Appellant S

3RD DSNLU NATIONAL MOOT COURT COMPETITION
TEAM CODE: DS319
3
RD
DAMODARAM SANJIVAYYA NATIONAL MOOT COURT COMPETITION-
2017
BEFORE THE HON’BLE SUPREME COURT OF AVALON

(Extraordinary Jurisdiction of Supreme Court)
Appeal No. 1/2017
Plato, Quantas, Rony, Coral .....Appellants
v.
Competition Commission of Avalon, Adison & Brandon .....Respondents
Clubbed with
Appeal No. 2/2017
Adison and Brandon .....Appellants
v.
Competition Commission of Avalon, Plato, Quantus, Rony& Coral ...Respondents
Clubbed with
SLP(C) No. 01/2017

Adison and Brandon ....Appellants
v.
Competition Commission of Avalon, Plato, Quantus, Rony &Coral ....Respondents
Most Respectfully Submitted to the Hon'ble Judges of the Supreme Court of Avalon
COUNSEL APPEARING ON BEHALF OF THE APPELLANTS
On the Behalf of The Appellants I

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................II
INDEX OF AUTHORITIES ......................................................................................... IV
LIST OF ABBREVIATIONS .......................................................................................
VII STATEMENT OF JURISDICTION ...........................................................................
VIII STATEMENT OF FACTS
............................................................................................ IX STATEMENT OF
ISSUES .......................................................................................... XII SUMMARY OF
ARGUMENTS ..................................................................................... 1
ARGUMENTS ADVANCED ......................................................................................... 4
1. WHETHER DIRECTOR GENERAL HAS INCREASED HIS SCOPE DURING

THE INVESTIGATION OR NOT? ............................................................................... 4
1.1. Director General has increased the scope of investigation............................... 4
1.1.1. DG cannot initiate suo-moto investigation ........................................................... 4
1.1.2 Prima facie opinion was missing ........................................................................... 5
2. WHETHER THE REMANDING BACK OF THE MATTER BY THE

COMPAT TO CCA WAS VALID?................................................................................ 6
3. WHETHER THE DISMISSAL OF THE WRIT PETITION FILED BY ADISON

AND BRANDON IN THE HC OF NEW TOWN WAS VALID OR NOT? ................. 7
3.1 Adison and Brandon have a right to approach the HC .............................................. 7
4. WHETHER ADISON AND BRANDON HAVE VIOLATED SECTION 3(3) OF

COMPETITON ACT OR NOT? .................................................................................... 8
4.1There were no anti-agreement which involves Adison and Brandon..........................

8
4.1.1 All the evidence were based on presumptions ........................................................ 9
4.2There was no Price Fixing or Price parallelism between Adison and Brandon .........
10
On the Behalf of The Appellants II
5. WHETHER THE ALLEGATION AGAINST LCD(E) MANUFACTURERS

VALID OR NOT? ......................................................................................................... 11
5.1Whether MRTP Act, 1969 is applicable on LCD(E) Manufacturers? ................ 11
5.2. Whether Competition Act, 2002 is applicable on LCD(E) manufacturers? ............

12
5.2.1. Adverse effect on the competitive structure in the market. .................................. 12
5.2.2 Pro-competitive s outweigh anti- competitive ...................................................... 13
5.3 Whether Plato, Quantas, Rony and Carol were engaged in cartelization? ...............
14
5.3.1 Driving existing competitors out of the market .................................................... 15
5.3.2 Fair Competition ................................................................................................ 15
5.3.3.Increase in prices during the festive season in November-December 2010 .......... 16
PRAYER....................................................................................................................... 18
On the Behalf of The Appellants III

INDEX OF AUTHORITIES
I. CASES REFERRED
 All India Tyre Dealers Federation v. Tyre manufacturers , RTPE No. 20 of 2008.
 Association of State Road Transport Undertakings v. Kar Mobiles Ltd, 2002 CTJ
433 (MRTP).
 Bayer, C-2/01P & C- 3/01P
 Brooke Group Ltd. v Brown & Williamson Tobacco Corp 509 US 209
 Bundesverband der Arzneimittel- Importeure and Commission of European

Communities
 Cement Cartel Case, Case No.29/2010
 Chandra Kumar v. Union of India And Others, (1997) 3 SCC 261.
 Eudium (1996) OJ C1 11/8.

 European Commission v. Volkswagen Case no.C-74/04P.
 Grasim Industries v Competition Commission of India, WP(C) 4159 of 2013.
 Hyundai Motor India Limited ("Hyundai") v. Competition Commission of India

W.P.Nos. 31808 and 31809 of 2012
 Institute of Chartered Accountants of India v. Price Waterhouse, AIR 1998 SC 74.
 Kesavananda Bharati v. St. of Kerala, (1973) 4 SCC 225).
 Mr.Ramakant Kini v. Dr. L.H. Hiranandani Hospital, Powai, Mumbai, Case no. 39 of
2012
On the Behalf of The Appellants IV

 National Society of Professional Engineers, 435 US 679 (1978).
 NACC v Board of Regents 468 US 85
 Re Alkali and Chemical Corporation of India Ltd, Calcutta and Bayer(I) Ltd, Bombay
RTPE 21, 1981
 Re Flat Glass Antitrust Litigation, 385 F. 3d 350 (3d Cir. 2004)
 Roberta Stahl AG v. E.C Commission (1999) 4 CmLR 810.

