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National Company Law Appellate Tribunal

National Company Law Appellate Tribunal upholds the Competition Commission of India decision rejecting complaint against Asian Paints Limited

The National Company Law Appellate Tribunal (“NCLAT”) dismissed an appeal filed by Sai Balaji Traders (“Appellant”) challenging the Competition Commission of India’s (“CCI”) decision to reject a complaint against Asian Paints Limited (“Asian Paints”) for alleged anti-competitive practices. This affirms the CCI’s earlier conclusion that there was no prima facie case of anti-competitive conduct by Asian Paints under Sections 3(4) and 4 of the Competition Act, 2002 (“Competition Act”).

 

Background

On September 8, 2022, the CCI dismissed separate complaints filed by JSW Paints Private Limited (“JSW Paints”) and the Appellant, a dealer and supplier of Asian Paints. The Appellant inter alia alleged that Asian Paints indulged in anti-competitive activities under Sections 3(4) and 4 of the Competition Act by revoking the Appellant’s Critical Retailer (“CR”) status and downgrading it to Colour World (“CW”) status since the Appellant took competing dealership of JSW Paints.

Following these allegations and the evidence presented, the CCI directed the Director General (“DG“) to investigate. The DG concluded that: (a) Asian Paints’ decision to downgrade the retailer status from CR to CW was justified and unrelated to the Appellant’s association with JSW Paints; and (b) the Appellant’s CR status was reinstated after a review of factors such as sales performance, projected sales, and customer outreach. The CCI concurred with the DG’s findings and subsequently closed the case (“CCI Order”).

 

NCLAT observations

Aggrieved by the CCI Order, the Appellant approached the NCLAT, which upheld the CCI’s decision. In doing so, the NCLAT made several key observations:

1. the Appellant had not approached the NCLAT with clean hands, having failed to disclose that its CR status had already been restored, thereby resolving its primary grievance;
2. the Appellant’s offtake from Asian Paints had shown a consistent decline, which led to the downgrade in status; and
3. other dealers who were simultaneously engaged with JSW Paints did not witness any change in their retailer status, indicating the absence of discriminatory conduct.

Accordingly, the NCLAT dismissed the appeal. 

(Source: NCLAT order dated February 19, 2025)

 

Competition Commission of India

Enforcement

CCI orders investigation against Tamil Nadu State Marketing Corporation Limited for alleged abuse of dominant position

The CCI received a complaint against Tamil Nadu State Marketing Corporation Limited (“TASMAC”) for indulging in alleged abuse of dominant position by inter alia restricting market access to various brands of beer in the state of Tamil Nadu, under Section 4 of the Competition Act. TASMAC, a state-owned enterprise, is engaged in distribution and sale of alcoholic beverages in the state of Tamil Nadu.

The complainant inter alia alleged that TASMAC sells only a limited number of beer brands from select breweries undermining the competitiveness of others. This denies other brands the opportunity to sell, as liquor sales in Tamil Nadu are exclusively routed through TASMAC.

The CCI, prima facie, noted that TASMAC is dominant in the ‘market for procurement, marketing, distribution and sale of beer in the state of Tamil Nadu’ being the exclusive seller of beer.

Regarding TASMAC’s conduct, the CCI observed the following:

1. TASMAC’s website shows it sells beer from only 4 (four) brands, even though 38 (thirty-eight) brands from 6 (six) suppliers are available;
2. a few brands make up a disproportionately large share of TASMAC’s total beer purchases, while several well-known brands have much smaller shares; and
3. the combined share of certain breweries in TASMAC’s procurement has grown over the past 3 (three) financial years.

Accordingly, the CCI directed the DG to investigate the alleged conduct of TASMAC.

(Source: CCI order dated March 25, 2025)

 

CCI dismisses complaint against A&T Europe SpA and others for alleged anti-competitive practices

The CCI received a complaint against M/s A&T Europe SpA (“A&T”)[1], its wholly owned subsidiary M/s Myrtha Pools India Private Limited and Public Works Division Akola, Maharashtra (“PWD”) for alleged anti-competitive practices, under Sections 3 and 4 of the Competition Act.

In 2024, PWD invited bids for construction of an Olympic standard swimming pool for District Sports Office, Akola (“Tender”). The complainant, one of the bidders, inter alia alleged that A&T and PWD Akola entered into memorandum of understanding (“MoU”) requiring bidders to use only A&T’s technology and materials. This, they alleged, amounted to abuse of dominance and anti-competitive conduct.

The CCI defined the relevant market as the ‘market for procurement of services for construction of swimming pools in India’ and found that PWD was not dominant, as other entities like hotels and clubs also procure such services. Therefore, it rejected the allegation of abuse of dominance.

Regarding anti-competitive conduct, the CCI observed that any company using technology and materials from A&T or similar providers were eligible to participate in the Tender. As a result, there was insufficient evidence to prove that the MoU violated Section 3 of the Competition Act.

Accordingly, the CCI dismissed the complaint.

(Source: CCI Order dated March 21, 2025)

 

CCI dismisses complaint against Delhi International Airport Limited and others for alleged abuse of dominant position

The CCI received a complaint against Airports Authority of India (“AAI”)[2], Ministry of Civil Aviation[3], Delhi International Airport Limited (“DIAL”)[4], GMR Airports Limited (“GMR Airports”)[5] and Fraport AG Frankfurt Airport Services Worldwide(“Fraport AG”)[6] for alleged abuse of dominant position, under Section 4 of the Competition Act. DIAL is a joint venture among AAI (26%), Fraport AG (10%) and GMR Airports (64%).

The complainants[7] inter alia alleged that GMR Airports has abused its dominant position by selectively awarding contracts for parking and lounge services at the Indira Gandhi International Airport, Delhi (“IGI Airport”) to Delhi Airport Parking Services Private Limited and Encalm i.e., entities in which it holds shareholding.

Given that DIAL handles all the operational contracts for IGI Airport and GMR Airports is not involved in the selection and/or execution such contracts, accordingly, the CCI analysed the allegation qua DIAL. The CCI dismissed the case and inter alia noted that: (a) when choosing the service provider, DIAL adopted a competitive bidding process and invited bids from multiple bidders; (b) there was no bar on DIAL to hold shares in a company providing parking and lounge services; and (c) Encalm is an independent third party with no relation with DIAL and allegation regarding Encalm remains unsubstantiated.

Accordingly, the CCI rejected the complaint.

(Source: CCI Order dated March 20, 2025)

 

CCI dismisses complaint against logistic companies for alleged cartelisation

The CCI received a complaint against Aegis Logistics Limited, Indus Petro Chem Limited, and Sea Lord Containers Limited (together referred to as the “OPs”) for alleged bid rigging cartel in a tender floated by the New Mangalore Port Trust (“NMPT”) under Section 3(3) of the Competition Act. The tender involved long-term leasing of 85,000 (eighty-five thousand) sqm of land for setting up storage facilities at the port.

The complainant inter alia alleged that:

1. complaints had been filed with the Central Vigilance Officer (“CVO”), Ministry of Shipping, claiming the OPs acted in concert, leading to cancellation of the original tender and the issuance of a fresh one; and
2. in the reissued tender, the OPs engaged in bid rigging, owing to their common ownership and affiliation to the same business group.

The CCI dismissed the complaint, noting:

1. NMPT reissued the tender to attract broader participation, not due to the CVO complaint; and
2. while the OPs are related entities, mere common ownership or business linkages do not prove collusion. In the absence of concrete evidence, such relationships alone are not grounds for investigation.

The CCI reiterated that legally, related entities can submit competing bids if they act independently. Accordingly, the CCI rejected the complaint.

(Source: CCI order dated March 3, 2025)

 

CCI dismisses complaint against Microsoft Corporation (India) Private Limited for alleged abuse of dominant position

The CCI received a complaint against Microsoft Corporation and Microsoft Corporation (India) Private Limited (together referred to as ‘Microsoft’) for indulging in alleged abuse of dominant position, under Section 4 of the Competition Act.

The complainant inter alia alleged that Microsoft engaged in anti-competitive practices by:

1. tying its antivirus software, Microsoft defender, with its Windows Operating System (“OS”);
2. using its dominance in the OS market to gain an unfair advantage in the antivirus software market; and
3. mandating antivirus developers to join the Microsoft Virus Initiative (“MVI”) program to distribute their anti-virus software applications via the Microsoft store.

Although the CCI found Microsoft dominant in the market for licensable OS for desktops/laptops in India (“OS Market”), it dismissed the case inter alia noting the following:

1. users are free to install third-party antivirus software applications via the Microsoft store or internet. Moreover, Original Equipment Manufacturers (“OEMs”) can also pre-install alternative antivirus software applications, and the inclusion of Microsoft defender does not hinder competition, as the market for desktop/laptop security (antivirus) software for Windows OS in India (“Antivirus Market”) remains dynamic and competitive;
2. there is no evidence that Microsoft leveraged its dominance in the OS Market to enter the Antivirus Market. In fact, the Antivirus Market remains highly competitive, with no restrictions imposed on users or OEMs by Microsoft; and
3. participation in the MVI program is optional. Non-members can still distribute their antivirus software applications via the Microsoft Store, subject to quality checks.

Accordingly, the CCI rejected the complaint.

(Source: CCI order dated March 3, 2025)

 

Merger Control

The CCI approves 25 (twenty-five) combinations in February and March 2025, including:

1. Acquisition of shareholding of Tata Play Limited by Tata Sons Private Limited.
2. Acquisition of shareholding of Uprising Science Private Limited by Hindustan Unilever Limited.
3. Acquisition of shareholding O2 Power Midco Holdings Pte. Limited and O2 Energy SG Pte. Limited by JSW Neo Energy Limited.
4. Acquisition of shareholding of Ayana Renewable Power Private Limited by ONGC NTPC Green Private Limited.
5. Acquisition of shareholding Raj Petro Specialities Private Limited by Shell Deutschland GmbH and Shell Overseas Investments B.V.
6. Acquisition of shareholding of Advanta Enterprises Limited by Alpha Wave Ventures II, LP.
7. Acquisition of pharma solutions and certain products of nourish business of International Flavors & Fragrances Inc. by Roquette Frères S.A.
8. Acquisition of shareholding of PSP Projects Limited by Adani Infra (India) Limited.
9. Acquisition of shareholding of KSK Mahanadi Power Company Limited by JSW Energy Limited through JSW Thermal Energy One Limited.
10. Acquisition of shareholding of Schott Poonawalla Private Limited by TPG Scion SG Pte Limited.
11. Acquisition of shareholding of Orient Cement Limited by Ambuja Cements Limited.
12. Acquisition of shareholding of Ace Designers Limited by Kotak Strategic Situations India Fund II and Kotak Alternate Asset Managers Limited under green channel.
13. Acquisition of residential and light commercial heating, ventilation and air-conditioning business of Johnson Controls International plc (including Johnson Controls-Hitachi Air Conditioning Holding (UK) Limited) by Robert Bosch GmbH under green channel. 

(Source: CCI Website)

 

CCI notifies CCI (Manner of Recovery of Monetary Penalty) Regulations, 2025

The CCI, vide notification dated February 27, 2025, brought into force the CCI (Manner of Recovery of Monetary Penalty) Regulations, 2025 (“2025 Regulations”), replacing the CCI (Manner of Recovery of Monetary Penalty) Regulations, 2011 (“2011 Regulations”).

