Bombay High Court
Asian Paints Limited, Through Its ... vs Competition Commission Of India on 11 September, 2025
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
Digitally
signed by
SHAGUFTA
2025:BHC-OS:15008-DB
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN
PATHAN Date: WP-2887-2025-J.doc
2025.09.12
18:41:43
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2887 OF 2025
Asian Paints Limited
Through its Authorized Signatory
Having its registered office at:
6A & 6B, Shantinagar, Santacruz (East),
Mumbai- 400 055 ... Petitioner
Versus
1. Competition Commission of India
9th Floor, Office Block -1,
Kidwai Nagar (East),
New Delhi - 110 023
2. Grasim Industries Limited
(Birla Paints Division)
9th Floor, Birla Centurion,
Pandurang Budhkar Marg,
Worli, Mumbai - 400 030 ... Respondents
Mr. Darius Khambata, Senior Advocate with Mr. Sharan Jagtiani,
Senior Advocate, Mr. Ameya Gokhale, Mr. Harman Singh
Sandhu, Ms. Nitika Dwivedi, Ms. Kriti Kalyani, Mr. Chintan
Gandhi, Ms. Anushka Bhardwaj, Ms. Swarupini Srinath i/by
Shardul Amarchand Mangaldas & Co., for the Petitioner
Mr. Mustafa Doctor, Senior Advocate with Mr. Ravi Kini,
Mr. Abhay Itagi, Ms. Vidhi Bhasin i/by M. V. Kini Law Firm, for
the Respondent No.1-CCI
SQ Pathan 1/40
::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:35:40 :::
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Mr. Aspi Chinoy, Senior Advocate with Dr. Abhinav
Chandrachud, Ms. Sneha Jaisingh, Ms. Jaidhara Shah, Ms.
Neeraja Barve and Mr. Akshay Ayush i/b Bharucha and Partners,
for the Respondent No.2
CORAM : REVATI MOHITE DERE &
DR. NEELA GOKHALE, JJ.
RESERVED ON : 7th AUGUST 2025
PRONOUNCED ON : 11th SEPTEMBER 2025
JUDGMENT (Per Revati Mohite Dere, J.) :
1 Heard learned senior counsel for the respective
parties.
2 By this petition, the Petitioner seeks setting-aside of
the orders dated 1st July 2025, firstly uploaded on the website of
the Respondent No.1-Competition Commission of India (`the
CCI') on 1st July 2025 and thereafter allegedly/purportedly
replaced by the second order of the same date uploaded on the
website of the said Authority on 2nd July 2025, passed by the CCI
in Case No.32/2024. The Petitioner also seeks a direction to the
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CCI to re-examine the purported information/allegations
submitted against it, in Case No.32/2024 afresh in exercise of its
powers under Section 19(1) read with Section 26(2-A) of the
Competition Act of 2002 (`the Act').
3 Facts in brief are as under:
The Petitioner is a company incorporated under the
Companies Act inter alia engaged in the manufacture, sale and
distribution of paints, coatings, home decor products, bath
fittings and providing related services. The Respondent No.1-
Competition Commission of India (for the sake of brevity,
hereinafter referred to as `CCI') is an Authority established under
Section 7 of the Competition Act, 2002 (as amended). The
Respondent No.2 is a company incorporated under the
Companies Act, engaged in the manufacture of man-made fibers,
chemicals and is a new entrant in the decorative paints market in
India (around March 2024), under the brand name of 'Birla Opus
Paints'.
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4 The proceeding before the CCI stems from the
information received by the CCI from the Respondent No.2,
sometime in December 2024, under Section 19(1)(a) of the Act,
alleging therein, that the Petitioner has abused its dominance in
the decorative paints market.
5 It is the Petitioner's case, that they received an email
addressed by a media house requesting a comment in relation to
the information received by the CCI from the Respondent No.2.
Pursuant thereto, the Petitioner by its letter dated 5 th June 2025
addressed to the Respondent No.1, offered an explanation
pertaining to the purported allegations made by Respondent No.2
to the CCI. The Petitioner specifically clarified that in an earlier
Case No. 36/2019, initiated by JSW Paints Private Limited
(`JSW') and Sri Balaji Traders (`Balaji'), based on similar
information, alleging abuse of dominance and anti-competitive
vertical agreements, the CCI had found no evidence of abuse of
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dominance by the Petitioner despite a thorough investigation. The
Petitioner also requested for an opportunity to present its case
and supporting evidence through an oral hearing. According to
the Petitioner, the CCI in its order dated 8 th September 2022,
found no merit in the information application made by JSW on
identical grounds as made by the Petitioner and accordingly
disposed of the same. Thus, according to the Petitioner, under the
provisions of Section 26(2-A) of the Act, the CCI was
jurisdictionally barred from entertaining the Respondent No.2's
complaint on the same or substantially the same facts and issues,
once the same allegations made by JSW and Balaji were already
decided by the CCI in its previous orders.