 S. Hiralal Ratanlal v. STO, AIR 1973 SC 1034
 Shrilekha Vidyarthi v State of U.P, (1991) 1 SCC 212

 Sodhi Transport Co. v. State of Uttar Pradesh AIR 1980 SC 1099.
 Union of India v. Hindustan Development Corporation, (1994), 270 CTJ
SC. (MRTP
BOOKS REFERRED
Abir Roy & Jayant Kumar, COMPETITION LAW IN INDIA (2nd ed. 2014).
C.K. Takwani, CIVIL PROCEDURE WITH LIMITATION ACT 1963, (7thed. 2000).
Dr. J.N. Pandey, CONSTITUTIONAL LAW OF INDIA, ( 52nded. 2015).
T.Ramappa, COMPETITION LAW IN INDIA- POLICY, ISSUES AND DEVELOPMENT,

(2nd ed. 2009).
T.R Jain & V.K Ohri, INTRODUCTORY MICROECONOMICS, (1st ed. 2013).
Steve Uglow’s, EVIDENCE: TEXT AND MATERIALS, (1st ed. 1997).
NOTIFICATIONS
 Dept Related Parliamentary Standing Committee On Home Affairs, 93 rd Report on
The Competition Bill.
On the Behalf of The Appellants V

 Safeway Plc and Asda Group Ltd (owned by Wal-Mart stores Inc); Wm
Morrison Supermarkets Plc; J. Sainsbury Plc; and Tesco Plc, A Report on the
Mergers in Contemplation, ¶ 2.88
 SVS Raghavan Committee, Report of the High Level Committee on Competition
Policy Law.
 The Gazet of India, Ministry of Corporate Affairs,
Notification. http://www.cci.gov.in/sites/default/files/notificat ion/cf3.pdf
ARTICLES
 Fabrizio Zilibotti, Endogenous Growth Theory, CAN. LJ OF ECONOMICS., Nov.

1999, at 1338, 1341.
 Vinod Dhall, Competition Law Today, Oxford University Press, 1st Publication, 503
 Cuts International & National Law University, Jodhpur, Study of Cartel Case Laws In
Select Jurisdictions – Learnings For The Competition Commission Of India,(2008)
BLOGS
 Riley Gardner, Tier System: How it works and why its useful?, NEXUS PACIFIC
http://nexus-pacific.com/blog/2013/7/9/china-cit y-tier-system-how-it-works-and-
why- its-useful ( last visited 02 Feb. 2016, 10:00 PM (N.T.M).
STATUTES
 Civil Procedural Code, 1908, No. 5

 Constitution of India, 1950.
 Monopolies and Restrictive Trade Practices Act, 1969
 The Armed Forces Tribunal Act, 2007.
 The Competition Act of India, 2000
 The Consumer Protection Act, 1986
On the Behalf of The Appellants VI

LIST OF ABBREVIATIONS
ABBREVIATIONS DESCRIPTION
§ SECTION
¶ PARAGRAPH
& AND
AAE APPRECIABLE ADVERSE EFFECTS
CCA COMPETITION COMMISSION OF AVALON
CCI COMPETITION COMMISSION OF INDIA
C.P.C CODE OF CIVIL PROCEDURE
COMPAT COMPETITION APPELLATE TRIBUNAL
CRT CATHODE RAY TUBE
DG DIRECTOR GENERAL
HC HIGH COURT
LTD. LIMITED
MRTP MONOPOLIES AND RESTRICTIVE TRADE

PRACTICES
OPPOSITE PARTY
OP
SECTION
SEC.
SUPREME COURT
SC
TELEVISION
TV
VERSUS
V.
On the Behalf of The Appellants VII

STATEMENT OF JURISDICTION
IT IS HUMBLY SUBMITTED THAT THE PETITIONERS HAS INVOKED THE

JURISDICTION OF THE HON’BLE SUPREME COURT OF AVALON UNDER
ARTICLE-136 OF THE CONSTITUTION OF AVALON.
“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.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.”
IT IS HUMBLY SUBMITTED THAT THE APPALLENTS HAS INVOKED THE

JURISDICTION OF THE HON’BLE SUPREME COURT OF AVALON UNDER
SECTION 53-T OF THE COMPETITION ACT, 2002.
“Appeal to Supreme Court:

53T. 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 day.”
All of which is most respectfully submitted.
On the Behalf of The Appellants VIII

STATEMENT OF FACTS
Avalon is a republic in Asia and is considered to be one of the accessible, self sustaining
and fastest growing consumer markets in Asia. It is looked up by the industries as
a country with great potential for industrial growth and to expand their business.
In 1991, due to change in systemic policy, market of Avalon was opened to global
competition and Avalon enacted its competition law in order to address any emergent
issues. Due to various policy considerations, Competition law was enacted in four
phases where first tranche came into force on 20 May 2010.
Parties to the dispute
Adison, Brandon, Coral
Among the several consumer electronics manufacturers, Adison, Brandon and Coral are
the leading manufacturers of consumer electronics in Avalon, whose Televisions were
based on CRT Technology.
Kitachi, a renowned Japanese electronics company entered into a technology sharing

agreement with Adison, Brandon, and Coral in 2002 for use of its LCD technology. And
with introduction of this technology, within 6 mo nths, CRT based TV’s
were discontinued and due to usage of this technology, cost of televisions of Adison,
Brandon and Coral increased by about 1.2 times.
Hatim Tai, a prominent manufacturer in South Korea because of its innovation and
R&D approached Adison, Brandon and Coral with its offer for technology sharing
agreement for its LCD (E) technology.
Plato, Quanto, Rony and Coral
Plato, Quanto, Rony and Coral, entered into technology sharing agreements with
Hatim Tai in 2004 for its LCD (E) technology. Hence, Coral discontinued the use of
Kitachi’s technology. Also, technology sharing agreements entered into by Hatim Tai
consisted of On the Behalf of The Appellants IX
‘Most Favourable Clause’ which stated that the parties and the subsequent
parties
entering into the agreement shall be entitled to equal
benefits.
Due to emerging of several TV manufacturers, the manufacturers came up with several