The key changes introduced in the 2025 Regulations are as follows:

1. Issuance of demand notice simultaneously with order: Under the 2011 Regulations, a demand notice imposing the penalty was issued by the Secretary of the CCI only after the expiry of the period specified in the order imposing the penalty. However, under the 2025 Regulations, such a demand notice must now be issued simultaneously with the said order.
2. Extension of time to deposit penalty: Under the 2011 Regulations, parties had 30 (thirty) days from the date of receipt of the CCI order to deposit the penalty. The 2025 Regulations have now extended this period to 60 (sixty) days, aligning it with the 60 (sixty) day period allowed for filing an appeal against the CCI order before the NCLAT. This provision ensures that interest does not accrue before the appeal can be filed.
3. Reduction in rate of interest on penalty: Under the 2011 Regulations, if a party defaulted in paying the penalty amount, it was liable to pay simple interest at the rate of 1.5% per month on the outstanding amount. The 2025 Regulations have reduced this rate to 1% per month.
4. Recovery of penalty from legal heirs: The 2025 Regulations now provide that those legal heirs of a deceased person, from whom penalty is due, are liable to pay the penalty to the CCI after the expiry of the recovery period. If the penalty remains unpaid, such legal heirs can be treated as ‘person in default’.
5. Simultaneous recovery through sale: The 2025 Regulations now provide that if a person or enterprise in default fails to pay the penalty on time as per the recovery certificate, the recovery officer may ‘simultaneously’ proceed to recover the penalty amount through attachment and sale of their property, in accordance with the rules laid down in the Income Tax Act, 1961.

(Source: General Statement and Notification dated February 27, 2025)

 

This Newsletter has been prepared by:

Vaibhav Choukse Partner

Ela Bali Partner

Aditi Khanna Senior Associate

Arundhati Rajput Associate

 

For more details, please contact [email protected].

 

[1] It is engaged in the business of making stainless steel pools.

[2] It is engaged in creating, upgrading, maintaining, and managing civil aviation infrastructure in India.

[3] It is engaged in formulation of national policies and programs for development and regulation of civil aviation in India.

[4] It is a joint venture among GMR Airports Limited, AAI and Fraport AG Frankfurt Airport Services Worldwide.

[5] It is engaged in designing, constructing and operating airports across the world.

[6] It is engaged in operation of Frankfurt Airport in Frankfurt am Main.

[7] Fights Against Corruption is a non-governmental organization working towards curbing corruption and Contractors Council of India is engaged in provision of construction services at Delhi and Indore airports.

 

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Supreme Court

Committee of Creditors cannot approve resolution plan prior to Competition Commission of India’s approval

On January 29, 2025, the Supreme Court of India (“SC”) in the case of Independent Sugar Corporation Limited vs. Girish Sriram Juneja, inter alia ruled that the Committee of Creditors (“CoC”) cannot approve the resolution plan involving a combination prior to the Competition Commission of India’s (“CCI”) approval.

 

Background

In October 2021, the Corporate Insolvency Resolution Process (“CIRP”) under the Insolvency and Bankruptcy Code, 2016 (“IBC”) was initiated against Hindustan National Gas and Industries Limited (“HNG”). An Expression of Interest (“EOI”) was floated in March 2022 by the Resolution Professional (“RP”), which also prescribed a mandatory approval from the CCI.

In April 2022, Independent Sugar Corporation Ltd. (“INSCO”) and AGI Greenpac Ltd. (“AGI”) submitted their respective resolution plans for consideration. AGI requested an exemption from the RP on obtaining prior CCI’s approval for the resolution plan. The RP while approving it, required AGI to secure the CCI approval after the CoC approval but before submitting the application to the National Company Law Tribunal (“NCLT”).

On September 27, 2022, AGI filed an application before the CCI under Form I (short form), however, the same was invalidated by the CCI on October 22, 2022, with a direction to file a notice in Form II (long form) as the parties’ combined market shares in certain markets exceeded 45–50%.

On October 28, 2022, the CoC approved the resolution plan submitted by AGI. Notably, as of the AGI CoC approval date, AGI neither had the CCI approval nor a pending notice with the CCI, whereas INSCO had already obtained the CCI approval under green channel route.

On November 3, 2022, AGI resubmitted its application to the CCI under Form II, which was conditionally approved by the CCI on March 15, 2023 (“CCI Order”). Summary of the CCI Order is available at JSA Competition Law Newsletter April 2023.

INSCO challenged the CoC’s approval of AGI’s resolution plan before the NCLT, Kolkata, which rejected the challenge, upholding CoC’s decision. INSCO then appealed to the National Company Law Appellate Tribunal (“NCLAT”), which dismissed the appeal inter alia holding that while the CCI approval is mandatory, obtaining it before the CoC approval is only directory (“September Judgment”). In a separate appeal, INSCO challenged the CCI Order before NCLAT, which upheld the CCI Order (“July Judgement”). Summary of the July Judgement is available at JSA Competition Law Newsletter September 2023.

 

The SC Observations

Aggrieved, INSCO challenged the September Judgement and the July Judgement before the SC. The SC inter alia held that:

• Interpretation of proviso to Section 31(4) of IBC: The NCLAT in the September Judgement concluded that under IBC, though the CCI approval is mandatory, obtaining the CCI approval before the CoC approval is merely directory. The SC rejected NCLAT’s observation and emphasised the plain meaning rule, holding that the legislature deliberately inserted the requirement of ‘prior’ approval to ensure that any anti-competitive concerns are resolved before a resolution plan is approved. The SC also stressed that while the IBC aims to speed up corporate insolvency resolutions, it must still follow legal procedures. They stated that bypassing statutory procedures would undermine the legal system and erode confidence in the regulatory framework. While they recognised that delays are unfortunate, they emphasised that this does not justify disregarding legal requirements.
• Anomalous situations and conditional approvals: The Competition Act, 2002 (“Competition Act”) grants CCI the authority to mandate modifications to a combination. Consequently, if the CCI approval is not secured before the CoC approval, there is a possibility that the CCI may require changes to a resolution plan that has already been approved by the CoC. This could compel the CoC to assess a resolution plan without the opportunity to review the modifications directed by the CCI. Additionally, conditional approvals may create uncertainty, necessitate further revisions, and potentially undermine the integrity of the resolution framework.
• Procedural lapses under the Competition Act: The Competition Act read with applicable regulations mandate the CCI to issue a Show Cause Notice (“SCN”) to the ‘parties’ to the combination in cases where the CCI is of the view that the combination will cause competition concerns. In the present case, the CCI had only issued SCN to AGI and not to HNG. The SC rejected the CCI’s argument that the RP did not object, stating that the CCI had violated statutory requirements. It emphasised that issuing an SCN to the parties is a mandatory procedural step that cannot be bypassed.
• Discrepancies in the data submitted to the CCI: The SC noted that INSCO pointed out significant discrepancies in the data AGI and HNG provided to the CCI, which misrepresented key facts and affected competitive analysis. It stated that the NCLAT should have considered these inconsistencies in its July Judgment and that the CCI Order should have been revoked.

Accordingly, the SC directed: (a) AGI’s resolution plan to be quashed as it was obtained prior to the CCI’s approval; (b) any action taken pursuant to the resolution plan be nullified; (c) the rights of all stakeholders were to be restored to their pre-CoC approval status; and (d) the resolution plan of INSCO and others to be reconsidered by the CoC.

(Source: SC Judgement dated January 29, 2025)

 

Competition Commission of India

Enforcement

The CCI closes case against IREL (India) Limited for alleged abuse of dominant position

On October 18, 2022, the CCI ordered an investigation against IREL (India) Limited (“IREL”)[1] for allegedly imposing unfair and discriminatory conditions in the supply of Beach Sand Ilmenite (“Ilmenite”), in contravention of Section 4 of the Competition Act. Summary of the said order is available at JSA Competition Law Newsletter October 2022.

The complainant[2] inter alia alleged that IREL abused its dominant position by imposing discriminatory conditions and charging unfair prices, for the supply of Ilmenite in the market. Basis the complaint, the CCI directed the Director General (“DG”) to investigate the matter.

After a detailed investigation, the DG concluded that IREL, with a market share of more than 90%, is dominant in the market for mining and supply of Ilmenite in India and has abused its dominant position in the said relevant market by:

1. Imposition of discriminatory conditions and denial of market access: Ilmenite was not supplied to VV TitaniumPigments Private Limited (“VTPPL”) but continuous supplies were made to Dharangadhara Chemical Works Limited (“DCW”), thereby adopting a discriminatory approach between two customers.
2. Unfair/excessive prices: The DG undertook a price-cost analysis and noted that IREL raised Ilmenite prices 24 times between April 2015 and March 2022, significantly boosting its profit margin. Since this increase was not linked to production costs, the DG concluded that IREL’s pricing was unfair and excessive.
3. Discriminatory pricing: The price discrimination between international and domestic consumers was unsubstantiated, and there was no abuse of dominant position to this end.

 

The CCI Observations:

The CCI agreed with the findings of the DG in relation to the dominance of IREL, however, it disagreed with the DG’s findings regarding the abuse of dominant position and noted that:

1. there was no refusal to deal/supply by IREL to VTPPL due to lack of evidence;
2. IREL’s pricing decisions were based on market dynamics, demand-supply balance, alternative procurement options, and buyer-seller bargaining power. A comparison of Ilmenite prices for domestic and foreign consumers, as well as import prices, showed no clear evidence of excessive/unfair pricing; and
3. the comparison of prices of Ilmenite charged by IREL between international and domestic consumers could not be substantiated and, hence the DG correctly rejected this allegation.

Accordingly, the CCI dismissed the case.

(Source: CCI order dated January 17, 2025)

 

The CCI dismisses complaint against Bhagyanagar Gas Limited for alleged abuse of dominant position

The CCI received a complaint against Bhagyanagar Gas Limited (“BGL”)[3] for indulging in alleged abuse of dominant position, in contravention of Section 4 of the Competition Act.

The complainant[4] executed a Gas Sale Agreement (“Agreement”) with BGL to purchase 30,000 (thirty thousand) Standard Cubic Meters Per Day (“SCMD”) of natural gas in Hyderabad for its operations. The complainant inter alia alleged that BGL abused its dominant position by: (a) charging an unreasonably high price for supplying natural gas since May 2022 and the same is higher than the price of natural gas supplied in Telangana; (b) not revealing the methodology to arrive at the price of natural gas in contravention of the terms of the Agreement; and (c) refusing to enter into a tripartite agreement with a third party to enable the complainant to purchase natural gas from such third party at a cheaper price and use BGL’s pipelines for supply of the natural gas to its plant for a reasonable transportation price to BGL, in return.

The CCI defined the relevant market as the market for supply of natural gas to consumers having a requirement up to 50,000 (fifty thousand) SCMD of gas in Hyderabad and held BGL to be in a dominant position in the said market for inter alia being the exclusive provider of natural gas in the said region.

On abuse, the CCI inter alia noted that: (a) BGL has not engaged in excessive pricing since the comparison drawn by the complainant was between two separate geographic markets (i.e., Hyderabad and Telangana) characterised by different regulatory conditions; (b) the allegation regarding failing to share the basis of fixation of prices of natural gas is a subject matter of a contractual arrangement between the parties with no competition law concerns; and (c) given that BGL, is not a ‘common carrier’ under the Petroleum and Natural Gas Regulatory Board Act, 2006, it could not enter into a tripartite agreement and this was not a competition law concern.

Accordingly, the CCI rejected the allegations under Section 4 of the Competition Act.

