COMPETITION APPELLATE TRIBUNAL

Appeal; Interlocutory Application

28 of 2016; 68 of 2016, 69 of 2016, 70 of 2016

DUMPER OWNERS ASSOCIATION - Complainant(s)

Versus

COMPETITION COMMISSION OF INDIA AND ORS - Opp.Party(s)

BEFORE: G S Singhvi

Ashok Panigrahi

12 Apr 2016

ORDER

G.S. Singhvi, Chairman

[1] In this appeal, the appellant has questioned the legality and correctness of order dated 21.01.2015 passed by the Competition Commission of India (for short 'the Commission') in Case No. 42 of 2012, whereby the appellant was held to have acted in contravention of Section 3(1) read with Section 3(3)(a) of the Competition Act, 2002 (for short 'the Act') in the matter of making available dumpers and hywas to Respondent No. 3- M/s. Swastik Stevedores Private Limited for intra-port transportation of cargo at Paradeep Port, Jagatsinghpur, Odisha and penalty @ 8% of its average turnover for the last three preceding financial years (total Rs. 2,60,463/-) was imposed.

[2] Along with the appeal, the appellant has filed an application dated 08.01.2015 for grant of exemption from filing certified copy of the impugned order. Another application of the same date has been filed for condonation of 352 days' delay in filing the appeal. The date mentioned in both the application appears to be a typographical error because the order under challenge was passed on 21.01.2015 and the appellant could not have prepared or filed the applications prior to that date.

[3] Respondent No. 3, M/s. Swastik Stevedores Private Limited filed Writ Petition (Civil) No. 27527 of 2011] before the Odisha High Court for grant of a declaration that the action of the appellant herein to deny dumpers for unloading and intra-port transportation of cargo comprising 59500metric tonnes of coking coal imported from Australia was illegal, arbitrary and unjustified. It also applied for an interim mandatory injunction. The High Court entertained the Writ Petition and passed an order dated 17.10.2011 whereby the authorities of the Paradeep Port Trust were directed to issue necessary instructions to the appellant to provide dumpers and hywas to the writ petitioner for unloading and intra-port transportation of cargo.

[4] Notwithstanding the order passed by the High Court and the contempt proceedings initiated by the writ petitioner, the appellant and the authorities of Paradeep Port Trust failed to provide the necessary dumpers and hywas to the writ petitioner for a period of almost one year.

[5] In August 2012, Respondent No. 3 (writ petitioner before the High Court) filed an information under Section 19(1)(a) alleging that the appellant was guilty of anti-competitive practices and abuse of dominant position in the relevant market.

[6] By an order dated 04.10.2012 passed under Section 26(1) of the Act, the Commission directed the DG to conduct an investigation into the matter. The latter issued notices to the parties under Section 41(2) read with Section 36(2) and called upon them to furnish the required information/documents. He also recorded the statements of the office bearers of the appellant, officers of Respondent No. 2 and submitted report dated 30.10.2013 with the finding that the appellant has indulged in practices contrary to Section 3(1) read with Section 3(3)(a) and 3(3)(b) of the Act. He further observed that Paradip Port Stevedores Association as also acted in violation of Section 3(1) read with Section 3(3)(a). The DG also opined that Paradip Port Trust failed to discharge its responsibility and is promoting anti-competitive activities of the appellant and Paradip Port Stevedores Association.

[7] The Commission gave opportunity to the appellant and others to file replies/objections to the report of the DG, heard their advocates and passed the impugned order, paragraphs 10.4 to 10.6 of which are reproduced below:

"Conclusion

10.4 In view of the findings recorded by the Commission, the Opposite Party No. 1 and its office bearers named in para 10.3.27 are directed to cease and desist from indulging in the acts/conduct which have been found to be in contravention of the provisions of section 3 of the Act.

10.5 Furthermore, in terms of the provisions contained in section 27(b) of the Act, the Commission may impose such penalty upon the contravening parties, as it may deem fit which shall be not more than ten percent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse. It may be noted that the Opposite Party No. 1 has not brought to the notice of the Commission any mitigating factor for the above enumerated contravention during the course of hearing and have only preferred to justify their conduct on various grounds.

10.6 The Commission is of the considered view that the said anti-competitive conduct requires to be penalized to cause deterrence in future among the erring entities engaged in such activities. Therefore, it is imperative that the penalty imposed is adequate enough to create desired level of deterrence. Accordingly, in absence of any mitigating factor, the Commission, in exercise of powers under section 27 (b) of the Act, decides to impose penalty on the Opposite Party No. 1 at the rate of 8% of their average turnover for the last three preceding financial years. The amount of penalty on the Opposite party No. 1 is calculated as under:

[8] The appellant has challenged the order of the Commission primarily on the ground that the finding recorded by it on the issue of violation of Section 3(1) read with Section 3(3)(a) is perverse inasmuch as it is not based on any tangible evidence. It is also the appellant's case that in the absence of any finding of appreciable adverse effect on competition, the Commission could not have held it guilty of anticompetitive practice and imposed penalty.

[9] When the appeal was scrutinized by the Registry of the Tribunal, it was found to be defective on the following counts:

"(i) Synopsis not filed.

(ii) List of dates and events not filed.

(iii) Exemption and condonation of delay applications are not supported by an affidavit.

(iv) Many pages are left blank."

[10] After considering the report of the Registry, the Tribunal passed an order dated 29.02.2016 and granted four weeks' time to the appellant to remove the defects with the rider if the needful is not done within that period, the appeal shall stand automatically dismissed. Thereafter, the appellant filed two affidavits dated 26.03.2016 in support of the applications for grant of exemption from filing certified copy of the impugned order and for condonation of 352 days delay in filing the appeal.