attractive loyalty inducing and target based discounts, along with incentives such as free
foreign trips in order to lure dealers to sell their products.
DG’ s Rep
ort
And DG was directed to carry out the investigation after CCA received information
filed by Brandon under S. 19 (1) of the Act, alleging cartelization between
manufacturers of TV’s using LCD (E) technology and thereafter CCA found prima
facie violation of Section 3 of the Act. DG revealed in his report that Mr. Jung Ho, the
CEO of Hatim Tai gave an interview where he stated that and gave reasons with respect
to increase in prices firstly, continuous measures were being taken by Hatim Tai in order
to make the price of the products more affordable. Secondly, the prices of these
TV’s are high with the exception of festive seasons where prices are increased by 15-
20% to achieve their sale targets and production. Thirdly, price increase is justified in
TV’s of variants 30-50 inch variants.
In the Annual Technology Conference in March 2010, during ICC Cricket World
Cup, due to increase in demand; few multi brand retailers to benefit from the incentives
sold TVs at a very low price hence causing severe loss of business to the single brand
retailers. And, a recommendation of Minimum resale price was recommended by the
representative which was denied by Plato, Quanto, Rony and Coral.
DG’s report further alleged that Adison and Brandon are also involved in cartelization
since prices of the informant increased in sync with the prices of Adison during month
of November and December.
DG finally submitted its report before CCA recommending that the six companies are in
violation of S.3 (3) of The Act.
Complaints filed by the aggrieved parties
In December 2015, information was filed by Brandon under Section 19 (1) of the Act
before CCA alleging cartelization between manufacturers of TV’s using LCD (E)
technology. During the festive season in November-December 2010, LCD (E) TV’s
were sold at abnormally high prices though there was no substantial increase in
cost of
manufacturing.
On the Behalf of The Appellants X

Plato, Quanto, Rony and Coral raised objections to DG’s report stating that the alleged
conduct of cartelization is outside the purview of the Act since the entire finding of DG
was based on conduct prior to the enactment of the Act.
CCA’ s
Decision
After taking everything into account, CCA concurred with the DG’s conclusion
regarding violation of S.3 (3) of the Act and hence passed an order under S.27 (b) of the
Act imposing penalties on the parties.
COM PAT’ s
Decision
Aggrieved by CCA’s decision regarding violation of S.3; Plato Quanto, Rony and Coral
and also Adison and Brandon who also raised the issue of jurisdiction of CCA and DG
in conducting an investigation filed appeals before COMPAT, which agreed with the
CCA’s decision except the appeal filed by Adison and Brandon is allowed to the extent
that findings of the CCA are not upheld and the matter is remanded back to the CCA.
Present Scenario
Aggrieved by the decision of COMPAT, Plato, Quanto, Rony and Coral

approached
Supreme Court under S.53T of the Act.
Adison and Brandon filed a Writ Petition before the High Court of Avalon
challenging the finding of COMPAT which is dismissed by the High Court.
Aggrieved by the High Court order, Adison and Brandon filed an SLP before Supreme
Court of Avalon. Additionally, Adison and Brandon also filed an appeal before
the Supreme Court against the remand order of COMPAT.
Supreme Court admitted the SLP and the civil appeal and all of the matters have been
clubbed together for final hearing and thus the present case.
On the Behalf of The Appellants XI
STATEMENT OF ISSUES
1. WHETHER THE DIRECTOR GENERAL HAS INCREASED HIS SCOPE

DURING THE INVESTIGATION OR NOT?

COMPAT TO CCA WAS VALID?
3. WHETHER THE DISMISSAL OF THE WRIT PETITION FILED BY

ADISON AND BRANDON IN THE HIGH COURT OF NEW TOWN WAS
VALID OR NOT?
4. WHETHER ADISON AND BRANDON, VIOLATED SECTION 3(3) OF

COMPETITON ACT OR NOT?

WERE VALID OR NOT?
On the Behalf of The Appellants XII

SUMMARY OF ARGUMENTS
1. WHETHER THE DIRECTOR GENERAL HAS INCREASED HIS SCOPE

DURING THE INVESTIGATION OR NOT?
Yes, the director general has increased his scope during the
investigation.
Director General (DG) is an investigatory arm of the CCA, to commence an
investigation into the matter and is defined under Section 2(g) of the Competition
Act,
2002.
In a landmark case (which is being discussed in the arguments advanced) it was
given that the DG can not suo-moto investigate into a matter, the DG has to stay
within the scope and ambit initially fixed by the commission, this was also given in
object 5 of the statement of the objects and reasons of the Act. Further the DG did
initiate the investigation without the commission finding any prima-facie
evidence about the matter.
In the present case the DG did go outside the ambit given to him and suo
-moto initiated the investigation which violates the provisions given in the Act.

COMPAT TO CCA WAS VALID?
No, the remanding back of the matter by the COMPAT to CCA was not valid.
According to Rule 23 of Order 41 of the code enacts where the trial court has
decides the suit on a preliminary points without recording finding on other issues
and the appellate the decree so passed, it may send the case to the trail court to
decide other issue and determines the suit. This is called Remand.
The sending back of the matter to CCA by the COMPAT shows that there were
some mistakes in the preliminary level by the CCA, the CCA has already heard
the case once and had given a judgment against the parties, and the parties wants to
be heard
afresh.
1
3. WHETHER THE DISMISSAL OF THE WRIT PETITION FILED BY

ADISON AND BRANDON IN THE HIGH COURT OF NEW TOWN WAS
VALID OR NOT?
Yes, the writ petition filled by Adison and Brandon in the HC of New Town is valid.
Judicial review is the basic structure of the constitution. In a landmark case
(explained in arguments advanced) it was said that “an alternative institutional
mechanism, after taking it away from the High Courts, would not violate the basic
structure so long as it was ensured that the alternative mechanism was an effective
and real substitute for t he High Court”, but in the present case it is not true and is not
applicable.
When HC is made a forum what was earlier a two-tier litigation has now become
a three- tier litigation and would not be limited by the doctrine of res judicata.
4. WHETHER ADISON AND BRANDON, VIOLATED SECTION 3(3) OF

No, Adison and Brandon are not violating Sec-3(3).

First of all Adison and Brandon were not involved in an anti-agreement, thus does
not violate any provision of sec-3.
In the present case there is no evidence of Adison and Brandon involved in any
kind of anti-agreement or cartelization. Mere increase of price of two enterprises or
price- parallelism does not mean that there was any kind of anti-agreement between
the alleged parties.
The whole matter against Adison and Brandon was based on cherry-picking done by
DG.

