TC-33 Appellant - Memorial

7th RGNUL NATIONAL MOOT COURT COMPETITION, 2018
BEFORE TEAM CODE: TC-33A
THE HON’BLE SUPREME COURT OF INDYCOSIS
u/s 53T of The Competition Act, 2002 & Article 136(1) of The Constitution of India
IN THE MATTER OF
Civil Appeal No. ……… of 2018
Arnub and Co. & Ors. … Appellants

Versus
Competition Commission of Indycosis … Respondent
With
SLP (Civil) No. …….. of 2018
[Against the impugned Judgment and Final Order dated 06.02.2018 passed by Hon’ble
High Court of Derry in Writ Petition (Civil) No. ………. of 2018]
Arnub and Co. & Ors. … Petitioners

Versus
Competition Commission of Indycosis … Respondent
MEMORIAL SUBMITTED ON BEHALF OF APPELLANTS

TABLE OF CONTENTS
TITLE PAGE NUMBER
1. LIST OF ABBREVIATIONS I
2. INDEX OF AUTHORITIES II
A. STATUTES II
B. TABLE OF CASE II
1. INDIAN CASES
2. FOREIGN CASES
C. BOOKS IV
D. JOURNALS V
E. LAW DICTIONARIES VI
3. STATEMENT OF JURISDICTION VII
4. STATEMENT OF FACTS VIII
5. ISSUES RAISED X
I. WHETHER THE ACT COMMITTED BY THE TRADERS IS ANTI-COMPETITIVE IN NATURE AND

FALLS UNDER SECTION 3 OF THE COMPETITION ACT, 2002 ?
II. WHETHER THE COMPETITION COMMISSION OF INDYCOSIS EXCEEDED ITS POWER BY

DENYING THE MONGRÈ TRADERS ACCESS TO THE MARKET OF MONGRÈ COFFEE?
III. WHETHER THE WRIT PETITION FILED IN THE DERRY HIGH COURT FOR THE VIOLATION OF
FUNDAMENTAL RIGHTS MAINTAINABLE?
6. SUMMARY OF ARGUMENTS XI
7. ARGUMENTS ADVANCED 1
MEMORANDUM FOR APPELLANTS

I. WHETHER THE ACT COMMITTED BY THE TRADERS IS ANTI-COMPETITIVE IN NATURE

AND FALLS UNDER SECTION 3 OF THE COMPETITION ACT, 2002 ?
1.1. THAT THERE WAS NO AGREEMENT ENTERED INTO BY THE APPELLANTS 1
1.2 THAT THERE WAS NO ADVERSE EFFECT ON COMPETITION IN INDYCOSIS 2
II. WHETHER THE COMPETITION COMMISSION OF INDYCOSIS EXCEEDED ITS POWER

BY DENYING THE MONGRÈ TRADERS ACCESS TO THE MARKET OF MONGRÈ COFFEE?
2.1 DENYING MARKET ACCESS TO ANY BUSINESS ENTERPRISE VIOLATES THE

OBJECTIVE OF THE COMPETITION ACT, 2002. 7
2.2 CAN THE APPELLANTS REQUEST THE CCI TO IMPOSE LESSER PENALTY UNDER
SECTION 46 OF THE COMPETITION ACT, 2002 ? 11
III. WHETHER THE WRIT PETITION FILED IN THE DERRY HIGH COURT FOR THE
VIOLATION OF FUNDAMENTAL RIGHTS MAINTAINABLE? 12
8. PRAYER 18

LIST OF ABBREVIATIONS
& And
¶ Paragraph
§ Section
Act The Competition Act, 2002
AIR All India Reporter
Anr. Another
Art. Article
CCI Competition Commission of Indycosis
Comp AT Competition Appellate Tribunal
Constitution The Constitution of India, 1950
DG Director General (appointed u/s 16(1) of The Competition Act, 2002)
Dist. District
Ed. Edition
EU European Union
ILO International Labour Organisation
MRTP Monopolies and Restrictive Trade Practices
Moot Moot Problem, 7th RGNUL National Moot Court Competition, 2018
Proposition
NCLAT National Company Law Appellate Tribunal
Ors. Others
RAT Regional Association for Trade in Coffee
SC Supreme Court
SCC Supreme Court Cases
TFEU Treaty of the Functioning of the European Union
U.K United Kingdom
U.S.A. United States of America
UDHR Universal Declaration of Human Rights
v. Versus
MEMORANDUM FOR APPELLANT

I|Page
INDEX OF AUTHORITIES
STATUTES
1. Companies Act, 2013.
2. The Competition Act, 2002.
3. The Constitution of India, 1950.
TABLE OF CASES
INDIAN CASE-LAWS
S.No. Name of Case Citation Page

Number
1. All India Tyre Dealers Federation v. Tyre (2012) S.C.C. 7
OnLine C.C.I. 66.
Manufacturers
2. Arun Kumar Bajoria v. Competition Commission (2016) S.C.C. 17
OnLine Del. 1946.
of India
3. Bachan Singh V. State of Punjab AIR 1980 S.C. 898. 16
4. Benett Coleman & Co. v. Union of India AIR 1973 S.C. 106. 16
5. Competition Commission of India v. Steel (2010) 10 S.C.C. 744. 10
Authority of India Limited
6. Excel Crop Care Limited v. Competition (2017) 8 S.C.C. 47. 11
Commission of India
7. Glass Chatons v. Union of India (1961) S.C. 1514. 17
8. Harnam Singh v. R.T.A AIR 1954 S.C. 190. 16
9. Ibrahim v. R.T.A AIR 1953 S.C. 79. 17
10. Maneka Gandhi v. Union of India AIR 1978 S.C. 597. 16

II | P a g e
11. M/s Excel Crop Care Limited v. Competition (2013) S.C.C. 9

OnLine Comp AT
Commission of India & Ors.
149.
12. Nagar Rice Milling v. Teekappa AIR 1971 S.C. 246. 14
13. Noble Resources Limited v. State of Orissa (2006) 10 S.C.C. 236. 16
14. N.B. Khare v. State of Delhi AIR 1950 S.C. 211. 14
15. Neeraj Malhotra v. Deutsche Post Bank Home (2010) S.C.C. 2
OnLine CCI 29.
Finance
16. O.K Ghosh v. E.X Joseph AIR 1963 S.C. 812. 16
17. Ram Chand v. Union of India AIR 1963 S.C. 563. 13
18. Ram Jawaya v. State of Punjab AIR 1955 S.C. 549. 16
19. Re: Cartelization in respect of tenders floated by (2017) S.C.C. 12
OnLine CCI 56.
Indian Railways for supply of brushless DC fans
and other electrical items
20. Shree Cement Limited V. Competition (2014) S.C.C. 18
OnLine Del 3292.
Commission of India
21. State of Assam v. Srishtikar AIR 1957 S.C. 414. 17
22. State of Kerala v. M.K. Jose (2015) 9 S.C.C. 433. 16
23. State of Maharashtra v. Himmatbhai AIR 1970 S.C. 1157. 17
24. Viklad Coal Merchant v. Union of India AIR 1984 S.C. 95. 16
25. Whirlpool Corporation v. Registrar of Trade (1998) 8 S.C.C. 1. 16
Marks
FOREIGN CASE-LAWS
S.No. Name of Case Citation Page

