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IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 464/2014 TELEFONAKTIEBOLAGET LM ERICSSON (PUBL) ..... Petitioner Through: Mr. C.S. Vaidyanathan and Mrs. Prathiba M. Singh, Senior Advocates with Mr. Anand Pathak, Mr. Ravi Nair, Mrs.Saya Choudhary Kapur, Mr. Ashutosh Kumar, Mr. Shivanghi Sukumar, Mr. B. Prashant Kumar and Mr. Varun Tikmani, Advocates. versus COMPETITION COMMISSION OF INDIA AND ANR ..... Respondents Through: Ms. Anupam Sanghi and Mr. Arvind Sharma, Advocates with Mr. Sukesh Mishra, Joint Director (Law) of respondent No.1/CCI. Mr. Parag Tripathi, Senior Advocate with Mr. Saikrishna Raja Gopal, Mr. Sunil Dalal, Mr. Rajiv K. Choudhry, Mr. J. Sai Deepak, Mr. Subhaji Banerji, Mr. Aditya Kutty and Mr. Maanav Kumar, Advocates for respondent No.2. CORAM: HON'BLE MR. JUSTICE MANMOHAN O R D E R 21.01.2014 Cav. 64/2014 in W.P(C) 464/2014 Since the caveator has already put in appearance, the caveat petition stands disposed of. CM Appls. 912-913/2014 (exemptions) in W.P.(C) 464/2014 Allowed, subject to just exceptions. Accordingly, present applications stand disposed of. W.P.(C) 464/2014 and CM Appls. 911, 914-915/2014 Present writ petition has been filed primarily challenging the order dated 12th November, 2013 passed by respondent No.1. Issue notice. Ms. Anupam Sanghi, learned counsel accepts notice on behalf of respondent No.1. Mr. Saikrishna Raja Gopal, learned counsel accepts notice on behalf of respondent No.2. Mr. C.S. Vaidyanathan, learned senior counsel for petitioner submits that the respondent No.1-Competition Commission of India has no jurisdiction to investigate the action of the petitioner inasmuch as the Patent Act itself provides adequate mechanism to balance the rights of patentee and other stakeholders. In support of his submission, he relies upon the order passed by this Court in CS(OS) 442/2013 as well as Section 3(5)(i) of the Competition Act, 2002. Mr. Vaidyanathan, learned senior counsel for petitioner also refers to the prayer clause of the petition filed by respondent No.2 and states that respondent No. 1 can neither entertain nor grant any of the reliefs. Mr. Vaidyanathan lastly states that the direction in the impugned order dated 12th November, 2013 which was first uploaded on website on 21st November, 2013 is different from the direction contained in certified copy of the impugned order. Mr. Parag Tripathi, learned senior counsel for respondent No.2 draws this Court?s attention to the judgment of the Supreme Court in Competition Commission of India vs. Steel Authority of India Limited and Another, (2010) 10 SCC 744 wherein it has been held that an order passed under Section 26(1) of the Competition Act, 2002 is an administrative order and an aggrieved party has a right to challenge it at Section 26(7) stage. He also places reliance upon an order passed by this Court in Super Cassettes Industries Ltd. vs. Union of India and Anr., W.P.(C) 2037/2013 as well as the order passed by High Court of Bombay in W.P.(C) 1785/2009, Kingfisher Airlines Limited vs. Competition Commission of India. Ms. Anupam Sanghi, learned counsel for respondent No.1 states that she wants a short adjournment to file an affidavit. Having heard the learned counsel for parties and having perused the aforesaid judgments, this Court is prima facie of the view that a substantial question of jurisdiction of respondent No. 1 to entertain respondent No. 2?s petition arises in the present proceedings. Upon a perusal of the impugned order dated 12th November, 2013, this Court is also prima facie of the view that the Commission has entered into an adjudicatory and determinative process by recording detailed and substantial reasoning at the Section 26(1) stage itself. In fact, by virtue of the impugned order, this Court is prima facie of the view that the petitioner?s remedy under Section 26(7) has been rendered illusory. This Court is also prima facie of the view that by virtue of the impugned order an investigation has been ordered into consent terms which had been approved by this Court by order dated 19th March, 2013 in CS(OS) 442/2013. Consequently, till the next date of hearing while the petitioner may give information as called upon by the Director General of Competition Commission of India, no final order/report shall be passed either by the Competition Commission of India or by its Director General. Though the Director General of the Competition Commission of India is free to call any local officer of the petitioner for investigation purposes, but no officer stationed abroad shall be called without taking specific leave of this Court. It is also made clear that the observations made by the Commission shall not come in the way of the petitioner negotiating with third parties or in the adjudication of the proceedings filed by either of the parties in this Court. List the matter before Joint Registrar on 26th May, 2014 for completion of pleadings. Order dasti. MANMOHAN, J JANUARY 21, 2014 js W.P.(C) 464/2014 Page 4 of 4 28 $
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