WERE VALID OR NOT?
No, the allegation against LCD(E) manufacturers were not valid.
The matter alleged on the LCD(E) manufacturers was done before the Competition
Act, 2002 coming into force. There were no evidence against the LCD(E) TV
2
manufacturers of cartelization and there was no AAE in the considered

market because of any of the acts done by the LCD(E) manufacturers.
Further, the LCD(E) manufacturers is working towards the development of the

nation by introducing an updated version of technology in the country.
The price increase in the festive season was only done to meet their targets and
there are no evidence against it.
3
ARGUMENTS ADVANCED
1. WHETHER DIRECTOR GENERAL HAS INCREASED HIS SCOPE DURING

THE INVESTIGATION OR NOT?
Director General (DG) is an investigatory arm of the CCA, to commence an

investigation into the matter1 and is defined under Section 2(g) of the Competition Act,
2002. Section
41 of the Competition Act, 2002 explains the duties of Director General, it empowers
him to investigate any contravention of any provision or any rules or any regulation of
the Act and Section 26(1) of the Act empowers the CCA to direct DG if they where
it finds a prima facie infringement of the sections of the Act. In the present case, CCA
found the prima facie case of violation of Section 3 of the Competition Act and directs
the DG to investigate into the matter. But DG while investigating the matter against
Plato, Quantas, Rony and Coral, gave the report including Adison and Brandon, thus
extending the scope of his power.
1.1. Director General has increased the scope of investigation

The DG is always obliged to confine his scope to the allegation put by the informant
to the Commission and importantly he is not supposed to travel outside the scope of the
same.2 This means that the scope which was initially fixed by commission was limited
to the manufacturers companies which use LCD (E), hence here when DG conducted his
investigation on Adison and the informant, he was actually expanding his scope which is
not allowed by the Act.
1.1.1. DG cannot initiate suo-moto investigation

In Hyundai Motor India Limited ("Hyundai") v. Competition Commission of India
("CCI"),3 it was said by the Madras High Court that the Director General should act
only if so directed by the CCI but will not have any suo- moto powers for
initiating investigations.
It is interesting to know that the Monopolies and Restrictive Trade Practices Act, 1969
allowed DG to initiate investigation but in this Competition Act this power is
only
1
Abir Roy & Jayant Kumar, COMPETITION LAW IN INDIA 37 (2nd ed. 2014).
2
Grasim Industries v Competition Commission of India, WP(C) 4159 of 2013.
3
W.P.Nos. 31808 and 31809 of 2012
4
conferred to the Commission. 4 This means the legislature intends to do so and therefore,
even the courts should also follow the literal rule of interpretation. 5 Hence, if the
direction is issued in regards to a violation of one section, only that violation must be
investigated and reported. Moreover, it has been held that since Regulation 20(4) of the
CCB (General)Regulations, 20096
In the 93rd Report Standing Committee7 which was submitted to the Rajya Sabha in
2002
and also in the SVS Raghavan Committee Report,8 both of them clearly mentioned
that the DG will have no suo moto powers to investigation.
Most importantly, in Competition Act, 2002 object 5 of objects and reasons 9, it is stated
that the DG would be able to act only if so directed by CCI but will not have any
additional powers for initiating investigation.
So in the present case, when DG was instructed to investigate the matter on the basis
of the opinion formed by the CCI, i.e. prima facie case of violation of Section 3 of the
Act by the alleged party i.e. the one who were using the LCD (E) technology,-Plato,
Quantas, Rony and Coral, so in that case the scope of his powers was limited to these
manufactures only and not to Brandon and Adison. Therefore it is humbly contended
that, by making the informant part of an investigation, the Director General has
extended the scope of his powers which is not allowed by law.
1.1.2 Prima facie opinion was missing

As per Section 26(1) of the Act, CCA has the power to direct the Director General to
investigate any matter where CCA finds any prima facie infringement of the provisions
and on receiving the information the Director General shall submit his finding after
the
investigation within the specified time given by the
commission.10
4
Supra note 3
5
M/s. Hiralal Ratanlal v. STO, AIR 1973 SC 1034; Institute of Chartered Accountants of
India v. Price Waterhouse, AIR 1998 SC 74.
6
Hereinafter the 2009 Regulations.
7
Dept Related Parliamentary Standing Committee On Home Affairs, 93 rd Report on The Competition Bill.
8
SVS Raghavan Committee, Report of the High Level Committee on Competition Policy Law
9
Statements & Objects, The Competition Act, 2002.
10
§ 26(3), The Competition Act, 2000
5
The said prima facie order provides an outline of investigation, or terms of

investigation, for the Director General to investigate. 11 The forming of opinion
and directing the Director General is a pre-requisite condition for initiation of
investigation. Therefore, the Director General has no power to extend his scope
which the commission did not consider while forming an opinion.12 Here in the
present case, when the DG expanded his scope of investigation, the opinion of the
commission was not taken hence it was violation of Section 26(1).
It is also said when the provision of a act requires a particular manner, such an act can
be done only in the prescribed manner and not otherwise and that the formation of
an opinion that there is a prima facie contravention of the provisions of the Act, is sine
qua non,for an investigation by the DG.13 Commission allows for the mandatory
requirement of prima facie opinion to be circumvented. It is an established legal
principle that what cannot be done directly, cannot be allowed to be done indirectly
as that wo uld be an evasion of the statute.
Therefore, it can be concluded with the help of above mentioned cases and legal
principles that the DG's while investigating the matter has expanded his scope.
2. WHETHER THE REMANDING BACK OF THE MATTER BY THE COMPAT

