TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 844
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....Act" hereafter). Those directions regard were that "in the course of investigation, if involvement of any other party is found, the DG shall investigate the conduct of such other parties who may have indulged in such contravention". 2. Cadila's review/recall application was preferred on 8th September 2017. Two subsequent reminder applications were also filed by Cadila on 08.11.2017 and 29.11.2017. By the CCI's order of 12.12.2017, Cadila was directed to urge on the merits of the review/recall application at the time of the final hearing on 16.01.2018. The opposite parties directed to file their responses to the DG report by 05.01.2018. Hearing was deferred from 12.12.2017 to 16.01.2018 and 17.01.2018 in terms of the CCI's order dated 21.11.2017. Cadila filed its common reply to the investigation report submitted by the respondent Director General ("DG" hereafter), on 08.01.2018 before the CCI. It specifically requested that its application for Review/Recall be heard separately and urged CCI to pass a separate order in this regard since - in case the same were allowed-it may not have to undergo the proceedings under the Competition Act. 3. The CCI delivered its orders on 16.01.201....
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....g the DG to investigate the role of certain opposite parties for the alleged contravention (of the Act). Consequently, the DG issued notice to Cadila under Section 36 (2) read with Section 41 (2) of the Act with direction to furnish certain information on or before 29.01.2016. Cadila, after seeking some extension, submitted a partial reply to the DG's notice on 05.02.2016 providing all the information and documents (except one, which was submitted on 11.02.2016). A further notice was issued by DG on 25.04.2016. Cadila filed a response to this notice as well. 7. Cadila alleges that that it had placed on record the facts relating to RMA and the order dated 09.07.2015. It also averred that even after the order dated 09.07.2015, the RMA used to place orders on regular basis with it and goods were duly supplied. It was also alleged that RMA submitted three CDs containing certain material. Cadila argues that these CDs were supplied in earlier cases and therefore could not be relied upon. The DG issued summons on 05.05.2016 under Section 36(2) read with Section 41(2) of the Act. 8. On 05.07.2016 on the request of the DG, the Federation was made an opposite party in Case no. 68/2015 by t....
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....tigation report submitted by the DG to the CCI complying with this direction. On 16.01.2018 Cadila appeared before CCI and made oral submissions with respect to its review/recall application and the application seeking cross examination. 11. Under cover of letter dated 08.02.2018, Cadila received CCI's orders dated 16-17.01.2018 rejecting its applications for review/recall and rejection of the application seeking cross examination. Cadila approached this court, under Article 226 of the Constitution. Its writ petition alleged that without a separate order under Section 26 (1) of the Act, authorizing investigation against it, the DG could not have proceeded against it on the strength of a previous order which was not based on any material or allegation with respect to complicity of Cadila; consequently the investigation and report against it was a nullity. 12. Cadila's position was that since the issue went into the root of its jurisdiction, CCI was bound to review its order, in the light of this court's ruling in Google Inc v Competition Commission of India 2015 (150) DRJ 192. Since it virtually abdicated its duty to review the material collected by DG, and review its order, the C....
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....e application for 'review/ recall', those issues have to be adjudicated by this Court (and not the CCI or the Appellate Court). Drawing heavily from observations of the Supreme Court in Excel Crop Care Ltd v Competition Commission of India 2017 (8) SCC 47, it was argued that there is sufficient basis in that decision to say that whereas an initial order covering a few issues relating to anti-competitive practices of a particular period against one party can lead to valid investigation into similar, later actions against the same authority, there is no legal sanction for investigation into acts or omissions of another party, by the DG, in the absence of express authorization regarding its or their role, by the CCI, in a separate and subsequent prima facie order under Section 26 (1). Learned senior counsel highlighted that the danger of permitting CCI and the DG to proceed without such express sanction is that it would amount to an open warrant, to carry out roving inquiries against unrelated parties, based on entirely untruthful and baseless allegations. He highlighted that the initial prima facie order is premised on assessment of a certain preliminary standard of proof reg....