6 The Respondent No.1 by its letter dated 6 th June
2025, responded to the Petitioner's letter of 5 th June 2025 asking
the Petitioner to file an application under the relevant Regulation
for consideration by the CCI. Accordingly, the Petitioner by its
letter dated 9th June 2025 provided the CCI with the media
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article, which reported the information vis-à-vis the information
given by the Respondent No.2 to CCI.
7 It is the Petitioner's case, that the CCI, without
affording any hearing to the Petitioner, published the first
impugned order directing the Director General ("DG") of the
CCI to cause an investigation into the matter and submit an
investigation report within a period of 90 days from the receipt
of the said order. It was made clear that at this prima facie stage,
the CCI, in the light of the material available on record, found no
reason to hear the Petitioner before passing the said order.
According to the Petitioner, the first order dated 1 st July 2025 was
allegedly pulled down from the website of the CCI and replaced
with another order of the same date. It is the Petitioner's case
that there were substantial differences in both the orders,
although, the end result in both the orders was the same i.e. the
2nd order reiterated the same directions issued by the CCI to the
DG. Both these orders, dated 1 st July 2025, first order and the
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second order alleging replacing the first on the CCI's website, are
impugned in the present petition.
8 Mr. Darius Khambata, learned senior counsel
appeared for the Petitioner. Mr. Mustafa Doctor, learned senior
counsel represented the CCI and Mr. Aspi Chinoy, learned senior
counsel represented the Respondent No.2.
Submissions advanced by the learned Senior Counsel appearing
for the respective parties:
9 At the very outset, Mr. Khambata, learned senior
counsel drew our attention to certain distinct observations of the
CCI in both the impugned orders. According to Mr. Khambata,
the CCI published the first impugned order observing that " the
relevant market was for manufacture and sale of decorative paints
in the organized sector in India." In relation to dominance, the
CCI, in the first order observed that "it finds no reason to depart
from its earlier findings" of dominance of Asian Paints Limited
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(`APL') in the relevant market in the JSW matter. Mr. Khambata
has detailed the deviations in both the orders, in a tabular form in
paragraph No. 20 of the petition.
10 Mr. Khambata, learned senior counsel further
submitted that the CCI, on an earlier occasion, had considered
the same and/or substantially the same facts and issues, on an
information made by JSW and Balaji against the Petitioner. He
submitted that by letter dated 4 th October 2019, JSW had filed
information with the CCI alleging abuse of dominance and anti-
competitive vertical agreements against the Petitioner, whereas,
Balaji had alleged unfair changes by the Petitioner in dealer's
retailing tier; that pursuant to the said information, the CCI vide
order dated 14th January 2020, had directed the DG to investigate
the said complaints; that, the DG submitted a detailed
investigation report to CCI and that after going through the
report, the CCI found no merit in the applications made by JSW
and Balaji and accordingly, disposed of the said applications.
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11 Mr. Khambata, learned senior counsel further
contended that prior to directing the DG to cause investigation
on the information received by CCI from Respondent No.2, the
Petitioner was not given a right of representation, as was a
practice prevalent before the CCI. He submitted that had an
opportunity of hearing been given to the Petitioner, the Petitioner
would have pointed out that similar/substantially similar
allegations had been made earlier by JSW and Balaji, which could
have persuaded the CCI not to entertain a similar complaint of
the Respondent No.2. He contends that infact, the impugned
orders clearly indicate that the information provided by the
Respondent No.2 was itself patently insufficient for the CCI to
form a prima facie view, warranting dismissal of the same. Mr.
Khambata stressed on the provisions of Section 26(2-A) of the
Act, arguing that it was mandatory on the part of the CCI in the
impugned order to specifically deal with the said provision which
operated as a jurisdictional bar on it to re-inquire complaints
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based on same or substantially same facts and issues which had
already been decided by CCI in its previous order. He further
contended that the CCI ought to have expressly recorded reasons
to justify a re-inquiry into the information received by it from the
Respondent No.2, which according to him, was already dealt
with in the JSW/Balaji case. Mr. Khambata further explained the
legislative intent behind the Competition (Amendment) Act, 2023
which inserted Section 26(2-A) in the interest of expedience and
to avoid repetition of effort.
