1. business and industrial
2. company
3. merger and acquisition

COMPETITION APPELLATE TRIBUNAL
Appeal No.36 /2014 & I.A. 54/2014
[Under Section 53-B of the Competition Act 2002 against the order dated
03.04.2014 passed by the Competition Commission of India in case no. 74/2012 ]
CORAM
Hon’ble Mr. Justice G.S. Singhvi
Chairman
In the matter of:
India Trade Promotion Organisation
...Appellant
Versus
Competition Commission of India &Ors.
Appearances:
…Respondents
Shri Krishnan Venugopal, Senior Advocate with Shri
Sidharth, Advocate for the Appellant.
Shri Mayank Bansal, Advocate for Competition Commission of
India, Respondent No.1.
Shri Muneesh Malhotra and Shri Vikram V. Minhas,
Advocates for Respondent No. 2.
ORDER
Shri Krishnan Venugopal, Senior Advocate made his arguments in rejoinder.
Order reserved.
Learned counsel for the parties may submit brief written notes within seven
days.
[G.S.Singhvi]
Chairman
28th April, 2015
2
COMPETITION APPELLATE TRIBUNAL
Appeal No. 48 /2014
[Under Section 53-B of the Competition Act 2002 against the order dated
21.05.2014 passed by the Competition Commission of India in case no. C2014/02/153]
CORAM
Hon’ble Mr. Justice G.S. Singhvi
Chairman
In the matter of:
Thomas Cook (India) Ltd. & Ors.
...Appellants
Versus
Competition Commission of India &Ors.
Appearances:
…Respondents
Shri Persival Billimoria, and Shri Sharan Thakur, Advocates for
the Appellant.
Shri Jaiveer Shergill, Advocate for Competition Commission of
India, Respondent No. 1.
ORDER
Shri Jaiveer Shergill, learned counsel for CCI requests for an adjournment by
saying that Shri P. Narsimha, Additional Solicitor General who will be arguing the
case on behalf of CCI is busy before the Constitution Bench of the Supreme Court.
Shri Billimoria, learned counsel says that he does not have any objection.
In view of the above, hearing of the appeal is adjourned to 15th July, 2015.
[G.S.Singhvi]
Chairman
28th April, 2015
3
COMPETITION APPELLATE TRIBUNAL
Appeal No. 34/2014
[Under Section 53-B of the Competition Act 2002 against the order dated
11.03.2014 passed by the Competition Commission of India in suo moto case no.
02 of 2013 and Reference case no. 1 of 2013]
]
CORAM
Hon’ble Mr. Justice G.S. Singhvi
Chairman
In the matter of:
Shib Shankar Nag Sarkar & Anr.
...Appellants
Versus
Competition Commission of India &Ors.
Appearances:
..Respondents
Shri Srijan Naik with Shri Amitava Poddar and Shri Vikas
Nautiyal, Advocates for the appellant.
Shri Abhishek Yadav, Advocate for Competition Commission
of India, Respondent No. 1.
Shri Sachin Das, Advocate for Respondent No. 3.
ORDER
Shri Sachin Das, learned counsel for Respondent No. 3 requests for an
adjournment on the ground that the arguing counsel is not available due to some
demise in his family.
Learned counsel for the appellant and other respondents say that they do
not have any objection.
List on 24th July, 2015.
[G.S.Singhvi]
Chairman
28th April, 2015
4
COMPETITION APPELLATE TRIBUNAL
Appeal No. 37/2014
[Under Section 53-B of the Competition Act 2002 against the order dated
11.03.2014 passed by the Competition Commission of India in suo moto case no.
02 of 2013 and Reference case no. 1 of 2013]
]
CORAM
Hon’ble Mr. Justice G.S. Singhvi
Chairman
In the matter of:
Bengal Chemist & Druggist Association Ltd. & Ors.
...Appellants
Versus
Competition Commission of India &Ors.
Appearances:
…Respondents
Shri Ramji Srinivasan, Senior Advocate with Shri Nakul Mohta,
Ms. Sara Sundaram, Ms. Pinki Addy and Shri Dev Mukherjee,
Advocates for the Appellants.
Shri Abhishek Yadav, Advocate for Competition Commission
of India, Respondent No. 1.
Shri Sachin Das, Advocate for Respondent No. 2
ORDER
Shri Sachin Das, learned counsel for Respondent No. 2 requests for an
adjournment on the ground that the arguing counsel is not available due to some
demise in his family.
Learned counsel for the appellants and other respondents say that they do
not have any objection.
List on 24th July, 2015.
[G.S.Singhvi]
Chairman
28th April, 2015
5
COMPETITION APPELLATE TRIBUNAL
Appeal No. 42/2014 and I.A. No. 50/2014
[Under Section 53-B of the Competition Act 2002 against the order dated
11.03.2014 passed by the Competition Commission of India in suo moto case no.
02 of 2013 and Reference case no. 1 of 2013]
]
CORAM
Hon’ble Mr. Justice G.S. Singhvi
Chairman
In the matter of:
Bengal Chemist & Druggist Association Ltd. & Anr.
...Appellants
Versus
Competition Commission of India &Ors.
Appearances:
…Respondents
None for the Appellants.
Shri Abhishek Yadav, Advocate for Competition Commission of
India.
Sachin Das, Advocate for Respondent No. 3.
ORDER
Shri Sachin Das, learned counsel for Respondent No. 3 requests for an
adjournment on the ground that the arguing counsel is not available due to some
demise in his family.
Learned counsel for the appellants and other respondents say that they do
not have any objection.
List on 24th July, 2015.
[G.S.Singhvi]
Chairman
28th April, 2015
6
COMPETITION APPELLATE TRIBUNAL
Appeal No. 52/2014I.A. No. 72/2014
[Under Section 53-B of the Competition Act 2002 against the order dated
02.04.2014 passed by the Competition Commission of India in case no 5/2014 ]
CORAM
Hon’ble Mr. Justice G.S. Singhvi
Chairman
In the matter of:
TDI Fun Republic Shop Owner Welfare Association
...Appellant
Versus
E-City Property Management & Services Pvt. Ltd. & Ors.
Appearances:
…Respondents
Shri Amardeep Singh Kohli, President of the Appellant
Association.
Ms. Shyel Trehan, Advocate for Respondent 1 to 3.
ORDER
Shri Amardeep Singh Kohli says effective negotiations have not been
possible for last more than one month. Ms. Trehan says that she will ensure that
the parties sit across the table and try to amicably resolve their disputes/differences.
With a view to enable the parties to explore the possibility of amicable
settlement, hearing of the appeal is adjourned to 24th July, 2015.
[G.S.Singhvi]
Chairman
28th April, 2015
7
COMPETITION APPELLATE TRIBUNAL
Appeal No.40 /2015 and I.A. No. 65/2015
[Under Section 53-B of the Competition Act 2002 against the order dated
01.10.2014 passed by the Competition Commission of India in case no. 38/2014]
CORAM
Hon’ble Mr. Justice G.S. Singhvi
Chairman
In the matter of:
Manoj Gupta & Anr.
...Appellants
Versus
State Industrial and Infrastructure
Development Corporation Ltd.,
Panchkula Haryana & Anr.
Appearances:
…Respondents
Shri Anil Kumar Aggarwal, Advocate for the Appellant.
Ms. Kiran Ahlawat, Advocate for Respondent No. 1.
Shri Kamal Sultanpuri, Deputy Director (Law), CCI,
Respondent No. 2.
ORDER
Ms. Ahlawat, learned counsel for Respondent No. 1 requests and her client
is allowed six weeks time to file reply to the memo of appeal.
Rejoinder may be filed within next two weeks.
List the appeal for final hearing on 23rd July, 2015.
[G.S.Singhvi]
Chairman
28th April, 2015
8
COMPETITION APPELLATE TRIBUNAL
Appeal No. 14/2014
[Under Section 53-B of the Competition Act 2002 against the order dated
05.11.2013 passed by the Competition Commission of India in case no. 78.2011]
CORAM
Hon’ble Mr. Justice G.S. Singhvi
Chairman
In the matter of:
Tamil Nadu Film Exibitors Association
...Appellants
Versus
Competition Commission of India & Anr.
…Respondents
Appearances: Shri Vaibhav R. Venkatesh, Advocate for the Appellant.
Shri Pankaj Seth, Advocate for Respondent No. 1.
Shri Harshvardhan Jha, Advocate for Respondent No. 2.
ORDER
Further arguments heard. The appeal is allowed and the impugned order is set
aside.
See separate reasons.
[G.S.Singhvi]
Chairman
28th April, 2015
9
COMPETITION APPELLATE TRIBUNAL
NEW DELHI
Appeal No.14/2014
[Under Section 53-B of the Competition Act 2002 against the order dated
05.11.2013 passed by the Competition Commission of India in case no. 78/2011]
CORAM
Hon’ble Mr. Justice G.S. Singhvi
Chairman
In the matter of:
Tamil Nadu Film Exhibitors Association
DR Mailigai, No.2 (Old No.16), Poes Road,
III Street, Teynampet, Chennai-600018.
...Appellant
Versus
1.
Competition Commission of India
Represented by its Secretary,
Hindustan Times House,
(3rd, 4th and 7th Floor),
18/20, Kasturba Gandhi Marg,
New Delhi – 110001.
2.
Reliance Big Entertainment Private Limited,
6th Floor, 49/50, Maruthi Chambers,
Veera Desai Extension Road,
Off New Link Road,
Andheri (W), Mumbai-400053.