(Source: CCI order dated December 30, 2024)

 

The CCI dismisses complaint against Coal India Limited for alleged abuse of dominant position

The CCI received a complaint against Coal India Limited (“CIL”)[5] for indulging in alleged abuse of dominant position, in contravention of Section 4 of the Competition Act. The complaint focused on CIL’s new e-auction scheme introduced on December 21, 2022 (“2022 Scheme”), which replaced the 2007 Spot E-Auction Scheme (“2007 Scheme”). The complainant argued that certain provisions of the new scheme were unfair, overly complex, and discriminatory.

The CCI defined the relevant market as the market for the production and sale of non-coking coal to bidders under e-auction scheme in India and found CIL to be in a dominant position. However, after reviewing the clauses of the 2022 Scheme, the CCI found no abuse of dominance, as the provisions largely addressed administrative and operational concerns rather than restricting competition.

The CCI’s findings on key clauses are as follows:

1. Pending payments: Buyers must clear outstanding payments before their bids are accepted. The CCI deemed this a reasonable and standard business practice.
2. Bid security: Bidders must provide a non-interest-bearing security deposit. The CCI found this necessary to ensure payment security and prevent defaults.
3. Auction timing: A minimum of 7 (seven) days must be given between auction notification and the event. The CCI classified this as an administrative matter with no competition concerns.
4. Bank guarantee: Buyers receiving coal via rail must provide full payment through a bank guarantee, e-transfer, or demand draft. The CCI noted this is a standard safeguard against payment defaults and a similar clause existed in the 2007 Scheme, which was upheld by the CCI in another matter which is currently pending before the SC.
5. Coal lifting validity: Buyers must lift coal within 45 (forty-five) days of the sale order, with penalties for overloading borne by them. The CCI found this to be an administrative requirement that does not impact competition.
6. Third-party coal sampling: Buyers cannot reject coal for quality issues but can request third-party sampling. If the quality is higher, buyers bear the cost difference; if lower, sellers cover the adjustment. The CCI found this to be a fair, reciprocal clause.

Accordingly, the CCI dismissed the case.

(Source: CCI order dated 30 December, 2024)

 

Merger Control

The CCI approves 8 (eight) combinations in January 2025

1. Combination involving Roop Automotives Limited, CA Carob Investments, UM Holdings, Mohit Oswal and Gaurav Jain.
2. Combination involving Gentari Renewables and certain special purpose vehicles.
3. Acquisition of shareholding of Pegatron Technology India Private Limited by Tata Electronics Private Limited.
4. Acquisition of shareholding of Manjushree Techopack Limited by Magesty II Pte. Ltd, Ashoka India Equity Investment Trust plc, Nuvama Private Investment Trust, and InCred Growth Partners Fund – I.
5. Acquisition of shareholding of Del Monte Foods Private Limited by Agro Tech Foods Limited.
6. Acquisition of shareholding of Ashoka Concessions Limited and Jaora Nayagaon Toll Road Company Private Limited by Ashoka Buildcon Limited.
7. Combination involving Sequent Scientific Limited and certain other entities.
8. Acquisition of shareholding of IDT Cementation India Limited by Renew Exim DMCC.

(Source: CCI Website)

 

The CCI finds Torrent Power Limited guilty of gun-jumping

The CCI found Torrent Power Limited (“TPL”)[6] guilty of consummating the acquisition of 51% shareholding in Dadra and Nagar Haveli and Daman and Diu Power Distribution Corporation Limited (“Target”)[7] without seeking the CCI approval (referred to as the “Transaction”).

 

Brief background

In February 2022, TPL consummated the Transaction without notifying the CCI. On January 25, 2024, the CCI issued a SCN questioning TPL on why it did not notify the Transaction to the CCI. TPL primarily contended that the CCI does not have jurisdiction as the Transaction is subject to the exclusive jurisdiction of the appropriate commission, i.e., Joint Electricity Regulatory Commission (“JERC”) under the Electricity Act, 2003 (“Electricity Act”).

 

The CCI Observations

The CCI held that it has jurisdiction to adjudicate the present matter and JERC cannot be said to have exclusive jurisdiction for the following reasons:

1. while the Electricity Act governs electricity-related matters, it does not cover all issues within the industry. It aims to promote competition and does not exclude the CCI’s jurisdiction;
2. although special statutes generally override general ones, and newer special laws prevail over older ones, these principles are not absolute. When statutes appear to conflict, they should be harmonised rather than rendered redundant;
3. the Electricity Act regulates the electricity sector, whereas the Competition Act promotes competition across all sectors. These statutes are not inherently conflicting, and their jurisdictions can be reconciled through harmonious interpretation; and
4. the Competition Act empowers the CCI to regulate combinations based on their impact on competition, including in the electricity sector, affirming its authority in this matter.

The CCI found that the relevant financial thresholds were breached, and the Transaction was not eligible for any exemptions, and therefore, should have been notified prior to consummation regardless of it having Appreciable Adverse Effect on Competition in India (“AAEC”), in light of the mandatory regime of notifying a combination to the CCI, in India.

The CCI refrained from imposing any monetary penalty due to the presence of several mitigating factors such as: (a) structural issues inherent to the bidding process like TPL’s obligation to comply with the strict bid timelines (failure of which would result in TPL losing its security deposit and right to acquire the Target etc); (b) ambiguity due to overlapping provisions in the two special acts, i.e., Competition Act and Electricity Act; (c) the Transaction not resulting in AAEC in the relevant market; and (d) TPL extending full cooperation in respect of the ongoing proceedings.

(Source: CCI order dated January 14, 2025)

 

The CCI imposes a penalty on a financial investor for gun-jumping

The CCI found a leading Financial Investor guilty of consummating the subscription of Optionally Convertible Debentures (“OCDs”), equivalent to less than 5% shareholding of Biocon Biologics Limited (“Target”) without obtaining the CCI’s approval (referred to as the “Transaction”).

Pursuant to the Transaction, the Financial Investor was entitled to: (a) certain reserved matter rights[8] (b) information rights including access to minutes of the board, committee, and shareholder meetings (“Minutes Right”), change in shareholdings and latest capitalisation table of Target; and (c) inspection rights including access to premises and personnel of the Target (“Access Right”).

 

Brief background

On December 9, 2020, the Financial Investor consummated the Transaction without obtaining the CCI’s approval. On February 4, 2022, the CCI issued a SCN questioning the Financial Investor on why it did not notify the Transaction to the CCI.

The Financial Investor argued that the Transaction qualifies for the (erstwhile) item 1 (one) exemption of the CCI (Procedure in regard to the transaction of Business relating to Combinations) Regulations, 2011(“Item 1 Exemption”) because:

1. it was made solely as an investment and in the Ordinary Course of Business (“OCB”) since it acquired less than 10% of the Target’s shares, with no director or observer appointment rights and no involvement in the affairs and management of the Target. The Minutes Rights and Access Rights were standard shareholder rights, available to all investors of the Target. Further, the Transaction is in the OCB as it routinely makes investments in India;
2. minority investor protection rights do not negate the Item 1 Exemption, as investors require safeguards to protect their investments from value erosion; and
3. investors need access to Minutes Rights and Access Rights to ensure proper use of funds invested by them. The Financial Investor is bound by confidentiality under the shareholders’ agreement and cannot disclose such information except as required for fulfilling its obligations.

 

The CCI Observations

The CCI inter alia noted as follows:

1. the Financial Investor contention that the Minutes Rights and Access Rights are ordinary rights available to all investors, cannot be accepted as the same potentially implies that if any entity grants control conferring rights/strategic rights to a class or classes of investors, the same will be treated as ordinary rights;
2. one has to consider the nature of rights and not that the rights have been granted to all or a class of investors. Minutes Right and Access Right go beyond the rights available to an ordinary shareholder. Minutes Rights provide access to Target’s strategic and Commercially Sensitive Information (“CSI”) including financial data, strategic plans, business forecasts, proprietary technology and other confidential matters crucial to the competitive advantage and market position of the Target. These rights are not provided to an ordinary shareholder and is indicative that the Financial Investor considered this Transaction as strategic; and
3. in this case, the acquisition of reserved matter rights, information rights, etc. along with the right to convert the OCDs over a period of 6 (six) years indicate that the Financial Investor did not invest in the Target in the OCB.

Accordingly, the CCI noted that Item 1 Exemption cannot be claimed and imposed a penalty of INR 40,00,000 (Indian Rupees forty lakhs) (USD 46,000 (US Dollar forty-six thousand)) for gun-jumping.

(Source: CCI order dated January 14, 2025)

 

The CCI conditionally approves acquisition of shareholding of STT Global Data Centres India Private Limited by Ruby Asia Holdings II Pte. Ltd. and Singtel Interactive Pte. Ltd.

The CCI conditionally approved the acquisition of up to 26% shareholding of STT GDC Pte. Ltd. (“STT GDC”) by Ruby Asia Holdings II Pte. Ltd (“Ruby”) and Singtel Interactive Pte. Ltd. (“Singtel”) (referred to as the ‘Proposed Transaction’).

STT GDC, an indirect wholly owned subsidiary of Temasek Holdings (Private) Limited (“Temasek”), is inter alia engaged in the business of providing data centre colocation services in India. Ruby is owned by the KKR group. Singtel, a subsidiary of Temasek, is inter alia engaged in the business of digital infrastructure and digital businesses including data centre colocation services in India.

Singtel has certain shareholding and rights in Nxtra Data, which competes with STT GDC in India. The CCI raised concerns that Singtel’s common ownership in two major competitors could reduce competition, enable coordination, and lead to the exchange of CSI/in the colocation market.

To address the CCI’s concerns, the parties inter alia proposed the following commitments:

1. firewalls will be implemented to prevent the sharing of STT GDC’s CSI/confidential information with any Ruby or Singtel personnel involved in competing businesses;
2. Singtel will not appoint an observer on the board of STT GDC who is either a director, observer employee of other competing portfolio companies;
3. Singtel would use the CSI/confidential information of STT GDC only for the purposes of monitoring its investments in STT GDC;
4. any Singtel personnel involved in competing businesses must recuse themselves from STT GDC-related discussions in supervisory bodies, which involve discussions regarding the management or operations of STT GDC group entity;
5. if both STT GDC and competing Singtel portfolio companies pursue the same business opportunity, Singtel’s board observer at STT GDC must recuse themselves from related discussions and cease receiving relevant information;
6. Singtel employees will not receive market-facing information of STT GDC but will receive aggregated/anonymised data at the STT GDC group level for Indian operations;
7. Singtel’s board observer at STT GDC must recuse themselves from discussions on Indian operations to prevent access to sensitive business information; and
8. the observer appointed by Singtel to the board of STT GDC will not be a Singtel employee.

The CCI accepted the commitments and approved the Proposed Transaction in 113 (one hundred and thirteen) calendar days. 

(Source: CCI order dated November 5, 2024)

 

This Newsletter has been prepared by:

Vaibhav Choukse Partner

Ela Bali Partner

Aditi Khanna Senior Associate

Faiz Siddiqui Associate

 

For more details, please contact [email protected].

 

[1]      It is a Central Public Sector Undertaking, designated as a Mini Ratna, engaged in mining and production of minerals, rare earths and chemicals.

[2]      It is a society registered under the Tamil Nadu Societies Registration Act, 1975 comprising members engaged in industries relating to beach minerals.

[3]      It is engaged in distribution and marketing of natural gas and implementation of city gas distribution projects in states of Andhra Pradesh and Telangana.

[4]      It is engaged in the production of various packaging products including glass containers, speciality glass, security caps and closures, etc.