12 Mr. Khambata, learned senior counsel placed reliance
on the following decisions to buttress his submissions:
i. Competition Commission of India v. Steel Authority
of India Limited and Anr.1(`SAIL')
ii. Star India Private Limited v. Competition Commission
of India and Ors.2
iii. Alliance of Digital India Foundation v. Google 3
1 (2010) 10 SCC 744
2 2019 SCC Online Bom 3038
3 Case No.23(2) of 2024 order dated 1st August 2025
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iv. State of U. P. v. Jogendra Singh4
v. Initiatives for Inclusion Foundation v. Union of India 5
vi. Mohinder Singh Gill v. Chief Election Commissioner 6
vii. Dipak Babaria v. State of Gujarat7
viii. Winzo Games Private Limited v. Google LLC & Ors.8
(`Google')
ix. In Re: S. Kannan, Managing Partner, M/s Arcus
Enterprises v. Asian Paints Limited9
x. Sivanandan C. T. v. High Court of Kerala10
xi. J. Mohammed Nazir v. Mahasemam Trust11
xii. Asianet Star Communications Pvt. Ltd. v.
Competition Commission of India12
xiii. Vodafone India Limited v. Competition Commission
of India & Ors.13
xiv. Oryx Fisheries Private Limited v. Union of India
& Ors.14
4 1963 SCC OnLine SC 96
5 (2024) 1 SCC 779
6 (1979) 1 SCC 405
7 (2014) 3 SCC 502
8 Case No. 42 of 2022 order dated 28th November 2024
10 (2024) 3 SCC 799
11 Special Leave to Appeal (C) No.16303-16304/2022 order dated 23rd January 2023
12 2022 SCC OnLine Bom 11919
13 2017 SCC OnLine Bom 8524
14 (2010) 13 SCC 427
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13 Per contra, Mr. Doctor, learned senior counsel, at the
outset clarified that the first impugned order dated 1 st July 2025
was merely a draft inadvertently uploaded on the website of the
CCI, and that the second impugned order of the same date was
the actual order duly signed by the Members of the CCI. He
submitted that it is this second order dated 1 st July 2025, which is
the authentic order, which was furnished to the Petitioner as the
correct order.
14 On merits, Mr. Doctor, learned senior counsel,
submitted that the order passed by the CCI cannot be faulted,
inasmuch as, the CCI after going through the information
received from the Respondent No.2, arrived at an opinion, that
there is a prima facie case of contravention of the provisions of
the Act, by the Petitioner, warranting investigation. He submitted
that the functions performed by the CCI under Section 26(1) are
administrative in nature and not judicial and hence, the Petitioner
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has no right of hearing prior to passing of an order under Section
26(1). Mr. Doctor submitted that the order impugned being
administrative in nature, the High Court is not competent to
adjudge the validity of such an order. Mr. Doctor further
contended that the Petitioner's submissions proceed on an
incorrect premise, namely, that the same or substantially similar
facts and issues had already been decided in the earlier orders
passed by the CCI in the JSW/Balaji cases. He submitted that such
a contention reflects a misconceived understanding and erroneous
interpretation by the Petitioner of Section 26(2-A) of the Act and
the scheme underlying the said provision.
15 Mr. Doctor, learned senior counsel, took us through
the scheme of the Act wherein Section 19(1)(a) of the Act
empowered the Commission to inquire into any alleged
contravention of the provisions of the Act, either on its own
motion or on receipt of information from any person. He
submitted that keeping in mind the scheme of the Act, there is no
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requirement of any hearing to be given to the Petitioner as the
DG is merely directed to cause an investigation.
16 Mr. Doctor has drawn a distinction between the
earlier JSW complaint relating to violation of Section 4(2)(c) and
Section 3(4)(b) and 3(4)(d) of the Act, whereas, in the present
case, the CCI has formed an opinion that prima facie there exists
a contravention of Sections 4(2)(a)(i), 4(2)(c) and 4(2)(d) of the
Act. Learned senior counsel submitted that the earlier complaint
was dismissed, as there was no adequate material supporting the
complaint made by JSW/Balaji. In response to the argument of
Mr. Khambata relating to Section 26(2-A) of the Act, Mr. Doctor
submitted that the said section infact empowers the Committee to
pass orders for closure of cases in the interest of expedience and
it does not create any right in favour of the Petitioner, namely,
that the CCI is under any obligation to record reasons as to why a
latter complaint was not closed by the CCI. Mr. Doctor
submitted that the present petition is nothing but an attempt on
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the part of the Petitioner to prevent the CCI from even
conducting an investigation on the information received from the
Respondent No.2 and as such the petition be dismissed. Mr.
Doctor finally placed reliance on the decision of the Supreme
Court in SAIL (Supra) and distinguished the facts of this case
from the case of Google (Supra), strongly relied upon by Mr.
Khambata.