Appearances:
…Respondents
Shri Vaibhav R.Venkatesh, Advocate for the Appellant
Shri Pankaj Seth, Advocate for Respondent No. 1
Shri Harsh Jha, Advocate for Respondent No. 2
ORDER
Whether the findings and conclusion recorded by the Director General (DG),
which were approved by the Competition Commission of India (for short, ‘the
Commission’) that the appellant is in a dominant position vis-à-vis its members and
abused that position for preventing the screening of film ‘Osthe’ (Tamil remake of
Hindi movie ‘Dabangg’) and thereby violated Section 3(3)(b) read with Section 3(1)
of the Competition Act, 2002 (for short ‘the Act’) are legally sustainable is the
question which arises for consideration in this appeal filed against order dated
10
05.11.2013 passed by the Commission in Case No. 78 of 2011 titled M/s Reliance
Big Entertainment Pvt. Limited and Tamilnadu Film Exhibitors Association.
2.
The Facts:
(i)
The appellant is registered under the Tamilnadu Societies Registration
Act 1975. A large number of theater owners in Tamilnadu are its members.
Respondent No. 2, Reliance Big Entertainment Private Limited is a company
incorporated under the Companies Act, 1956 and is engaged in the business
of production and distribution of cinematographic films.
(ii)
In March 2011, M/s Balaji Studios Private Limited entered into an
agreement with M/s Arbaaz Khan Productions Private Limited for remake of
Hindi Movie ‘Dabangg’ with the title ‘Osthe’. On 06.04.2011, M/s Balaji Real
Media executed an agreement with M/s Balaji Studios Private Limited and
acquired the right of producing remake of ‘Dabangg’.
After another 31/2
months, M/s Balaji Real Media signed an agreement dated 28.07.2011 with
Respondent No. 2, for joint production of film ‘Osthe’ at a cost of Rs.23
crores.
As per the agreement, 15 crores were to be contributed by
Respondent No.2 and Rs.8 crores by M/s Balaji Real Media. By Clause 2.11
of the agreement, the distribution rights were exclusively given to
Respondent No.2.
(iii)
Respondent No. 2 sold theatrical rights of the film to Kural TV
Creations Private Limited (hereinafter described as ‘Kural TV’) for a sum of
Rs. 20 crores and satellite rights to Sun T.V. Network Limited (hereinafter
described as ‘Sun TV’) for a sum of Rs. 4.5 crores.
(iv)
Film ‘Osthe’ was released in more than 400 theaters in the State of
Tamilnadu on the scheduled date i.e. 08.12.2011.
Subsequently, it was
released in the remaining theaters.
(v)
Seven days before scheduled release of the film, Respondent No. 2
filed a complaint with the allegation that the appellant had prevented
release/screening of film ‘Osthe’ on the scheduled date and thereby
11
contravened Sections 3 and 4 of the Act. Respondent No.2 averred that the
appellant enjoys dominant position in the relevant market and it has abused
that position for preventing release of film ‘Osthe’. The substratum of the
case set up by Respondent No.2 is discernible from the averments contained
in paragraphs – 11 to 16 of the complaint which are reproduced below:
“11.
However, on 29th November, 2011, the Complainant was
shocked to receive an email of the even date from Mr. T.Rajhendherr,
the M.D. of Kural T.V. Creations Pvt. Ltd. Informing the Complainant
that the Respondent has decided not to screen the said Film in any of
the screens of its members since the said Film’s Satelliate Rights are
granted to Sun TV Network Ltd. Along with this email, Mr.
T.Rajhendherr has also annexed the copy of the letter dated 24th
November 2011 issued by the Respondent to its theatre members. In
this email, Mr. T.Rajhendherr has also expressed its inability to block
and book the theatres because of the same. Hereto annexed and
marked Exhibit D is the copy of the said email dated 29th November
2011 addressed to Mr. Mahesh Ramanathan of the Complainant by
Mr. T.Rajhendherr, the M.D. of Kural TV Creations Pvt. Ltd.
12.
The Complainant thereafter has also received an email dated
29th November 2011 from Mr. Ashok Kumar of PVR Cinemas, (PVR
Cinemas is one of the members of the Respondent) wherein Mr.
Ashok Kumar has forwarded the letter dated 24th November 2011
addressed to it by the Respondent asking PVR Cinemas to check with
the Respondent before confirming the said Film and another film
“Mambattian”. Hereto annexed and marked Exhibit E is the copy of
the said email dated 29th November 2011, forwarded to Mr. Vinodh
Raghvan of the Complainant by Mr. Ashok Kumar of PVR Cinemas,
which
email
was
then
internally
representatives of the Complainant.
forwarded
between
the
12
13.
In this regard, the Complainant states that the Complainant has
learnt from the various newspaper articles that “Sun Pictures”, a film
production and distribution company and a group company of Sun
T.V. Network Pvt. Ltd. owes some money to few of the members of
the Respondent and in order to recover this money from Sun Pictures,
the Respondent has decided to ban all the films which are either
produced or distributed by Sun Pictures or even the films whose
Satellite Rights are granted to Sun TC Network Ltd. Hereto annexed
and marked are some of the newspaper cuttings detailing the issue
between Sun Pictures and the members of the Respondent. Hereto
annexed and marked Exhibit F (collectively) are the various
newspaper articles regarding the ban of films in theatres wherein
satellite rights of films have been assigned to ‘Sun TV Network Ltd.”
14.
The Complainant states that banning the Complainant’s said
Film in the theatres in Tamil Nadu despite the fact that Sun Pictures is
not even remotely associated with the Complainant’s film “Osthe” and
therefore there are no claims or encumbrances of the Respondent’s
members against the Complainant’s film “Osthe” and just because the
Satellite Rights of the said Film have been granted to Sun TV Network
Ltd., is highly unfair and clearly amounting to the violation of the
provisions is highly unfair and clearly amounting to the violation of the
provisions of the Competition Act, 2002.
15.
The Complainant therefore submits that the Respondent is
acting malafidely and in an arbitrary manner by boycotting the said
Film of the Complainant with an effort to secure a claim of their
members against a third party i.e. Sun Pictures. The Complainant
states that the Complainant is not related in any manner whatsoever
with the dues payable by Sun Pictures to the members of the
Respondent. Further there are no claims or encumbrances of the
13
members of the Respondent against the film “Osthe”. Therefore the
act of the Respondent to ban the said Film of the Complainant is clear
abuse of dominant position by the Respondent.
16.
The Complainant therefore states that the cartelized form of
association of exhibitors in the form of the present Respondent
deserves to be broken up since extra constitutional powers have been
reposed in the hands of a body of persons in the form of a cartel who
then abuse its dominant position in the territory it controls by issuing
directives which are against the provisions of the competition Act,
2002 and also attracting the Fundamental Rights protected under the
Constitution of India. The freedom to deal with exhibitors is hereby
completely restrained by the Respondent in an unfair and arbitrary
manner. The Complainant states that the Complainant has expended
crores of Rupees towards acquisition of the distribution rights and
marketing of the said Film. However, the Complainant states that now
since the said Film is slated for release in theaters on 8th December,
2011, the Respondent has suddenly become active and has started
pressurizing the Complainant by issuing directions to its members to
not to exhibit the said Film without taking the permission of the
Respondent. In any case, the Complainant states that the commercial
exploitation rights of the said Film “Osthe” are owned by the
Complainant and the theatrical distribution rights have been licensed
by it to Kural TV Creations Pvt. Ltd., Satellite Rights of the said Film
have been granted to Sun TV Network Ltd. and therefore there is no
organic or inorganic connection of the Complainant with respect to the
purported claim of the members of the Respondent against Sun
Pictures.”
(These paragraphs have been reproduced from the complaint without
any correction)
14
3.
After examining the complaint, which was treated as an information under
Section 19(1)(a) of the Act, the Commission formed prima facie opinion that it was a
fit case for investigation. Accordingly, it passed order dated 08.12.2011 under
Section 26(1) of the Act and directed the DG to make investigation into the
complaint. However, the prayer made by Respondent No. 2 for grant of interim
injunction restraining the appellant from interfering with the release of film ‘Osthe’
was rejected.
4.
The DG entrusted the investigation to the Joint Director General (Joint D.G.).
The latter issued notice dated 23.12.2011 to the appellant incorporating the
allegation of abuse of dominant position and directed it to furnish certain information
and documents.
The appellant sent reply dated 10.01.2012 and denied the
allegation of abuse of dominance. Along with the reply, the appellant annexed a
copy of the Memorandum of Association and By-Laws/ Rules and prayed for grant
of time to produce other documents on the ground that the same were in Tamil and
were required to be translated into English. The relevant portions of the reply are
reproduced below:
“As many of the documents of which copies have been asked to be
submitted by us are in Tamil and voluminous, like Minutes of the Meeting,
Special
meetings,
agendas,
resolutions
and
directions issued
and
correspondence with members of the association during 1.7.2011 to
31.12.2011 they are required to be translated into English before they could
be furnished to you with copies as required by you. We are arranging to
gather them and get them translated into English and we will furnish them
shortly as soon as they could be gathered and translated.
In the meantime as your good self was pleased to grant us time only till 12th
January 2012, we are herewith furnishing the following immediately available
documents and informations:Our Association is a Society registered under the societies Registration Act’
1975. It was registered as No. 45/87.
15
Its main object are to develop the Film industry in all its branches in particular
reference to exhibition in Tamilnadu and to work in conjunction with other
similar Associations.
