Second information on identical facts dismissed under res judicata after first declined by CCI

NCLAT dismissed appeal applying res judicata principle. Appellant filed second information against same parties on identical facts after first information was declined by CCI. Previous proceedings established that Department of Expenditure is not an enterprise under Section 2(h) of Competition Act, 2002, and Office Memorandum is not an agreement under Section 3. SC precedent confirmed DOE cannot be considered enterprise regarding OM dated 24.03.2006. Court held legal maxim nemo debet lis vexari pro una et eadem causa applies, preventing vexation twice for same adjudicated cause.

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Issues Involved:

1. Whether the Department of Expenditure (DOE) is an 'enterprise' under Section 2(h) of the Competition Act, 2002.
2. Whether the Office Memorandum (OM) issued by DOE constitutes an agreement under Section 3(4) and Section 3(1) of the Act.
3. Applicability of the principle of res judicata to the present case.

Detailed Analysis:

1. Whether DOE is an 'enterprise':

The Appellant argued that DOE should be considered an 'enterprise' as it controls an economic activity by mandating the use of specific travel agents, thereby foreclosing the market for private agents. They referenced the Supreme Court's decision in CCI Vs. Coordination Committee of Artists and Technicians of W.B Film and Television, asserting that any entity engaging in economic activity qualifies as an enterprise under the Act. However, the Tribunal noted that DOE's principal activities are policy-making and interfacing with ministries, not commercial in nature. Therefore, DOE cannot be regarded as an 'enterprise' under Section 2(h) of the Act, as its actions are manifestations of government policy rather than economic activities.

2. Whether the OM constitutes an agreement:

The Appellant alleged that the OM issued by DOE, which restricts government officials to using only certain travel agents, constitutes an anti-competitive agreement under Section 3(4) and Section 3(1) of the Act. The Tribunal observed that there is no vertical relationship between DOE and the travel agents, as DOE does not participate in the production chain. The OM is an internal administrative decision, not an economic agreement, and thus does not contravene Section 3 of the Act. The Tribunal emphasized that government policy decisions, such as choosing specific service providers, do not equate to anti-competitive agreements.

3. Applicability of res judicata:

The Respondents argued that the principle of res judicata applies, as the issues raised by the Appellant had been previously adjudicated and dismissed by both the CCI and the Appellate Authority. The Tribunal agreed, noting that the Appellant's earlier challenge to the OM was dismissed, and no further appeal was pursued, rendering the decision final. The Tribunal reiterated that litigation must come to an end, and the same issues cannot be re-litigated, emphasizing the legal maxim "nemo debet lis vexari pro una et eadem causa," meaning no one should be vexed twice for the same cause.

Conclusion:

The Tribunal concluded that the appeal lacked merit, as the issues had already been decided, and the DOE is not an enterprise under the Act. The OM does not constitute an anti-competitive agreement, and the principle of res judicata bars re-litigation of the same issues. Consequently, the appeal was dismissed, and the Appellant was ordered to pay costs of Rs. 5 lacs to be deposited in the Prime Minister Relief Fund.

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