Number
1. Balmoral Cinema Inc. v. Allied Artists Pictures (1989) 885 F. 2d 7
Corp. 313.
2. Copperweld v. Independence tube (1984) 467 U.S 752. 11
3. Maple Flooring Manufacturer’s Association v. (1925) 268 U.S 563. 3

III | P a g e
United States
4. N W Wholesale Stationers v. Pac. Stationery (1985) 472 U.S 284. 7
5. National Society of Professional Engineers v. (1978) 435 U.S 679. 11
United States
6. Northern Pacific Railway Company & (1958) 356 U.S 1. 10
Northwestern Improvement Company v. United
States of America
7. States v. American Linseed Oil Co. (1923) 262 U.S 371. 2
BOOKS
S. No. NAME
1. ABIR ROY & JAYANT KUMAR, COMPETITION LAW IN INDIA (2nd ed. 2014).
2. ABIR ROY, COMPETITION LAW IN INDIA: A PRACTICAL GUIDE (1st ed. 2016).
3. ALISON JONES & BRENDA SUFRIN, EU COMPETITION LAW ( 6TH ed. 2016).
4. AVTAR SINGH, COMPETITION LAW ( 1ST ed. 2012).
5. D D BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8TH ed. 2007).
6. H M SEERVAI, CONSTITUTIONAL LAW OF INDIA (4TH ed. 1991).
7. PAUL A SAMUELSON & WILLIAM A. NORDHAUS, ECONOMICS (16TH ed. 1998).
8. RICHARD WHISH & DAVID BAILEY, COMPETITION LAW (8TH ed. 2015).
9. S M DUGAR, GUIDE TO COMPETITION LAW (6TH ed. 2016).
10. WILLIAM M. HANNAY & TODD S. PARKHURST, CORPORATE COUNSEL’S GUIDE TO
UNFAIR COMPETITION (1ST ed. 2015).

IV | P a g e
JOURNALS
S. No. NAME
1. A. Bhattacharjea, India’s Competition Policy: An Assessment, 38 ECONOMIC AND

POLITICAL WEEKLY 3561, 3561-3564 (2003).
2. A. Bhattacharjea, Of Ommissions and Commissions: India’s Competition Laws, 45
ECONOMIC AND POLITICAL WEEKLY 31, 31-37 (2010).
3. A. Bhattacharjea & Oindrilade, Cartels and Competition Commission, 47
ECONOMIC AND POLITICAL WEEKLY 14, 14-17 (2012).
Alan Devlin, Questioning the Per Se standard in cases of Concerted Monopsony, 3
HASTINGS BUSINESS LAW JOURNAL 223, 223-302 (2007).
4. Altamas Kabir, Competition Laws and the Indian Economy, 23 NATIONAL LAW
SCHOOL OF INDIA REVIEW 20, 20-25 (2011).
5. Christopher Harding, Competition Law, 38 THE INTERNATIONAL AND
COMPARATIVE LAW QUARTERLY 693, 693-697 (1989).
6. Charles S. Stark , EC Competition Law: Commentary, 59 ANTITRUST LAW
JOURNAL 469, 469-471 (1990).
7. D. Healey & E. Fox, When the State Harms Competition- The Role for Competition
Law, 79 ANTITRUST LAW JOURNAL 769, 769-820 (2014).
8. David J. Gerber, Competition Law, 50 THE AMERICAN JOURNAL OF
COMPARATIVE LAW 263, 263–296 (2002).
9. David P. Fidler, Competition Law and International Relations, 41 THE
INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 563, 563-589
(1992).
10. H. Seervai, The Freedom of Trade and Commerce in the Indian Constitution: The
Atiabari case and after, 21 THE CAMBRIDGE LAW JOURNAL 54, 54-84 (1963).
11. Norman E. Rosen, EC Competition Law: Commentary, 59 ANTITRUST LAW
JOURNAL 515, 515-518 (1990).
12. Robert Lane, Competition Law, 53THE INTERNATIONAL AND COMPARATIVE
LAW QUARTERLY 465, 465-478 (2004).

V|Page
13. S.L.Rao, Competition, Ethics and Governance, 35 ECONOMIC AND POLITICAL

WEEKLY 3015, 3015-3019 (2000).
14. Sebastian Morris & R. Basant, Competition Policy in India: Issues for a Globalising
Economy, 35 ECONOMIC AND POLITICAL WEEKLY 2735, 2735-2747 (2000).
15. Theodore L. Banks, EC Competition Law: Commentary, 59 ANTITRUST LAW
JOURNAL 465, 465-468 (1990).
LAW DICTIONARIES
S.No. NAME
1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (9TH ed. 2009).
2. P. RAMANATHAN AIYAR, ADVANCED LAW LEXICON (3RD ed. 2009).
3. VENKATRAMAIYA, LAW LEXICON ( 2ND ed. 2005).

VI | P a g e
STATEMENT OF JURISDICTION
The Appellants submit that the jurisdiction of the Honorable Supreme Court of Indycosis has
been invoked under Section 53T of The Competition Act, 2002 and Article 136(1) of The
Constitution of India, 1950.
Sec. 53T, The Competition Act, 2002 reads as follows:-
§53T Appeal to Supreme Court. —The Central Government or any State Government or the
Commission or any statutory authority or any local authority or any enterprise or any person
aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the Supreme
Court within sixty days from the date of communication of the decision or order of the Appellate
Tribunal to them: Provided that the Supreme Court may, if it is satisfied that the applicant was
prevented by sufficient cause from filing the appeal within the said period, allow it to be filed
after the expiry of the said period of sixty days.
Article 136(1), The Constitution of India reads as follows:-
136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
The Appellants shall accept the decision of the court as binding and final and shall abide by the
same in sincerity and in good faith.
All of which is most respectfully submitted.

VII | P a g e
STATEMENT OF FACTS
I. INTRODUCTION TO INDYCOSIS
Indycosis is a nation established on the principles of democracy and socialism. A landlocked
nation, the general trade in Indycosis is dependent upon the local manufacturers. The country is
divided into three parts i.e northern, central and southern part and internal trade between these
parts is very common. Coffee is one of the major products which is cultivated and sold widely
across the nation with 70% of adult population consuming 6-7 cups of coffee per day. Mongrè is
a variety of coffee which is rare, easily perishable and is grown in only certain months
(monsoon). It has also seen consistent increase in its demand and many consumers are willing to
pay as much as Rs. 200 per hundred grams. The total quantity of Mongrè available every season
was only around 1000 kilograms (kgs).
II. MARKET OF MONGRÈ COFFEE

 The three major private companies who trade Mongrè are Arnub Ahuja, director of Arnub
and Co., Rajdip Sharma, director of Rajdip Pvt. Ltd., and Barka Lal, director of Barka
Industries. They buy Mongrè from the farmers and send it down the chain, ultimately to the
consumers.
 After the monsoons when Mongrè was ready, the farmers would invite for prices from the
traders. The trader who was willing to buy at the highest price would generally get all of
the Mongrè. In the year 2010, Barka, who was new to the market, wanted to survive in the
market at any cost. She expressed willingness to buy Mongrè at Rs. 500 per kg; this was
Rs. 200 more than usual price at which traders bought from the farmers. Since Barka was
willing to pay a high price, all 1000 kg of Mongrè was sold to her.
 In 2011, Arnub expressed interest to pay Rs. 600/kg to the farmers and bought all 1000 kgs
of mongrè. Thus, all the 1000 Kgs of Mongrè Coffee were being sold to the traders quoting
the highest price. While these prices were readily accepted by the farmers, it was being
very difficult for all the traders to survive in the market.
III. CHANGE IN MARKET SCENARIO