[11] I have heard Shri Ashok Panigrahi, learned counsel for the appellant and perused the record.

[12] In paragraphs 3, 4 and 5 of the application filed for grant of exemption from filing the certified copy of the impugned order, the appellant has made the following statements:

"3. That however, due to urgency in the matter it was not feasible for the Petitioner to wait for the certified copy and therefore the Petitioner is filing true and authentic copy of the impugned judgement obtained from the official website of the Hon'ble Competition Commission of India, New Delhi (w w w. cci.gov.in).

4. That the original certified copy was received by the appellant however the same has been misplaced in their office. The same is retrieved the appellant undertake to file the same before the Hon'ble Tribunal forthwith.

5. That the non-filing the certified copy of the impugned order is neither intentional nor deliberate. Furthermore this application is bona fide in the interests of justice where balance of convenience tilts heavily in favour of the petitioner and grave prejudice and irreparable loss shall occasion to him in case of non-grant of the prayers made below...."

[13] A bare reading of the above reproduced paragraphs show that the appellant has taken contradictory stand on the issue of supply of certified copy of the impugned order. In paragraph 3 of the application it has been averred that the petitioner could not wait for certified copy of the order and, therefore, it is filing true and authentic copy obtained from the official website of the Commission. However, in the next paragraph, i.e., paragraph 4, the appellant has expressly admitted that certified copy was received by it, but the same was misplaced in the office and once the same is retrieved, it will be filed before the Tribunal. The assertion made by the appellant in paragraph 3 of the application is also contradicted by the statement contained in paragraph 11 of the application filed for interim relief, which reads as under:

"11. On January 21, 2014, Respondent No. 1 issued its final order consisting of the order on merits as well as the order on penalties. The said order was received by the Appellant on.... Respondent No. 1 dealt with the following issues in its order:

(i) Whether there is contravention of Section 4 of the Competition Act by the Appellant; and

(ii) Whether the Appellant and Respondent No. 3 have contravened the provision of Section 3 of the Act? If so whether the office bearers of the Appellant and Respondent No. 3 are also liable for the same?"

[14] From what has been mentioned above, it is amply clear that the appellant has made false statement suggesting non-receipt of the certified copy of the impugned order and has tried to mislead the Tribunal.

[15] I may now advert to the application for condonation of 352 days delay in filing the appeal. A reading of Section 53B(2) read with Section 53B(1) show that the Central Government or the State Government or a local authority or an enterprise or any person, aggrieved by any direction, decision or order referred to in Section 53A(a) can file an appeal to the Appellate Tribunal. Section 53B(2) mandates that an appeal referred to in Clause (1) of Section 53B should be filed within sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the aggrieved party. Proviso to Section 53B(2) empowers the Tribunal to entertain an appeal filed after the expiry of sixty days, if it is satisfied that there was sufficient cause for not filing the same within that period. Therefore, what is to be seen by the Tribunal is whether the appellant has shown sufficient cause for not filing the appeal within sixty days from the receipt of the copy of the impugned order.

[16] In paragraph 3 of the application for condonation of delay, the appellant has made the following statements:

"3. That the delay in filing the present Appeal for the reasons outlined in the succeeding paragraphs.

a. It is stated that the penalty imposed by the Commission vide order dated 21.01.2015 has been duly deposited because of sheer respect for the Commission and the rule of law without prejudice to the rights/contentions of the parties.

b. That after the order was passed by the Commission, the appellant was initially not interested in filing the instant appeal, but now since the said order is put to various interpretations, the appellant has felt it incumbent to file the instant appeal and get the question of law decided by this Hon'ble Tribunal.

c. It is stated that imposition of penalty has other ramifications which persons with vested interest are making use of order dated 21.01.2015 passed by the Hon'ble Commission.

d. That after the order dated 21.01.2015 was passed in Case No. 42 of 2012, the appellant has suffered and is suffering from irreparable harm and prejudice.

e. That since the penalty imposed by the Commission has been deposited by the appellant, no harm or prejudice will be suffered by the respondent in the event the appeal is heard on merits."

[17] After carefully examining the averments contained in the above reproduced paragraph of the application for condonation of delay, I enquired from the learned counsel as to what is the basis of the statement contained in the second part of Clause (b) of paragraph 3 and Clause (c) thereof, but he could not give any reply except saying that the condonation of delay will not cause any prejudice to the respondents.

[18] In my opinion, the explanation given by the appellant for 352 days' delay in filing the appeal, to say the least, is most unsatisfactory and there is no valid ground or justification for condonation of delay of almost one year by exercising the powers vested in the Tribunal under the proviso to Section 53-B(2) of the Act, which is somewhat similar to Section 5 of the Limitation Act. The statement of the appellant that it was initially not interested in filing the appeal, but since the said order has been put to various interpretation, it has become incumbent to file appeal and get the question of law decided is neither here nor there. The appellant has not named or given details of the persons who have made various interpretation of the order passed by the Commission necessitating filing of the appeal. It has also not been disclosed as to what are the other ramifications which persons with vested interest are making use of in terms of the order passed by the Commission. Such vague and bald statements cannot be made basis for recording a satisfaction that the appellant has shown sufficient cause for not filing the appeal within sixty days.

[19] For the reasons stated above, the applications filed by the appellant for grant of exemption from filing the certified copy of the impugned order and condonation of delay of 352 days are dismissed. Consequently, the main appeal is dismissed as barred by time.

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