TO CCA WAS VALID?
Remand means to send back.14 Rule 23 of Order 41 of the code enacts where the
trial court has decides the suit on a preliminary points without recording finding on
other issues and the appellate the decree so passed, it may send the case to the trail court
to decide other issue and determines the suit. This is called Remand. 15The Appellate
Court while the reversing or setting aside the decree under appeal considers it necessary
in the
interest of justice.
11
Id at 13
12
Supra note 3
13
Supra note 2
14
C.K. Takwani, CIVIL PROCEDURE WITH LIMITATION ACT 1963, 508 (7 thed. 2000).
15
Ibid.
6
It has been held that where the authority concerned has not applied its minds to essential
matters, the power conferred on the authority cannot be said to have been exercised
honestly and in a bona fide manner. 16
Where discretion has been conferred on an authority, it is expected to exercise the

same by applying its mind to the facts and circumstances of the case in hand,
otherwise its action or decision will be bad, and the authority is deemed to have failed to
exercise its discretion. 17
So, when the appeal made by Adison and Brandon in COMPACT against the finding of
DG, the COMPACT accepted the appeal and sent back the appeal to CCI, which itself
proves one thing that even COMPACT believed that the matter needs investigation again
and thus pointing out the finding done by DG was not proper. .
The matter was already heard by CCI and CCI already once gave the decision against
Adison and Brandon, So remanding back matter to CCI will not help in the interest of
justice.
3. WHETHER THE DISMISSAL OF THE WRIT PETITION FILED BY ADISON

AND BRANDON IN THE HIGH COURT OF NEW TOWN WAS VALID OR
NOT?
The applicant approached the HC of New Town to issue a writ of ‘Certiorari’18

under Art- 226 of the Constitution of India, which was dismissed by the Hon’ble HC of
New Town.
3.1 Adison and Brandon have a right to approach the HC

Judicial review is the basic structure of the Constitution and cannot be amended 19 the
vesting of the power of judicial review in an alternative institutional mechanism, after
taking it away from the High Courts, would not violate the basic structure so long as
it was ensured that the alternative mechanism was an effective and real substitute for
the
High Court.20
16
All India Tyre Dealers Federation v. Tyre manufacturers, Competition Commission of India, MRTP ,
RTPE No. 20 of 2008.
17
Shrilekha Vidyarthi v State of U.P, (1991) 1 SCC 212.
18
Art. 226, Constitution of India, 1950.
19
Kesavananda Bharati v. St. of Kerala, (1973) 4 SCC 225).
20
Chandra Kumar v. Union of India And Others, (1997) 3 SCC 261.
7
In the present case the alternative mechanism is not a real substitute for the HC as SC
being the supreme forum for the appellant to present their case, the appellants would not
have any other superior forum to present their case, the possibility of the case being
reviewed in front of another Bench of judges is limited by the doctrine of res judicata
as given under section 11 of the C.P.C. 1908, which goes on to say “no Court shall try
any suit or issue in which the matter directly and substantially in issue has been directly
and substantially in issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by such Court”.21
The appellants wanted to exhaust all the remedies available to them before
approaching the SC of the land and thus what was earlier a two-tier litigation has now
become a three- tier litigation.22
4. WHETHER ADISON AND BRANDON HAVE VIOLATED SECTION 3(3) OF

Cartelization which is defined in section 2(c)23 of the Competition Act, 2002. Section
3(3) of The Competition Act states that if an agreement including cartel, engaged in
identical or similar trade of goods or provision of services, which- ‘Directly or
indirectly determines purchase or sale prices; limits or controls production, supply,
market, technical development, investment or provision of services, shall be presumed
to have AAEC.’24 The term AAEC is nowhere defined in The Competition Act but
the effects must be sustainable.25 Accordingly, a more appropriate meaning has been
given in Law Lexicon where ‘appreciable’ is defined as ’capable of being estimated,
weighted, judged of or recognized by the mind.’
4.1There were no anti-agreement which involves Adison and Brandon

Formally, Section 2(b) of The Competition Act defines Agreements i.e. any agreement
or understanding whether formal or in writing. The scope of agreement is wide. But
in
21
§ 11, Civil Procedural Code, 1908, No. 5.
22
Dr. J.N. Pandey, CONSTITUTIONAL LAW OF INDIA, 625 ( 52nded. 2015).
23
§ 2, Competition Act, 2002
24
§ 3 (3), Competition Act, 2002
25
T.Ramappa, COMPETITION LAW IN INDIA- POLICY, ISSUES AND DEVELOPMENT, ( 2nd ed. 2009)
8
Bundesverband der Arzneimittel- Importeure and Commission of European Communities

v. Bayer26 the courts in EU disagreed with the EC's expansive interpretation of
agreement and has effectively limited the standards for proof of agreement in cases or
restrictive distribution, and the same was held in European Commission v. Volkswagen 27
It is humbly submitted that in the present case there is no evidence which can prove that
Adison and Brandon has some secret agreement or the agreement between
Adison, Brandon and Kitachi was anti-competitive, as it was purely based on business
purpose. From an economist perspective, competition involves a process of business
rivalry between the firm that strive to win customers business by achieving the lowest
level or cost and prices, developing new products and developments or other advantages
to meet consumers needs more effectively then competitions. 28
It was a mere technology sharing agreement which had no AAEC within Avalon and
therefore they cannot be said to be an Anti Competitive Agreement, hence void.
4.1.1 All the evidence were based on presumptions
The word Presumption operates certain facts may be presumed to exist even in the
absence of complete proof. The court here is bound to take the fact as proved until
evidenced is give to disprove it.29 In such sense, such presumptions are rebuttal. In Sodhi
Transport Co. v. State of Uttar Pradesh,30 Court observes that the purpose of
presumption is over when in rebuttal, the party produced evidence fairly and
reasonably to show that the real fact is not as presumed.
A presumption is not itself evidence but only makes a prima facie case. It indicates the
person on whom the burden of proof lies. Therefore, in the present case, the report
which DG submits to the commission of Avalon was actually a prima facie case which
asks the party to produced reasonable rebuttable evidence to disprove their allegation.
26
AG, C-2/01P & C- 3/01P.
27
Case no.C-74/04P.
28
Safeway Plc and Asda Group Ltd (owned by Wal-Mart stores Inc); Wm Morrison Supermarkets Plc;
J. Sainsbury Plc; and Tesco Plc, A Report on the Mergers in Contemplation, para 2.88
29
Steve Uglow’s, EVIDENCE: TEXT AND MATERIALS, 686 (1st ed. 1997).
30
AIR 1980 SC 1099.
9
The exchange of information or proper dissemination between competitors and