In 2016, all the three traders were invited at a wedding of one of the coffee farmers where Arnub
opined that if all three of them expressed intention to buy at the same price and demanded only

VIII | P a g e
1/3rd of Mongrè, all of them can survive in the market. In 2017, Arnub sent an email to Rajdip
and Barka expressing interest to buy Mongrè at Rs.500 per kg from the farmers and would
demand only 330 kgs of it. When the identical price of Rs. 500/kg was quoted by the three
traders, the farmers were discontent. The farmers had no choice but to sell their mongrè at this
price due to its perishable nature. In 2018 also, all the three traders quoted exactly identical
prices and demanded similar quantities. The farmers this time decided to oppose this pricing,
which they referred to as ‘unfair’ and being pre-decided by the traders.
IV. REGIONAL ASSOCIATION FOR TRADE IN COFFEE (RAT)
RAT Coffee was founded in 1980’s by Mr. Ravi Vermma, who started off as an activist working
for the masses but ended up as a famous politician. Thereafter, Shashi Vermma took over. After
the discontentment of the farmers by the prevailing market conditions as a result of the practice
by the three traders of Mongrè, RAT Coffee approached the Competition Commission of
Indycosis (‘CCI’) and in a written complaint stated that the traders who were buying Mongrè
coffee from the farmers had engaged in a cartel-like behavior.
V. INQUIRY BY DIRECTOR-GENERAL & ORDER OF CCI & NCLAT

 After the Director General submitted the report, CCI initially opined to further inquire into
the matter. Upon, request of RAT coffee to adjudicate the matter expeditiously because
Mongrè coffee beans for 2018 were already lying in the warehouse. CCI ordered penalty of
10% on the average turnover for the last three preceding financial years on the three traders
and restrained them from entering the Mongrè coffee market for subsequent five years
(2018-2022).
 Aggrieved by the decision of the CCI, the traders appealed to NCLAT, where the restrain
was reduced down to one year (2018-2019). The traders then filed an appeal in the Supreme
Court against the order of NCLAT under Section 53T of The Competition Act, 2002.
VI. WRIT PETITION IN DERRY HIGH COURT
A writ petition was simultaneously filed in the Derry High Court alleging that the order of CCI
violates Fundamental Rights of Mongrè traders. The High Court dismissed the petition in limine
against which the traders filed an appeal in the Supreme Court of Indycosis.

IX | P a g e
ISSUES RAISED
I. WHETHER THE ACT COMMITTED BY THE TRADERS IS ANTI-COMPETITIVE IN NATURE AND

FALLS UNDER SECTION 3 OF THE COMPETITION ACT, 2002 ?
1.1 THAT THERE WAS NO AGREEMENT ENTERED INTO BY THE APPELLANTS.
1.2 THAT THERE WAS NO ADVERSE EFFECT ON COMPETITION IN INDYCOSIS.

2.1 DENYING MARKET ACCESS TO ANY BUSINESS ENTERPRISE VIOLATES THE OBJECTIVE OF THE
COMPETITION ACT, 2002.
2.2 CAN THE APPELLANTS REQUEST THE CCI TO IMPOSE LESSER PENALTY UNDER SECTION 46 OF
THE COMPETITION ACT, 2002?
III. WHETHER THE WRIT PETITION FILED IN THE DERRY HIGH COURT FOR THE VIOLATION
OF FUNDAMENTAL RIGHTS IS MAINTAINABLE?

X|Page
SUMMARY OF ARGUMENTS
I. WHETHER THE ACT COMMITTED BY THE TRADERS IS ANTI-COMPETITIVE IN NATURE

AND FALLS UNDER SECTION 3 OF THE COMPETITION ACT, 2002 ?
It is humbly submitted before the Hon’ble court that the act of the appellant cannot be
treated as anti-competitive as it does not causes appreciable adverse effect on
competition of the Mongrè market for the purpose of Section 3 of the Act. Firstly, for
the purpose of Section 2(b) of the Act there was no agreement between the traders.
Secondly, as reported by the DG, the agreement did not cause any appreciable adverse
effect on the Mongrè market. Moreover, "presumption", is an assumption of fact that
can be rebutted, resulting from a rule of law which requires such fact to be assumed
from another fact or group of facts found or otherwise established in the action. A
presumption is not evidence in itself. The agreement is exempted under Art. 101(3) of
the Treaty of the Functioning of the European Union (TFEU). On the other hand the
agreement promoted stability in the market as it made fresh Mongrè coffee available in
all parts of the country.

It is humbly submitted before the Hon’ble Court that the objective of the Competition
Commission is to prevent practices having adverse effect on competition; to promote
and sustain competition in markets; to protect the interests of the consumers and to
ensure freedom of trade carried on by other participants in Indycosis markets. Thus, if
the Competition Commission of Indycosis denies the Mongrè traders to access the
market then it defeats the object of the Competition Act, 2002 which states that along
with preventing the practices which have adverse effect on competition it also has to
protect the interests of the consumers and has to ensure freedom of trade carried on by
participants in markets.

XII | P a g e
III. WHETHER THE WRIT PETITION FILED IN THE DERRY HIGH COURT FOR THE VIOLATION OF
FUNDAMENTAL RIGHTS IS MAINTAINABLE?
It is humbly submitted before this Hon’ble Court that the decision of CCI is violative
of the fundamental right to practice any profession, or to carry on any occupation,
trade or business guaranteed under Art. 19(1)(g) of the Constitution. The fundamental
right of a citizen to carry on any occupation, trade or business under Art. 19(1)(g) of
the Constitution is not absolute; it is subject to reasonable restrictions which may be
imposed by the State in the interests of the general public. Hence, the traders being
restrained from buying Mongrè coffee from the farmers or from accessing the market
of Mongrè coffee in any other manner for the subsequent five years i.e. from 2018-
2022, will not only violate the right of trade and profession of the Mongrè traders as
conferred under Art. 19(1)(g) of the Constitution but will also hinder the fundamental
right conferred under Art. 21 of the Constitution i.e. right to life of the citizens of
Indycosis.

XII | P a g e
ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE ACT DONE BY THE TRADERS IS ANTI-COMPETITIVE IN

NATURE, AS MENTIONED UNDER SECTION 3 OF THE COMPETITION ACT, 2002?
[¶1]. It is humbly submitted before the Hon’ble court that the act of the appellant cannot be
treated as anti-competitive as it does not causes appreciable adverse effect on competition of the
Mongrè market for the purpose of Section 3 of The Competition Act, 2002.
1.1. THAT THERE WAS NO AGREEMENT ENTERED INTO BY THE APPELLANTS .
[¶2]. It is submitted that there was no meeting of minds prior to appellants expressing their
interest in buying Mongrè in the year 2017 and 2018. For attracting the application of Section 3
of the Competion Act, 2002, it should be first established that there was an agreement between
the offenders. The Competition Commission held that where it was stated that for finding an
infringement of Section 3(1) read with Section 3(3) of the Act, an agreement should be
established unequivocally.1 Relying on the majority decision in the case of Neeraj Malhotra vs.
Deutsche Post Bank and Others,2 the following argument of the counsel was accepted by the
Commission that, parallel behaviour is insufficient to prove that an agreement existed. It was
stated that mere price parallelism is not sufficient to establish the contravention of the Act. Trade
associations or combinations of persons which openly and fairly gather and disseminate
information as to the cost of their product, the volume of production, the actual price which the
product has brought in past transactions, as they did, meet and discuss such information and
statistics without, however, reaching or attempting to reach any agreement or any concerted
action with respect to prices or production or restraining competition, do not thereby engage in
unlawful restraint of commerce.3 During their meeting in the wedding, the appellants were only
vocal about their views on the existing market trend. They did not have consensus ad idem at any
point of time and had not entered into any agreement related to prices. Moreover, Barka did not
1
Neeraj Malhotra vs. Deutsche Post Bank and others (2010) S.C.C OnLine C.C.I 29 (India).
2
Id.
3
States v. American Linseed Oil Co., 262 U.S. 371 (1923).