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....CCI amount to negating this court's judgment in Google which authorized a substantive right to seek 'review/ recall', counsel submitted that unless it is interfered with, Cadila would be seriously prejudiced. It is submitted that the said judgment confers valuable rights on a party arrayed as subject to investigation and proceedings under the Act and entitles it to approach the CCI to take a "second look" and recall its order under Section 26 (1) if needed, in the following circumstances: a) where treating the allegations in the reference/information/ complaint to be correct, still no case of contravention of Section 3(1) or Section 4(1) of the Act would be made out or b) where the said allegations are absurd and inherently improbable or c) where there is an express legal bar to the institution and continuance of the investigation or d) where the information/reference/complaint is manifestly attended with mala fide and has been made/filed with ulterior motive or the like. It is submitted that the aggrieved party can approach this court for 'review/recall' of order under Section 26(1) of the Competition Act, if any of the said parameters are met. In the present ....
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....using different entities to indulge in frivolous, vexatious litigation against the same set of parties. 20. Learned senior counsel argued that the CCI wholly disregarded that these individuals are abusing the process of law and using the form of the partnership firm to play around with its jurisdiction without any regard to truth and fair play. In this context, it is urged that suppression of material facts amounts to fraud on the CCI. Elaborating on this aspect, it was argued that RMA's mala fides was amplified by the fact that it misled the CCI. It obtained a demand draft for filing information with the CCI on the same date when it placed an order for medicines with Cadila. RMA did not disclose to CCI that it made balance payment on 24.09.2015 through RTGS and that Cadila had already supplied the drugs (between 26-29.09.2015). Counsel relied on decisions of COMPACT in Lupin Limited & Others v. Competition Commission of India & Ors (COMPAT), (Appeal No. 40 of 2016, decided on 7th December, 2016) and Schott Glass India Pvt. Ltd. v. Competition Commission of India &Anr. (COMPAT), (A.No. 91 of 2012, dated 02.04.2014) and urged that complaints or information provided by business riva....
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....tantially in issue in the former case; Case No.97/2013 and Case No.68/2015 substantially involve the issue of alleged anti-competitive practice of mandatory NOC for appointment of stockiest being undertaken by certain association of chemists and druggists in Gujarat. b) As to the parties in the present case and the former case must be the same, or claiming under some common party, it is argued that Case No.97/2013 and Case No.68/2015 were filed by Nayan Raval (under different partnership firms). Case No.72/2014 was filed by Dahyabhai Patel - partner of Nayan Raval in Apna Dawa Bazar. The main opposite parties in all the cases are Chemists and Druggists Association of Baroda and its two office bearers. c) Court deciding former case must be competent to try the case in which substantially similar issue has been subsequently raised. It is emphasized that here all cases were filed before CCI. The CCI proceeded with exercising its jurisdiction and passing prima facie order under Section 26(1) of the Competition Act. d) It is lastly argued that the former case, i.e. Case No.97/2013, was heard and finally decided by CCI through its order dated 4 January 2018. Therefore, urged counsel,....
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....ot following the law as settled by the superior court amounts to judicial impropriety. The same has also been decided by Supreme Court in the Competition Commission of India v. Steel Authority of India Ltd. 2010 (10) SCC 744. 26. Mr. Samar Bansal, counsel for CCI argues that the impugned judgment is sound and does not call for interference. Opposing Cadila's pleas that CCI should have first formed a prima facie opinion against it under Section 26(1) as a precursor for directing the DG to investigate the parties including it and that CCI could not have abdicated that said power to the DG and lastly, as far as the matters which goes to the root of CCI's jurisdiction and acts beyond the provisions of the Competition Act need to be decided by this Court are concerned, counsel stated that such submissions are contrary to the judgment of the Supreme Court in Excel Crop Care Limited v. Competition Commission of India & Anr. (2017) 8 SCC 47. It was argued that the Supreme Court dealt with an identical argument and rejected it. It was stated that the court referred to the judgment of COMPAT (Appellate Tribunal), which was in appeal before the Supreme Court. The Supreme Court, Mr.Bansal sub....