[5]      It is a ‘Maharatna’ Public Sector Undertaking under Ministry of Coal, Government of India and is the single largest coal producing company in the world.

[6]      It is a public listed company engaged in business of power generation, transmission and distribution.

[7]      It is a 100% subsidiary of the Union Territory of Dadra and Nagar Haveli and Daman and Diu. It has been set up to undertake the business of power distribution and retail supply of electricity in the said Union Territory.

[8]      Two categories of reserved matters: (i) rights which would be exercised only with the prior written consent of the investor majority, and (ii) rights requiring the prior written consent of all the investors.

 

Please click here to download the Newsletter as a PDF.

 

Supreme Court

Supreme Court of India transfers writ petitions filed by resellers of Amazon Seller Services Private Limited and Flipkart Internet Private Limited to Karnataka High Court

On January 6, 2025, Supreme Court of India (“SC”) passed an order transferring all writ petitions filed by various resellers of Amazon Seller Services Private Limited (“Amazon”) and Flipkart Internet Private Limited (“Flipkart”) challenging Competition Commission of India’s (“CCI”) investigation from various high courts to Karnataka High Court (“KHC”).

 

Background 

The case stems from an investigation initiated by CCI against Amazon and Flipkart for alleged violations of the Competition Act, 2002 (“Competition Act”). During the investigation, Director General (“DG“) issued notices to various resellers of these platforms as ‘third parties’.

Subsequently, CCI forwarded the copy of the investigation report to Amazon and Flipkart and their resellers reclassifying the resellers as ‘opposite parties’ i.e., status of resellers was changed from ‘third parties’ to ‘opposite parties’ (“Impugned Order”).

Aggrieved, the resellers, inter alia, filed writ petitions before KHC, Punjab & Haryana High Court, Telangana High Court, and Madras High Court challenging the Impugned Order. KHC stayed the Impugned Order, followed by similar stay orders from the other high courts.

 

SC observations

On December 3, 2024, CCI filed a transfer petition before SC seeking transfer of all writ petitions pending before various high courts to SC. After hearing all the parties, SC disagreed with CCI and directed the transfer of all the writ petitions to KHC, where the matter is part-heard.

(Source: SC order dated January 6, 2025)

 

SC upholds Delhi High Court decision to quash CCI’s inquiry against JCB Limited

SC dismissed an appeal filed by CCI challenging the order of Delhi High Court (“DHC”), through which it set aside the inquiry initiated by CCI against JCB Limited (“JCB”) for alleged abuse of its dominant position.

 

Background 

On August 14, 2024, DHC quashed CCI’s inquiry against JCB as well as a trial court order authorizing search warrants against JCB after Bull Machine Private Limited, the informant, withdrew its information/complaint from CCI following a settlement with JCB. DHC noted that mediation provides finality to a dispute and allowing an investigation before CCI would undermine the significance of the same (“DHC Decision”). Summary of the DHC Decision is available at  JSA Competition Newsletter (August, 2024)

 

SC observations

On November 14, 2024, CCI challenged the DHC Decision before SC, which SC refused to interfere with.

(Source: SC order dated December 20, 2024)

 

High Courts

DHC imposes cost on Forech India Private Limited for attempting to stall CCI proceedings

DHC dismissed the contempt petition filed by Forech India Private Limited (“Forech”), requesting DHC to initiate contempt proceedings against CCI for alleged non-compliance of certain directions imposed by DHC on CCI (“Contempt Petition”). DHC while dismissing the Contempt Petition, imposed a cost of INR 1 lakh on Forech for trying to stall the ongoing CCI proceedings.

 

Background

On November 6, 2013, CCI initiated proceedings against several conveyor belt manufacturers including Forech for indulging in an alleged bid-rigging cartel. As part of the investigation, DG issued multiple notices to Forech seeking certain information from it. Subsequently, Forech sought inspection of the case records, which was denied by CCI.  Aggrieved, Forech filed a writ petition before DHC seeking access to the documents.

On December 2, 2015, DHC disposed of the writ petition, recording CCI’s consent to provide all non-confidential documents related to the investigation while withholding those marked confidential by any party.

On March 16, 2021, CCI issued an order directing parties to submit non-confidential versions of their documents to facilitate inspection and certified copies for all parties. Aggrieved, Forech filed an application with CCI arguing that CCI cannot ask parties to furnish fresh confidential documents and once again sought all non-confidential documents that existed in 2015. On May 8, 2024, CCI dismissed the application filed by Forech (“May 2024 Order”).

Aggrieved, Forech filed the Contempt Petition inter alia alleging that vide the May 2024 Order, CCI is attempting not to comply with the undertaking given by it before DHC i.e., it will supply all documents to Forech.

 

DHC observations

DHC noted that the May 2024 Order simply required parties to submit non-confidential versions of documents, allowed them to conduct inspection and to take certified copies, without creating new evidence. It rejected Forech’s claim for copies of all case records, deeming it unreasonable to expect CCI/DG to provide such a voluminous record when inspection of case record is already allowed.

(Source: DHC judgment dated December 16, 2024)

 

National Company Law Appellate Tribunal

National Company Law Appellate Tribunal upholds CCI’s order imposing penalty on Ghaziabad Development Authority for abusing its dominant position  

National Company Law Appellate Tribunal (“NCLAT”) upheld the order passed by CCI whereby it imposed a penalty on Ghaziabad Development Authority (“GDA”) for abusing its dominant position, in violation of Section 4 of the Competition Act.

 

Background

On February 28, 2018, CCI fined GDA INR 1 crore  for abusing its dominant position by: (a) arbitrarily raising the prices of flats for economically weaker sections of the society (“EWS”); and (b) imposing a penal interest of 10.5% on delayed payments by allottees when a similar penalty was not applicable on GDA for delay in handing over the possession of the flats to the allottees (“CCI Order”). Summary of the CCI Order is available at JSA Competition Law Newsletter (February 2018).

Aggrieved, GDA challenged the CCI Order before NCLAT, arguing that: (a) it is not an ‘enterprise’ for the purposes of the Competition Act but part of the State of Uttar Pradesh, operating as a non-profit entity for EWS housing; (b) the relevant geographic market should include the Delhi-NCR region, as allotments were not limited to Ghaziabad residents; (c) GDA is not dominant, given similar schemes provided by other competitors; (d) the price increase was due to unforeseen circumstances, duly notified, and accepted by allottees with a refund option; and (e) CCI ignored the mitigating factors, such as GDA’s good faith, and first-time offence.

 

NCLAT observations

NCLAT upheld the CCI Order, noting that: (a) GDA qualifies as an ‘enterprise’ as it is engaged in economic activities for commercial purposes; (b) GDA is dominant in the Ghaziabad market for EWS housing, holding a 77.4% market share considering flats offered between 2008-2015; (c) GDA abused its dominance by arbitrarily increasing flat prices from INR 2,00,000 (Indian Rupees two lakh) to INR 7,00,000 (Indian Rupees seven lakh) without justification and imposing one-sided interest penalties on allottees for payment delays while lacking reciprocal penalties for its own delays; and (d) the monetary penalty of 5% of GDA’s relevant turnover for EWS housing services was reasonable and appropriate.

Accordingly, NCLAT dismissed the appeal. 

(Source: NCLAT order dated December 18, 2024)

 

Competition Commission of India

Enforcement

CCI finds table tennis associations guilty of indulging in anti-competitive practices

On December 13, 2024, CCI passed an order wherein it found Table Tennis Federation of India (“TTFI”)[1], The Suburban Table Tennis Association (“TSTTA”)[2], Maharashtra Table Tennis Association (“MSTTA”)[3], and Gujarat State Table Tennis Association (“GSTTA”)[4] (together referred to as the “Opposite Parties”[5]) guilty of indulging in anti-competitive practices in violation of Sections 3 and 4 of the Competition Act. CCI noted that the Opposite Parties denied market access to the complainant i.e., TT Super Friendly League[6] (“Complainant”) by restricting players from joining or playing table tennis (“TT”) tournaments organised by it.

 

Background

The Complainant inter alia alleged that the following advisories/clauses were anti-competitive:

1. Opposite Parties issued WhatsApp advisories and public notices prohibiting players, coaches, and clubs from participating with unaffiliated organisations, threatening suspension;
2. clause 22(d) of MSTTA’s constitution granted its managing committee the right to prohibit unauthorised TT tournaments in Maharashtra; and
3. certain clauses of the memorandum of association (“MoA”) of TTFI restricted TT players from participating in any unrecognised tournaments.

Basis the allegations and evidence provided, CCI directed DG to investigate (“Prima-Facie Order”). Summary of the Prima-Facie Order is available at JSA Competition Newsletter (November 2021).

DG examined the conduct of the Opposite Parties in the markets for: (a) organisation of TT leagues/events/tournaments in India; and (b) provision of services by the players for TT leagues/events and tournaments in India (together referred to as the “Relevant Markets”).

DG found the Opposite Parties dominant in the Relevant Markets due to their pyramidical structure of regulating TT in India. It concluded that they abused their dominant position by restricting players from participating in unauthorised tournaments and threatening consequences such as suspension, for non-compliance. Such conduct constituted exclusive distribution and refusal to deal under Section 3(4) of the Competition Act, thereby, creating entry barriers and hindering competition.

 

CCI observations

The Opposite Parties inter alia argued that: (a) CCI does not have jurisdiction as they are not an ‘enterprise’ under the Competition Act; and (b) the advisories and certain clauses in their MoA and by-laws are implemented to protect the rights of professional TT players from unauthorized tournaments which may be conducted in a casual manner without strict adherence to the international standards and rules of the game.

Rejecting the argument, CCI noted that the Opposite Parties are ‘enterprise’ under the Competition Act, as they organise TT tournaments and receive donations and sponsorship, besides collecting yearly subscription fee. Accordingly, they are engaged in economic / commercial activities.

CCI concurred with DG’s findings, noting that the Opposite Parties abused their dominant position through restrictive MoA clauses and prohibitive advisories. However, it disagreed with DG on certain TSTTA and MSTTA constitutional rules being violative of the Competition Act, finding them to be regulatory measures ensuring consistency in tournaments and professional standards, not violative of Section 4 of the Competition Act.

CCI observed that the Opposite Parties took corrective steps during the investigation, including withdrawing advisories, amending clauses, and issuing a circular against penalizing players for unaffiliated events. Consequently, CCI ordered them to cease anti-competitive practices without imposing monetary penalties.

(Source: CCI order dated December 13, 2024)

 

CCI dismisses complaint against Astrotalk Services Private Limited for alleged anti-competitive practices

CCI received a complaint against Astrotalk Services Private Limited (“Astrotalk”)[7] for indulging in alleged anti-competitive practices, in contravention of Sections 3 and 4 of the Competition Act.

The complainant [8] inter alia alleged that Astrotalk: (a) abused its dominant position by poaching the consultants of the complainant as well as its competitors by offering them better remuneration, spreading false news, and coercing them to terminate their contracts with existing employers; and (b) entered into an agreement with the consultants, restricting them from contacting their previous employers.

CCI defined the relevant market as the market for the provision of astrology-related goods and services through online applications in India and inter alia noted that Astrotalk is not dominant in the said market due to the presence of several significant players and rejected the allegation of any abuse, thereof. CCI also noted that the allegations made by the complainant fall within the purview of the contract law as consultants have the freedom to provide services to any enterprise that offers better opportunities. Accordingly, CCI rejected the allegation under Section 3 of the Competition Act.

