|
IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 1006/2014 TELEFONAKTIEBOLAGET LM ERICSSON (PUBL).... Petitioner Through Mr. C.S. Vaidyanathan and Mrs. Pratibha M. Singh, Senior Advocates with Mr. Anand Pathak, Mr. Ravi Nair, Mr. Ashutosh Kumar, Mr. Shivanghi Sukumar, Mr. Akshay Nanda, Mr. B. Prashant Kumar, Mr. Arjun Mukherjee, Mr. Arjun Khera, Ms. Saya Chaudhary and Mr. Archit Virmani, Advocates versus COMPETITION COMMISSION OF INDIA and ANR. ... Respondents Through Mr. Sidharth Luthra, ASG with Mr. Pankaj Seth and Mr. Arjun Dewan, Advocates for R-1/CCI. Dr. Satyaprakash, Director (Law) and Mr. Sukesh Mishra, Joint Director (Law), CCI. Mr. Balbir Singh with Mr. Vaibhav Gaggar, Mr. Aaditya Vijaykumar, Ms. Aparna Iyer, Ms. Monica Benjamin and Mr. K. Kunal Sabharwal, Advocates for R-2. CORAM: HON'BLE MR. JUSTICE MANMOHAN O R D E R 17.02.2014 Cav. 144/2014 in W.P(C) 1006/2014 Since the caveator has already put in appearance, the caveat petition stands disposed of. CM Appl. 2038/2014 in W.P.(C) 1006/2014 CM Appl. 2040/2014 in W.P.(C) 1006/2014 Allowed, subject to just exceptions. W.P.(C) 1006/2014 and CM Appl. 2037/2014 Present writ petition has been filed primarily challenging the orders dated 28th November, 2013 and 16th January, 2014 passed by respondent no. 1-Competition Commission of India (for short ?Commission?). Issue notice. Mr. Pankaj Seth, Advocate accepts notice on behalf of respondent no. 1-Commission. Mr. Balbir Singh, Advocate accepts notice on behalf of respondent no. 2. Mr. C.S. Vaidyanathan, learned senior counsel appearing for petitioner submits that the respondent no.1-Commission 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 Sections 3(5)(i) and 62 of the Competition Act, 2002. Mr. Vaidyanathan points out that respondent no. 2 has already filed five applications before Intellectual Property Appellate Board seeking revocation of petitioner?s patents. He states that the said fact has been suppressed from the Commission. Mr. Vaidyanathan 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 points out that Commission in the impugned order dated 16th January, 2014 has referred to and relied upon an earlier order passed by it In Re: Micromax Informatics Limited Vs. Telefonaktiebolaget LM Ericsson (Publ), Case No. 50/2013 against which a writ petition was filed, wherein this Court has already passed an interim order on 21st January, 2014. Mr. Vaidyanathan also contends that the Commission has rejected petitioner?s request for treating four documents filed by respondent no. 2 as confidential, contrary to Commission?s own earlier order dated 15th October, 2013. Mr. Sidharth Luthra, learned Additional Solicitor General appearing for respondent no. 1-Commission submits that by virtue of Section 32 of Competition Act, 2002, Commission has jurisdiction to even investigate an agreement or abuse of dominant position by a party outside India. Learned ASG draws this Court?s attention to a judgment of 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. Mr. Luthra also relies upon a judgment of the Supreme Court in Sanapareddy Maheedhar Seshagiri and Another Vs. State of Andhra Pradesh and Another, (2007) 13 SCC 165 wherein it has been held as under:- ?31. A careful reading of the abovenoted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that FIR does not disclose commission of any offence or that the allegations contained in FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing FIR or complaint or restraining the competent authority from investigating the allegations contained in FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in FIR or complaint disclose commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 CrPC.? Mr. Luthra also places reliance upon the order passed by High Court of Bombay in W.P.(C) 1785/2009, Kingfisher Airlines Limited vs. Competition Commission of India. Mr. Balbir Singh, learned counsel for respondent no. 2 refers to observation of the Commission in paragraph nos. 15, 16 and 17 to submit that the case falls under Section 4 and not Section 3 of the Competition Act, 2002. Having heard learned counsel for the parties and having perused the paper book, this Court is prima facie of the view that a substantial question of jurisdiction of respondent no. 1-Commission to entertain respondent no. 2?s petition arises in the present proceedings. This Court is further of the view that judgment of the Supreme Court in Sanapareddy Maheedhar Seshagiri and Another (supra) has no relevance to the present case, as in the aforesaid case proceedings arose under the criminal law and it is a settled law that proceedings before an authority/tribunal can be stayed in writ proceedings even at the inception stage if they are prima facie without jurisdiction. Upon a perusal of the impugned orders dated 28th November, 2013 and 16th January, 2014, 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, even though the Commission in the penultimate paragraph has stated that the impugned order shall not tantamount to a final expression of opinion on merit of the case, the petitioner?s remedy under Section 26(7) has been rendered illusory. Consequently, present petition is tagged with W.P.(C) 464/2014 and is directed to be listed on 26th May, 2014 before Joint Registrar for completion of pleadings. Till the next date of hearing, while the petitioner may give information as called upon by the Director General of Commission, no final order/report shall be passed either by the Commission or by its Director General. Though the Director General of Commission 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. Further, documents referred to in the order dated 28th November, 2013 may be used by the Commission for its investigation purpose, but shall not be disclosed/released to any third party. MANMOHAN, J FEBRUARY 17, 2014 rn W.P.(C) 1006/2014 Page 6 of 6
|
|