AI Drafter 
TaxTMI 
TaxTMI 
2023 (5) TMI 935
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....ss India. 2. At present two appeals are being disposed of together i.e. Competition Appeal (AT) No. 21 of 2022 titled as Hith Impex Pvt. Ltd. Vs. Competition Commission of India & Ors and Competition Appeal (AT) No. 65 of 2022 titled as Manish Jodhavat Vs. Competition Commission of India & Ors as both the appeals have been filed against the same impugned order, one is filed by the Company and other is filed by the Director of the said Company. 3. In brief, the Commission Suo Motu took up a matter under Section 19(1) of 'the Competition Act, 2002' (hereinafter referred as to 'The Act') in response to a compliant dated 28.06.2018 in regard to bid-rigging and cartelisation in the tender floated by SBI Infra Management Solutions Pvt. Ltd. (SBIIMS) for the supply and installation of new signages/replacement of existing signages for branches/offices/ATMs of SBI located at specified metro centres of various circles of SBI across India (impugned tender). 4. Shorn of unnecessary details, the Suo Motu proceedings were initiated against as many as seven Respondents in which Hith Impex Pvt.Ltd. (Appellant in Competition App.(AT) No. 21 of 2022) was arrayed as Op No.7. The complaint wa....
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....ce' for the four categories. 81. Further, as per the deposition of Mr. Naresh Kumar Dasari, as reproduced supra, it was Mr. Manish Jodhavat who called Mr. Dasari and sought help in explaining the reverse auction process to the bidders. Mr. Jodhavat also told Mr. Dasari that Mr. Shamrendra Kumar of OP-4 came up with this idea. Mr. Dasari further stated that Mr. Manish Jodhavat also told him to include a certain quantity of OP-4's material in the working of Excel worksheets. 82. This is corroborated from the submissions of OP-1 wherein it has been submitted that, "...after SBIIMS held its meeting with pre-qualified bidders on 23.05.2018, to explain to them about the tender process, officials of Avery Dennison i.e. OP-4 approached the Managing Director of OP-5 to enquire if he had understood the process explained by SBIIMS correctly. When he said that he would prefer a better explanation, upon which representative of Hith Impex, which is a distributor of OP-4, called to suggest that he would share with Mr Manish Thakkar a format so that no mistakes were committed...." (Emphasis added) 83. Further, when Mr. R. G. Venkatesh of OP-1 was asked ....
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....ison as a distributor since 2016 and we also convert some project. For last one year, we are doing only conversion now, because distribution margin, stocking, bad debts have forced us to move to conversion part." 87. Based on the above, it is noted that OP-7 works not only as a distributor of OP-4 but also as a converter, placing it horizontally with the other OPs in the matter. Further, OP-7 not only operated as a supplier of material in the Impugned Tender, but also tried to directly participate as one of the bidders in the Impugned Tender. 88. OP-7 in its written submissions also stated that ".....Opposite Party No. 7 was following the instructions given by the Opposite Party No. 4 Avery Dennison and acted in any manner beyond the same in the entire tender". Thus, OP-7 admitted that he was acting as per the instructions of OP-4. This corroborates the submission of other OPs (viz. Mr. Naresh Kumar Dasari of OP-6 and Mr. Manish Thakkar of OP-5, as reproduced supra) that Mr. Manish Jodhavat of OP-7 was instrumental in involving Mr. Dasari in writing the e-mails which led to manipulation of the bidding process. 89. Thus, it is noted that Mr. Manish Jodhava....
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....llant has vehemently argued that the Appellant (Company) was not involved in the bidding though it had given the technical bid but was not part of the final bid. It is also submitted that the Appellant was the supplier of 'Vinyl' and 'Flex' to OP No.4 and not beyond that, therefore, he could not have been considered to be part of Cartel for the purpose of returning a finding against him and ultimately imposing the penalty, in the case of the Company (Op No.7) to the tune of Rs. 5,94,619/- and in the case of the Director i.e. Manish Jodhavat to the tune of Rs.12,923/-. 7. Counsel for Appellant has also pointed out that in this appeal prayer has been made for quashing and setting aside the impugned order 03.02.2022 because at that time all the appeals were pending and the order dated 27.07.2022 has been passed by this Tribunal subsequently dismissing the Competition Appeals No. 24 & 26 of 2022. Therefore, she has prayed that her case may be restricted to relief to be granted to OP No.7 and to the Director. Be that as it may, Counsel for Appellant has then argued that there is no direct evidence against the Appellant of participation in the transactions in order to assign the role ....
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....ter is going to be taken in its Suo Motu jurisdiction by the Commission for the purpose of finding out as to whether there has been a cartel of the bidders which is contrary to the provisions of the Act and, therefore, the role ascribed to Manish Jodhavat has been thoroughly discussed in Para 77 to 92 of the impugned order with which we are totally satisfied that the company as well as Manish Jodhavat was somehow or the other were involved and, therefore, the conclusion drawn by the Commission cannot be faulted. 10. Thus in view of the facts and circumstances of the present case, we do not find any merit in the present appeal and the same is hereby dismissed, though without any order as to costs. ============= Document 1 From: Naresh Kumar Dasari [email protected] Subject: BBI-Way Forward Date: 2 June 2018 at 7:40 PM To: Venkatesh RG [email protected], Arjun [email protected], [email protected], Arbind Singh [email protected], [email protected] Dear Friends, Greetings. I have attached an Excel Sheet and please have a look at it. This Excel Sheet contains Several Worksheets. The first work sheet is "Nut Shell" which is what we have b....