1| P a g e
even pay heed to what Arnub had proposed.4 Thus the DG report has not produced any precise
and coherent proof of any agreement of the nature covered in Section 3.
1.2 THAT THERE WAS NO ADVERSE EFFECT ON COMPETITION IN INDYCOSIS.
[¶3]. It is humbly submitted before the Hon’ble Court that the understanding made between the
three traders, does not amount to anticompetitive agreement. It is submitted that Section 3(1) of
the Competition Act will be applicable here. It is apposite to note that under statutory scheme of
Competition Act, cartels are presumed to have an appreciable adverse effect on competition in
Indycosis, but it has been stated by the Supreme Court of Indycosis that ‘shall be presumed’ is a
presumption and not an evidence in itself.5 Moreover, "presumption", is an assumption of fact
that can be rebutted, resulting from a rule of law which requires such fact to be assumed from
another fact or group of facts found or otherwise established in the action. A presumption is not
evidence in itself.6 Thus, ‘rule of reason’ should have been adopted by the DG instead of
presuming the anti-competitive effects of the agreement. It is a legal approach by competition
authorities or the courts where an attempt is made to evaluate the pro-competitive features of a
restrictive business practice against its anticompetitive effects in order to decide whether or not
the practice should be prohibited.7
[¶4]. The act of quoting the same price by the appellants have resulted into stability in the
Mongrè market. It was observed that Barka could now sell Mongrè in North, Arnub could sell it
in South and Rajdip did in other regions. After the arrangement, fresh Mongrè was now available
to people of the Indycosis as all three appellants belonged to different parts of country.8 US
Supreme Court has held that sharing of information regarding trade which leads to a uniformity
of price and trade practice as well as supplies of merchandise can hardly be deemed to be a
restraint of commerce as such sharing leads to more scientific knowledge or business conditions
and leads to stability of production and price. In the opinion of the Supreme Court competition
4
Moot Proposition, p. 4.
5
ABIR ROY, COMPETITION LAW IN INDIA: A PRACTICAL GUIDE (1ST ed. 2016).
6
HENRY CAMPBELL BLACK, BLACK’S LAW DICTIONARY ( 9TH ed. 2009).
7
R.S. Khemani & D.M Shapiro, Glossary of Industrial Organisation Economics and Competition Law, 1
ORGANISATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, (1993).
8
2|Page
means a free and open market and that free distribution of knowledge does not lead to anti-
competitive behaviour.9
[¶5]. As suggested by many economist, horizontal cooperation can be motivated by goals other
than joint profit maximization which aim is to restrict competition, these other motivations goals
are beneficial to societal welfare, thus it is necessary that competition law take these efficiencies
into account, rather than focusing solely on the anti-competitive effects of cooperation.10 The
efficiency goals that can derive from horizontal cooperation can take the form of economies of
scale and scope, advantages in marketing and distribution, and in research and development. As
can be seen from above several efficiencies can be derived from cooperation and the competition
law needs to take these into consideration.11
[¶6]. The European Community law, goes beyond the objective of maximizing welfare and
explicitly allows some restrictive contracts if they promote progressiveness and consumers
ultimately stand to gain. Article 101 (3) of TFEU creates an exemption where the agreement is
beneficial to consumers. In order to satisfy the criteria and obtain a Block exemption these four
cumulative conditions must be fulfilled;
 The restrictive agreement must produce economic benefits such as improving the
production or distribution of goods or to promoting technical and economic progress i.e.,
the efficiency gains. Mongrè coffee being an easily perishable product,12 the distribution
of it in different parts of Indycosis was a concern, but after the agreement between the
traders, the distribution is improved and has caused economic benefit in a way that the
Mongrè coffee is now being distributed in all the parts of the country and thus the coffee
consumers can now buy fresh coffee which has been made available in the market by the
traders.
 The restrictions must be indispensable to achieve efficiency improvements. The market

stability that has been achieved is because of agreement between the appellants to equally
distribute the Mongrè coffee production among themselves so that not just one trader
9
Maple Flooring Manufacturers' Assn. v. United States, 268 U.S. 563 (1925).
10
ROGER J. VAN DEN BERG & PETER D. CAMESASCA ”EUROPEAN COMPETITION LAW AND ECONOMICS – A
COMPARATIVE PERSPECTIVE” (2001) 182.
11
Id. at 182-191.
12
3|Page
takes away all the coffee and resell it in a particular region of the country. The present
arrangement has helped to distribute fresh coffee in the market. Moreover, now all the
three market participants will be able to survive in the market, thus there being welfare of
all.
 Consumers must receive a fair share of the resulting benefit achieved by indispensable
restrictions. Before 2017 and 2018, the market conditions were very instable as the whole
quantity of the coffee was bought by just one trader and ultimately the consumers, not
belonging to the region where the trader was based could not receive the Mongrè supply
in their market. After the arrangement between the appellants in the year of 2017 and
2018, the consumers can receive fair share of the benefit of such restriction.
 The agreement must not afford the parties the possibility of eliminating competition in
respect of a substance part of the products in question. Since there were only three
players in the market , any agreement among them would not eliminate the competition
between them and rather it was more of a responsibility on the shoulders of the three
traders to make sure that the Mongrè coffees reaches to all parts of the country and the
citizens can get easy access to their choice of Mongrè coffee in the market.
When these four criteria are met, it is considered that the efficiency gains generated by an
agreement outweigh the competition generated. Since all the above conditions are satisfied, the
appellants should get exemption.
[¶7]. The proviso to Section 3(3) of the Act states that if an agreement is entered between parties
which eventually increases efficiency in production supply distribution, storage, acquisition or
control of goods shall not be presumed to have appreciable adverse effect on competition. It is
submitted that the appellants in the process of bidding and acquiring Mongrè coffee didn’t cause
appreciable adverse effect to competition, rather it accelerated the process of distribution as it
was made easily available to all people of Indycosis. Keeping in mind the perishable nature of
Mongrè coffee and the fact that, all the appellants came from different parts of Indycosis the
13
Bent Iversen et al. “Regulating competition in the EU”, (2008) 58-62
4|Page
coffee could be evenly distributed to all parts of the country resulting in increase in efficiency of
distribution as well as storage of the coffee.
[¶8]. It is submitted that the adverse effect caused to the consumers with respect to the increased
price of Mongrè coffee was not a result of the act of the appellants, but was a consequence of the
act done by the retailers who bought coffee from the appellants.14
Year Per Kg price at which Per Kg price at which Per Kg price at which
traders bought Mongrè coffee was the Mongrè coffee is
Mongrè coffee sold by the traders to available to consumers
distributors/retailers in the market
2010 500 1500 2000