17 Mr. Aspi Chinoy, learned senior counsel, supported
the submissions advanced by Mr. Doctor and reiterated that
Section 26(2-A) does not place any embargo on the CCI from
recording a finding, to entertain a subsequent complaint, even if
an earlier one has been dismissed, provided the CCI, on forming
a prima facie opinion, finds material indicating contravention of
the provisions of the Act. He also buttressed the legislative intent
of the amendment to the Act, in inserting Section 26(2-A).
According to Mr. Chinoy, Section 26(2-A) which follows Section
26(2) is merely a clarificatory and enabling provision and that
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Section 26(2-A) expressly clarifies [what was implicit in Section
26(2)] and expressly enables the Commission to close a matter, if
it is of the opinion that the same or substantially same facts and
issues raised in the information received under Section 19 or
reference from the Central Government or a State Government or a
statutory authority has already been decided by the Commission in
its previous order. Learned senior counsel in this context relied
on Report of the Competition Law Committee-July 19; to show
that Section 26(2-A) is both clarificatory and enabling. He relied
on the words `expressly enable' to show the intent and object of
introducing Section 26(2-A), as an enabling provision i.e. CCI
would be required to refer to and deal with the same in its order,
only in cases where it decides to close the case, on the ground
stated in Section 26(2-A).
18 Mr. Chinoy further submitted that the information on
which the impugned order was passed, was made by a different
party, pertained to a different context, invoked different sections,
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and referred to different material and as such no fault can be
found in the same.
19 Having heard the learned counsel for the respective
parties, and for the reasons set out hereinafter, we are of the
opinion that the petition is devoid of merits and as such, ought to
be dismissed.
20 As far as the first relief sought by the Petitioner is
concerned, i.e. quashing and setting aside of the orders dated 1 st
July 2025 (firstly uploaded on the website of Respondent No. 1-
CCI on 1st July 2025 and thereafter purportedly replaced by a
second order of the same date uploaded on 2 nd July 2025), we
find no merit therein.
21 According to Mr. Khambata, learned senior counsel,
there were certain variance/deviations in both the orders, which
have been set out in a tabular form in para 20 of the petition. It
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is not in dispute that, although there were some deviations in the
orders, the end result in both the orders is identical/same.
22 Mr. Doctor, learned senior counsel appearing for the
Respondent No. 1 submitted that the order uploaded on 1 st July
2025 at 4:30 p.m. was only a draft order inadvertently uploaded
on the website by its staff. He submitted that inadvertently, at the
end of the said uploaded draft, the symbol "sd/-" was inserted in
the soft copy. Mr. Doctor further submitted that, upon discovery
of this inadvertent error, the correct order, which is annexed at
Exhibit `B' to the petition and signed by all members on 1 st July
2025, was uploaded on 2 nd July 2025 at 2:00 p.m. This order
(Exhibit B) was thereafter forwarded by a covering letter dated 3 rd
July 2025 (Exhibit D to the petition) to the Petitioner as well as
to the DG, for investigation. The fact, that the Petitioner
received the second order by a covering letter, is not disputed.
We find substance in the submission advanced by
Mr. Doctor that the unsigned order uploaded on 1 st July 2025
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was inadvertently uploaded and that, upon discovering the error,
the correct signed order dated 1 st July 2025 was uploaded on 2 nd
July 2025. The fact, that the order dated 1 st July 2025, uploaded
on 2nd July 2025 was sent to the Petitioner under CCI's covering
letter is not disputed. Hence, there is no substance in the
grievance made by the Petitioner with respect to two orders.
Infact, upon the explanation offered by Mr. Doctor, learned
senior counsel for Respondent No.1, Mr. Khambata, learned
senior counsel for the Petitioner, did not seriously contest the first
order and as such, we are not required to go into the same.
23 In support of the reliefs sought, two essential
submissions advanced by Mr. Khambata are:
(i) That the Petitioner ought to have been heard and
given a right of representation before passing of the impugned
order, more particularly since Respondent No. 1-CCI had
dismissed a complaint made by JSW and Balaji, containing similar
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or substantially similar allegations, as those made by Respondent
No. 2.
(ii) That the provision of Section 26(2-A) of the Act,
despite being mandatory, were not complied with by the
Respondent No. 1; that Section 26(2-A) of the Act operates as a
jurisdictional bar on Respondent No. 1 to re-inquire into
complaints based on the same or substantially the same facts
already decided by the CCI in its earlier orders; and that
Respondent No. 1 has failed to expressly record reasons justifying
re-inquiry into the information received from Respondent No. 2,
particularly when similar complaints had been dealt with by CCI
in the JSW/Balaji cases,
24 Before we proceed to consider the aforesaid, it would
be necessary to place the scheme of the provisions with which we
are concerned. Section 19(1)(a) of the Act empowers the
Commission to inquire into any alleged contravention of
provisions of Sections 3(1) and 4(1), either on its own motion or
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inter alia upon receipt of information from any person, consumer,
or trade association. The procedure to be followed for an inquiry
under Section 19 is laid down in Section 26 of the Act. Section 26
of the Act reads thus:
"26. Procedure for inquiry under Section 19.-
(1) On receipt of a reference from the Central
Government or a State Government or a statutory authority
or on its own knowledge or information received under
Section 19, if the Commission is of the opinion that there
exists a prima facie case, it shall direct the Director General
to cause an investigation to be made into the matter:
Provided that if the subject-matter of an information
received is, in the opinion of the Commission, substantially
the same as or has been covered by any previous information
received, then the new information may be clubbed with the
previous information.