Other objects of the Associations are categorized
under Clause 3 of the Articles of Association which are mainly to watch,
protect and extend the rights and privileges of the member exhibitors. A
copy of the Memorandum of Articles of Association as it originally stood as
well as subsequently altered and amended are furnished herewith for your
kind perusal.
With reference to the other information sought for, we wish to humbly submit
Sir, that the association never imposed terms and conditions on the
exhibitors and distributors that too restricting their free trade and profession
at any time. The association used to make necessary representation before
the exhibitors and distributors representing the grievances of its members
and to negotiate and obtain redressal of their grievances as the main aim of
the association is to protect their rights and privileges of its members.
We undertake to furnish other information sought for in your notice under
reply while submitting the other copies of documents as required by you in
your notice in due course of time. The name of the office bearers of the
association are as furnished in the present covering letter.
We request your good self in the circumstances to grant us extension of time
at least by 4 weeks from 12.1.2012 before which date we will comply with
your notice in full to your entire satisfaction.”
5.
After about one month and fifteen days, the Joint D.G. sent communication
dated 27.02.2012 and called upon the appellant to furnish documents specified in
the earlier notice. The appellant furnished copies of some of the documents along
with letter dated 07.03.2012 and emphasized that no restriction had been imposed
on the release of the film. According to the appellant, circular dated 24.11.2011
was sent to PVR Cinemas only to verify the entertainment tax status. For the sake
of reference, letter dated 07.03.2012 is reproduced below :
16
“To
The Joint Director General
Office of the Director General,
Competition Commission of India
Room No. 307 – ‘B’ wing
HUDCO, Vishala – 14, Bhikaji Cama Place
New Delhi – 110 066
Dear Sir,
Sub : Reply to your Notice No. DG/CCI/WI/27.2011 dated 23.12.2011 and
also your letter F.No. DG/CCI/IVV/1/27/2011/0358 (Case No.
78/2011).
-----1. We wish to state that the Tamil Nadu Film Exhibitors’ Association is a
Society registered under the Tamil Nadu Societies Registration Act, 1975
and the main object of the Association is to act as a body for the welfare
and development of its members and have a forum to represent to
Government in respect of matters affecting the film industry.
2. We understand that M/s Reliance Big Entertainment has filed information
under Section 19 of the competition Act, 2002 before the Hon’ble
Competition Commission of India and Notice under Section 36(2) read
with Section 41(2) of the Competition Act has been issued to our
Association calling for a certain informations:
3. In this context, the information called for is given below:Copy of Memorandum of Association and Rules have already been sent
to you vide our previous reply dated 10.1.2012.
In so far as Minutes of Meeting are concerned, all our deliberations are in
Tamil language and the minutes are also prepared in Tamil.
We are arranging for English translation of the minutes and shall send the
same as soon as it is obtained.
The true copy of the financial Statements of our Association for the year
2010-1011 is enclosed herewith (See ANNEXURE 1)
17
(iv) We hereby expressly deny that we impose terms and conditions on
exhibitors and distributors restricting them in carrying on free trade and
profession. We do not impose any restrictions on distributors or exhibitors
and our objective is only to address issued affecting the film industry.
(v)
Distributors and Exhibitors release films on their own and we do not
prevent any exhibitor from exhibiting the movie or distributor from distributing
the movie. Decisions are taken by them based on the commercial reasons
and on their assessment of the potential for the movie to generate revenue.
In fact, distributors are not members of our Association.
(vi)
Cinema Theatres are liable to pay Entertainment Tax to the State
Government. In the earlier regime, all movies which had its title in Tamil
language are exempted from Entertainment Tax.
The Government had
formed a Committee which will examine whether the title is in Tamil language
and qualifies for exemption. After the change in regime, an announcement
was made that the exemption would not be simply based on title being in
Tamil language but also after verifying whether the movie meets the
requirements of Tamil Culture and decency.
(vii)
Government of Tamil Nadu issued G.O. No. 89 dated 21.07.2011
(English Translation form part of Annexure – 2 whereby the exemption was
subject to additional conditions i.e.
The Movie must have received ‘U’ Certificate from the Censor Board.
The essence of the story must be conducive to growth of tamil language and
tamil culture.
Except to the extent of requirement of the movie, usage of language other
than Tamil in the movie must be minimal.
Scenes involving violence and obscenity should not be predominant.
(viii)
Subsequently a Committee was constituted by Government of Tamil
Nadu vide their G.O.No. 2 dated 03.01.2012 (See Annexure – 3) comprising
18
of eminent members from the film industry to examine the meeting of the
eligibility criteria for the grant of Entertainment Tax exemption.
(ix)
There was confusion about
applicability of Entertainment Tax
exemption due to policy change which added various additional criteria and
the mechanism for clearance based on satisfaction of such criteria was not
created in 2011. The Association only requested the members to check with
the Association since there was doubts as to whether the term ‘Osthe’ was in
Tamil word, eligibility criteria for exemption, whether entertainment tax should
be paid or not. Similarly, in respect of the movie ‘Mambatiyan’ the doubts
with reference to entertainment Tax applicability which is the responsibility of
the theatres.
(x)
The letter to PVR Cinemas dated 24.11.2011 was only to verify the
Entertainment Tax status and not for no other reasons. Further, the movies
‘Osthe’ and ‘Mambatiyan’ were released on the dates announced as release
dates all over Tamil Nadu and there were no restrictions in the exhibition of
the movies.
(XI)
There is no contravention of the Competition Act, 2002 and our
Association does not have any dominant position as an enterprise for
invoking Section 19. Our revenue itself would show the size and for the year
ending 31.03.2011 our total subscription collected is only Rs.22,500/- and the
association is surviving based on Voluntary Contribution and bank interest.
When the factors referred to Section 19(4) are applied it can be seen that we
do not have any dominant position for the purpose of further inquiry.
We would be glad to provide any other information and humbly pray that all
proceedings may be dropped.
Thanking you,
Yours faithfully
(R. Panneerselvam)
General Secretary
Encl. As Above.”
19
6.
The aforesaid reply did not satisfy the Joint D.G., who issued notice dated
06.03.2012 under Section 36(2) read with Section 41(2) of the Act and threatened
the appellant that its failure to comply with earlier notices may lead to imposition of
penalty. Thereupon, the appellant submitted audited financial statement for the
years 2004-2005 to 2009-2010 and other documents mentioned in the notice.
7.
In the course of investigation, the Joint D.G. issued letters to PVR Cinemas,
Kural T.V. and Sun T.V. and called upon them to furnish specified information. The
Joint D.G. also recorded the statements of Mahesh Ramanathan, Chief Operating
Officer of Respondent No. 2 and Rm. M. Annamalai (President of the appellant) and
Shri R. Panneerselvam, (General Secretary of the appellant), collected documents
from different sources and submitted report dated 30.03.2012 with the findings that
the appellant was in a dominant position and it had abused that position for
preventing the release of film ‘Osthe’ on the scheduled date. In the opinion of the
Joint D.G. this conduct of the appellant was anti-competitive and amounted to
violation of Section 3(3)(b) of the Act. Chapter 6 and 7 of the report (in all there are
7 chapters) which contain discussion on the issue of contravention of the provisions
of the Act and conclusions are reproduced below:“6.
Discussion on the infringement of provisions of Competition Act
Infringement of provisions of Section 3 of the Act.
6.1.
During the course of investigation, the issue as to whether the conduct
of opposite party resulted in infringement the provisions of the Act has been
examined.
For this purpose, the conduct and constitution of these
associations was examined with reference to the provisions of Section 3 of
the Act.
6.2
The provisions of Section 3(1), 3(2) and 3(3) of the Competition Act,
2002 reads as under:“Anti-competitive agreements
20
3(1)
No enterprise or association of enterprises or person or
association of persons, shall enter into any agreement in respect of
production, supply, distribution, storage, acquisition or control of
goods or provision of services, which causes or is likely to cause an
appreciable adverse effect on competition within India.
3(2)
Any agreement entered into in contravention of the provisions
contained in subsection (1) shall be void.
3(3)
Any
agreement
entered
into
between
enterprises
or
associations of enterprises or persons or associations of persons or
between any person and enterprise or practice carried on, or decision
taken by, any association of enterprises or association persons,
including cartels, engaged in identical or similar trade or goods or
provisions of services, which(a) directly or indirectly determines purchase or sale prices;
(b) limits or controls production, supply, markets……investment
or provisions of services;
(c) shares the market or source of production or provision of
service by way of allocation of geographical area of market,
of type of goods or services, or number of customers in the
market or any other similar way;
(d) directly or indirectly results in bid rigging or collusive
bidding, shall be presumed to have an appreciable adverse
effect on competition;
Provided that nothing contained in this sub-section shall apply to any
agreement entered into by way of joint ventures if such agreement
increases efficiency in production, supply, distribution, storage,
acquisition or control of goods or provision of services.
Explanation:- For the purposes of this sub-section, “bid rigging” means
any agreement, between enterprises or persons referred to in sub-
21
section (3) engaged in identical or similar production or trading of
goods or provision of services, which has the effect of eliminating or
reducing competition for bids or adversely affecting or manipulating
the process for bidding.”
6.3
The application of the aforesaid provisions of section 3 was
critically analyzed to ascertain whether the opposite party had acted in
any manner to contravene any provision of section 3 of the Act.