2011 600 1600 2100
2012 650 1650 2150
2013 655 1655 2155
2014 700 1700 2200
2015 750 1750 2250
2016 850 1850 2350
2017 500 1500 2500
2018 500 1500 2700
[¶9]. From the above table it is evident that in the year 2017 and 2018, the traders had bought the
coffee at a price comparatively lower than price in the precedent years. Subsequently, the
distributors also bought the coffee at a lower price from the traders but ultimately while selling it
to the consumers in the market, they didn’t decrease the price of the coffee. Rather they sold it to
the consumers at an inflated price i.e Rs.2500 and Rs.2700, while the consumers were willing to
pay as much as Rs.2000 per Kg. Thus, the consumers’ interest was being harmed and the profit
was accrued not to the traders but to the distributors.
14
5|Page
[¶10]. A cartel may be providing for price fixing; to limit production and supply, to allocate
market shares or sales quota or to engage in bid rigging or collusive bidding. Cartelization leads
to higher price above competitive level, poor quality of goods and services to customers. The
definition of cartels in accordance to the Black’s Law Dictionary is a combination of producers
or sellers that join together to control a product’s production or price.15 On the other hand the
agreement between the appellants is promoting progressiveness as it has helped to achieve high
efficiency in the Mongrè market.
[¶11]. CCI has noted that although there are some factors which may be conducive to
cartelization or it may be said that the industry has structural characteristics that aid cartelization,
but the market participants might have not have indulged in cartelization.16
[¶12].It is humbly submitted before the Hon’ble court that merely because there was identity of
prices quoted by the appellants, it would not mean that there was bid rigging or formation of
cartel by the appellants.
[¶13]. The Block exemptions fall into three categories, Article 101(3) of TFEU, agreements of
minor importance and block exemptions. The first category is Article 101(3) of TFEU. Article
101 (3) of TFEU creates an exemption where the agreement is beneficial to consumers. In order
to satisfy the criteria and obtain a Block exemption four conditions must be fulfilled; the
conditions are cumulative, meaning that all conditions must be satisfied before obtaining an
exemption. To give some guidance the Commission has issued a comprehensive notice on the
application of Article 101(3) of TFEU. The first two conditions that have to be fulfilled are
positive meaning that they must be present and the last two conditions are negative, meaning that
they must not be present. First of all, the agreement must lead to an improvement in the
production or distribution of goods or the promotion of technical or economic progress.
Secondly, it must allow consumers a fair share of the resulting benefit. Third, the agreement may
not contain any indispensable restraints and finally, the agreement may not eliminate competition
in respect of a substantial part of the products in question.17
15
HENRY CAMPBELL BLACK, BLACK’S LAW DICTIONARY ( 9TH ed. 2009).
16
All India Tyre Dealers Federation v. Tyre Manufacturers Association , (2012) S.C.C OnLine C.C.I 66 (India).
17
Bent Iversen et al. “Regulating competition in the EU”, 2008 p. 58-62
6|Page
[¶14]. It is submitted that although, the auction-buying ring (cartel) is generally held to be illegal
"per se" and a felony, but the buying group is subject to a "rule of reason" that currently entails a
strong presumption of legality.18 Moreover, in some circumstances, commentators and an
occasional court have argued that buyers should be allowed to collude together simply to fix
prices or allocate inputs.19 Some buyer power is not necessarily undesirable from the perspective
of maintaining a workable competitive process.20 When buyers confront sellers with modestly
large market shares, there is likely to be sufficient countervailing power such that the resulting
prices are consistent with a reasonable measure of the costs of production.21 In most input
markets, the transactions take place in one-on-one sales where both buyer and seller have some
flexibility as to price.22 In such situations, there is no inherent market price. Thus, some power
that assists the buyer in negotiation is not itself unreasonable or undesirable.
ISSUE 2: WHETHER THE COMPETITION COMMISSION OF INDYCOSIS

EXCEEDED ITS POWER BY DENYING THE MONGRÈ TRADERS ACCESS TO THE
MARKET OF MONGRÈ COFFEE?
2.1 DENYING MARKET ACCESS TO ANY BUSINESS ENTERPRISE VIOLATES THE OBJECTIVE
OF THE COMPETITION ACT, 2002.
[¶15]. The primary objective of the competition policy is to promote efficiency and maximize
welfare. The definition of welfare is of paramount importance and it is the sum total of
consumers surplus and producers surplus.23 The most important reason for the existence of
competition is the interest of the consumer. The Competition Commission of Indycosis should
strengthen a competitive society notably, adequate spread of information throughout the market,
free and easy communication and ready accessibility of goods.24
18
N.W Wholesale Stationers v. Pac. Stationery & Printing, 472 U.S. 284 (1985).
19
Balmoral Cinema, Inc. v. Allied Artists Pictures Corp., 885 F.2d 313 (1989).
20
Alan Devlin, Questioning the Per Se Standard in Cases of Concerted Monopsony, 3 HASTINGS BUSINESS
LAW JOURNAL 223, 223-302 (2007).
21
Id. at 233.
22
Id. at 297.
23
PAUL A. SAMUELSON & WILLIAM A. NORDHAUS, ECONOMICS (16TH ed. 1998) 54.
24
Id.