(2) Where on receipt of a reference from the Central
Government or a State Government or a statutory authority
or information received under Section 19, the Commission is
of the opinion that there exists no prima facie case, it shall
close the matter forthwith and pass such orders as it deems fit
and send a copy of its order to the Central Government or
the State Government or the statutory authority or the parties
concerned, as the case may be.
(2-A) The Commission may not inquire into agreement
referred to in Section 3 or conduct of an enterprise or group
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under Section 4, if the same or substantially the same facts
and issues raised in the information received under Section
19 or reference from the Central Government or a State
Government or a statutory authority has already been
decided by the Commission in its previous order.
(3) The Director General shall, on receipt of direction
under sub-Section (1), submit a report on his findings within
such period as may be specified by the Commission.
(3-A) If, after consideration of the report of the Director
General referred to in sub-Section (3), the Commission is of
the opinion that further investigation is required, it may
direct the Director General to investigate further into the
matter.
(3-B) The Director General shall, on receipt of direction
under sub-Section (3A), investigate the matter and submit a
supplementary report on his findings within such period as
may be specified by the Commission.
(4) The Commission may forward a copy of the report
referred to in sub-Sections (3) and (3-B) to the parties
concerned:
Provided that in case the investigation is caused to be
made based on a reference received from the Central
Government or the State Government or the statutory
authority, the Commission shall forward a copy of the report
referred to in sub-Sections (3) and (3-B) to the Central
Government or the State Government or the statutory
authority, as the case may be.
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(5) If the report of the Director General referred
to in sub-Sections (3) and (3-B) recommends that there is no
contravention of the provisions of this Act, the Commission
shall invite objections or suggestions from the Central
Government or the State Government or the statutory
authority or the parties concerned, as the case may be, on
such report of the Director General.
(6) If, after consideration of the objections or
suggestions referred to in sub-Section (5), if any, the
Commission agrees with the recommendation of the Director
General, it shall close the matter forthwith and pass such
orders as it deems fit and communicate its order to the
Central Government or the State Government or the
statutory authority or the parties concerned, as the case may
be.
(7) If, after consideration of the objections or
suggestions referred to in sub-Section (5), if any, the
Commission is of the opinion that further investigation is
called for, it may direct further investigation in the matter by
the Director General or cause further inquiry to be made in
the matter or itself proceed with further inquiry in the matter
in accordance with the provisions of this Act.
(8) If the report of the Director General referred
to in sub-Sections (3) and (3-B) recommends that there is
contravention of any of the provisions of this Act, and the
Commission is of the opinion that further inquiry is called
for, it shall inquire into such contravention in accordance
with the provisions of this Act.
(9) Upon completion of the investigation or inquiry
under sub-Section (7) or sub-Section (8), as the case may be,
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the Commission may pass an order closing the matter or pass
an order under Section 27, and send a copy of its order to
the Central Government or the State Government or the
statutory authority or the parties concerned, as the case may
be:
Provided that before passing such order, the
Commission shall issue a show-cause notice indicating the
contraventions alleged to have been committed and such
other details as may be specified by regulations and give a
reasonable opportunity of being heard to the parties
concerned." (emphasis supplied)
25 Thus, under Section 26(1), if upon receipt of
information, the Commission is of the opinion that a prima facie
case exists, it may direct the DG to investigate. Section 26(2)
empowers the Commission to close the matter forthwith if it is of
the opinion that no prima facie case exists. Sections 26(3) to
26(6) relate to the processes to be followed by the Commission,
after receipt of the DG's report, both, in the event the
Commission is inclined to proceed further or to close the matter.
Under Section 26(6), the Commission is mandatorily empowered
to close the matter after receipt of the DG's report. In the event,
the Commission is inclined to proceed with the matter and pass
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an order under Section 27 (after inquiry), it is specifically
required to issue a show-cause notice to the party concerned,
indicating the contraventions alleged to have been committed, the
object being to give a reasonable opportunity of being heard to
the party concerned. Thus, the Act guarantees for sufficient
safeguards with respect to the rights of an affected party to have a
full and fair hearing before any order is passed by the CCI, on
receipt of a report of the DG, which may affect the rights of the
parties.