6.4
The findings in this case as mentioned in chapter 5 clearly
prove that conduct of the opposite party infringes the provisions of
section 3 of the Act. Its decision to not screen and not cooperate with
certain films or distributors/producers or other stakeholders amounts
to contravention of section 3(3) of the Act. Its activities have resulted
in restriction in the market. The Association collectively decided not to
have any dealing with a person who does not agree with the directions
of the Association.
Thus based on the practice of non-
cooperation……distributors, the association is found to be indulged in
the anti-competitive conduct.
Its conduct ultimately impedes
competition in the market.
6.5
The inquiries have revealed that the opposite party has taken
decisions as well as given directions to its members to not deal with a
particular person of film.
The association has imposed certain
restrictions to limit the market of film exhibition business in Tamil
Nadu.
6.6.
The activities of any Association should not be intended to
restrain competition or to harm consumers. But, the purpose of the
Association should be to promote competition and to benefit
consumers.
Neither the Association nor any of its committees or
activities should be used for the purpose of bringing about or
attempting to bring about any understanding or agreement, written or
22
oral, formal or informal, express or implied, between and among
competitors with regard to their prices, terms or conditions of sale,
distribution, volume of production, territories, customers, or credit
terms. Each member of the Association is obliged and required to
exercise its independent business judgment in pricing its services or
products, dealing with its customers and suppliers, and choosing the
markets in which it will compete. No activity or communication of the
Association or any of its members, in connection with their
participation in the Association, shall include any discussion or
statement which could reasonably be construed as an agreement or
understanding among members to refrain, or to encourage other
members to refrain, from purchasing any raw materials, product,
equipment, services or other supplies from any supplier or from
dealing with any supplier. In the instant case, it is noted that the
members who are engaged in the similar trade, discuss conditions of
market and also keep watch over each other. This may give rise to
competition concerns since if the market trends and activities are
discussed, the members using the association as platform may also
decide on their marketing strategies, price etc.
6.7
It may be mentioned that the recommendations made by an
association are deemed to be arrangement between the members of
the association.
Decisions by associations of undertakings or
concerted practices which may affect the competition in India are
subject to scrutiny by the competition authorities. Further, in terms of
section 2(b), agreement has been defined as under:“Agreement” includes any arrangement or understanding or
action in concert, -(i)
Whether or not, such arrangement, understanding or
action is formal or in writing; or
23
(ii)
Whether or not such arrangement, understanding or
action is intended to be enforceable by legal proceeding;
Thus for the purpose of the Competition Act the arrangements and
actions of the association are very well covered under the meaning of
agreement.
6.8
It is noted that the intent of members of association is to
collectively keep watch, inform each other of the developments of the
market conditions and take decisions accordingly.
Further, the
conduct of opposite parties clearly shows that they are exercising their
authority to regulate entries and exits and also has the power to
impose heavy penalties for re-admission of the members.
Thus,
realizing that the association has the authority to boycott and penalize,
members obey the directions and orders of the Association.
6.9.
The activities of the opposite party have the elements of
potential competitive harms which may restrict freedom of trade in the
market.
When seen under the conditions of Section 19(3) of the
Competition Act, 2002, these conducts do not bring any efficiency of
any other possible defense for imposing such conditions/decision on
its members.
The decisions of boycott or non-cooperation by
Associations cannot be justified a mode of recovery of outstanding
payments of its members.
Such decisions and conducts are
presumed to be anti-competitive under the Act.
6.10. ….party, information received from the informant and its
analysis with reference to the reply received from the opposite party, it
was found that opposite party has indulged in anti-competitive conduct
of giving directions to its members and putting restrictions on the
release of films, and controlling the film exhibition business, in the
stated geographical territory.
24
In view of the discussion in foregoing paras, it is established
that the conducts of OP care anti-competitive and violate the
provisions of section 3(3) of the Act.
CHAPTER - 7
Conclusion
7.1
The allegations relating to infringement of the provisions of the
Competition Act have been found to be correct against the opposite
party. Its practices and conduct have been found to be restrictive in
nature to control the film exhibition business. The tools adopted by
the association to settle the disputes between the affected parties are
not in conformity with the law.
Instead of creating a legitimate
mechanism to settle the disputes, it has been found that the
association is coercing the producers/distributors or members to follow
its decisions.
7.2
In this case also the OP has been found restricting the market
of film Exhibition in the territory of Tamil Nadu by taking decision to not
screen film OSTHE unless its directions are obeyed.
The
investigation has clearly established that the conduct was to restrict
and control the market of film exhibition in the state of Tamil Nadu.
7.3
The details of anti-competitive activities of the opposite party
have been enumerated in chapter 5 of this report which proves that
the allegations levelled against it are correct. The conduct of OP are
found to in violation of the provisions of section 3(3)(b) of the Act.”
The report may kindly be placed before the Competition
Commission of India for consideration.”
8.
The Commission considered the report of the Joint D.G. and directed that a
copy
thereof
may
be
supplied
to
the
appellant
to
enable
it
to
file
objections/suggestions. The appellant filed detailed objections to challenge the
finding recorded by the Joint D.G. on the issue of violation of Section 3(3)(b) of the
25
Act by asserting that the same is not based on any legally admissible evidence.
The appellant asserted that the statement made by Shri R. Panneerselvam
(General Secretary of the Association) at the press conference represented his
personal view and the same cannot be relied upon for recording a finding that the
appellant had abused its dominant position. The appellant also pointed out that film
‘Osthe’ had been screened in more than 400 theaters on 08.12.2011 and this was
sufficient to prove that the allegation of abuse of dominant position was baseless.
9.
The Commission referred to the documents produced by Respondent No.2
before the Joint DG, the video of the press conference addressed by
Shri R.
Panneerselvam and approved the findings and conclusion recorded by the Joint
D.G. on the issues of abuse of dominant position of the appellant and contravention
of Sections 3(3)(b) and 3(1) of the Act. The reasons recorded by the Commission
for recording its concurrence with the Joint DG are contained in paragraph 36 to 41,
43 and 44 of the impugned order, which are extracted below:
“36.
As noted by the DG, the opposite party was not able to furnish any
comment on the statements made by Shri Panneersalvam, General
Secretary of TNFEA in the press conference held on 03.12.2011 despite
grant of sufficient time after the examination of Shri Rm. M. Annamalai,
President, TNFEA on 21.03.2012. He sought time for submission of
comments. The office of the DG communicated that the reply should be
submitted by 29.03.2012. However, no explanation/reply was furnished.
From this, the DG rightly concluded that the opposite party had no plausible
explanation of its conduct and its decision not to screen the film Osthe stood
established.
37.
In the objections to the repot of the DG, TNFEA took exception to the
reliance placed upon the transcript of the press conference of the General
Secretary of the opposite party association without verifying about the
original CD as well as the mode of transcript. Such a plea is thoroughly
misplaced. It may be noted that the video of the press conference of Shri
26
Panneerselvam, General Secretary of TNFEA held on 03.12.2011 was
shown to Shri Rm. M. Annamalai, President, TNFEA during recording of his
statement. After watching the video, Shri Annamalai sought time to state
position on the issue, which was not done.
38.
In such circumstances, when the statements made by Shri
Panneerselvam, General Secretary of TNFEA in the press conference held
on 03.12.2011 were not denied or disputed or repudiated, it does not lie in
the mouth of the opposite party association to take such pleas.
39.
Apart from the above, the DG also gathered other evidences including
the letter dated 24.11.2011 issued by TNFEA to PVR Cinemas asking it to
contact the Head Office of TNFEA before exhibiting the film Osthe. The
explanation advanced by TNFEA was that the letter merely put the films on a
watch-list and was in no way restrictive of any business pr trade. It was
contented that the Tamil Nadu Government had enunciated a policy of giving
30% Entertainment Tax benefits to the films on certain conditions and
therefore it was paramount duty of the opposite party association to inform its
members that the Government was not in favour of giving Entertainment Tax
benefits to films made from other language such as Osthe which is a remake
of the Hindi Film Dabbang. This was sought to be advanced as the entire
intent behind the letter of the opposite party association.
41.
On a careful examination and analysis of the material on record, the
Commission holds that the impugned conduct of the opposite party
association was anti-competitive in as much as it limited/controlled the
supply/provision of services being in contravention of the provisions of
sections 3(3) (b) read with section 3(1) of the Act.
43.
Thus, in case of agreements as listed in section 3(3) of the Act, once it
is established that such an agreement exists, it will be presumed that the
agreement has an appreciable adverse effect on competition, the onus to
rebut this presumption would lie upon the opposite party.
27
44.
In the present case, the opposite party association could not rebut the
said presumption. It has not been shown by the opposite party association
how the impugned conduct resulted into accrual of benefits to consumers or
made improvements in production or distribution of goods in question.
Further, the opposite party could not explain as to how the said conduct did
not foreclose competition.”
10.
