Intex Technologies (India) Ltd vs Telefonaktiebolaget Lm Ericsson ...
2014 Latest Caselaw 1540 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Judgment delivered on: 24.03.2014

LPA 255/2014

INTEX TECHNOLOGIES (INDIA) LTD                                   ..... Appellant

                             versus

TELEFONAKTIEBOLAGET LM ERICSSON AND ANR
                                    .... Respondents
Advocates who appeared in this case:
For the Appellant   : Mr Arvind Nigam, Sr. Advocate with Mr Vaibhav Gaggar, Mr Aaditya
                      V.K., Mr Balbir Singh, Ms Monica Benjamin and Mr Abhimanyu
                      Chopra, Advocates
For the Respondents : Mr T.R. Andhyarujina, Sr. Advocate, Mr C.S. Vaidyanathan, Sr.
                      Advocate and Ms Pratibha M. Singh, Sr. Advocate with Mr Ravi Nair,
                      Ms Archana Sahdeva, Mr Ashutosh Kumar, Mr B. Prashant Kumar, Mr
                      Akshay Nanda, Ms Shivanghi Sukumar and Mr Shoumil Ghoshal,
                      Advocates for R-1
                      Mr Anupam Sanghi, Advocate for R-2 with Mr Sukesh Mishra, Joint
                      Director, CCI

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

                                 JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CM 5245/2014

The exemption is allowed subject to all just exceptions.

LPA 255/2014

1. This appeal is directed against the order dated 17.02.2014 passed by a learned Single Judge of this Court in W.P.(C) 1006/2014 which in turn was

filed in respect of an order dated 16.01.2014 passed by the Competition Commission. The learned Single Judge by virtue of the impugned order dated 17.02.2014 has observed as under:-

"Upon a perusal of the impugned orders dated 28 th November, 2013 and 16th January, 2014, this Court is also prima facie of the view that the Commission has entered into an adjudicatory and determinative process by recording detailed and substantial reasoning at the Section 26(1) stage itself. In fact, by virtue of the impugned order, this Court is prima facie of the view that, even though the Commission in the penultimate paragraph has stated that the impugned order shall not tantamount to a final expression of opinion on merit of the case, the petitioner's remedy under Section 26(7) has been rendered illusory.

Consequently, present petition is tagged with W.P.(C) 464/2014 and is directed to be listed on 26th May, 2014 before Joint Registrar for completion of pleadings. Till the next date of hearing, while the petitioner may give information as called upon by the Director General of Commission, no final order/report shall be passed either by the Commission or by its Director General.

Though the Director General of Commission is free to call any local officer of the petitioner for investigation purposes, but no officer stationed abroad shall be called without taking specific leave of this Court.

It is also made clear that the observations made by the Commission shall not come in the way of the petitioner negotiating with third parties or in the adjudication of the proceedings filed by either of the parties in this Court. Further, documents referred to in the order

dated 28th November, 2013 may be used by the Commission for its investigation purpose, but shall not be disclosed/released to any third party."

2. The reference to W.P.(C) 464/2014 in the above extract is to the writ petition filed in the case of Micromax Informatics Limited. We may point out at this stage itself that on the basis of a complaint by Micromax, the Competition Commission has passed an order on 12.11.2013, which became the subject matter of the above mentioned W.P.(C) 464/2014. In that writ petition, an order was passed on 21.01.2014 by a learned Single Judge of this Court in terms similar to the order dated 17.02.2014 passed in the present proceeding. Against the order dated 21.01.2014, two appeals being LPA No.182/2014 and LPA No.185/2014 have been preferred by the Competition Commission and Micromax respectively. Those appeals (LPA No.182/2014 and LPA No.185/2014) were disposed of by this Court on 24.02.2014 in the following manner:-

"The learned counsel appearing in LPA 182/2014 states that respondent No.2 has been wrongly shown as a party and that the corrected memo of parties shall be filed in the course of the day.

After hearing the learned counsel for the parties on both sides at great length, we dispose of these appeals by directing only one modification in the impugned order dated 21.01.2014. The learned Single Judge by virtue of the said order had inter alia directed that:- "Though the Director General of the Competition Commission of India is free to call any local officer of the petitioner for investigation purpose, but no officer stationed abroad shall be called without taking specific leave of this Court." We modify the above direction by indicating

that in case the Director General of the Competition Commission of India feels that it is necessary for the presence of an officer stationed abroad, he shall notify the respondent No.1 about the same. In case respondent No.1 feels that the request is unreasonable, it would be open to the respondent No.1 to move an application before the learned Single Judge for appropriate directions.

The parties are also at liberty to move an application before the learned Single Judge requesting him to expedite the hearing in the writ petition.

The appeals stand disposed of as above."

3. Another point that we may note at this juncture is that the Competition Commission in its order dated 16.01.2014 in paragraphs 18 and 19 had specifically referred to the Micromax case based on the prima facie view taken in the case. This would be evident from paragraphs 18 and 19 of the order dated 16.01.2014 passed by the Competition Commission which are reproduced hereinbelow:-

"18. It is a matter of record that the practice of Ericsson of imposing discriminatory royalty rates contrary to FRAND terms, was previously considered by the Commission in Case No.50/2013. In Re:

Micromax Informatics Limited vs. Telefonaktiebolaget LM Ericsson (Publ), wherein the Commission had already formed a prima facie opinion under section 26(1) of the Act and directed the Director General to conduct an investigation.

19. In view of above, the Commission is of the opinion that the present case be clubbed for causing an investigation to be made under proviso to Section 26(1) of the Act, with the Case No.50/2013, currently being investigated by the Director General."

4. It is, therefore, evident from the above that the two cases, that is, the present one and the one pertaining to Micromax have been clubbed together by the Competition Commission and they are following the same route. Consequently, we find it difficult to pass an order in the present appeal which would be different from the order passed by us in LPA Nos.182/2014 and 185/2014. The order passed by us on 24.02.2014 in LPA Nos.182/2014 and 185/2014 shall also apply to the present proceeding.

5. The appeal stands disposed of accordingly.

BADAR DURREZ AHMED, J.

SIDDHARTH MRIDUL, J.

MARCH 24, 2014 dn