IN THE HIGH COURT OF DELHI AT NEW DELHI
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,
OF INDIA AND ANR ..... Respondents
Through: Ms. Anupam Sanghi and Mr. Arvind
Sharma, Advocates with Mr. Sukesh
Mishra, Joint Director (Law) of
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.
HON'BLE MR. JUSTICE MANMOHAN
O R D E R
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.
Ms. Anupam Sanghi, learned counsel accepts notice on behalf of
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
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)
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.
JANUARY 21, 2014
W.P.(C) 464/2014 Page 4 of 4