The Commission then referred to the directions given in Case Nos. 52 and
56 of 2010 and imposed penalty of Rs.43,393.04 on the appellant. This is evident
from paragraphs 48 and 49 of the impugned order, which reads as under:
“48. The Commission is also not oblivious of the fact that in the recent
past, the Commission had occasion to examine the conduct of trade
associations operating in film industry involving the analogous issues. The
Commission vide its order dated 16.02.2012 in case Nos.52 and 56 of 2010
imposed penalty upon the film association @ 10% of their respective
average receipts income. Besides, the Commission also issued inter alia the
following directions to be observed by the film trade association:
(a)
The association should not compel any producer, distributor or
exhibitor to become its member as a pre-condition for exhibition of their films
in the territories under their control and modify their rules accordingly;
(b)
The association should not keep any clause in rules and regulations
which makes any discrimination between regional and non-regional films and
impose conditions which are discriminatory against non-regional films;
(c)
The rules of restriction on the number of screens on the basis of
language or the manner in which a particular film is to be exhibited should be
done away with;
(d)
Associations should not put any condition regarding hold back period
for release of films through other media like, CD, Satellite, etc. These
decisions should be left to the concerned parties and;
28
(e)
The condition of compulsory registration of films as a pre-condition for
release of any film and existing rules of association as discussed in the
preceding paras of this order on the issue should be dispensed with.”
49.
Taking into consideration the above factors, the Commission has
bestowed its thoughtful consideration on the issue of quantum of penalty.
Considering the totality of facts and circumstances of the present case
including the nature of contravention, the Commission decides to impose a
penalty on the opposite party at the rate of 10% of its average turnover which
has been calculated as per the Income/ Receipts of the association as
evidenced by Income and Expenditure Accounts for the relevant last 3 years
which were submitted by the association :
S.No
1.
11.
Name
Receipts/
Income for
2008-09
Receipts/
Income for
2009-10
Receipts/
Income for
2010-11
Average of
Three Years
Receipts/
Income
TNFEA
Rs.839,779.71
Rs.151,699.57
Rs.250,312.00
Rs.413,930.42
Penalty @
10% of
Average
Receipts/
Income
Rs.41393.04
Shri Vaibhav R. Venkatesh, learned counsel for the appellant argued that the
impugned order is liable to be set aside because the findings recorded by the Joint
D.G. and reiterated by the Commission on the issue of abuse of dominant position
by the appellant and violation of Section 3(3)(b) of the Act are perverse in asmuch
as
both the authorities took into consideration non-existent facts and omitted
relevant facts and evidence. Learned counsel argued that even though the decision
allegedly taken by the appellant not to allow the screening of film ‘Osthe’ and letter
dated 24.11.2011 sent to PVR theaters were most crucial for deciding the issue
relating to abuse of dominance and consequential violation of Section 3 of the Act
and the same were referred to in the statement made by Shri Mahesh Ramanathan,
Chief Operating officer on 13.03.2012 as also the affidavit filed by him, the Joint
D.G. did not invoke the power vested in him under Section 36(2) read with Section
41(2) of the Act to summon those documents. Learned counsel argued that failure
of the Joint D.G. to insist on the production of the document containing the decision
29
taken by the appellant against screening the film has resulted in grave miscarriage
of justice.
Shri Venkatesh submitted that if Mahesh Ramanathan or any other
functionary of Respondent No.2 was called upon to produce the decision taken in
the second meeting of the appellant not to allow screening of the film on the
scheduled date, the concerned person would not have been able to produce the
same because no such decision was taken and no direction was given to the
theatres for not screening the film. Learned counsel pointed out that in terms of the
Bye-Laws/Rules framed by the appellant every decision of the Committee is
required to be reduced into writing, signed by the competent authority and entered
into the relevant books maintained for that purpose and even though no document
containing such decision was produced by Respondent No.2, the Joint D.G.
committed serious illegality by placing reliance upon the oral assertion made by the
General Secretary of the appellant in the press conference for the purpose of
holding that the appellant had issued direction to its members not to screen the film.
In the end, Shri Venkatesh argued that while holding the appellant guilty of violating
Section 3(3)(b), the Joint DG and the Commission omitted to consider the
correspondence exchanged between Respondent No.2, Kural TV and Sun TV, a
perusal of which would have shown that real cause for delay, if any, in the
screening of the film was not the alleged decision taken by the appellant, but the
disputes between Respondent No.2 and Kural TV on the one hand and Respondent
No.2 and Sun TV in the matter of payment of outstanding dues and providing of
necessary technology.
12.
Learned counsel for the respondents supported the impugned order and
argued that the findings recorded by the Joint DG and the Commission on the issue
of violation of Section 3(3)(b) and Section 3(1) of the Act are based on correct
appreciation of the evidence produced by Respondent No. 2 and the statement
made by the General Secretary of the appellant, Shri R. Panneerselvam apart from
the documents obtained by the Joint DG in the course of investigation. Learned
counsel emphasized that by sending letter dated 24.11.2011 to PVR Theatres, the
30
appellant had ensured that film ‘Osthe’ is not screened on 8.12.2011 and this clearly
amounted to abuse of dominant position. They argued that if that letter is read in
conjunction with the statement made by Shri R. Panneerselvam, it becomes clear
that the appellant was in a dominant position and it had abused that position for
ensuring that the film ‘Osthe’ was not released on 8.12.2011. Learned counsel
argued that strong arm tactics adopted by the appellant effectively prevented
screening of the film on the scheduled date and this was a strong evidence of the
abuse of dominance.
13.
I have considered the respective arguments and carefully scrutinized the
records. At the outset, I deem it necessary to observe that even though in response
to notice dated 23.12.2011 issued by the Joint D.G., the appellant had produced a
copy of the Memorandum of Association, which was accompanied by the ByeLaws/Rules regulating its business, neither the Joint DG nor the Commission
bothered to consider the same. They also ignored letters dated 29.11.2011,
03.12.2011, 17.12.2011 and 04.01.2012 filed along with the affidavit of Shri Mahesh
Ramanathan and as will be seen hereinafter, these omissions have caused serious
prejudice to the appellant.
14.
The objects and activities of the appellant are enumerated in Clause 3(f) and
(g) of the Bye-Laws/Rules which reads as under:
“(f)
The objects of the Society shall be as detailed hereunder:
To encourage and develop the film business in all its branches in
particular reference to exhibition in Tamil Nadu and to work in
conjunction with other similar Association.
To encourage and facilitate Film exhibition in all its forms in coordination with the Distribution of films.
To watch, protect and extend the rights and privileges of its Member
exhibitors.
To investigate problems peculiar to the Exhibition of films with a view
to develop the industry.
31
To investigate problems peculiar to the Exhibition of films with a view
to develop the industry.
To conduct an organ or organs for the spread of information regarding
Distribution and Exhibition.
To educate the public in the utility of the films from the social,
industrial, economical and educational point of view.
To maintain a library for the benefits of its Members.
(g)
The activities of the Society are:
To act as a Clearing House of information on all matters in connection
with Exhibitors.
To Act if required, as on Advisory Body to Government Department
concerning the film industry in particular reference to the Exhibition
business.
To Compromise in all disputes concerning distribution and exhibition of
films.
To obtain by combination advantages which could not be obtained by
individual efforts.
To offer its members the amenities of a Social club.
To obtain and furnish statistics regarding Exhibition trade.
To amalgamate promote the Society either wholly or partially with any
other society, institution having objects altogether or in part similar to
those of the Society.
Generally to purchase, take on lease or in exchange hire or otherwise
acquire any movable or immovable properties for the convenience and
use of the Association
To invest and deal with the funds of the Association not immediately
required in such manner as may from time to time be determined by
the Committee consistently with the objects of the Association set out
herein.
32
To promote mutual with co-operation and conciliation between different
sectors, opinions and interest of film industry in general and in the
Exhibition sector in particular to promote commercial Compromise and
conciliation for settlement of disputes and differences.
To make, accept, endorse and execute pronotes, bills of exchange and
other negotiable instruments.
To make and give receipts releases and other discharge for money
payable to the Society.
To do all such other things as are identical and conducive to attending
the above objects.”
15.
Clause 3(h) of the By-Laws/Rules provide that General Secretary of the
Association shall have the powers to sue or to be sued on behalf of the Association.
Clause 3(i) lays down that the General Secretary shall be empowered to give
directions in regard to the day-to-day affairs of the business of the society. The
powers of the Committee are enumerated in Clause 5(m)(1). These clauses read as
under :“3(h) The General Secretary of the Association shall have the power to sue
or to be sued on behalf of the Association.
(i)
The General Secretary shall be empowered to give directions in
regard to the day-to-day affairs of the business of the Society.
5(m) 1.
Subject to the Memorandum of Association and Rules of the
Association the committee shall have the power for the conduct of the
General Management of the business and affairs of the Association
and shall have the power and authority to acquire any property rights
and privileges; to make all purchases and sales; to enter into all
contracts and execute all agreements and other documents for and on
behalf of Association; to institute, conduct, defend compromise, refer
to arbitration and to abandon legal and other proceedings, claims and
33
disputes in which the Association is concerned; to appoint and employ
in or for the purpose of the transaction and management of the affairs
and business of the Association or otherwise for the purpose thereof
and from time to time to appoint, remove or suspend such officers,
assistants, clerks, workman, servants and other employees of,
whatsoever description as they shall think proper, with such power
and duties and upon such terms as to duration of office or
employment, remuneration or otherwise, as they shall think fit; to
appoint legal advisers, solicitors, engineers, bankers and agents for
the Association, to examine and check amounts; to prepare the
annual accounts and reports for submission to the annual general
meeting; to elect any member or members of the Association; to
represent the Association in the Board of Film Censors; Board of
Examiners for cinema operators or of any other Educational courses,
Film Advisory Committee and in any other public or local authorities, in
which the Association is given such right or representation; and to do
all other acts and things usual, necessary expedient and desirable in
the management of the affairs of the Association or in carrying out its
objects.
