2019 (9) TMI 520

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...., Adv. JUDGMENT R. F. NARIMAN, J. Having heard lengthy arguments of Shri Dhruv Mehta, learned senior counsel appearing for the appellant, and Shri Raju Ramchandran, learned senior counsel appearing on behalf of the respondent, we are of the view that interference in these appeals is not called for. The only reason we do so is because we were shown, as part of information that was provided, the following statement: "23. Uber's discount and incentive offered to consumer pale in comparison with the fidelity inducing discounts offered to drivers to keep them attached on its network to the exclusion of other market players. Uber pays drivers/car owners attached on its network unreasonably high incentives over and above and in addition ....

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.... sense other than pointing to Uber's intent to eliminate competition in the market. Copies of the statements of aforesaid fleet owners' along with a summary for the period June 1 to June 28,2015 is annexed herewith as Annexure A-15 Colly." Based on this information alone, we are of the view that it would be very difficult to say that there is no prima facie case under Section 26(1) as to infringement of Section 4 of the Competition Act, 2002. Section 4 is set out hereinbelow: 4. Abuse of dominant position.-(1) No enterprise or group shall abuse its dominant position. (2) There shall be an abuse of dominant position under sub-section (1), if an enterprise or a group,-- (a) directly or indirectly, imposes unfair or discriminator....

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....petitors or consumers or the relevant market in its favour; (b) "predatory price" means the sale of goods or provision of services, at a price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors. (c)"group" shall have the same meaning as assigned to it in clause (b) of the Explanation to section 5." There are two important ingredients which section 4(1) itself refers to if there is to be an abuse of dominant position - (1) the dominant position itself. (2) its abuse. 'Dominant position' as defined in Explanation (a) refers to a position of strength, enjoyed by an enterprise, in the relevant market, w....