26 The legal propositions vis-a-vis interpretation of
Section 26 of the Act, which are well settled, are, (i) the functions
performed by the Respondent No. 1-CCI under Section 26(1) are
in the nature of preparatory matter in contrast to decision making
process15; (ii) that an order passed under Section 26(1) is
administrative in nature and not a judicial order 16; (iii) that the
Petitioner has no right to hearing prior to passing of an order
15 SAIL (Supra) - Para 93
16 SAIL (Supra) - Para 38
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under Section 26(1)17; and (iv) since the order under Section
26(1) is administrative in nature and prima facie, the High Court
is not competent to adjudicate the validity of such an order 18.
27 In the present petition, we are concerned essentially
with Section 26(2-A), which is inserted by an amendment to the
Act, and which came into effect from 18 th May 2023. By the said
amendment, the Commission has the discretion to decide not to
inquire into any agreement if the same or substantially same
issues are raised in the information received under Section 19,
which issues have already been decided by the Commission in its
previous order. The legislative intent behind this amendment, as
noted in the Committee Report, was to avoid duplication of
effort and to ensure expedition in disposal of matters.
28 The Committee in its report issued in July 2019, in
para 2.4 has noted as under:
17 SAIL (Supra) - Paras 78 & 83
18 CCI v. Bharti Airtel Ltd. & Ors. (2019) 2 SCC 521 - Paras 116 & 121
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"2.4 The Committee discussed if the Competition
Act should be amended to expressly empower the CCI to pass
orders for closure of certain cases, the facts and issues of
which have been finally decided by the CCI and in respect of
which a final order has been passed. It was felt that such a
provision may be necessary in the interests of expedience and
also to avoid repetition of effort in the conduct of inquiry and
investigation by the DG and CCI. The Committee
recommended that the procedure under Section 26 of the Act
should be amended to expressly enable the CCI to pass orders
for closure of cases where the information or reference that is
received pertains to the same or substantially the same
facts/issues as have already been decided by CCI and in
respect of which a final order has been passed by the CCI."
(emphasis supplied)
29 Thus, as is evident from the above, the legislative
intent behind the Competition (Amendment) Act of 2023 which
inserted Section 26(2-A), that it was in the interest of expedience
and to avoid repetition of the effort already undertaken by the
CCI.
30 It appears that the Respondent No. 2 had made a
representation to the CCI in December 2024 under Section 19(1)
(a) of the Act, alleging therein, that the Petitioner has abused its
dominance in the decorative paints market by inter alia:
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"(i) Offering additional/ extra discounts/condonations/
incentives like foreign travel etc. to its dealers in exchange
for exclusivity, which is arbitrary in nature and not linked
to any uniform policy or based on performance/sales of the
dealer;
(ii) Exercising and enforcing de facto exclusivity upon
dealers by threatening them against stocking the Informant's
paints by, inter alia:
➤ Reducing the credit limit and revision of service levels for
dealers that engage with the Informant;
➤ Increasing and enhancing sales targets for dealers
engaging with the Informant and accordingly, recalling their
benefits like foreign travel etc.;
➤ Reducing customer leads, termination of relations with
institutional customers and taking other punitive actions
like reduction in product offerings, low priority for
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servicing orders, opening competing dealerships in vicinity,
etc., in the event the dealers engage with the Informant;
(iii) Directing its dealers to return/ not use or not install
the tinting machines supplied by the Informant;
(iv) Restraining third parties, including suppliers of
essential raw materials, from providing goods and services
to the Informant;
(v) Coercing landlords, Clearing and Forwarding ('C&F')
Agents and transporters to refrain from engaging with the
Informant, restricting logistics and transportation of goods;
and
(vi) Subjecting the Informant to a fake smear campaign
etc."
31 It appears that the CCI was dealing with the
Respondent No.2's representation for contravention of Sections
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4(2)(a)(i), 4(2)(c) and 4(2)(d) of the Act and after going through
the same, had formed an opinion that there exists a prima facie
case against the Petitioner. It is pertinent to note that earlier on a
representation made by JSW in 2019 relating to violation of
Sections 4(2)(c) and Section 3(4)(b) and 3(4)(d), the CCI had
directed investigation by the DG vide order dated 14 th January
2020 and later on receipt of the DG's report vide order dated 8 th
September 2022 had dismissed the said complaint as no case of
contravention of Sections 3 and 4 had been made out. It is thus
evident from the aforesaid that the sections under which the
Respondent No.2 filed its complaint i.e. the sections invoked
were not the same as those invoked in the JSW case.