2.
The Committee may delegate any of their powers to sub-
committees consisting of such members of their body as they may
think fit and they may from time to time revoke and discharge any
such sub-committee either wholly or in part and either as to persons or
purposes but every subcommittee so formed shall, in conducting its
proceedings, conform so far as may be, unless otherwise directed by
the Committee to all such regulations as the Committee may have
prescribed. The Committee shall have also the powers to nominate on
such sub-committee anyone who may not be a member of their own
body or the legal advisors for special assistance. The Office bearers of
34
the Association shall be ex-officio members of such sub-committee.
All acts done by any such sub-committee in conformity with such
regulations and in fulfillment of the purpose of their appointment shall
have the like force and effect as if done by the Committee.
3.
The Committee may also at any time and from time to time by a
resolution delegate any of their powers to the Secretaries and
Treasurer of the Association and all acts done in conformity with such
delegation and in fulfillment of the delegation shall have the like force
and effect as if done by the Committee.”
16.
Clause 6, which mandates recording of the minutes, reads as under:
“The Committee shall have the minutes duly entered in books
provided for the purpose, and of all resolutions and proceedings of
general meetings and all meetings of the committee and subcommittees and all such minutes if purporting to be signed by the
Chairman of such meeting or by the Chairman of the succeeding
meeting shall be receivable as prima facie evidence of the matters
stated in such minutes”
17.
An analysis of the above reproduced clauses of the Bye-Laws/Rules makes it
clear that role of the General Secretary is limited to giving of directions in regard to
the day-to-day affairs of the business of the appellant and the power to conduct
general management of the business and affairs of the Association exclusively
vests with the Committee. This means that any decision on policy matters can be
taken only by the Committee and not by the General Secretary in his individual
capacity. Clause 6 of the Bye-Laws requires that the decision taken in the meetings
of the Committee should be signed by the Chairman of the meeting or by the
Chairman of the succeeding meeting and entered in the books maintained for that
purpose. In other words, the decision taken by the Committee of the appellant is
required to be signed by the designated authority and recorded in the relevant
35
books and only an authentic copy of the minutes can be relied upon as an evidence
of such decision.
18.
If the statement made by Shri R. Paneerselvam at the press conference held
on 03.12.2011 is considered in the light of the relevant clauses of Bye-Laws/ Rules
of the appellant, it becomes crystal clear that he neither had the competence nor
the authority to make any statement on any policy issue and the explanation given
by the appellant that what Shri R. Paneerselvam had said in the press conference
was his personal view and did not reflect the stand of the organization was quite
plausible and should have been accepted by the Joint D.G. and the Commission.
Unfortunately, both the authorities ignored the relevant Bye-Laws and gave undue
weightage to the statement made by Shri R. Paneerselvam in the press conference
for recording a finding that the appellant had abused its dominance and prevented
screening of the film on the scheduled date.
19.
The manner in which the Joint D.G. conducted investigation leads to an
irresistible inference that the entire exercise was undertaken with a predetermination to fix the appellant and hold it guilty of violating Section 3 of the Act.
This inference can be gathered from the following :
(a)
In response to the notice issued by the Joint D.G., Shri Mahesh
Ramanathan appeared on 13.03.2012 and made a statement. The
tenor of question Nos.3 to 5 put to him was clearly loaded against the
appellant and the answers were solicited with the sole object of
implicating the appellant. This is evident from the following extracts of
the statement of Shri Mahesh Ramanathan:
“Q.3: Please give details of the events leading to the anti-competitive
conduct or restrictions imposed by Tamil Nadu Film Exhibitors’
Association during the time of release of the film ‘OSTHE’.
Ans:
Film ‘OSTHE’ was presented by Reliance Entertainment and
produced by Balaji Real Media. The world-wide rights of the
36
film were controlled by Reliance Entertainment. The film was
slated for release on 8th December, 2011.
Reliance Entertainment concluded a distribution deal with Kural
TV for theatrical distribution of the film in Tamil Nadu, Kerala
and Karnataka. Reliance Entertainment also concluded a
broadcast deal with the Sun TV Network for the same film.
Kural TV by virtue of the distribution agreement with Reliance
Entertainment was responsible for booking theatres across
Tamil Nadu for the release of the film. During the process of
booking of theatres, the Tamil Nadu Film Exhibitors Association
issued a notice to its members to refrain from exhibiting
‘OSTHE’ and another Tamil film ‘Mambattiyan’ claiming dues
owed by Sun TV Network to its members. On 24.11.2011,
TNEFA issued a notice to its members asking them to refrain
from exhibiting ‘OSTHE’ without checking with the head office
of the association. In a press conference on 03.12.2011, the
General Secretary of TNFEA clearly stated that the association
will not cooperate with the producer of ‘OSTHE’ for its release
and the theatres will be informed not to screen ‘OSTHE’ unless
Reliance Entertainment terminates its broadcast contract with
Sun TV Network. We are providing a copy of the video clip of
the press conference available on ‘indiaglitz.com’.
The exhibitors, therefore, did not confirm theatres to Kural TV
before 06.12.2011 when the TNFEA decided to grant a grace
period of 60 days to Sun Pictures for setting their dues with
exhibitors. Normally, theatre confirmation is required ideally two
weeks prior to or at the very latest one week before the release
of the film to ensure ideal showcasing. In the light of the
approval coming in from TNFEA just two days before the
37
theatrical release of the film, the film’s release was adversely
affected due to lower number of theatres releasing the film and
also last minute theatre confirmation resulting in shows being
missed on the 8th December, 2011. Therefore, Kural TV
defaulted on its payment to Reliance Entertainment. The
default was to the tune of Rs.2.9 crore which has resulted in a
monetary loss for the film ‘OSTHE’. It is important to note that
neither Reliance Entertainment nor Kural TV owed any money
to any exhibitor interested in exhibiting ‘OSTHE’ and sun TV
Network was also not involved in any manner in the theatrical
release of ‘OSTHE’ in Tamil Nadu. Kural TV is a very
established distribution house with over two decades of
distribution experience. Kural TV had estimated that they would
be able to receive Rs.20 crore as advances from distributors
and exhibitors based on which they entered into a distribution
agreement with Reliance Entertainment for Rs.20 cores
Minimum Guarantee. Due to the uncertainty surrounding the
release the exhibitors and distributors took advantage and
negotiated lower advances/no advances or very minimal or no
minimum guarantee to Kural TV, resulting in Kural TV’s inability
to collect the contracted Rs.20 crore from the market. They
could collect Rs.17.1 crore only which has been paid to
Reliance Entertainment. Therefore, TNFEA diktat to exhibitors
has resulted in a straight business loss of Rs.2.9 crore to
Reliance Entertainment and producer Balaji Real Media.
As explained above, since the film did not have proper release
on 8th December, 2011 due to cancellation of a number of
shows in many theatres and in certain districts, distributor Kural
TV has sustained a loss of the opening week-end collection in
38
almost all centres and theatres. The opening week-end
collection is crucial to the overall performance of the film at the
box office and is normally equated to the lifetime theatrical
share the distributor gets in a film. In the case of ‘OSTHE’, the
distributor’s share was between Rs.9-10 crore, whereas if the
film’s release had not been affected in the opening week-end,
there was every possibility of the distributor’s share going up to
Rs.13-14 crore because there were no films releasing
alongside ‘OSTHE’ and also a week after release of ‘OSTHE’.
Kural TV, therefore, suffered a minimum loss of Rs.3-4 crore
because of the TNFEA action.
Q.4:
What was the impact of the conduct of TNFEA on your deal
with Sun TV? Whether the film has been broadcast on satellite
channels?
Ans: As soon as the Reliance Entertainment got information from its
distributor Kural TV about TNFEA’s notice to exhibitors we sent
a letter to SUN TV Network stating to settle the issue within 48
hours, else we will be constrained to terminate the agreement.
Simultaneously, our producer Balaji Real Media approached
the Producers Council to seek their assistance to resolve the
matter. On 03.12.2011, the producers council met the TNFEA
and other district level associations and issued a joint NOC
mentioning that TNFEA has not imposed any ban on releasing
movie ‘OSTHE’ and there was no hindrance in releasing the
film in any part of Tamil Nadu through the association.
However, TNFEA refused to abide by this NOC and conducted
a press conference on the same day, when the General
Secretary of TNFEA Mr. R Panneerselvam clearly mentioned
that the ban on ‘OSTHE’ would be imposed till the dues of Sun
39
Pictures to exhibitors are cleared or Reliance Entertainment
terminates its broadcast contract with Sun TV Network.
Thereafter on 06.12.2011, TNFEA informed its member
exhibitors orally to go ahead with the release of ‘OSTHE’ as
TNFEA has given a grace period of 60 days to Sun Pictures for
settling their dues with exhibitors. Since the film’s release was
ultimately possible, Reliance Entertainment continued its
broadcast deal with Sun TV Network. The film ‘OSTHE’ is yet to
be telecast on satellite and the world satellite premier on Sun
TV Network is expected in June 2012, as there was a mutual
commercial understanding between Reliance Entertainment
and Sun TV Network about this.
Q.5:
Apart from film ‘OSTHE’, whether you are aware of the
restrictions imposed by TNFEA on other films?