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....I. Cadila was granted time to file reply to DG's report (by 08.09.2017). On the next date, i.e. 08.09.2017 Cadila filed its application for review/recall of order under section 26(1). The CCI under these circumstances, by its order of 12.12.2017, directed that the review/recall application shall be taken up at the time of final arguments. On 08.01.2018 Cadila filed its reply to the DG's report along with application for cross examination. Submissions were made on 16.01.2018 on the review/recall application as well as application for cross examination. It is emphasized that at no time, did Cadila challenge DG's jurisdiction to carry on investigation on the basis of the CCI's order. 30. CCI further argues, through its counsel, that the plea with respect to mala fides of the informant Cadila's argument that there was no violation of Section 3(1) of the Act, on res judicata; and that arguments under Section 48 of the Competition Act could be made before the CCI as it had not rendered any findings on any of the factual submissions can made before it while arguing both the applications. The CCI has granted liberty to Cadila to argue these before it during arguments. Similarly, he stated....
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....a State Government or a statutory authority or information received under section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (3) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission. (4) The Commission may forward a copy of the report referred to in sub-section (3) to the parties concerned: Provided that in case the investigation is caused to be made based on a reference received from the Central Government or the State Government or the statutory authority, the Commission shall forward a copy of the report referred to in sub-section (3) to the Central Government or the State Government or the statutory authority, as the case may be. (5) If the report of the Director General referred to in sub-section (3) recommends that there is no contravention of the provisions of this Act, the Commission shall invite objections ....
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....the provisions of sections 123 and 124 of the Indian Evidence Act, 1872(1 of 1872),requisitioning any public record or document or copy of such record or document from any office; (f) dismissing an application in default or deciding it ex parte; (g) any other matter which may be prescribed. (3) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Commission shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure,1973 (2 of 1974). (4) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary, to assist the Commission in the conduct of any inquiry or proceeding before it. (5) The Commission may direct any person-- (a) to produce before the Director General or the Registrar or an officer authorised by it, such books, accounts or other documents in the custody or under the control of such person so directed as may be specified or described in the direction....
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.... they apply to an inspector appointed under that Act. Explanation.-- For the purposes of this section, (a) the words "the Central Government" under section 240 of the Companies Act, 1956(1 of 1956) shall be construed as "the Commission"; (b) the word "Magistrate" under section 240A of the Companies Act, 1956(1 of 1956) shall be construed as "the Chief Metropolitan Magistrate, Delhi" The powers of the CCI and DG, which are co-extensive, with respect to matters that are the subject matter of investigation, are spelt out in Regulation 41 of the Competition Commission of India (General) Regulations, 2009 ("the 2009 regulations"), which reads as follows: 41. Taking of evidence. - (1) Subject to the provisions of the Act, the Commission or the Director General, as the case may be, may determine the manner in which evidence may be adduced in the proceedings before them. (2) Without prejudice to sub-regulation (1), the Commission or the Director General, for the purpose of inquiry or investigation, as the case may be, may - (a) admit evidence taken in the form of verifiable transcripts of tape recordings, unedited versions of video recording, electronic mail, telephone records i....
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....mission of that country in India. (i) admit such documents including electronic records in evidence as may be considered relevant and material for the proceedings. (3) Subject to the provision of sub-regulation (2), the following sections of the Indian Evidence Act, 1872 (1 of 1872), in so far as they are applicable to the matters relating to, - (a) section 22-A -when oral admission as to contents of electronic records are relevant; (b) section 47-A - opinion as to digital signature when relevant; (c) section 65-B - admissibility of electronic records; (d) section 67-A - proof as to digital signature; (e) section 73-A - proof as to verification of digital signature; (f) section 81-A - presumption as to Gazettes in electronic forms; (g) section 85-A - presumption as to electronic agreements; (h) section 85-B - presumption as to electronic records and electronic signatures; (i) section 85-C - presumption as to digital signature certificates; (j) section 88-A - presumption as to electronic messages; (k) section 89 - presumption as to due execution etc., of documents not produced; (l) section 90-A - presumption as to electronic records five years old; may be a....