7|Page
[¶16]. In accordance with the long title of the Competition Act, 2002, the objective of the
Competition Commission is to prevent practices having adverse effect on competition; to
promote and sustain competition in markets; to protect the interests of the consumers and to
ensure freedom of trade carried on by other participants in Indocysis markets.
[¶17]. In the present case at hand the three traders namely Arnub & Co., Rajdip Pvt. Ltd. and
Barka Industries were the only three players who used to buy Mongrè Coffee from the farmers
and send it down the chain and which ultimately used to reach the consumers.25 That means if the
Competition Commission of Indycosis denies the Mongrè traders to access the market then it
defeats the object of the Competition Act, 2002 which states that along with preventing the
practices which has adverse effect on competition it also has to protect the interests of the
consumers and has to ensure freedom of trade carried on by other participants in markets.
[¶18]. When we look at the enforcement powers of the Competition Commission of Indycosis,
the Act regulates the manner in which the business should operate in the market place. The
Competition Commission of Indycosis can impose fines up to 10% of the average turnover of the
last three preceding financial years on every enterprise for abuse of dominance or for entering
into anti-competitive agreements.26
[¶19]. Further, the Competition Commission of Indycosis has the power to modify terms of
agreements, modify business practices, declare agreements to be void.27 In essence, apart from
fines, the Competition Commission can also direct enterprises to change the manner of
conducting their business operations. It is a well established principle laid down by the Supreme
Court that the Competition Commission is a quasi judicial authority and hence their orders must
be speaking orders i.e the orders must clearly spell out the reasons which shows application of
mind.
[¶20]. Even in cases where the commission has imposed huge fines, it should be an endeavour of
the authorities to apply the principles not mechanically or blindly but after carefully considering
25
Clarifications, 7th RGNUL National Moot Court Competition, 2018.
26
The Competition Act, 2002, No. 12, Acts of Parliament, 2003 (India), § 27(b).
27
The Competition Act, 2002, No. 12, Acts of Parliament, 2003 (India), § 27.
8|Page
the factual aspects. Such factual aspects could include the necessity of the product. Generally,
the award of penalty should be in proportion to the wrong done. While considering the wrong
done, of course the authority would be justified in taking into consideration all the aspects
including mitigating and aggravating circumstances.28
[¶21]. The Competition law is designed to be a comprehensive charter of economic liberty aimed
at preserving free and unfettered competition as the rule of trade, and that unrestrained
interaction of competitive forces will yield the best collocation of economic resources of the
country, the lowest prices, the highest quality and greatest material progress.29
[¶22]. Hence, looking at the factual aspect of the case at hand which clearly goes on to show that
70% of the adult population of Indycosis consumes high amounts of coffee30 and Arnub and Co.,
Barka Industries and Rajdip Pvt. Ltd. are the only three players in the market dealing with the
trade of Mongrè coffee and if the Commission restrains these three players from accessing the
market, then it would largely affect the consumers. According to the Competition Act, the
Competition Commission of Indycosis can modify the terms of the agreement which the three
traders had entered into or even declare the agreement void but it would be ultra vires on part of
the commission if it restrains the traders from accessing the market for 1 year.
[¶23]. Furthermore, the Competition Commission of Indycosis can only temporarily restrain any
party from carrying on its business if the act is in contravention of sub-Section (1) of Section 3 or
sub-Section (1) of Section 4 or Section 6.31 Thus, CCI is in clear violation of the literal meaning
of the Act and the final order of the NCLAT which restrains the three traders from accessing the
Mongrè coffee market for one year is ultra vires.
28
M/s Excel Crop Care Limited v. Competition Commission of India & Others, 2013 S.C.C OnLine Comp AT 149
(India).
29
Northern Pacific Railway Company & Northwestern Improvement Company v. United States of America, 356
U.S 1 (1958).
30
31
9| P a g e
[¶24]. In Competition Commission of India v. Steel Authority of India Limited32, the Supreme
Court observed that at the stage of a Section 33 proceedings, the CCI is required to record a
satisfaction that there has been contravention of the provisions of Sections 3, 4 or Section 5 of
the Competition Act and such contravention has been committed, continues to be committed or is
about to be committed. This satisfaction has to be understood differently from what is required
while expressing a prima facie view in terms of Section 26(1) of the Act.
[¶25]. The usage of the phrase “as it may deem fit” as occurring under Section 27 of the Act, at
the outset is indicative of the discretionary power provided for the fining authority under the Act.
As the law abhors absolute powers and arbitrary discretion, this discretion provided under
Section 27 needs to be regulated and guided so that there is uniformity and stability with respect
to imposition of penalty.33
[¶26]. It is submitted that agreements are considered illegal only if they result in unreasonable
restrictions on competition and the same is tested on rule of reason analysis. Thus, the
Commission under the rule of reason analysis has to actually prove that challenged practice is
harming the competition in the relevant market.34 Under the rule of reason analysis, the true test
of legality is whether the restraint imposed is such that it merely regulates or promotes
competition or whether it is such that it suppresses or destroys competition.35
[¶27]. After the inquiry into agreements is complete and if the commission finds that any
agreement referred to it in Section 3, is in contravention of Section 3 or Section 4 it can pass
orders which can direct any enterprise, or association of enterprises or person or association of
persons, as the case may be, involved in such agreement to discontinue and not to re-enter such
agreement, impose penalty, as it may deem fit which shall not be more than ten percent of the
average turnover for the last three preceding financial years, direct that the agreements shall
stand modified to the extent and in the manner as may be specified in the order by the
32
Competition Commission of India v. Steel Authority of India Ltd. & Ors., (2010) 10 S.C.C. 744 (India).
33
Excel Crop Care Ltd. v. CCI, (2017) 8 S.C.C. 47 (India).
34
Copperwel Corpn.v. Independence Tube Corporation, (1984) 467 U.S. 752 (U.S).
35
National Society of Professional Engineers v. United States, (1978) 435 U.S. 679 (U.S).
10 | P a g e
Commission.36 A remedy that goes beyond this is disproportionate and removing enterprises
from market would make matters worse, as it would mean that there would be less competition
between buyers and this could lead to higher prices.
2.2 CAN THE APPELLANTS REQUEST THE CCI TO IMPOSE LESSER PENALTY UNDER
SECTION 46 OF THE COMPETITION ACT, 2002?
[¶28]. Section 46 of the Competition Act, 2002 states that the Commission may, if it is satisfied
that any producer, seller, distributor, trader or service provider included in any cartel, which is
alleged to have violated Section 3, has made a full and true disclosure in respect of the alleged
violations and such disclosure is vital, impose upon such producer, seller, distributor, trader or
service provider a lesser penalty as it may deem fit, than leviable under this Act.37
[¶29]. The proviso to Section 46 of the Act grants the imposition of lesser penalty only in cases
where the report of investigation directed under Section 26 has been received before making
such disclosure by the parties involved in cartelization. Thus, in the present case at hand the
disclosure of emails sent by Arnub to Barka and Rajdip were made before the investigation of
the DG was concluded and the disclosure helped in making things transparent and make the
investigation process smooth.
[¶30]. In Re: Cartelization in respect of tenders floated by Indian Railways for supply of
Brushless DC fans and other electrical items38 the commission granted 75% reduction in penalty
to the opposite party because the opposite party contended that it was because of their disclosure
that the DG was able to establish role of each of the opposite party.
[¶31]. It is submitted that important disclosures relating to the email was duly made to the DG in
the inquiry process and would thus attract Section 46 of the Competition Act, 2002 and request
the court to lower down the penalty so imposed on the traders if the court
36
supra note 26.
37
38
2017 S.C.C. Online C.C.I. 56 (India).
11 | P a g e
after taking note of facts and circumstances and hearing both the parties of the present matter in
hand reaches to the conclusion that the traders were involved in a cartel like behaviour.
[¶32]. The Commission in exercise of its power conferred under Section 27(e) and Section 27(g)
of the Competition Act is not absolute and is subject to constitutional provisions as dealt in the
third issue of this written submission to the court. The Competition Commission of Indycosis by
its objective cannot disrupt trade and competition rather has to make sure to maintain a healthy
competition in the market. By shutting a company down it is removing a viable competitor from
the market and is also reducing consumer choices which may lead to increase in market power of
a new competitor which can come into picture.
ISSUE 3: WHETHER THE WRIT PETITION FILED IN THE DERRY HIGH COURT FOR
THE VIOLATION OF FUNDAMENTAL RIGHTS IS MAINTAINABLE?
[¶33]. It is humbly submitted before this Hon’ble Court that the decision of CCI is violating
fundamental right to practice any profession, or to carry on any occupation, trade or business
guaranteed under Art. 19(1)(g) of the Constitution. “Trade” in its wider sense includes any
bargain or sale, any occupation or business carried on for subsistence or profit, it is an act of
buying any business carried on with a view to profit whether manual or mercantile.39
[¶34]. It is humbly submitted that Art. 19(1)(g) of the Constitution provides Right to practice any
profession or to carry on any occupation, trade or business to all citizens subject to Art. 19(6) of
the Constitution, which enumerates the nature of restriction that can be imposed by the State
upon the above Right of the Citizens. Nothing in Art. 19(1)(g) of the Constitution shall affect the
operation of any existing law in so far as it impose, or prevents the State from making any law
imposing, in the interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub clause, and, in particular, (nothing in the said sub-clause shall affect the
operation of any existing law in so far as it relates to, or prevent the state from making any law
elating to:-
(i) the professional or technical qualifications necessary for practicing any profession or carrying
on any occupation, trade or business, or (ii) the carrying on by the state, or by a Corporation
39
DD Basu, Commentary of the Constitution of India (8th ed. 2007), p. 2848.