(Source: CCI order dated December 11, 2024)

 

Merger Control

CCI approves 16 (sixteen) combinations in December 2024

1. Acquisition of shareholding of Kellanova by Mars, Incorporated.
2. Acquisition of shareholding of Prataap Snacks Limited by Authum Investment & Infrastructure Limited.
3. Acquisition of shareholding of Fourth Partner Energy Private Limited by International Finance Corporation, Asian Development Bank and DEG – Deutsche Investitions – und Entwicklungsgesellschaft mbH.
4. Acquisition of shareholding of Speed JVco S.à r.l. (VFS Global) by Ramon Investments Pte. Ltd (Temasek).
5. Acquisition of shareholding of Shiprocket Private Limited by MUFG Bank, Ltd.
6. Acquisition of shareholding of Shiprocket Private Limited by KDT Venture Holdings, LLC.
7. Acquisition of shareholding of GMR Infra Enterprises Private Limited and GMR Airport Limited by Platinum Stone A 2014 Trust.
8. Acquisition of shareholding of VVDN Technologies Private Limited by India Business Excellence Fund – IV.
9. Acquisition of shareholding of Covestro AG by Abhu Dhabi National Oil Company P.J.S.C, ADNOC International Limited and ADNOC International Germany Holding AG.
10. Acquisition of shareholding of Bagmane Developers Private Limited and Bagame Rio Private Limited by BREP Asia III India Holding Co VIII Pte. Ltd.
11. Acquisition of shareholding of Thyssenkrupp Electric Steel India Private Limited by Jsquare Electric Steel Nashik Private Limited.
12. Acquisition of shareholding of MHM Holding Gesellschaft mit beschränkter Haftung (GmbH) by Avenue India Emergence Pte. Ltd. and Mavco Investments Private Limited under Green Channel.
13. Acquisition of shareholding of Hyva III B.V. by Jost Werke International Beteiligungsverwaltung GmbH under Green Channel.
14. Acquisition of shareholding of Jellinbah Group Pty. Ltd. by Zashvin Pty. Ltd. under Green Channel.
15. Acquisition of shareholding of Rebel Foods Private Limited by Royce Asia Holdings II Pte. Ltd. under Green Channel.
16. Acquisition of shareholding of McDermott International Ltd. by Baupost Group Securities, LLC under Green Channel.

(Source: CCI website)

 

This Newsletter has been prepared by:

Vaibhav Choukse Partner

Ela Bali Partner

Aditi Khanna Senior Associate

Prashasti Srivastav Associate

 

For more details, please contact [email protected].

 

[1]      It organises open-state TT tournaments in India.

[2]      It is a society responsible for conducting open district ranking TT tournaments in the Mumbai Suburban District.

[3]      It is a state body headquartered in Pune and is responsible for conducting open state TT tournaments in Maharashtra.

[4]     It is a Gujarat state body founded with the aim of developing and promoting TT in the state of Gujarat

[5]     GSTTA was added as an opposite party during the course of the investigation as DG had found clause 25 of its by-laws and a circular dated February 15, 2021, issued by it to be anti-competitive.

[6]      It is a non-governmental organization instated with the objective of promoting TT across India.

[7]      It is an online platform that offers on-demand astrology services.

[8]      It is an app-based platform, offering on demand astrology services through ‘InstaAstro’ which enables users to schedule sessions with astrologers and provides diversified services inter alia tarot and horoscope readings, etc.

 

Please click here to download the Newsletter as a PDF.

 

High Courts

Punjab and Haryana High Court stays Competition Commission of India’s investigation against Savan Retailers Private Limited

Punjab and Haryana High Court (“P&H HC”) granted an interim stay on the proceedings initiated by Competition Commission of India (“CCI”) against Savan Retailers Private Limited (“Savan Retail”).

In January 2020, CCI directed Director General (“DG”) to initiate an investigation against Amazon and Flipkart for alleged contravention of Section 3(4) of the Competition Act, 2002 (“Competition Act”) (referred to as the “Prima Facie Order”). As part of the investigation, DG issued notices to the sellers of Amazon and Flipkart including Savan Retail seeking information from them as ‘third parties’. However, in August 2024, CCI issued an order (“CCI Order“) forwarding a copy of non-confidential version of the investigation report to Amazon, Flipkart, and their respective sellers. CCI further reclassified these sellers, including Savan Retail, from the status of ‘third parties’ to that of ‘opposite parties.’

Aggrieved, Savan Retail filed a writ petition before P&H HC challenging the CCI Order inter alia contending that the Prima Facie Order was only qua Amazon and Flipkart and DG ought to have taken prior approval from CCI before changing the status of Savan Retail from a ‘third party’ to an ‘opposite party’. Accordingly, its inclusion as an opposite party is against the scheme of the Competition Act. P&H HC agreed with the contentions of Savan Retail and granted an interim stay on CCI’s proceedings.

JSA represented Savan Retail before P&H HC.

(Source: P&H HC order dated November 26, 2024)

 

Competition Commission of India

Enforcement

CCI imposes INR 213.14 crore penalty on Meta Platforms, Inc. for abusing its dominant position

On November 18, 2024, CCI found Meta Platforms, Inc. (“Meta”) abusing its dominant position in India’s Over-the-Top (“OTT”) messaging market, through WhatsApp LLC (“WhatsApp”). CCI found Meta guilty of imposing unfair conditions through WhatsApp’s 2021 terms of service and privacy policy update (“2021 Policy”), denying market access in the online display advertising market, and leveraging its dominance in the OTT messaging sector to protect its position in the online advertising market, in violation of Section 4 of the Competition Act.

 

Background

In January 2021, WhatsApp announced updates to its terms of service and privacy policy through the 2021 Policy, requiring user acceptance to continue using the platform. Upon acceptance, the user data will be shared with Meta and other Meta companies. Failure to accept the 2021 Policy would lead to the suspension or deletion of the users’ Whatsapp account. By May 2021, Meta clarified that accounts would not be deleted or deactivated for non-acceptance, though many users had already consented.

Under the previous policy, users could opt out of data sharing with Facebook (now, Meta). The 2021 Policy, however, mandates data sharing without an opt-out option, encompassing personal information such as language preferences, behaviour, mobile numbers, profile pictures, and data of small businesses.

In 2021, CCI took suo moto cognizance of media reports on the 2021 Policy and directed an investigation against Meta for abuse of dominant position. After a detailed investigation, DG submitted its investigation report to CCI in January 2023 wherein it found that Meta (through Whatsapp) has abused its dominant position in violation of Section 4 of the Competition Act.

 

CCI Order

CCI examined Meta’s business activities and conduct in the markets for: (a) OTT messaging apps through smartphones in India (“OTT Market”); and (b) online display advertising in India (“Advertising Market”).

1. OTT Market: CCI held that Meta through WhatsApp is dominant in the OTT Market and abused its dominant position, for the following reasons:
   1. the 2021 Policy imposed a ‘take-it-or-leave-it’ condition, requiring users to accept new data-sharing terms with Meta or lose access to Whatsapp, imposing unfair conditions on users;
   2. WhatsApp collected more user data than necessary compared to its competitors, violating users’ rights to control their personal information; and
   3. Indian users were denied key data rights, such as access, rectification, portability, erasure, and processing restrictions, which were available to European Union users, reflecting discriminatory practices.
2. Advertising Market: CCI observed that while Meta is not dominant in the Advertising Market, its dominance in the OTT Market raises competition concerns applicable to the Advertising Market. CCI inter alia noted:
   1. Meta, through WhatsApp, accessed extensive user data, enabling targeted advertisements that could increase market efficiency by tailoring ads to user needs;
   2. the data-sharing model between Meta and WhatsApp could strengthen Meta’s market position by fostering user dependence, thereby denying market access to competitors; and
   3. Meta leveraged its dominant position in the OTT Market through the 2021 Policy to protect its position in the Advertising Market.

Based on the above, CCI imposed (a) a monetary penalty of INR 213.14 crore (Indian Rupees two hundred and thirteen crore fourteen lakh) (approx. USD 25,000,000 (US Dollars twenty-five million)); and (b) certain behavioural remedies on WhatsApp / Meta, which include:

1. cease and desist from engaging in the identified anti-competitive practices;
2. prohibition on sharing user data with other Meta companies for advertising purposes for 5 (five) years; and
3. Data sharing for non-advertising purposes will be permitted if:
   1. WhatsApp’s policy clearly explains details of the users’ data shared with other Meta companies, specifying the purpose for sharing each data type;
   2. sharing users’ data collected on WhatsApp with other Meta companies for non-WhatsApp services must not be mandatory for users to access WhatsApp in India; and
   3. Users must be given the option to opt out of data sharing or modify their choice later through a prominent in-app notification. 

(Source: CCI order dated November 18, 2024)

 

Merger Control

CCI approves 8 (eight) combinations in the month of November 2024; detailed approval orders to be published

1. Acquisition of shareholding of STT GDC Pte. Ltd. by Ruby Asia Holdings II Pte. Ltd. and Singtel Interactive Pte. Ltd.
2. Acquisition of Schenker Aktiengesellschaft by DSV Holding Germany GmbH.
3. Acquisition of the standard unsecured personal loans portfolio of the Standard Chartered Bank, India Branch by Kotak Mahindra Bank Limited.
4. Acquisition of shareholding of Rebel Foods Limited by Jongsong Investments Pte. Ltd.
5. Acquisition of shareholding of DMI Finance Private Limited by MUFG Bank, Ltd.
6. Acquisition of shareholding of Flipkart Private Limited by Shoreline International Holdings LLC.
7. Acquisition of shareholding of Fosroc Top One Limited, Fosroc Top Two Limited, Fosroc Supply FZE.
8. Acquisition of shareholding of Interise Trust and Interise Investment Managers Limited by 2726247 Ontario Inc. and OMERS Infrastructure Asia Holdings Pte. Limited, respectively under Green Channel.

(Source: CCI Website)

 

CCI approves combination involving Rasmeli Limited, Apollo Hospitals Enterprise Limited, Apollo Healthco Limited and Keimed Private Limited

CCI approved the:

1. acquisition of up to 16.9% of shareholding and voting rights of Apollo Healthco Limited (‘‘AHL’’) by Rasmeli Limited[1];
2. acquisition of 11.189% shareholding of Keimed Private Limited (‘‘Keimed’’)[2] by AHL;
3. merger of Keimed into AHL with AHL being the surviving entity; and
4. acquisition of 2.41% shareholding of AHL by Apollo Hospitals Enterprise Limited (‘‘AHEL’’)[3]

(together referred to as the “Proposed Transaction”).

CCI noted that the activities of the parties overlap in the:

1. broad market for manufacturing, marketing and sale of pharmaceutical products in India (“Pharmaceuticals Market”) and narrow markets for: (i) manufacture and sale of Levocetirizine + Montelukast in India at a molecular level; and (ii) dietary supplements for bone and joint health in India;
2. market for the retail sale of pharmaceutical products in India; and
3. market for the wholesale sale and distribution of over-the-counter products and fast-moving consumer goods in India.

In its competitive assessment, CCI noted that the combined market shares of the parties are low and that a number of significant competitors are present in the markets, which will pose competitive constraints on the parties. In view of the same, the Proposed Transaction is not likely to raise competition concerns.

CCI also examined certain vertical links between the parties and observed that, given their low market shares and the presence of several significant competitors in the identified vertical markets, the Proposed Transaction is unlikely to raise foreclosure concerns.

CCI approved the Proposed Transaction in 75 (seventy-five) calendar days.