32 Apart from the same, what is reflected from/in the
impugned order dated 1st July 2025 is, that the primary reason
for dismissal of the JSW representation (after receipt of the DG's
report), was that there was no adequate material supporting the
representation made by JSW/Balaji. It appears that Balaji had
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preferred an appeal against the rejection order before the
National Company Law Appellate Tribunal (`NCLAT'), New
Delhi, which appeal came to be dismissed. It further appears that
the appeal preferred by JSW is pending before the Appellate
Tribunal. Be that as it may, it is not as if once a representation
made by a party is dismissed, no new representation on a
subsequent complaint can be entertained which is based on new
facts. That ofcourse would depend on the facts and
circumstances of each case. There may be several reasons for
dismissing a representation e.g. may be a party is unable to
substantiate its representation by evidence and so on.
33 Thus, we do not find that Section 26(2-A) creates any
jurisdictional embargo on the CCI to entertain a representation, if
the representation is found distinct/different from the earlier
representation. The object of Section 26(2-A) is only to avoid
repetition of the task already undertaken, and in the interest of
expedience. Section 26(2-A) only cautions and the CCI to be
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mindful before considering the representation for the said reasons
and cannot be interpreted to create any jurisdictional embargo,
when a new complaint is made to CCI. Infact, it appears to
operate in cases, where CCI intends to close the case. Section
26(2-A) which follows Section 26(2) appears to be clarificatory
and an enabling provision. Section 26(2-A) expressly clarifies,
what was implicit in Section 26(2) and expressly enables the
Commission to close a matter, if it is of the opinion that ` the
same or substantially the same facts and issues' raised in the
information received under Section 19 or reference from the
Central Government or a State Government or a statutory
authority has already been decided by the Commission in its
previous order. The same is fortified by the report of the
Competition Law Review Committee-July 2019, which is
reproduced in Para 28 of this judgment. The word `expressly'
used in the said report reveals the object of introducing Section
26(2-A) i.e. to clarify what is already implied in Section 26(2) and
the use of the term 'enable' establishes that the intent and object
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was to expressly introduce Section 26(2-A) as an enabling
provision. Thus, CCI would be required to deal with the same i.e.
Section 26(2-A), in its order only in cases where it decides to
close the case by acting under Section 26(2) or Section 26(2-A)
i.e. the CCI is of the view that 'the same or substantially same
facts and information raised in the information under Section 19
or reference from the Central Government or a State
Government or a statutory authority, has already been decided by
the CCI in its earlier order. Conversely, where CCI decides not
to close the case under Section 26(2) or 26(2-A) and decides to
direct the DG to cause an investigation to be made, the CCI is not
required to give reasons why Section 26(2-A) is not applicable.
34 A perusal of the impugned order indicates that
Respondent No.1, despite being aware of the JSW representation
and its dismissal, found substance in the representation of
Respondent No.2 and, after recording a prima facie observation,
directed the DG to investigate the same. The object of Section
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26(2-A) is not to create an embargo on the filing of a subsequent
information, but to emphasize that an information founded on
similar or substantially identical facts ought not to be entertained.
The discretion is that of the CCI, whether or not to entertain a
subsequent representation. Infact, a perusal of the impugned
order also shows that the CCI was fully conscious of the earlier
representation made by JSW/Balaji and its dismissal. The
impugned order further reflects that the JSW representation was
rejected after receipt of the DG's report, as JSW had failed to
substantiate its allegations. It is therefore evident that the CCI
passed the impugned order with full awareness of the earlier
proceeding. Whether or not to give hearing is the CCI's
discretion and there is no inherent right in a party to demand the
same. Consequently, we do not find any jurisdictional bar on the
Respondent No.1 compelling them to give reasons under
Section 26(2-A), as contended by Mr. Khambata, whilst
considering and entertaining the Respondent No.2's
representation.
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35 It is well settled that no inherent right of hearing,
oral/written, vests in the Petitioner at the stage of formation of a
prima facie opinion. Whether or not to afford such hearing is a
matter of discretion with the CCI, guided by the facts and
circumstances of each case. The impugned order, being
administrative in nature, merely records such opinion and directs
the DG to undertake investigation. Thus, there is no merit in the
Petitioner's contention that he ought to have been heard in the
facts.
36 The judgments relied upon by Mr. Khambata,
particularly, the case of Google (supra) have no application to the
facts of the present matter and are completely distinguishable.