Ans: Besides ‘OSTHE’, TNFEA imposed a similar restriction on
Tamil
film ‘Mambattiyan’ produced by Mr. Thyagrajan, Joy
Alukkas Building, T Nagar, Chennai. We are not aware of any
other instance besides ‘OSTHE’ and ‘Mambattiyan’ where a
state-wide ban on screening a film has been imposed by
TNFEA.
(b)
While putting the aforesaid questions to the representative of
Respondent No.2 (who was none other than the complainant/
informant), the Joint D.G. was definitely aware of the possible answers
and this must have been the only reason why the questions were so
articulated that the only answer would be against the appellant. If any
person of ordinary prudence reads the above reproduced questions
and answers, the only possible inference he will be able to draw is that
the questions were formulated with the sole object of finding fault with
the appellant.
40
(c)
In the statement made by Shri Mahesh Ramanathan before the Joint
D.G. on 13.03.2012, affidavit of the same date filed by him and
correspondence exchanged between Respondent No.2 and Kural TV
before and after release of film ‘Oshte’, repeated reference has been
made to the decision allegedly taken by the appellant for instructing its
members not to screen the movie till the outstanding dues were
cleared by Sun TV. It is also mentioned that sms was sent to the
theatre owners to comply with that decision. Still further a mention
has been made to circular/ letter dated 24.11.2011 sent by the
appellant to its members.
The only possible explanation for non-
exercise of power by the Joint D.G. and the Commission under
Section 36(2) and Section 41(2) could be that if Respondent No.2 was
directed to produce the decision by which screening of the film was
banned or sms sent by the appellant, then it would have exposed
hollowness of the allegations made by Respondent No.2 and in that
event the Joint D.G. and the Commission could not have relied upon
the statement made by Shri R. Panneerselvam in the press
conference and the media reports to support the concurrent finding
recorded by them that the appellant had abused its dominant position
to prevent screening of the film in the theatres.
20.
At the cost of repetition, it needs to be observed that as per the Bye-Laws/
Rules, the decision taken by the appellant is required to be reduced into writing and
entered in the books maintained for that purpose. This being the position, the Joint
D.G. or for that reason the Commission could have summoned the minute book
maintained by the appellant to find out whether it had, in fact, taken a decision to
ban the screening of film ‘Osthe’ on 08.12.2011 and circulated that decision by
sending letters and sms to its members. It is also worth noticing that in response to
the notice issued by the Joint D.G., the appellant had furnished all the relevant
41
papers including the resolutions and minutes of the meeting and none contained a
decision that screening of film ‘Osthe’ should not be allowed in Tamil Nadu. In my
view, in the absence of resolution passed by a competent body of the appellant, the
bald statement made by Shri R. Panneerselvam in the press conference could not
have been relied upon by the D.G. and the Commission for recording a finding that
the appellant had prevented the screening of film ‘Osthe’ on 08.12.2011.
21.
I may now take cognizance of the correspondence exchanged between
Respondent No.2, Kural TV and Sun TV to which reference has been made in the
affidavit dated 13.03.2012 filed by Shri Mahesh Ramanathan.
22.
The first letter referred to in the affidavit of Shri Mahesh Ramanathan was
sent by Respondent No.2 to M/s. Sun TV Network Ltd. imploring the latter to resolve
all pending disputes and pay the outstanding dues.
The letter also contains a
reference to email dated 29.11.2011 sent by Kural TV that the appellant had
decided in their second meeting not to screen the film whose satellite rights were
owned/bought by Sun TV and letters to this effect had been sent to theatres.
Paragraph 4 of that letter reads as under:
“We have been informed by Kural TV Creation Pvt. Ltd. who are the
distributors of the said Film in the territory of Tamil Nadu vide their
email dated 29th November 2011 that the Tamil Nadu Film Exhibitors’
Association has decided again in their 2nd meeting “not to screen” the
films whose Satellite Rights are owned/bough by Sun TV. The Tamil
Nadu Film Exhibitors’ Association has also sent letter to all the theatre
owners to check with the Tamil Nadu Film Exhibitors’ Association prior
to allotting screens to the said Film. Attached is the email dated 29th
November 2011 of Kural TV Creation Pvt. Ltd. and a copy of the Letter
send by Tamil Nadu Film Exhibitors’ Association to a Theatre Owner.
“As the said film is due for first theatrical release on 8th December
2011, we request you to resolve the outstanding dues payable by you
42
within 48 hours of receipt of this notice as it will cause immense
financial loss, loss of reputation and loss of business opportunities to
us in the even the same is not resolved by you.”
23.
The email is sent by the Managing Director of Kural TV to which reference
has been made in the above reproduced paragraph also reads as under:
“Dear Mr. Mahesh
This is to bring to your kind notice that there is a meeting
conducted in Tamilnadu Theatrical Association for the second time
yesterday regarding the SUN Issue. The main issue is that the
Theatre association has decided “Not to screen” the films whose
satellite rights are bought by SUN TV NETWORK.
In connection to this Theatre Association has sent letters to all the
THEATRE OWNERS “NOT TO SCREEN OSTHE” until the issue gets
sorted. We cannot really block and book the theatres with this issue
going around. So please talk to the concern authorities in SUN
NETWORK and get the issue solved, at the earliest.
Please find attached a copy of the Letter sent to Theatre Owners from
the Tamilnadu Theatrical Association.
Thanking you
Best Regards
T.Rajhendherr
Managing Director
Kural T V Creations Pvt. Ltd.”
24.
On 17.12.2011, Kural TV sent a detailed letter to Respondent No.2 making a
grievance that due to ban imposed by the appellant, there was uncertainty about
release of the film. At the same time, it made a grievance that the Respondent No.2
had not provided requisite QUBE, UFO, PXD for smooth screening of the film in
several theaters. The relevant portions of that letter is reproduced below:
43
“In inviting your attention to the above, we are sure that you will
appreciate the fact that we are only distributors, for the film ‘OSTHI’ as
per the agreement dt. 9.11.2011 and the amended agreement dt.
23.11.2011.
Though the MG agreement was entered into on 9.11.2011 and
the amended agreement was entered into on 23.11.2011 and though
the schedule of release of the film was finalized to be released on
8.12.2011, by consent of all, you are well aware that because of
several bans imposed by the Tamil Nadu Theatre Owners Association
as well as by the several Distributors Association, till 6.12.2011
evening, requisite clearance was not obtained by you, inspite of your
best efforts. As a result thereof, till 7.12.2011 (for the scheduled
release on 8.12.2011) we, being the Distributors could not effectively
book and block theatres for the smooth release of the film. Though we
were ready for the smooth release of the film, on 8.12.2011 on paying
the scheduled payment, because of absolute “UNCERTAINTY” over
the release of the said film till 6.12.2011 evening, we had to face lot of
difficulties and you are well aware that but for our efforts through our
good office, the picture would not have been released on 8.12.2011.
2. Further, because of such difficulties, and because of your best efforts
could not achieve the goal for the smooth release of the film, we had
to borrow nearly Rs.9 crores and honoured our commitment for the
smooth release of the film, with a view to have a smooth and cordial
relationship with you. But however, for no fault of us and as you could
not clear the bans imposed by Tamil Nadu Exhibitors Association and
for several Distributors association in Tamil Nadu as well as from
certain financiers, till 6.12.2011 evening, the uncertainty of the release
of the film was very much prevailed in the industry, making the
Theatre Owners not to screen film as scheduled. Even after parting
44
with nearly Rs.16.60 crores, the actual release of the film on
8.12.2011 was not possible and as a result thereof, there were
cancellation of number of shows in may theatres and in certain
districts, the picture was able to be released only on 9.12.2011and as
a result thereof, we have sustained loss of ‘opening collection’ in
almost all centers and theatres.
3. Now as on date, for no fault of us and because of the fact that you
could not successfully lift the several bans imposed by Tamil Nadu
Film
Exhibitors
Association
and
several
Districts
Distributors
association in the State of Tamil Nadu, “well in advance”, we are
facing loss of more than 9 crores.
4. Apart from the above, you have not provided the requisite QUBE UFO
& PXO for the smooth screening of the film in several theatres well in
advance and unnecessarily we had to spend nearly Rs.60 Lakhs on
that score. Necessarily this amount of Rs.60 Lakhs has to be paid
over to us, irrespective of other aspects. If the running of the film is
extended for some more weeks, necessarily the expenses on this
heading will go further and that amount also has to be paid over to us
as it is obligatory on your part to provide all such materials to
Distributors”
25.
The response dated 20.12.2011 sent by Respondent No.2 to the last
mentioned letter of Kural TV is quite interesting. Some of the unmarked paragraph
of that letter which reveal the true cause for the delay, if any, in the release of film
‘Osthe’ are reproduced below:
“It may be noted here that the Tamil Nadu Film Exhibitors Association
(TNFEA) only controls the area of Chengelpeth and limited areas of
Madurai and Salem in territory of Tamil Nadu and does not control the
remaining areas in Tamil Nadu i.e. City, North Arcot, South Arcot,
Coimbatore, TT, TK or the territories of Kerala and Karnataka.
45
Therefore the directions of TNFEA to the theatres in three areas of
Tamil Nadu Territory as mentioned above could not have affected
Kural TV’s booking of the theatres or exhibition of the said film in
theatres in the remaining six areas of Tamil Nadu, Karnataka and
Kerala which is not within the purview or control of TNFEA.