(Source: CCI order dated August 20, 2024)

 

CCI approves acquisition of additional shareholding of Rane NSK Steering Systems Private Limited by Rane Holdings Limited

CCI approved the acquisition of additional 51% shareholding of Rane NSK Steering Systems Private Limited (“RNSSPL”) by Rane Holdings Limited (“RHL”) from NSK Limited (Japan) (“NSK”) (referred to as the “Proposed Transaction”). RNSSPL is a joint venture between RHL (49%) and NSK (51%). Post the Proposed Transaction, RHL will solely own and control RNSSPL.

RHL is a public listed company and is inter alia engaged in manufacturing and marketing of automotive components and provides services pertaining to management consultancy, information technology, business development, etc. RNSSPL is a joint venture between RHL and NSK and is inter alia engaged in manufacturing steering columns.

In its competitive assessment, CCI noted that the Proposed Transaction involves a change from joint to sole control, with no impact on the market structure or competitive dynamics.

CCI approved the Proposed Transaction in 54 (fifty-four) calendar days.

(Source: CCI order dated September 3, 2024)

 

CCI approves merger of Tata Motors Finance Limited with and into Tata Capital Limited

CCI approved the merger of Tata Motors Finance Limited (“TMFL”) with and into Tata Capital Limited (“TCL”) (referred to as the “Proposed Transaction”).

Both, TMFL and TCL inter alia provide loans and lending services. Accordingly, CCI noted that the activities of the parties overlap in the broad market for loans and lending services in India and in the following narrow markets:

1. market for provision of retail loans in India (“Retail Loans Market”) and narrower markets for provision of: (a) vehicle/auto loans in India; and (b) micro small and medium (“MSME”) loans in India; and
2. market for provision of wholesale loans in India and narrower markets for provision of: (i) 4 (four) wheeler passenger car loans in India; and (b) commercial vehicle loans in India.

In its competitive assessment, CCI noted that the combined market shares of the parties are low, and a number of significant competitors are present in each of the relevant markets, which will pose competitive constraints on the parties. In view of the same, the Proposed Transaction is not likely to raise competition concerns.

CCI approved the Proposed Transaction in 29 (twenty-nine) calendar days.

(Source: CCI order dated September 10, 2024)

 

CCI approves acquisition of shareholding of Vaastu Housing Finance by Naspers Ventures BV

CCI approved the acquisition of 7.8% shareholding of Vaastu Housing Finance Corporation Limited (“VHFCL”) by Naspers Ventures BV (“Naspers Ventures”) (referred to as the “Proposed Transaction”).

Naspers Ventures is an investment holding company having investments in companies involved in several sectors including loans and lending services. VHFCL provides loans and lending services.

Accordingly, CCI noted that the activities of the parties overlap in the broad market for loans and lending services and in the narrow Retail Loans Market and in the narrower market for provision of loans to small businesses/MSMEs in India.

In its competitive assessment, CCI noted that the combined market shares of the parties are low, and a number of significant competitors are present in each of the relevant markets, which will pose competitive constraints on the parties. In view of the same, the Proposed Transaction is not likely to raise competition concerns.

CCI approved the Proposed Transaction in 33 (thirty-three) calendar days.

(Source: CCI order dated September 17, 2024)

 

CCI approves acquisition of shareholding of Viterra Limited by Bunge Global SA 

CCI approved the acquisition of 100% shareholding of Viterra Limited (“Viterra”) by Bunge Global SA (“Bunge”) (referred to as the “Proposed Transaction”).

Both Bunge and Viterra are engaged in the agribusiness. Bunge is engaged in selling refined vegetable oils, crude vegetable oils, soybean meal, glycerine, margarine, lecithin, vanaspati, shortenings, yeast and free fatty acids. Viterra is engaged in selling grains, crude vegetable oils, sunflower meal, sugar, cotton, pulses, and chickpea and yellow pea flours.

CCI noted that the activities of the parties overlap in the:

1. broad market for crude vegetable oil in India, including the narrow markets for: (a) crude soyabean oil in India; and (b) crude sunflower oil in India; and
2. broad market for Non-Grain Feed Ingredients (“NGFI”)[4] in India including the narrow market for sunflower-based NGFI in India.

In its competitive assessment, basis the year-on-year assessment of the market shares of the parties, CCI noted that the combined market shares of the parties have been declining. CCI also noted that since there are number of significant competitors present in each of the relevant markets, it will pose competitive constraints on the parties. In view of the same, the Proposed Transaction is not likely to raise competition concerns.

CCI also examined the potential vertical links between the activities of the parties in the upstream market for marketing of crude vegetable oil (sunflower, and soyabean) and in the downstream market for refined vegetable oil (sunflower, and soyabean), in India. Given the low market shares of the parties with the presence of several significant players in each of the vertical markets, CCI noted that the Proposed Transaction is not likely to raise foreclosure concerns.

CCI approved the Proposed Transaction in 99 (ninety-nine) calendar days.

(Source: CCI order dated July 30, 2024)

 

CCI approves acquisition of home and personal care business division of Patanjali Ayurved Limited by Patanjali Foods Limited

CCI approved the acquisition of Home and Personal Care (“HPC”) business division of Patanjali Ayurved Limited (“PAL”) by Patanjali Foods Limited (“PFL”) (referred to as the “Proposed Transaction”).

PFL is engaged in the business of inter alia fast-moving consumer and health goods comprising of food, biscuits and nutraceutical products. PAL is engaged in manufacturing, trading, packing and labelling of HPC items, ayurvedic medicines, etc. The HPC business division includes products under haircare, skincare, dental and home care segments.

In its competitive assessment, CCI observed that the Proposed Transaction is in the nature of an internal transfer of the HPC business within the Patanjali group. Accordingly, CCI noted that there would be no change in the market dynamics as a result of the Proposed Transaction.

CCI examined an existing vertical link between the activities of the parties in the upstream market for the production and sale of oleochemicals and its segments that include soap noodles and glycerin and the downstream market for the production and sale of beauty and personal care products, specifically production of soaps, in India.

CCI noted that: (a) the combined market shares of the parties are low; and (b) several significant players are present in both the upstream and downstream markets which will pose competitive constraints on the parties. Accordingly, the Proposed Transaction was not likely to cause any foreclosure concerns.

CCI approved the transaction in 48 (forty-eight) calendar days.

(Source: CCI order dated October 8, 2024)

 

CCI approves a combination involving Central Bank of India and Future Enterprises Limited

CCI approved the acquisition by Central Bank of India (“CBI”) of:

1. 51% shareholding of Future Generali India Insurance Company Limited (“FGGI”);
2. 18% shareholding of Future Generali India Life Insurance Company Limited (“FGLI”);
3. 81% shareholding of Sprint Advisory Private Limited; and
4. 82% shareholding of Shendra Advisory Private Limited.

(together referred to as the “Proposed Transaction”).

CBI, inter alia, is a public sector bank with the Government of India as its majority shareholder.

FGGI and FGLI are affiliates of Future Enterprises Limited (“FEL”) and provide general insurance and life insurance products in India, respectively.

While there were no horizontal overlaps between the activities of the parties, CCI examined the existing vertical links between the activities of the parties in the upstream markets for: (a) provision of life insurance products; and (b) provision of general insurance products and downstream market for distribution of insurance products, in India.

Given the low market shares of the parties and the presence of several significant players in the vertical markets, CCI noted that the Proposed Transaction is not likely to raise foreclosure concerns.

CCI approved the Proposed Transaction in 48 (forty-eight) calendar days.

(Source: CCI order dated October 15, 2024)

 

CCI approves acquisition of shareholding of 12 (twelve) special purpose vehicles of PNC Infratech Limited and PNC Infra Holdings Limited by Highway Infrastructure Trust

CCI approved the acquisition of 12 (twelve) special purpose vehicles (“SPV Targets”) of PNC Infratech Limited and PNC Infra Holdings Limited by Highway Infrastructure Trust (“HIT”) (referred to as the “Proposed Transaction”).

HIT is indirectly controlled by investment funds, vehicles and/or accounts advised and managed by KKR Co. & Inc. and owns various road assets. The SPV Targets have entered into concession agreements with the National Highway Authority of India/Uttar Pradesh State Highways Authority for holding, developing, operating, and maintaining infrastructure projects.

While there were no horizontal overlaps between the activities of the parties, CCI examined the potential vertical links between the activities of the parties in the upstream market for the operation and maintenance of highways in the road infrastructure and downstream market for road assets on origin and destination pair basis, in India.

Given the low market shares of the parties and the presence of several significant players in the vertical markets, CCI noted that the Proposed Transaction is not likely to raise foreclosure concerns.

CCI approved the Proposed Transaction in 83 (eighty-three) calendar days. 

(Source: CCI order dated August 6, 2024)

 

CCI approves acquisition of additional shareholding of Agilus Diagnostics Limited by Fortis Healthcare Limited

CCI approved the acquisition of additional 31.52% shareholding of Agilus Diagnostics Limited (“Agilus”) by Fortis Healthcare Limited (“FHL”) (referred to as the “Proposed Transaction”). Post the Proposed Transaction the shareholding of FHL will increase from 57.68% to 89.2%.

FHL provides healthcare services in India. The diagnostics service business of FHL is primarily undertaken through Agilus. Agilus is inter alia engaged in establishing, maintaining, and managing clinical reference laboratories and other laboratories for providing testing and diagnostic services in India.

While there were no horizontal overlaps between the activities of the parties, CCI examined an existing vertical relationship between the activities of the parties in the upstream market for provision of integrated healthcare delivery services and downstream market for provision of retail diagnostic services, in India. The parties have also entered into an agreement where Agilus will provide pathology and diagnostic services within different hospitals of FHL.

Given the low market shares of the parties and the presence of significant players in the vertical markets, CCI noted that the Proposed Transaction is not likely to raise any foreclosure concerns.

CCI approved the transaction in 55 (fifty-five) calendar days.

(Source: CCI order dated October 29, 2024)

 

CCI proposes amendments to the CCI (Manner of Recovery of Monetary Penalty) Regulations, 2011

On November 7, 2024, CCI published the draft CCI (Manner of Recovery of Monetary Penalty) Regulations, 2011 (“Draft Recovery Regulations”) for public comments. The key provisions of the Draft Recovery Regulations are set out below:

1. Scope of the regulations proposed to be expanded: The existing regulations are applicable only to enterprises as defined under the Competition Act. The Draft Recovery Regulations propose to expand the scope to include person within its ambit, as defined under the Competition Act.
2. Issuance of demand notice: Under the existing regime, the demand notice to recover the penalty is issued to a contravening enterprise only when the period specified in a CCI order within which the penalty has to be paid by such enterprise expires. As per the Draft Recovery Regulations, a demand notice can be issued to enterprise or person simultaneously when an order is passed by CCI imposing penalty irrespective of whether the period within which the penalty is to be paid has expired or not.

(Source: Draft Recovery Regulations)

 

This Newsletter has been prepared by:

Vaibhav Choukse Partner

Ela Bali Partner

Aditi Khanna Senior Associate

Prashasti Srivastav Associate

 

For more details, please contact [email protected].

 

[1] It is an investment holding company and a wholly owned subsidiary of Rasmeli Midco Limited (Cyprus)

[2] It is inter alia engaged in the wholesale and retail sale of pharmaceutical products.

[3] It inter alia operates hospitals and is a part of the Apollo Hospitals group.

[4] It is plant-derived protein supplements that are produced after extracting oil and are used as animal feed.