12 | P a g e
2424242424242424
owned or controlled by the state, of any trade, industry or service, whether to the exclusion,
complete or partial or citizens of otherwise.
[¶35]. The fundamental right of a citizen to carry on any occupation, trade or business under Art.
19(1)(g) of the Constitution is not absolute; it is subject to reasonable restrictions which may be
imposed by the State in the interests of the general public.40 The validity of restrictions has to be
tested on certain objective criteria, namely, (1) whether the appropriate legislature has the
legislative competency to make the law, (2) whether the said law infringes any of the
fundamental rights, (3) even if it infringes the freedom under Art. 19 of the Constitution, then
whether the infringement only amounts to “reasonable restriction” on such rights “in public
interest”. What is reasonable under certain circumstances may not be so under a different
circumstance.41
[¶36]. As per the facts of the present case, it is clear that Indycosis is a nation where coffee is
one of the major products of Indycosis and is sold widely across the nation. Also it is established
that internal trade of goods is a common practice throughout the nation. Thus, the CCI has very
wrongfully on 25 January 2018, given directions to the three Mongrè traders restraining them
from buying Mongrè coffee from the farmers or from accessing the market of Mongrè coffee in
any other manner for the subsequent five years i.e. from 2018-2022.42 These directions given by
the CCI are violating the fundamental rights of the Mongrè traders and is violative of Art.
19(1)(g) of the Constitution. While the Constitution permits a ‘law’ laying down reasonable
restrictions on the exercise of rights conferred by Art. 19(1) of the Constitution, the
reasonableness has to be of the law also. It is submitted that in deciding whether the restrictions,
on the exercise of the right are reasonable, the Court has to decide not only on the extent and
nature of the restrictions on the exercise of the right but also as to whether the conditions under
which the right is restricted are reasonable.43
[¶37]. Whenever the court is called upon to examine the complaint that the restrictions imposed
on the freedom to carry on trade are unreasonable, it is necessary to find out what is the trade or
40
Ramchand Jagdish Chand v. Union of India & Ors., A.I.R. 1963 S.C. 563 (India), ¶7.
41
Nagar Rice milling v. Teekappa, A.I.R. 1971 S.C. 246 (India), ¶10.
42
43
N.B. Khare (Dr.) v. State of Delhi, A.I.R. 1950 S.C. 211 (India), ¶4.
13 | P a g e
business of the complainant petitioner, and to what extent the restriction, if any, is imposed upon
the freedom to carry on trade or business and then to determine whether the restriction is
reasonable, or otherwise.44
[¶38]. The CCI through the impugned order has directly put a blanket ban on the Mongrè
traders’ business and on the rotation of Mongrè coffee in the market of Indycosis. It is evident
and clear from the facts of the case that the three traders, namely, Arnub Ahuja, director of
Arnub and Co., Rajdip Sharma, director of Rajdip Pvt. Ltd., and Barka Lal, director of Barka
Industries, are three major private companies who buy Mongrè from the farmers and send it
down the chain, ultimately to the consumers.45 These three traders are an important link in the
market as without them, getting Mongrè to the consumers would be very difficult.46
[¶39]. Hence, they being restrained from buying Mongrè coffee from the farmers or from
accessing the market of Mongrè coffee in any other manner for the subsequent five years i.e.
from 2018-2022, will not only violate the right of trade and profession of the Mongrè traders as
conferred under Art. 19(1)(g) of the Constitution but will also hinder the fundamental right
conferred under Art. 21 of the Constitution i.e. right to life of the citizens of Indycosis which
includes the right to choice of food and the right of livelihood of the three traders. Also, as
stated, that since last 6 – 8 years, the demand for this variety of coffee i.e. Mongrè has increased
and that the love for coffee is so high that in 2015 there were protests outside the national
parliament to declare coffee as the ‘national drink’ of Indycosis,47 it is clear violation of the
principles of natural justice as well because, the directions of the CCI to the traders is adversely
affecting the economy and citizens of the nation in entirety.
[¶40]. It is humbly submitted that the freedom of trade or profession is something that is
accepted as a principle throughout the world. The declarations of the United Nations
Organization have recognized a wide variety of positive human rights to individuals. Art. 2348 of
44
supra note 39 at p. 2856.
45
46
Id.
47
48
UN General Assembly, Universal Declaration of Human Rights, UNITED NATIONS TREATY SERIES, (Feb. 10, 2018,
1;10pm), http://www.refworld.org/docid/3ae6b3712c.html.
14 | P a g e
Universal Declaration of Human rights and Art. 6(1)49 of the international covenant on
Economic, social and Cultural Rights, expressly recognize the right to work of every person. It is
also interesting to note the shifting perspective of the International Labour Organization (ILO)
regarding the right to work from the initial assumption that emphasis on growth would
automatically create higher levels of employment, the ILO recognized at the Employment Policy
Convention No. 122 of 1965, the need for affirmative action by member states to generate
employment and finally at the World Employment Conference of 1976, articulated a basic
approach, as the bulwark of Human Rights.
[¶41]. No question of justifying a restriction under Art. 19(6) of the Constitution arises unless the
Petitioner succeeds in establishing that the right which is alleged to be infringed is a
‘fundamental right’, coming within the ambit of Art. 19(1)(g)50 of the Constitution and that the
impugned law has infringed some right vested in the petitioner, as distinguished from being
merely regulatory of the trade or business.51
[¶42]. It is the direct impact of the restriction on the freedom to carry on trade that has to be kept
in view and the ancillary or incidental effect of the governmental action on the freedom to carry
on trade.52 The word ‘direct’ would go to the quality or character of the effect and not the subject-
matter. The object of the law or executive action is irrelevant when it is established that the
fundamental right is violated.53
[¶43]. Therefore, the directions passed by the CCI are in violation of the fundamental rights
conferred under Arts. 19(1)(g) and 21 of the Constitution. Hence, if there is a violation of the
fundamental rights as conferred, a writ petition may be filed in the high court under Art. 226 for
the enforcement of such fundamental rights. Such a right to file a writ is also in itself a
fundamental right.
49
UN General Assembly, International Covenant on Economic, Social and Cultural Rights, UNITED NATIONS
TREATY SERIES, (Feb 10, 2018, 1;25pm), http://www.refworld.org/docid/3ae6b36c0.html .
50
Ram Jawaya v. State of Punjab, A.I.R. 1955 S.C. 549 (India); Harnam Singh v. R.T.A., A.I.R. 1954 S.C. 190
(India).
51
supra note 41.
52
Viklad Coal Merchant v. Union of India, A.I.R. 1984 S.C. 95 (India).
53
Bennett Coleman & Co. v. Union of India, A.I.R. 1973 S.C. 106 (India). See also Maneka Gandhi v. Union of
India, A.I.R. 1978 S.C. 597 (India); O.K. Ghosh v. E.X. Joseph, A.I.R. 1963 S.C. 812 (India).
15 | P a g e
[¶44]. Moreover, the power to issue prerogative writs under Art. 226 of the Constitution is
plenary in nature and is not limited by any other provision of the Constitution.54 This power can
be exercised by the High Court not only for issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the
Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”.55
[¶45]. Also, under Art. 226 of the Constitution, the High Court, having regard to the facts of the
case, has discretion to entertain or not to entertain a writ petition. But the High Court has
imposed upon itself certain restrictions one of which is that if an effective and efficacious
remedy is available, the High Court would not normally exercise its jurisdiction.56 But the
alternative remedy has been consistently held by this Court not to operate as a bar in at least
three contingencies, namely, where the writ petition has been filed for the enforcement of any of
the Fundamental Rights or where there has been a violation of the principle of natural justice or
where the order or proceedings are wholly without jurisdiction or the vires of an Act is
challenged.57
[¶46]. Hence, the Derry High Court, in the present case has wrongfully dismissed the writ
petition, filed by the traders on 1st February 2018 alleging that the order of the CCI violates the
Fundamental Rights of the Mongrè traders, in limine on 6th February 2018. This is because, the
writ was filed for the enforcement of the fundamental right which were violated by the directions
passed by the CCI. Therefore, the counsel for the petitioners submits that the Derry High Court
has erred in exercising its discretion in this regard. As to ‘interests of the general public’. It is a
comprehensive expression comprising any matter which affects public welfare, or public
54
State of Kerala v. M. K. Jose, (2015) 9 S.C.C. 433 (India); Noble Resources Ltd. v. State of Orissa, (2006) 10
S.C.C. 236 (India).
55
Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 S.C.C. 1 (India).
56
Arun Kumar Bajoria v. Competition Commission of India, 2016 S.C.C. OnLine Del 1946 (India).
57
Id.
16 | P a g e
convenience58 e.g., public order, health, morality59, safety and economic stability60 of the
country.61
[¶47]. Further, it is submitted that the order imposing penalty on the traders and restraining the
trade of Mongrè by the three traders in the market is in violation of the principles of natural
justice as even though the order relies on the findings of the investigation of the DG and wherein
in the appeal in NCLAT the court has failed to consider the prevalent situation of the market of
Mongrè coffee and this order shall adversely affect the interest of all stakeholders
i.e. the citizens who are the consumers of this variety of coffee.
[¶48]. That being so, the High Court was not justified in dismissing the writ petition at the initial
stage without examining the contention that the economy as a whole would be affected by such
directions and that the livelihood of the three traders is at stake and that for adherence to the
principles of natural justice62, a full hearing at the interlocutory stage must be given to the three
traders which, the Derry High Court has not given.
58
Ibrahim v. R.T.A., A.I.R. 1953 S.C. 79 (India).
59
State of Maharashtra v. Himmatbhai, A.I.R. 1970 S.C. 1157 (India).
60
State of Assam v. Sristikar, A.I.R. 1957 S.C. 414 (India).
61
Glass Chatons v. Union of India, A.I.R. 1961 S.C. 1514 (India).
62
Shree Cement Limited v. Competition Commission of India, (2014) S.C.C. OnLine Del 3292 (India); Whirlpool
Corpn. v. Registrar of Trade Marks, (1998) 8 S.C.C. 1 (India).
17 | P a g e
PRAYER
Wherefore in the light of facts presented, issues raised, arguments advanced & authorities cited,
it is most humbly and respectfully prayed that this Hon’ble Court may be pleased to adjudge and
declare :
1. That the writ petition shall be allowed;