creation of a transparency in a competitive structure of the market detailed market data
makes it easier for understanding to plan their own individual business strategies. 31 The
exchange of information between competitors is not per se illegal under Sherman Anti-
Trust Act,
1890 and that one has to apply the Rule of Reason to determine whether such
information exchange is leading to a collusive behavior between the competitors.32
Hence, conversations and attending of the felicitation function by representatives of
Adison and Brandon33 cannot be assumed as anti competitive agreement.
Furthermore, the reports which DG submits doesn't indicate that there was any
conspiracy among them, but was just solely related to their business purposes since they
were using the same technology. Attending same function cannot be concluded that
the two companies were indulged in some kind of cartel.
4.2There was no Price Fixing or Price parallelism between Adison and Brandon
A mere simultaneous movement of prices, especially for homogeneous products, is not

sufficient to prove a cartel.34
The report which DG submitted to the CCA was based on cherry picking as the report
lacks evidence against Adison and Brandon. 35
Price fixing occurs when competing business make an agreement that has the purpose or
36
effect of fixing, controlling or maintaining the price of the goods or services. In
the present case, the DG's report lacks evidence to prove whether there was an
agreement or not.
There is one more tool to determines whether a pattern of collusion exist or not i.e. -
price parallelism. 37 It is a tricky concept as it determines the thin line between the
situations
31
Eudium (1996) OJ C1 11/8.
32
Roberta Stahl AG v. E.C Commission (1999) 4 CmLR 810.
33
¶ 17, Moot Proposition.
34
Re Alkali and Chemical Corporation of India Ltd, Calcutta and Bayer(I) Ltd, Bombay RTPE 21 of 1981
Association of State Road Transport Undertakings v. Kar Mobiles Ltd, 2002 CTJ 433 (MRTP).
35
36
Supra note 1 at 59
37
Supra note 34
10
involving strategic co-ordination which implies some sort of illicit collusion or when it
merely corresponds to spontaneous co-ordination resulting from rational response
of member to their perceived interdependencies. 38
International jurisprudence recognizes that parallel conduct alone is not sufficient

to prove cartel agreement.39 There must be additional evidence which tends to prove
the existence of un-lawful agreement, which is usually known as plus factor.40
Hence, it is humbly contended that due to non fulfillment the above stated conditions
the appellants thereof are not involved in cartelization.

VALID OR NOT?
In the present case, Plato, Quantas, Rony and Carol were alleged for cartelization under
Competition Act but the first question is whether the their action have the jurisdiction of
Competition act or mrtp act or any other parallel act.
5.1Whether MRTP Act, 1969 is applicable on LCD(E) Manufacturers?
The sec-66 (a) and (b) of the Competition Act, 200241 says that the previous operation
of the repealed Act or anything duly done or suffered under the repealed Act or any
rights, privilege, obligation or liabilities acquired, accrued or incurred under the repealed
MRTP Act, 1969 would not be affected.
This means that the Competition Act, 2002 can not be applied
retrospectively.
In the cement cartel case42 it was plealed that operation of the provisions of a statute is
necessarily prospective in nature unless the authority to apply the provisions
retrospectively is traceable to the provisions of the statute either expressly or by way
of
necessary implication.
38
Supra note 1 at 104
39
Brooke Group Ltd. v Brown & Williamson Tobacco Corp 509 US 209
40
Re Flat Glass Antitrust Litigation, 385 F. 3d 350 (3d Cir. 2004)
41
§ 66 (a) (b), Competition Act, 2002
42
Cement Cartel Case
11
The provisions of sec-343 was only bought into effect from 20, May, 2009 44 and the
agreement entered into by the manufacturers was in 2004, hence all the rights, privilege,
obligation or liabilities acquired by them under the alleged agreement is under the MRTP
Act, 1969 and not under the Competition Act, 2002, and therefore the alleged conduct of
cartelization is outside the purview of the competition Act.
5.2. Whether Competition Act, 2002 is applicable on LCD(E) manufacturers?
Anti Competitive Agreement is defined in Sec. 3 of The Competition Act which

imbibe the idea that ‘no enterprise or association of enterprises or person or
association of persons, shall enter into any agreement which related to production,
supply or distribution of goods or provision of services which causes or is likely to
cause an AAEC in their country and hence such agreement would we considered void. 45
S.3 (1) of The Competition Act prohibits any agreement in respect of provision of
services which causes or is likely to cause an appreciable adverse effect on competition.
46
It is humbly submits that the agreement between the LCD(E) manufacturers and
service provider has not or likely to cause AAEC. Moreover, it is pro-competitive in
nature under Section 19(3) of the Act i.e. in the form of accrual benefits to customers.
5.2.1. Adverse effect on the competitive structure in the market.

Under the U.K. law, an agreement infringes the law only if it has as its object or effect an
appreciable prevention, restriction or distortion or competition. This is obviously to be
determined on a case-by-case basis. 47 But in India , Section 3(1) when read with
Section
3(2), talks about agreement which have AAEC is void.48 But the term AAEC is
not
defined anywhere in the act, though the factors are given in section 19(3),which
is influenced by the US's test, rule of reason.49
43
§ 3, The Competition Act, 2002
44
The Gazette of India, Ministry of Corporate Affairs,
Notification.http://www.cci.gov.in/sites/default/files/notification/cf3.pdf, The Gazet of India, Ministry
of Corporate Affairs, Notification. (last visited 05 Feb. 2017, 5:00 AM)
45
Supra note 1 at 41.
46
Mr.Ramakant Kini v. Dr. L.H. Hiranandani Hospital, Powai, Mumbai, Case no. 39 of 2012.
47
S.M Dugar, Competition Law, 104 (8th ed. 2016).
48
§ 3(1) and 3(2), Competition Act, 2002
49
Supra note 47.
12
In the present case, there were no such evidence which proves that Plato, Quantas, Rony
and Coral were engaged in some agreement and also there were no evidence to prove
that there were some conspiracy which was going on between them. In All India Tyre
Dealers Federation v. Tyre manufacturer, 50the evidence were no sufficient to hold a
violation against the tyre companies"
Moreover, Plato, Quantas, Rony and Coral, helped Avalon's development by getting
new technology to the place. Regarding the elimination of competition or driving
existing competitors out or creating barrier for new competitors to enter into market, 51
there no evidence to prove these allegation and disproving these allegation,
these four manufacturer can take the defence of fair competition and right to do
business, everybody has the right to bring new innovation and to free and fair business.
5.2.2 Pro-competitive s outweigh anti- competitive
Section 19(3) of Competition Act is divided into two parts, the first three sub-sections
are the negative adverse effect i.e. anti-agreement 52t and the last three sub-sections are
the positive effects i.e. pro-competitive and it is also said that if the OP proves that the
pro - competitive outweighs the anti-competitive effects, they can actually skip their
liability53
Some agreements between companies can fall short of a hard core cartel, and in certain
cases may have beneficial effects. Example, agreements between competitors related to
research & development, production and market can result in reduced costs for
companies, or improved products, the benefits of which are passed on to consumer. The
challenge for competition authorities is how to assess these agreement, balancing the
pro- competitive effects against any anti-competitive effects which may distorts the
market.54
It is humbly submitted that with, the introduction of a much more advanced technology
which provides a better picture quality hence lead the market to development.
There
50
MRTP CASE: RTPE NO. 20 OF 2008
51
§ 19(3), The Competition Act, 2002
52
Vinod Dhall, Competition Law Today, Oxford University Press, 1st Publication.
53
NACC v Board of Regents 468 US 85
54
OECD, Cartel And Anti-Competitive Agreements, http;//www. oecd. org/competition/cartel/ (last visited 2
Feb. 2017, 02:10 AM).
13
exists relationship between innovation and competition, productivity and economic