 

Please click here to download the Newsletter as a PDF.

 

National Company Law Appellate Tribunal

National Company Law Appellate Tribunal upholds the Competition Commission of India’s penalty order against signages firm in a bid-rigging case  

National Company Law Appellate Tribunal (“NCLAT”) upheld the order passed by the Competition Commission of India (“CCI”) whereby it imposed a penalty on Amreesh Neon Private Limited (“ANPL”) and its managing director (collectively referred to as the “Appellants”) for indulging in bid-rigging in the e-tenders floated by the SBI Infra Management Solutions Private Limited, for the supply and installation of signages at specified locations of the State Bank of India in 2018 (“Tenders”).

 

Background

On February 3, 2022, CCI found 7 (seven) companies including ANPL and its managing director for indulging in bid-rigging cartel in the Tenders, in contravention of Section 3(3) of the Competition Act, 2002 (as amended) (“Competition Act”) (referred to as the “CCI Order”). Accordingly, it inter alia imposed a penalty of INR 32.15 lakhs (Indian Rupees thirty-two lakh fifteen thousand) on ANPL and INR 31,200 (Indian Rupees thirty one thousand two hundred) on its managing director. For a summary of the CCI Order, refer to JSA Competition Law Newsletter for February 2022.

 

Proceedings before NCLAT

Aggrieved, the Appellants challenged the CCI Order before NCLAT, inter alia contending that: (a) the penalties imposed are disproportionate to their involvement and role in the Tenders; (b) CCI erred by considering the total turnover of ANPL instead of relevant turnover relating to the products linked to the Tenders, disregarding the principles laid down by Supreme Court of India (“SC”) in Excel Crop Care vs. CCI[1]; and (c) the turnover linked to the Tender pertains only to illuminated products, however CCI has also considered the revenue generated from unrelated products such as unilluminated products, furniture, and trading activities.

 

NCLAT observations 

The NCLAT upheld the CCI Order, and inter alia noted that: (a) ANPL’s principal business activity is signage, with all segments of its turnover linked to this core business, making ANPL’s argument of segmental turnover distinctions artificial and untenable; (b) CCI adopted a lenient approach in imposing monetary penalties on the opposite parties, including ANPL, most of whom are micro small and medium enterprises (“MSMEs”); and (c) the CCI Order was previously challenged by different opposite parties in 2 (two) separate appeals, both of which resulted in NCLAT upholding the CCI Order. Subsequently, the NCLAT said order was appealed to the SC, where it was dismissed. Accordingly, NCLAT dismissed the appeal.

(Source: NCLAT Order dated October 16, 2024)

 

NCLAT dismisses appeal filed by Travel Association of India against CCI order exonerating Balmer Lawrie and others

NCLAT dismissed an appeal filed by Travel Association of India (“TAI”) against the order passed by CCI through which it exonerated Department of Expenditure, Government of India (“DOE”), Balmer Lawrie & Co. Limited (“Balmer”) and Ashok Travels and Tours (“Ashok Travels”) from allegations of refusal to deal, in contravention of Section 3(4) of the Competition Act.

 

Background

In 2010, TAI filed a complaint before CCI, alleging that DOE, Balmer, and Ashok Travels[2] had entered into an arrangement whereby DOE issued an office memorandum directing all government departments to procure travel tickets exclusively from Balmer and Ashok Travels. CCI dismissed the complaint and noted that: (a) DOE does not constitute an ‘enterprise’ under the Competition Act, as its primary activities pertain to be policy-making rather than commercial business activities; and (b) the arrangement between DOE, Balmer, and Ashok Travels does not qualify as a vertical agreement, negating any claim of refusal to deal. Aggrieved, TAI appealed to the erstwhile Competition Appellate Tribunal (“COMPAT”), which upheld CCI’s order, and no further appeal was filed before SC.

In 2020, TAI filed another complaint before CCI on same grounds, which CCI dismissed (“CCI Order”).

 

Proceedings before NCLAT

Aggrieved, TAI challenged the CCI Order before NCLAT, which noted that TAI’s second complaint intends to repeat the same facts, against the same parties, with identical prayers previously rejected. NCLAT noted that CCI and erstwhile COMPAT had already exonerated DOE, and that these issues could not be re-litigated as no party should face proceedings twice for the same cause. Consequently, the NCLAT, while dismissing the appeal also imposed cost of INR 5 lakhs (Indian Rupees five lakhs) on TAI.

(Source: NCLAT Order dated October 25, 2024)

 

Competition Commission of India

Enforcement

CCI closes case against IREL (India) Limited for alleged abuse of dominant position

On January 3, 2022, CCI ordered an investigation against IREL (India) Limited (“IREL”) for imposing unfair and discriminatory conditions and pricing in supply of Beach Sand Sillimanite (“Sillimanite”) to MSMEs, in contravention of Section 4 of the Competition Act. For a summary of the said CCI order, refer to JSA Competition Law Newsletter January 2022.

IREL is a Government of India undertaking, engaged in the mining, production and sale of minerals like Ilmenite, Rutile, Zircon, Girnet and Sillimanite.

The complainant inter alia alleged that IREL: (a) increased the price of Sillimanite exponentially from INR 9,000 (Indian Rupees nine thousand) per metric tonne in 2016-17 to INR 14,000 (Indian Rupees fourteen thousand) per metric tonne in 2020-21, without providing any objective justification; (b) engaged in discriminatory pricing by selling Sillimanite to MSMEs at a higher rate compared to the rate being offered to multi-national companies; and (c) arbitrarily fixed the supply quantity of Sillimanite, thereby forcing its customers to accept the quantity as determined by IREL. Basis the complaint, CCI directed the Director General (“DG”) to investigate the matter. 

After a detailed investigation, the DG submitted its investigation report (“DG Report”) to CCI and concluded that IREL is dominant in the ‘market for mining and supply of Beach Sand Sillimanite in India’ (“Relevant Market”) and that it abused its dominant position in the Relevant Market by engaging in: (a) charging excessive prices from certain customers; and (b) discriminatory pricing and supply of Sillimanite against domestic customers vis-à-vis foreign customers i.e.,: (i) offering higher quantities to foreign customers; and (ii) charging less prices from foreign customers.

 

Proceedings before CCI 

CCI agreed with the findings of the DG in relation to the dominance of IREL, however, it concluded that IREL did not abuse its dominant position in the Relevant Market for the following reasons:

1. Excessive pricing: None of the customers of IREL ever complained of excessive pricing and the DG showed no evidence of a complaint from any customer in this regard. Pricing determination is a complex mechanism which considers various factors such as demand and its elasticity, possible rival reaction, availability of imported substitutes etc. On the contrary, the price charged by IREL’s competitor was much higher than what IREL charged; and
2. Discriminatory pricing and supply conditions: Quantity of Sillimanite supplied and the prices charged by IREL to different categories of customers differ for reasons such as long-standing business relations, assured off-take quantity, past off-take, availability of quantities, commercial wisdom, etc. Every commercial enterprise enjoys the freedom to carry out trade and take appropriate business decisions. As normal business prudence, a party buying in bulk would get better terms (including purchase price) than a small buyer. Therefore, such conduct is not discriminatory.

Accordingly, CCI dismissed the case.

(Source: CCI order dated October 8, 2024)

 

Merger Control

CCI approves 9 (nine) combinations in the month of October 2024; detailed approval orders to be published

1. Acquisition of shareholding of JM Financial Asset Reconstruction Company Limited by JM Financial Credit Solutions Limited from JM Financial Capital.
2. Acquisition of home and personal care business division of Patanjali Ayurved Limited by Patanjali Foods Limited. 
3. Acquisition of shareholding of Bharat Serums and Vaccines Limited by Mankind Pharma Limited.
4. Acquisition of shareholding of Future Generali India Insurance Company and Future Generali India Life Insurance Company Limited by Central Bank of India.
5. Acquisition of shareholding of Aavas Financiers Limited by Aquilo House Pte. Limited.
6. Acquisition of shareholding of Indus Towers Limited by Bharti Airtel Limited.
7. Acquisition of shareholding of Agilus Diagnostics Limited by Fortis Healthcare Limited.
8. Acquisition of shareholding of Thoughtworks Holding, Inc. by Tasmania Midco LLC and Nevado Investments Pte. Limited.
9. Combination involving Diligent Power Private Limited, DB Power Limited, Decore Thermal Power Private Limited and Writers and Publishers Private Limited.

(Source: CCI Website) 

 

CCI conditionally approves combination involving Reliance Industries Limited, Viacom 18 Media Private Limited, Digital18 Media Limited, Star India Private Limited, Star Television Production Limited and The Walt Disney Company

CCI conditionally approved the merger of the entertainment businesses of Viacom 18 Media Private Limited (“Viacom 18”)[3] and The Walt Disney Company (“TWDC”)[4] (referred to as the “Proposed Transaction”). Pursuant to the Proposed Transaction, Star India Private Limited (“SIPL”) will become a joint venture and house digital and linear television (“TV”) entertainment businesses of Viacom 18 and TWDC in India.

CCI assessed horizontal overlaps between the activities of the parties across several relevant markets in India, including the market for: (a) supply of advertising time; (b) distribution of broadcast television channels to viewers; (c) licensing of audio-visual (“AV”) content and related sub-segments; (d) production and supply of films for theatrical release and related sub-segments; (e) operation and wholesale supply of television channels (“TV Channels Market”) and its sub-segments; and (f) retail supply of AV content through over-the-top (“OTT”) streaming platforms (“OTT Streaming Market”).

Out of the aforesaid markets, CCI noted that the Proposed Transaction will pose competition concerns in the following markets:

1. TV Channels Market: CCI defined the relevant market narrowly by genre and further sub-segmented the General Entertainment Channel (“GEC”) and film categories by language. CCI observed that the combined market shares of the parties within specific sub-segments namely, Marathi GEC, Bengali film channels, kids channels, and Kannada GEC—are significantly high, ranging from 40-70%. CCI noted the competition concerns raised by third parties, regarding the merged entity’s likely ability and incentive to increase prices for advertisers, consumers, and other stakeholders, pursuant to the Proposed Transaction.

To address CCI’s concerns: (i) the parties proposed to divest certain channels in the identified markets; and (ii) RIL will transfer its 24.5% shareholding in Eenadu Television Private Limited (“ETPL”)[5] to its promoters and retain only limited rights.

2. OTT Streaming Market: CCI noted that the combined market share of the parties would be significant, estimated between 30% to 40%. The parties are also engaged in the streaming of sports content via TV channels and OTT platforms and participate in bidding for broadcasting rights. CCI identified competition issues related to the broadcasting and streaming of cricket events such as the Indian Premier League (“IPL”), International Cricket Council (“ICC”) matches, and Board of Control for Cricket in India (“BCCI”) events and noted that:
   • majority of sports viewership in India is attributed to cricket;
   • combined market share of the parties is significantly high, estimated between 80% to 90%; and
   • parties hold exclusive broadcasting and streaming rights for major cricket events for the next 3 to 4.

CCI inter alia observed that said market position of parties raise competition concerns, as: (i) most sports content is streamed on platforms controlled by the parties; (ii) they would have enhanced negotiating power; (iii) they hold comprehensive television and digital rights for major live cricket events; (iv) they compete closely in bidding for sports rights; and (v) they have significant financial resources to secure additional sports rights.