2. That the Order so passed by the NCLAT should be quashed;
Any other order, which the Hon’ble Court may deem fit in the furtherance of justice, equity and
good conscience & for this act of kindness the appellants shall as in duty bound ever pray.
Sd/-
Counsels for the Appellants
18 | P a g e

TC-33 Appellant - Memorial

Uploaded by

Copyright:

Available Formats

TC-33 Appellant - Memorial

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

TC-33 Appellant - Memorial

Uploaded by

Copyright:

Available Formats

7th RGNUL NATIONAL MOOT COURT COMPETITION, 2018

BEFORE TEAM CODE: TC-33A

THE HON’BLE SUPREME COURT OF INDYCOSIS

Civil Appeal No. ……… of 2018

Arnub and Co. & Ors. … Appellants

Competition Commission of Indycosis … Respondent

SLP (Civil) No. …….. of 2018

Arnub and Co. & Ors. … Petitioners

Competition Commission of Indycosis … Respondent

MEMORIAL SUBMITTED ON BEHALF OF APPELLANTS

TITLE PAGE NUMBER

3. STATEMENT OF JURISDICTION VII

4. STATEMENT OF FACTS VIII

I. WHETHER THE ACT COMMITTED BY THE TRADERS IS ANTI-COMPETITIVE IN NATURE AND

II. WHETHER THE COMPETITION COMMISSION OF INDYCOSIS EXCEEDED ITS POWER BY

MEMORANDUM FOR APPELLANTS

I. WHETHER THE ACT COMMITTED BY THE TRADERS IS ANTI-COMPETITIVE IN NATURE

1.1. THAT THERE WAS NO AGREEMENT ENTERED INTO BY THE APPELLANTS 1

1.2 THAT THERE WAS NO ADVERSE EFFECT ON COMPETITION IN INDYCOSIS 2

II. WHETHER THE COMPETITION COMMISSION OF INDYCOSIS EXCEEDED ITS POWER

2.1 DENYING MARKET ACCESS TO ANY BUSINESS ENTERPRISE VIOLATES THE

MEMORANDUM FOR APPELLANTS

MEMORANDUM FOR APPELLANT

1. Companies Act, 2013.

2. The Competition Act, 2002.

3. The Constitution of India, 1950.

S.No. Name of Case Citation Page

MEMORANDUM FOR APPELLANT

11. M/s Excel Crop Care Limited v. Competition (2013) S.C.C. 9

S.No. Name of Case Citation Page

MEMORANDUM FOR APPELLANT

4. AVTAR SINGH, COMPETITION LAW ( 1ST ed. 2012).

5. D D BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8TH ed. 2007).

6. H M SEERVAI, CONSTITUTIONAL LAW OF INDIA (4TH ed. 1991).

7. PAUL A SAMUELSON & WILLIAM A. NORDHAUS, ECONOMICS (16TH ed. 1998).

9. S M DUGAR, GUIDE TO COMPETITION LAW (6TH ed. 2016).

10. WILLIAM M. HANNAY & TODD S. PARKHURST, CORPORATE COUNSEL’S GUIDE TO

UNFAIR COMPETITION (1ST ed. 2015).

MEMORANDUM FOR APPELLANT

1. A. Bhattacharjea, India’s Competition Policy: An Assessment, 38 ECONOMIC AND

MEMORANDUM FOR APPELLANT

13. S.L.Rao, Competition, Ethics and Governance, 35 ECONOMIC AND POLITICAL

1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (9TH ed. 2009).

2. P. RAMANATHAN AIYAR, ADVANCED LAW LEXICON (3RD ed. 2009).

3. VENKATRAMAIYA, LAW LEXICON ( 2ND ed. 2005).

MEMORANDUM FOR APPELLANT

Sec. 53T, The Competition Act, 2002 reads as follows:-

Article 136(1), The Constitution of India reads as follows:-

136. Special leave to appeal by the Supreme Court

All of which is most respectfully submitted.

MEMORANDUM FOR APPELLANT

II. MARKET OF MONGRÈ COFFEE

III. CHANGE IN MARKET SCENARIO

MEMORANDUM FOR APPELLANT

IV. REGIONAL ASSOCIATION FOR TRADE IN COFFEE (RAT)

V. INQUIRY BY DIRECTOR-GENERAL & ORDER OF CCI & NCLAT

VI. WRIT PETITION IN DERRY HIGH COURT

MEMORANDUM FOR APPELLANT

I. WHETHER THE ACT COMMITTED BY THE TRADERS IS ANTI-COMPETITIVE IN NATURE AND