Facebook)

29

Key Points The mere fact that a case has been filed by an aggrieved party under the Act, does not take away its character of being a case in rem involving a larger question of fair and competitive markets. This leads to the inevitable conclusion that the informant need not necessarily be an (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority refuses to penalize railway companies for bid-rigging due to economic downturn caused by COVID-19 (South Eastern Railway / Hindustan Composites)

32

KEY POINTS While the CCI found sufficient evidence to hold that there existed a contravention of Section 3(3) of the Act, given the economic downturn due to the pandemic faced by Micro Small and Medium Enterprises (“MSMEs”) in India, and other public interest considerations, the CCI imposed no (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra, L. Badri Narayanan The Indian Competition Authority dismisses abuse of dominance claims against an online food ordering platform due to proof that the platform actually tried to resolve price disparities between itself and physical locations of its partners whenever it received a complaint (Swiggy)

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KEY POINTS Swiggy does not select or modify the rates charged by its partner restaurants and therefore, any discrepancy in the rates is solely attributable to the partner restaurants. BRIEF FACTS An Information was filed under Section 19(1)(a) of the Act, alleging that the popular app-based (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority fines the only national manufacturer of Viscose Staple Fiber for abusing its dominant position by practicing price discrimination without objective justification (Grasim Industries / Association of Man Made Fibre Industry of India)

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Grasim Industries fined INR 302 crore for abusing its dominant position in the market for Viscose Staple Fiber (“VSF”) by the CCI* Key points A dominant entity has a special and differential obligation and ought to behave as a responsible corporate citizen. Discriminatory prices for similarly (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan, Aditya Bhattacharya The Indian National Company Law Appellate Tribunal upholds the Competition Authority’s order dismissing allegations of abuse of dominance in the market for industrial bearings (Asmi / SKF)

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KEY POINTS Given that the conduct related to a period prior to May 20, 2009, the CCI had no jurisdiction to investigation. Further, during the concerned period, none of the players in the relevant market enjoyed a position of strength for a long duration. Even thereafter, in 2015-16, domestic (...)

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