To address CCI’s concerns, the parties inter alia proposed:

• not to bundle TV and OTT advertisement slots for IPL, ICC, and BCCI events;
• to make fair and transparent provision of advertisement space on their streaming platforms until their current rights expire;

• to comply with the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007;
• to broadcast major cricketing events on their linear TV channels and streaming platforms on advertisement model/subscription model/hybrid model;
• to adhere to industry-standard subscription fees for cricket events; and
• to maintain reasonable advertisement rates on both television and streaming platforms for cricket events, until such rights expire.

CCI also examined vertical and complementary links between the activities of the parties in the: (a) upstream market for licensing of AV content, and downstream market for AV content through TV channels and OTT platforms; (b) upstream market for the supply of advertisement space on TV and OTT platforms, and downstream market for advertising; (c) upstream market for TV Channels Market, and downstream market for distribution of TV channels; and (d) complementary link in providing internet access (fixed and wireless BIS) required for online services, including OTT platforms. CCI noted that the commitments proposed by the parties sufficiently mitigate any foreclosure concerns in these vertical and complementary markets.

Subject to the commitments, CCI approved the Proposed Transaction in 95 (ninety-five) calendar days.

(Source: CCI Order dated August 24, 2024)

 

CCI approves acquisition of majority shareholding of WeWork India Management Private Limited by Embassy Buildcon LLP

CCI approved the acquisition of:

1. 40% shareholding of WeWork India Management Private Limited (“WeWork India”) by Real Trustee Advisory Company Private Limited, A91 Emerging Fund II LLP, Mithun Padam Sacheti, Siddhartha Padamchand Sacheti, Anchorage Capital Scheme I, Anchorage Capital Scheme II, Mahima Stocks Private Limited, Think Investments PCC, Meenakshi Mercantiles Limited (collectively referred to as the “Acquirers”); and
2. 100% shareholding of 1 Ariel Way Tenant Limited (“OAW”) by Embassy Buildcon LLP (“Embassy Buildcon”).

(collectively referred to as the “Proposed Transaction”).

Pursuant to the Proposed Transaction, Embassy Buildcon will hold 55% shareholding of WeWork India.

WeWork India is engaged in the operation of: (a) flexible workspaces; and (b) digital real estate workplace solutions for companies. The Acquirers are inter-alia engaged in the development of real estate, turnkey solutions for end-to-end design and furniture, etc. Embassy Buildcon is engaged in the development of real estate Integrated Facility Management Services (“IFMS”) in India

While there were no horizontal overlaps between the activities of the parties, CCI examined the vertical links between the activities of the parties in India in:

1. upstream market for the development of commercial real estate, and downstream market for provision of flexible workspaces in India and/or at city-wide level;
2. upstream market for provision of IFMS, and downstream market for provision of flexible workspaces in India and/or at city-wide level; and
3. upstream market for custom interior turnkey solutions, and downstream market for provision of flexible workspaces in India and/or at city-wide level.

Given the low market shares of the parties and the presence of several significant players in the vertical markets, CCI noted that the Proposed Transaction is not likely to raise foreclosure concerns.

CCI approved the Proposed Transaction in 99 (ninety-nine) calendar days.

(Source: CCI Order dated June 18, 2024)

 

CCI approves acquisition of shareholding of Home Credit India Finance Private Limited and Srinivasan Trading Private Limited

CCI approved the acquisition of:

1. 74%, 8.47% and 10.79% shareholding of Home Credit India Finance Private Limited (‘‘Home Credit’’) by TVS Holdings Limited (‘‘TVSH’’), Srinivasan Trading Private Limited (‘‘STPL’’), and PI Opportunities Fund-II (‘‘PIOF’’) respectively; and
2. 598%, 4.3029%, 2.6994% and 90.4004% shareholding of STPL by Mr. K. Gopala Desikan, Mr. Anuraag Agarwal, Mr. V. Ganesh, and GWC Family Fund Investments Pte. Limited (‘‘GWCF’’), respectively.

(together referred to as the “Proposed Transaction”).

TVSH is a non-banking financial institution whose subsidiary provides retail loans and lending services in India. STPL is currently not engaged in any business activities in India. GWCF is an investment company and PIOF is an investment fund indirectly controlled by Mr. Azeem Premji. Home Credit provides retail loans and lending services in India. Accordingly, CCI noted that the business activities of the parties overlap in the broad market of retail loans and lending services and the narrower markets of consumer durable loans and personal loans in India.

In its competitive assessment, CCI noted that the combined market shares of the parties is low and a number of significant competitors are present in the market, which will pose competitive constraints on the parties. In view of the same, the Proposed Transaction is not likely to raise competition concerns.

CCI also examined a potential complementary link in the market of lead generation services where Home Credit is present and certain business activities proposed to be undertaken by the TVSH group[6]. Given that the said complementary link is notional, CCI noted that the Proposed Transaction is not likely to raise any foreclosure concerns.

CCI approved the Proposed Transaction in 32 (thirty-two) calendar days.

(Source: CCI Order dated September 24, 2024)

 

CCI approves acquisition of additional shareholding of Shriram Investment Holdings Private Limited by Shriram Ownership Trust

CCI approved the acquisition of additional shareholding of: (a) 9.44% of Shriram Investment Holdings Private Limited (“SIHL”) from APRN Enterprises Private Limited; and (b) 20% of SIHL from Piramal Enterprises Limited, by Shriram Ownership Trust (“SOT”) (referred to as the “Proposed Transaction”). Pursuant to the Proposed Transaction, Shriram group will hold 100% shareholding in SIHL.

SOT is a discretionary trust and holds shares in Shriram Capital Private Limited[7] and shares of other companies in the Shriram group that are inter alia engaged in insurance broking and distribution of insurance products. SIHL has investments in companies that are inter-alia engaged in insurance broking and distribution of insurance products. Accordingly, CCI noted that the business activities of the parties overlap in the market for: (a) insurance broking; and (b) distribution of insurance products and in the narrow market for: (i) distribution of general insurance products; and (ii) distribution of life insurance products, in India.

In its competitive assessment, CCI noted that the combined market shares of the parties is low to raise competition concerns.

CCI approved the transaction in 39 (thirty-nine) calendar days.

(Source: CCI Order dated March 15, 2024)

 

CCI approves acquisition of Lanco Amarkantak Power Limited by Adani Power Limited

CCI approved the acquisition of 100% shareholding of Lanco Amarkantak Power Limited (“Lanco Amarkantak”) by Adani Power Limited (“APL”), under the Insolvency and Bankruptcy Code, 2016 (“Proposed Transaction”).

Both Lanco Amarkantak and APL are engaged in the generation of power through thermal power plants. Accordingly, CCI noted that the business activities of the parties overlap in the: (a) broad market for the generation of power in India; and (b) narrow market for the generation of power through thermal sources in India.

In its competitive assessment, CCI noted that the combined market share of the parties is low and that a number of significant competitors are present in the market, which will pose a competitive constraint on the parties. In view of the same, the Proposed Transaction is not likely to raise competition concerns.

CCI examined potential vertical links between the activities of the parties in India in the:

1. upstream market for generation of power, and downstream market for transmission of power;
2. upstream market for generation of power, and the downstream market for distribution of power; and
3. upstream market for coal management services, and downstream market for power generation.

Given the low market shares of the parties with the presence of several significant players in each of the vertical markets, CCI noted that the Proposed Transaction is not likely to raise foreclosure concerns.

CCI approved the Proposed Transaction in 37 (thirty-seven) calendar days.

(Source: CCI order dated March 26, 2024)

 

CCI approves acquisition of minority shareholding of MTC Business Private Limited by Mitsui & Co. (Asia Pacific) Pte. Limited

CCI approved the acquisition of 25% shareholding of MTC Business Private Limited (“MTC“) by Mitsui & Co. (Asia Pacific) Pte. Limited (“Mitsui”) (referred to as the “Proposed Transaction”).

MTC is engaged in the trading of ferrous and non-ferrous metal scrap, ferroalloys and base, minor metals and demolition. Mitsui is a wholly owned subsidiary (“WOS”) of Mitsui & Co. Limited and is engaged in various businesses including iron and steel products, mineral and metal resources, etc. Accordingly, CCI noted that the business activities of the parties overlap in India in the markets for the: (a) collection, processing and sale of scrap metals; (b) sale of ferroalloys; (c) sale of base and minor metals; (d) sale of chemicals; and (e) sale of coal/ coke.

In its competitive assessment, CCI noted that the combined market shares of the parties is low and that a number of significant competitors are present in the market, which will pose competitive constraints on the parties. In view of the same, the Proposed Transaction is not likely to raise competition concerns.

CCI examined existing vertical links between the activities of the parties in India in the upstream market for the supply of overlapping products, and the downstream market for resale of such products.

Given the low market shares of the parties and the presence of several significant players in the vertical markets, CCI noted that the Proposed Transaction is not likely to raise foreclosure concerns.

CCI approved the Proposed Transaction in 54 (fifty-four) calendar days.

(Source CCI Order dated August 14, 2024)

 

CCI approves acquisition of Juniper Networks, Inc. by Hewlett Packard Enterprise Company

CCI approved the acquisition of 100% of the outstanding shareholding and sole control of Juniper Networks, Inc. (“Juniper”) by Hewlett Packard Enterprise Company (“HPE”). The acquisition will occur through a reverse triangular merger through which Jasmine Acquisition Sub, Inc., which is currently a WOS of HPE, will merge with and into Juniper making Juniper the surviving entity and WOS of HPE (referred to as the “Proposed Transaction”).

HPE is the ultimate parent entity of the Hewlett Packard Enterprise group. It specialises in business of Information Technology (“IT”), offering infrastructure products to support the IT systems and cloud station services. Juniper is the ultimate parent entity of the Juniper Networks group. It provides networking, infrastructure, security and other hardware and software-related solutions. Accordingly, CCI noted that the business activities of the parties overlap in India in the broad market of networking products/infrastructure and in the narrow market for: (a) campus switches; (b) direct current switches; (c) enterprise wireless access points (“WAPs”)[8]; and (d) software-defined wide area networks.

In its competitive assessment, CCI noted that the combined market shares of the parties is low and that another significant competitor is present in the market, which will pose competitive constraints on the parties. In view of the same, the Proposed Transaction is not likely to raise competition concerns.

CCI approved the Proposed Transaction in 84 (eighty-four) calendar days.

(Source: CCI Order dated August 14, 2024)

 

This Newsletter has been prepared by:

Vaibhav Choukse Partner

Ela Bali Partner

Faiz Siddiqui Associate

Arundhati Rajput Associate

 

For more details, please contact [email protected].

 

[1]      (2017) 8 SCC 47.

[2]      Balmer and Ashok Travels are travel agents in which the Government of India has a shareholding.

[3]      It is jointly held by Reliance Industries Limited, Paramount Global and BTS group. It broadcasts TV channels, operates an OTT platform, sells commercial advertisement space on TV channels, licenses merchandise, organises live events in India and worldwide, and produces and distributes motion pictures and content syndication.

[4]      It is a publicly traded company listed on the New York Stock Exchange. It is an international media and entertainment company and is engaged in entertainment, sports and experiences.

[5]      It is present in Telugu GEC, Telegu films, kids and infotainment, and lifestyle channels.

[6]      TVSH including its affiliates refers to the TVSH group.

[7]      It holds 70.56% shareholding in SIHL.

[8]      CCI considered sub-segmenting the enterprise WAPs market further on functionality and/ or price points as well as on outdoor and indoor WAPs. However, given that the delineation of the narrow sub-segments did not materially change its assessment of the broader enterprise WAPs market, it refrained from sub-segmenting the same.