The Apex Court in the case of Google (supra), on which great
reliance was placed by Mr. Khambata, has observed in paragraphs
29 to 31 as under:
"29. The Commission has perused the submissions of the
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parties as well as other information on record. In relation
to RMG Pilot, there are two issues for determination, the
first being, whether the selection of DFS and Rummy for
the Pilot has resulted in any anti-competitive disadvantage
for other RMG apps. The Commission further notes that
initially the RMG Pilot was intended to operate for one
year i.e., from 28.09.2022 to 28.09.2023. However, as
stated above, the same was extended by Google for
different reasons. Based on the reply dated 21.06.2024
submitted by Google, it is noted that the said Pilot has been
extended indefinitely beyond 30.06.2024 as no date has
been set for its termination. Therefore, the second issue for
consideration is whether such long duration Pilot has
resulted or is likely to result in any distortion in the
competitive process in the RMG market.
30. In relation to first issue, Google has submitted that it
has selected DFS and Rummy for the pilot primarily based
on their popularity, with the aim of maximising learnings
from the RMG Pilot. It has been further averred that the
Hon'ble Supreme Court of India (as well as other courts)
have recognised DFS and Rummy as predominantly games
of skill. The higher degree of legal certainty attached to
DFS and Rummy is stated to provide Google with
additional comfort from a risk assessment perspective.
31. The Informant on the other hand has averred that
Google has failed to provide a valid justification for
selectively allowing only two categories of RMG apps while
excluding the rest of the RMG market and its responses for
the same have been inconsistent, unsubstantiated, based on
assumptions and unverified market statistics. In this regard,
the Informant has also relied on the submission dated
15.06.2024 filed by Google wherein it has been stated that
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"Further,........, it is not the characterisation of a game as a
game of skill or game of chance, but the fragmented
regulatory and legal landscape for RMG apps in India and
risks that RMG apps carry that has informed Google's
RMG Policy and Google's decision to limit its short-term
Pilot Program to DFS and Rummy apps." The Informant
has further averred that during the preliminary hearing,
however, Google insisted that the premise for restricting
RMG apps to DFS and Rummy to the Pilot Program was
primarily due to both such categories of RMG's having
been declared as games of skill. The Informant has further
relied upon the OPs written statement as filed before the
Hon'ble Delhi High Court in CS(OS) No. 346/2023,
wherein the OPs have submitted that the Pilot Program was
not launched based on classification of apps as games of
skill or games of chance and it does not make any
distinction of such nature."
37 The facts in Google (supra) are clearly distinguishable.
In the case of Google (supra), the allegations related to a policy of
Google, which was previously examined by the Commission,
pursuant to which, subsequent representation vis-a-vis the same
policy, was not entertained. Hence, Google (supra) has no
application to the case in hand.
38 It is also pertinent to note that the Apex Court in para
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97 in SAIL (Supra) has observed thus:
"97. The above reasoning and the principles
enunciated, which are consistent with the settled canons of
law, we would adopt even in this case. In the backdrop of
these determinants, we may refer to the provisions of the
Act. Section 26, under its different sub-sections, requires
the Commission to issue various directions, take decisions
and pass orders, some of which are even appealable before
the Tribunal. Even if it is a direction under any of the
provisions and not a decision, conclusion or order passed
on merits by the Commission, it is expected that the same
would be supported by some reasoning. At the stage of
forming a prima facie view, as required under Section
26(1) of the Act, the Commission may not really record
detailed reasons, but must express its mind in no uncertain
terms that it is of the view that prima facie case exists,
requiring issuance of direction for investigation to the
Director General. Such view should be recorded with
reference to the information furnished to the Commission.
Such opinion should be formed on the basis of the
records, including the information furnished and reference
made to the Commission under the various provisions of
the Act, as aforereferred. However, other decisions and
orders, which are not directions simpliciter and
determining the rights of the parties, should be well
reasoned analyzing and deciding the rival contentions
raised before the Commission by the parties. In other
words, the Commission is expected to express prima facie
view in terms of Section 26(1) the Act, without entering
into any adjudicatory or determinative process and by
recording minimum reasons substantiating the formation
of such opinion, while all its other orders and decisions
should be well reasoned."
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39 We may also note that the Apex Court in the case of
Bharti Airtel (Supra), in para 121, has held as under:
"121. Once we hold that the order under Section
26(1) of the Competition Act is administrative in nature and
further that it was merely a prima facie opinion directing the
Director General to carry the investigation, the High Court
would not be competent to adjudge the validity of such an
order on merits. The observations of the High Court giving
findings on merits, therefore, may not be appropriate."
40 Keeping in mind the aforesaid, and having perused
the impugned order, we do not find any infirmity in the
impugned order passed by the CCI under Section 26(1) of the
Act.
41 In view of the above discussion, we find no merit in
the petition. The petition is accordingly dismissed. No order as
to costs.
42 All concerned to act on the authenticated copy of this
judgment.
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DR. NEELA GOKHALE, J. REVATI MOHITE DERE, J.