growth.55 Intensified product market competition could force managers to speed up the
adoption of new technologies, it enhances each firm incentive to acquire or increase its
technological lead over its rivals, and if labour market is flexible, competition will
induce skilled workers to move to opportunities employing best practices and
technologies and induces skilled workers to increase efforts and improve efficiency.
56
Thusly, in the interest of consumers and economy as a whole, it is essentially
crucial to promote an environment that facilitates fair competition.
The emergence of LCD(E) technology was the new innovation in the market of Avalon
and also has the better quality then the other versions of TV's. The LCD(E) was the
advanced version of LCD, and the manufacturers of LCD(E) were selling their TV's
to the price comparable to LCD and also the manufacturers also gave incentives to
dealers and benefits to costumer by giving them huge discount.
The above stated aspects are pro competitive in nature and are in contrary to the
allegations of Brandon regarding violation of S.3 of The Competition Act; it is
transformation of the market by introduction of a new more advanced technology
which is not just favourable to the country but also to the customers.
5.3 Whether Plato, Quantas, Rony and Carol were engaged in cartelization?
Cartelization distorts prices and leads to adverse impact on the overall competitive
structure in the market."Cartel" includes an association of producers, sellers,
distributors, traders or service providers who, by agreement amongst themselves, limit,
control or attempt to control the production, distribution, sale or price of, or, trade in
goods or provision of service.57 It is defined under Section 3(3) of the Competition Act,
2002 with essence of per-se rule. It says that if the elements given in section 3(3) are
fulfilling then
it would be presumed that the agreement has
AAEC.
55
Infra note 28
56
Fabrizio Zilibotti, Endogenous Growth Theory, CAN. LJ OF ECONOMICS., Nov. 1999, at 1338, 1341.
57
Supra note 1 at 54.
14
In reality the purpose of presumption is to put the burden of proof on the party and
once in rebuttal the party produced evidence fairly and reasonably to show the real fact
is not as presumed, the purpose of presumption is over. A presumption is not itself
evidence but only makes a prima facie case. It indicates the person on whom the burden
of proof lies.58
Therefore, In the present case, the report which DG submits to the commission of
Avalon
was actually a prima facie case which asks the party to produced reasonable rebuttable
evidence to disprove their allegation.
5.3.1 Driving existing competitors out of the market
With the launch of5.3.1 LCD (E) technology, Plato, Quanto, Rony and Coral
revolutionized the market and provided a better technology that offered clearer picture
at a price comparable to LCD technology 59 and the price increase was only during
the festive season because of the increase in demand and the reasons were
reasonably justified in the interview. As per demand and supply rule- higher the
demand, higher is the price. 60 And even after introduction of LCD(E) technology,
presence of Adison and Brandon still persisted in the market. Its nowhere mentioned or
is evident that the market of Adison and Brandon’ sale diminished. Hence, it is humbly
contended that Plato, Quanto, Rony and Coral did not drive the existing competitors out
of the market.
5.3.2 Fair Competition
As stated, the offers of attractive loyalty and target based discounts to the manufacturers
and also to the customers. 61 Providing discounts for the benefit of consumers is part of
doing a business and is not anti competitive. Hence, In the interest of consumers and
economy as a whole, it is essentially crucial to promote an environment that
facilitates
fair competition.
58
Sodhi Transport Co. v. State of Uttar Pradesh AIR 1980 SC 1099
59
60
T.R Jain & V.K Ohri, INTRODUCTORY MICROECONOMICS, 73-75 (1st ed. 2013).
61
15
S. 2(c) of The Act provides that Cartel includes an association of producers, sellers,
distributors, traders or service providers who, by agreement amongst themselves, limit
control or attempt to control the production, distribution, sale or price of, or, trade
62
in goods or provision of services to obtain a monopoly63 In accordance with the
definition stated in this section, there was no such formation of any kind of association
amongst the parties.
Cartelization distorts prices and leads to adverse impact on the overall competitive
structure in the market. Nature of cartel is to raise price above competitive
levels, resulting in injury to consumers and to the economy. Furthermore, for the
customers, cartelization results in higher prices, poor quality and less or no choice for
goods or/ and services. 64
5.3.3.Increase in prices during the festive season in November-December 2010
It is humbly submitted that in this present case, sale of the TVs at high prices during the
festive season in November-December 2010, the justification was given by Mr. Jung Ho,
CEO of Hatim Tai in the interview who gave a detailed reasoning of the increase in
prices as to Firstly, how Hatim Tai was regularly working towards reducing the prices of
its products to make its products more affordable.
Secondly, the increase in price was to meet their production and sales
targets.
Thirdly, the rises in price during the festive season were in TVs of 30-50 inch variants
which are reasonable because the TVs of these variants are mostly popular in tier 1
cities. Tier 1 cities being densely populated urban metropolises with huge economic,
cultural, and political influence, attract great attention from foreign enterprises due
to income levels much higher than the national average therefore most developed
markets in terms
of consumer behaviour prefer carrying out their businesses in such cities 65 and Hatim
Tai
62
§ 2 (c), The Competition Act, 2002 (India).
63
Union of India v. Hindustan Development Corporation, (1994), 270 CTJ SC. (MRTP).
64
Infra note 28
65
Riley Gardner, Tier System: How it works and why its useful?, NEXUS PACIFIC h ttp://nexus-
pacific.com/blog/2013/7/9/china-city-tier-system-how-it-works-and-why-its-useful ( last visited 02 Feb.
2016,
10:00 PM (N.T.M).
16
being a reputed company due to its innovations and having a high regard in
world electronics, along with its patented LCD(E) technology with a better picture
quality is more popular in Tier 1 cities where demand of such TVs are more.
Furthermore, as under 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. 66
66
National Society of Professional Engineers, 435 US 679 (1978).
17
PRAYER
Wherefore in light of the Issues raised, Arguments advanced, and Authorities cited, Adison,
Brandon, (Plato, Quantus, Rony and Coral) and the pro-forma respondents the Appellant,
respectfully request the Court to adjudge and declare that:
1. A writ of certiorari be issued or any orders in the nature of any other writ be
passed.
2. The orders issued by the COMPAT be quashed.
3. The decision of the Tribunal of remanding back of matter is not valid.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.
All of which is most humbly and respectfully submitted
(Signed)
COUNSEL FOR THE APPELANT