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....onference (Regulation 17 of the 2009 regulations). Thereafter, CCI can pass an order under Section 26(1) briefly stating the reasons for forming an opinion regarding existence of a prima facie case warranting DG's investigation. 34. In this case, the complaints were Case No.97/2103, Case No. 68/2015, Case No.68/2014, Case No.71/2014 and Case No.72/2014. The first order under Section 26 (1) was issued on 28.02.2014 in Case No.97/13 (by RA). This resulted in an order holding the respondents guilty of abuse of dominant power, by order dated 04.01.2018. The complainant in this case was Nayan Raval - as ex-partner of RA. A common prima facie order was made for Case Nos.66/14, 71/14 and 72/2014, on 29 December, 2014 (the complainants here were RMA, ADB, Stockwell Pharma and AMS). Nayan Raval signed on behalf of RMA, Dayabhai Patel signed for ADB; Nayan Raval made a statement in the course of proceedings; Stockwell Pharma's complaint was signed by Pankaj Shethna and Yogesh Patel signed the complaint for AMA. Interestingly by order (in RMA's complaint, i.e. Case No. 68/2015) the CCI made the impugned order on 30.11.2015, which inter alia, is as follows: "14. Considering the similarity of....
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.... market and resultantly, country's economy cannot be ruled out." The Supreme Court then ruled that the order directing investigation or inquiry was not a quasi judicial one, but an administrative one: "28. As already noticed, in exercise of its powers, the Commission is expected to form its opinion as to the existence of a prima facie case for contravention of certain provisions of the Act and then pass a direction to the Director General to cause an investigation into the matter. These proceedings are initiated by the intimation or reference received by the Commission in any of the manners specified under Section 19 of the Act. At the very threshold, the Commission is to exercise its powers in passing the direction for investigation; or where it finds that there exists no prima facie case justifying passing of such a direction to the Director General, it can close the matter and/or pass such orders as it may deem fit and proper. In other words, the order passed by the Commission under Section 26(2) is a final order as it puts an end to the proceedings initiated upon receiving the information in one of the specified modes. This order has been specifically made appealable unde....
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....en appealable before the Tribunal. Even if it is a direction under any of the provisions and not a decision, conclusion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act, as afore-referred. However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well reasoned analyzing and deciding the rival contentions raised before the Commission by the parties. In other words, the Commission is expected to express prima facie view in terms of Section 26(1) of the Act, without entering into any....
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....ention was also invited to Sub-section (3) of Section 26 under which the Director-General, on receipt of direction under Sub-section (1) is to submit a report of its findings within such period as may be specified by the Commission. The argument of the parties is that if on the relevant date when the Commission passed the order, even the tender notice was not floated, then there was no question of Direction General going into the investigation of that tender. It must be noted at this juncture that Under Section 18, the Commission has the duty to eliminate practices having adverse effect on competition and to promote and sustain competition. It is also required to protect the interests of the consumers. There can be no dispute about the proposition that the Director General on his own cannot act and unlike the Commission, the Director General has no suo-moto power to investigate. That is clear from the language of Section 41 also, 28 which suggests that when directed by the Commission, the Director General is to assist the Commission in investigating into any contravention of the provisions of the Act. Our attention was also invited to the Regulations and more particularly to Regula....
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....titive behaviour. When we consider the language of the order passed by the CCI under Section 26(1) dated 23.04.2012 the things becomes all the more clear to us. The language of that order is clearly broad enough to hold, that the Director General was empowered and duty bound to look into all the facts till the investigation was completed. If in the course of investigation, it came to the light that the parties had boycotted the tender in 2011 with preconcerted agreement, there was no question of the DG not going into it. We must view this on the background that when the information was led, the Commission had material only to form a prima facie view. The said prima-facie view could not restrict the Director General, if he was duty bound to carry out a comprehensive investigation in keeping with the direction by CCI. In fact the DG has also taken into 30 account the tenders by some other corporations floated in 2010 and 2011 and we have already held that the DG did nothing wrong in that. In our opinion, therefore, the argument fails and must be rejected." We entirely agree with the aforesaid view taken by the COMPAT. 36. If the contention of the Appellants is accepted, it would re....