18

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3RD DSNLU NATIONAL MOOT COURT COMPETITION

TEAM CODE: DS319

BEFORE THE HON’BLE SUPREME COURT OF AVALON

Appeal No. 1/2017

Plato, Quantas, Rony, Coral .....Appellants

Competition Commission of Avalon, Adison & Brandon .....Respondents

Appeal No. 2/2017

Adison and Brandon .....Appellants

Competition Commission of Avalon, Plato, Quantus, Rony& Coral ...Respondents

SLP(C) No. 01/2017

COUNSEL APPEARING ON BEHALF OF THE APPELLANTS

On the Behalf of The Appellants I

TABLE OF CONTENTS ................................................................................................II

INDEX OF AUTHORITIES ......................................................................................... IV

LIST OF ABBREVIATIONS .......................................................................................

VII STATEMENT OF JURISDICTION ...........................................................................

VIII STATEMENT OF FACTS

ISSUES .......................................................................................... XII SUMMARY OF

ARGUMENTS ADVANCED ......................................................................................... 4

1. WHETHER DIRECTOR GENERAL HAS INCREASED HIS SCOPE DURING

1.1. Director General has increased the scope of investigation............................... 4

1.1.1. DG cannot initiate suo-moto investigation ........................................................... 4

1.1.2 Prima facie opinion was missing ........................................................................... 5

2. WHETHER THE REMANDING BACK OF THE MATTER BY THE

3. WHETHER THE DISMISSAL OF THE WRIT PETITION FILED BY ADISON

3.1 Adison and Brandon have a right to approach the HC .............................................. 7

4. WHETHER ADISON AND BRANDON HAVE VIOLATED SECTION 3(3) OF

4.1There were no anti-agreement which involves Adison and Brandon..........................

4.1.1 All the evidence were based on presumptions ........................................................ 9

5. WHETHER THE ALLEGATION AGAINST LCD(E) MANUFACTURERS

5.1Whether MRTP Act, 1969 is applicable on LCD(E) Manufacturers? ................ 11

5.2. Whether Competition Act, 2002 is applicable on LCD(E) manufacturers? ............

5.2.1. Adverse effect on the competitive structure in the market. .................................. 12

5.2.2 Pro-competitive s outweigh anti- competitive ...................................................... 13

5.3.1 Driving existing competitors out of the market .................................................... 15

5.3.2 Fair Competition ................................................................................................ 15

5.3.3.Increase in prices during the festive season in November-December 2010 .......... 16

On the Behalf of The Appellants III

 Bayer, C-2/01P & C- 3/01P

 Bundesverband der Arzneimittel- Importeure and Commission of European

 Cement Cartel Case, Case No.29/2010

 Chandra Kumar v. Union of India And Others, (1997) 3 SCC 261.

 Eudium (1996) OJ C1 11/8.

 Grasim Industries v Competition Commission of India, WP(C) 4159 of 2013.

 Hyundai Motor India Limited ("Hyundai") v. Competition Commission of India

 Institute of Chartered Accountants of India v. Price Waterhouse, AIR 1998 SC 74.

 Kesavananda Bharati v. St. of Kerala, (1973) 4 SCC 225).

On the Behalf of The Appellants IV

 National Society of Professional Engineers, 435 US 679 (1978).

 NACC v Board of Regents 468 US 85

 Re Flat Glass Antitrust Litigation, 385 F. 3d 350 (3d Cir. 2004)

 Roberta Stahl AG v. E.C Commission (1999) 4 CmLR 810.

 Shrilekha Vidyarthi v State of U.P, (1991) 1 SCC 212

Dr. J.N. Pandey, CONSTITUTIONAL LAW OF INDIA, ( 52nded. 2015).

T.Ramappa, COMPETITION LAW IN INDIA- POLICY, ISSUES AND DEVELOPMENT,

Steve Uglow’s, EVIDENCE: TEXT AND MATERIALS, (1st ed. 1997).

On the Behalf of The Appellants V

 Fabrizio Zilibotti, Endogenous Growth Theory, CAN. LJ OF ECONOMICS., Nov.

 Civil Procedural Code, 1908, No. 5

On the Behalf of The Appellants VI

AAE APPRECIABLE ADVERSE EFFECTS

CCA COMPETITION COMMISSION OF AVALON

CCI COMPETITION COMMISSION OF INDIA