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....inquisitorial, to the extent that the report given is inconclusive of the rights of the parties; however, to the extent that evidence is gathered, the material can be final. Neither is the DG's power limited by a remand or restricted to the matters that fall within the complaint and nothing else. Or else, the Excel Crop Care would not have explained the DG's powers in broad terms: ("if other facts also get revealed and are brought to light, revealing that the 'persons' or 'enterprises' had entered into an agreement that is prohibited by Section 3 which had appreciable adverse effect on the competition, the DG would be well within his powers to include those as well in his report....If the investigation process is to be restricted in the manner projected by the Appellants, it would defeat the very purpose of the Act which is to prevent practices having appreciable adverse effect on the competition"). The trigger for assumption of jurisdiction of the CCI is receipt of complaint or information, when the "Commission is of the opinion that there exists a prima facie case" exists (per Section 26 (1)). The succeeding order is administrative (per SAIL); however that order s....
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....g is necessary. Cadila's reliance on Rohtas Industries and Barium Chemicals is, in the opinion of this court, irrelevant given the facts of this case. Granted, administrative orders should be reasoned; however, where they trigger investigative processes that are not conclusive, having regard to the clear enunciation in SAIL, that notice is inessential, accepting the argument, that inquiry would harm the market or commercial reputation of a concern, would be glossing over the law in SAIL. Moreover, the Rohtas Industries related to the affairs of a company, which implicated its internal management. Allowing inquiry, even an innocuous one, without application of mind, is a different proposition altogether from acting on the information of someone who alleges either direct or indirect or tacit dominance in the market place in the course of one's business. The latter is regulatory of the marketplace rather than the core management of the concern; it is akin to adjudicating a tax or commercial dispute, or a regulatory dispute. As stated by Justice Brennan, natural justice in such instances should not "unlock the gate which shuts the court out of review on the merits." (in this case, prec....
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....with the Supreme Court in SAIL (supra) for negating a right of hearing to a person are not subverted. 20. Such a power has to be exercised on the well recognized parameters of the power of review/recall and without lengthy arguments and without the investigation already ordered being stalled indefinitely. In fact, it is up to the CCI to also upon being so called upon to recall/review its order under Section 26(1) of the Act to decide whether to, pending the said decision, stall the investigation or not, as observed hereinabove also. The jurisdiction of review/recall would be exercised only if without entering into any factual controversy, CCI finds no merit in the complaint/reference on which investigation had been ordered. The application for review/recall of the order under Section 26(1) of the Act is not to become the Section 26(8) stage of the Act. 21. We therefore answer the question framed hereinabove for adjudication in affirmative and hold that respondent No. 1 CCI has the power to recall/review the order under Section 26(1) of the Act but within the parameters and subject to the restrictions discussed above." This court has misgivings about the correctness of the Google....
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....ot be read divorced from their context. In RR Verma the court had stated "We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results." The court was then concerned with Rule 3 of the All India Services (Conditions of Service Residuary matters) Rules, which empowered the Government to by "order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such extent and subject to such exceptions and conditions, as it may consider necessary for dealing with the case in a just and equitable manner." This meant necessarily that the authority was conferred with wide discretion to relieve the rigors of extant rules, but not to exercise the power whimsically: "Very often it is found that an all too strict application of a rule works undue hardship on a civil servant, resulting in injustice and inequity,' causing disappointment and frustration to the civil servant and finally leading to the defeat of the v....
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....t but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. 15 It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Sect....
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....ugh there are serious concerns which should caution exercise of power by the CCI in terms of the Google Inc, it cannot be termed as per in-curium. It would be sufficient to remember that these serious limitations exist with respect to exercise of a substantive power of recall, which can be justifiably used in rare circumstances where the fraud is egregious and does not involve a detailed hearing or where the mistake is of the kind covered by Section 38. The power of judicial review exists where the authority or tribunal acts in excess of its power (illegality) or transgresses procedural regulations, is unfair or tainted with mala fides. Therefore this court holds that the impugned order which held that Google has no application to the facts of this case because in Google the DG had not filed any report; the investigation was ongoing when the petitioner applied for recall and when this court was approached. Here, the recall application was filed after the DG's report to CCI. The finding in the impugned judgment therefore is unexceptionable; it was held by the Single Judge that the - "conclusion of this Court in Google (supra) has to be read/understood to mean a recall/review applic....
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....he Commission, though sounds attractive, does not necessarily indicate mala fide on the part of the Informant. Further, the fact of the Informant not disclosing supply of drugs/medicines by the Applicants to it in the preliminary conference held at the Commission on 30.09.2015 cannot be relied upon to attribute mala fide on the part of the Informant. Though the Applicants have alleged that the Informant received supplies on 29.09.2015 the Informant's counsel contended that the invoice vide which supplies were made is dated 30.09.2015. In the Commission's opinion, all these are questions of merits and the Applicants are at liberty to argue on these before the Commission while rebutting the evidence collected by the DG against them during the investigation. The Commission, before arriving at a final decision in the matter will consider their submissions, including the alleged misrepresentation by the Informant. 13. In view of the foregoing discussion, the Commission rejects review/recall application of the Applicants and directs them to argue the case on merits of the investigation report of the DG. TO ensure a fair opportunity hearing on their oral arguments will be fixed on a....
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....aph recall application which not only dealt with complicated questions of law, but called for analysis of detailed facts. Therefore, the rejection on the merits of Cadila's recall application is not erroneous. 49. The last point on this issue is the question of res judicata. Here, the court notices that Grasim Industries was a case where the court had ruled that even though there might be an infirmity in the CCI's approach regarding the initiation of proceedings, the material gathered by DG can be treated as information. Therefore, that in a given case, a decision is rendered may not be conclusive of the matter in entirety; complaints and grievances regarding abuse of dominance have an inherently anti-competitive effect, which pervade the marketplace and tend to stifle competition or create barriers to a free trade in goods and services. Conclusions of one or two specific complaints may not always be determinative of an entity's behaviour in the market place; they tend to cover a larger canvas, influencing the outcomes in terms of price, access to articles goods and services, within the commercial stream and their deleterious effects are felt by the general public. Settlement or ....
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....51. Cadila's argument that its request was turned down without adequate reasons, in this court's opinion is justified. Regulation 41(5) of the 2009 regulations provides as follows: "(5) If the Commission or the Director General, as the case may be, directs evidence by a party to be led by way of oral submission, the Commission or the Director General, as the case may be, if considered necessary or expedient, grant an opportunity to the other party or parties, as the case may be, to cross examine the person giving the evidence." This court is of the opinion that the discretion, which is undoubtedly vested with the CCI to permit or refuse cross examination of a witness, is to be exercised judiciously. The reason for denial of the request for cross examination is that the justification given by Cadila is not "satisfactory" and that the testimony of witnesses who have deposed and whose cross examination is sought, are not relied upon in the DG's report. This court is of the opinion that such reasons are not germane; mere "dissatisfaction" does not imply judicious exercise of discretion. As regards the reliance by the DG in his report is concerned, the grounds of cross examination are....
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.... a partner in the firm." 53. The question sought to be agitated was urged before another single judge in Pran Mehra vs. Competition Commission of India and Another (Writ Petitions No. 6258/ 2014, 6259/ 2014 and 6669/ 2014) when the court held as follows: "6.... I am in agreement with the submissions of Mr. Chandhiok that there cannot be two separate proceedings in respect of the company (i.e. VeriFone) and the key-persons as the scheme of the Act, to my mind, does not contemplate such a procedure. The procedure suggested by Mr.Ramji Srinivasan is both inefficacious and inexpedient. As in every such matter, including the proceedings under Section 138of the Negotiable Instruments Act, 1881 (in short N.I. Act), a procedure of the kind suggested is not contemplated. The judgment of the Supreme Court in the case Aneeta Hada dealt with proceedings under Section 138 of the N.I. Act. The judgment does not deal with issue at hand, which is whether adjudication in two parts, as contended by Mr. Ramji Srinivasan, is permissible. The judgment, in my opinion is distinguishable. 7. It is no doubt true that the petitioners can only be held liable if, the CCI, were to come to a conclusion that ....
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.... "58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted." This court is of opinion that the correct interpretation of law was given in Pran Mehra the reasoning of which is hereby confirmed, as is the reasoning in Ministry of Agriculture v M/s Mahyco Monsanto Biotech Ltd, which proceeds on a correct appreciation of the law. Accordingly Cadila's grievance with respect to issuance of notice to its directors by citing Section 48 is without substance; it i....