Reliance however took immediate steps on receipt of the aforesaid
email from Kural TV on 29th November 2011 on directions issued by
TNFEA. Firstly Reliance issued a notice to Sun TV on 29th November
2011 and requested them to settle its issues with the exhibitors and to
provide Reliance with No-objection Certificate (NOC) to screen the
said film within 48 hours of receipt of the letter.
In the meanwhile Balaji, the co-producer of the said film visited the
office of the Tamil Nadu Producer’s Council (“Producer’s Council”) on
2nd December 2011 and also submitted a letter before the Producer’s
Council on the same date where they mentioned that the said film
cannot be stopped from being screened as dues of Sun Pictures are
third party dues and are in no way related to the said film. Balaji also
requested the Producer’s Council to call a meeting of the exhibitors
and representatives of Sun Pictures and solve this issue so that eth
theatres can be booked in advance and the said film can be exhibited
in theatres as scheduled on 8th December 2011 in the territories
controlled by TNFEA. At the request of Balaji, the Producer’s Council
again met the Tamil Nadu Film Exhibitors Association, Chennai
Kancheepuram
Tiruvallur District Film Distributors Association,
Chennai City Film Exhibitors Association, Tamil Nadu Exhibitors
Federation, Chennai Chengalppatu. Kancheepuram Film Exhibitors
Association on 3rd December 2011 post discussion issued a joint NOC
that ‘the above mentioned association have not imposed any ban on
releasing the movie ‘Osthe’. Hence there is no hindrance in releasing
46
the movie ‘Osthe’ by all these associations. “thereafter again on 6th
December 2011, a formal NOC was issued by the Producer’s Council
and the Association which stated that the above mentioned
association have not imposed any ban on releasing the movie ‘Osthe’.
Thus even in the limited number of three places in the territory of
Tamil Nadu which was under the control of TNFEA, the ban was lifted
by a NOC issued on 3rd December 2011 and again reconfirmed on 6th
December 2011 and Kural TV had enough time to book the theatres in
these areas for release of the said film on 8th December 2011.
This crucial and huge delay on Kural TV part to make the payments to
Reliance as per the terms of the Amendment Agreement dated 23rd
November 2011 resulted in the prints of the said film not being
delivered to the exhibitors on time because of which the opening show
of the said film was cancelled in the territory and the said film was
finally screened in theatres in the territory from the afternoon shows
onwards on 8th December 2011. The overseas prints of any film is
always dispatched one week before the release of a film and Reliance
was not in a position to stop the release of the film in the overseas
territory once the prints were dispatched to its overseas distributor and
therefore any postponement of release of the said film in India was
out of question. Kural TV was well aware of the urgency of the
situation and the fact that release could not be postponed in India to a
future date. However Kural TV still defaulted on making payments on
time and failed to pay the entire MG amount leading to cancellation of
the opening shows in the theatres in the territory which caused grave
prejudice and huge loss of revenues to Reliance including loss of
credibility and reputation in the market which cannot be compensated
in terms of money.
47
Thus in light of these facts and circumstances of the case, your claim
of losses suffered to the tune of Rs.9,00,00,000/- for delay in release
and ban imposed by TNFEA is false and misleading. As mentioned,
the ban imposed by TNFEA was only with respect to a limited area of
three territories in Tamil Nadu under its control and there was no
hindrance for you to book the theatres in the other areas of the
territory of Tamil Nadu and in Karnataka and Kerala a week in
advance or even before and get the best price on booking. Further the
ban imposed on the three territories was also withdrawn by written
communications signed by the Producer’s Council and TNFEA on 3rd
December 2011 and on 6th December 2011 and Kural TV and more
than 48 hours to book theatres in three territories of Chengelpeth and
limited areas of Madurai and Salem which is controlled by TNFEA
before the release of the said film on 8th December 2011. On the other
hand Reliance has suffered losses of huge sums of money due to
Kural TV’s inability and default in making the payments to Reliance on
the scheduled dates as per the terms of the captioned Agreement and
the subsequent Amendment Agreement forcing cancellation of
opening shows of the said film on 8th December 2011.”
26.
Managing Director of Kural TV sent another email dated 27.03.2012 to the
office of D.G. and reiterated that apart from sending letter dated 24.11.2011, the
appellant had sent sms to the exhibitors and banned screening of the movie and the
ban was withdrawn only on 06.11.2011 leaving only few hours to book the theaters.
27.
Letters dated 17.12.2011 sent by Kural TV and its response by Respondent
No.2 gives an altogether different twist to the story of alleged ban imposed by the
appellant on the screening of film ‘Osthe’. While Kural TV accused Respondent
No.2 of not providing requisite technical know-how for ensuring a smooth screening
of the film and its failure to resolve controversy surrounding Sun TV, Respondent
48
No.2 made it clear that appellant had control only in three areas of Tamil Nadu,
namely – Changelpeth, limited area of Madurai and Salem and not on the remaining
areas i.e. City, North Arcot, South Arcot, Coimbatore, TT, TK or the territories of
Kerala and Karnataka and therefore, the direction given by the appellant could not
have affected booking of theaters in those areas of Tamil Nadu as also the States of
Karnataka and Kerala. Respondent No.2 also accused Kural TV of not making
payments as per the terms of amendment agreement dated 23.11.2011 and
consequential non-delivery of prints of the film on time. Unfortunately, the Joint
D.G. and the Commission completely lost sight of this part of the story and
proceeded to record finding against the appellant only on the basis of statement
made by Shri R. Panneerselvam in the press conference.
28.
I may now revert to the statement dated 21.03.2012 made by Shri Rm. M.
Annamalai (President of the appellant), transcripts of the recording made at the
press conference held by Shri R. Panneerselvam on 03.12.2011, resolution passed
during the meetings of appellant held from 01.07.2011 to 31.12.2011 and minutes of
the meetings held from May 2009 to December 2011. Replies given by Shri Rm. M.
Annamalai to Question Nos.5 to 10 asked by the Joint D.G., which have bearing on
the question whether the appellant had imposed ban on the screening of film
‘Osthe’, are extracted below :“Q.5: Whether your association takes decisions of non-cooperation
with the defaulting producer/ distributor in case of non-payment
to your member exhibitor?
Ans : We don’t take such action, because matters are being settled
amicably.
Q.6:
Please given details of the dispute between SUN TV and your
exhibitor members. What was the role of your association in
this regard?
Ans:
Sun TV had released so many movies either directly or through
distributors. We have screened all their movies and they were
49
avoiding the outstanding payments regarding certain films to
our members.
The association had several talks with the
representatives of Sun TV and giving pressure through several
persons of the film industry. Since they had to release films in
the theatres only who are our members, they ultimately settle
the matter to have cordial relationship.
Q.7:
Whether any ban or boycott or non-cooperation against the
films dealt by Sun TV was imposed by your association to settle
the matter during this process?
Ans:
We have not imposed any ban or non-cooperation or boycott
for pictures dealt by Sun TV.
Q.8:
M/s Reliance Big Entertainment Pvt. Ltd. has alleged that your
association had issued letters to the cinema theatres against
the film ‘OSTHE’. They have also provided us evidence of the
press conference held by your association on 3rd December,
2011 where your General Secretary had issued statement that
the film ‘OSTHE’ shall not be screen in Tamil Nadu. We are
showing you the video clip of the press conference and the
transcript in English submitted by the Informant. The video clip
is also available on public domain on Plus Media.com. Please
explain.
Ans:
I have seen the video of press conference.
Regarding the
statement of Mr. Paneerselvam given on 3rd December, 2011
during the press conference, I have to consult with Mr.
Paneerselvam, who is not feeling well. I will consult with him
and give the correct position in a written submission by
29.03.2012.
Q.9:
Whether you were aware about the above mentioned press
conference of Mr. Panneerselvam.
The informant has also
50
submitted the copies of press reports of this press conference
mentioning the boycott of film ‘OSTHE’. Please explain as to
why on the basis of evidence, the decision and conduct of your
association should not be treated as a restriction on the release
of film in the territory controlled by your association.
Ans:
I was not aware of the press conference given by Mr.
Panneerselvam. The picture ‘OSTHE’ had been released on
the scheduled date fixed by the producer and distributor. There
was no delay in the release of ‘OSTHE’. We have informed our
members to consult with us regarding the film ‘OSTHE’ before
release, because of the tax relief certificate.
Q.10: The informant has stated that the exhibitors on account of your
directions did not confirm theatres to the distributor of the film
M/s Kural TV till 06.12.2011, when your association took
decision to grant a further period of 60 days to Sun Pictures for
settling their dues with exhibitors. They have submitted that
although the ban was orally lifted on 06.12.2011 and the film
was released on 08.12.2011, the delay in confirmation caused
a substantial harm to their business, as their opening was
affected adversely. Please explain.
Ans:
On various occasions, several films have been confirmed even
on the previous day of the release.
So release of the film
‘OSTHE’ scheduled to be released on 08.12.2011 and the
distributor might have confirmed it with the exhibitors and
signed agreement on 06.12.2011. So there was no delay in the
release of the film. Several negotiations have been going on
and on 06.12.2011, the dispute with Sun TV came to a
settlement. This is a usual practice of negotiations between the
associations and as such this case was also dealt and arrived
51
at a conclusion.
This is not a new thing in our industry.
Decisions have been concluded only through negotiations.
There is no loss due to our action on the release of the picture,
since it was released on the scheduled date.”
29.
From the above reproduced extracts of the statement of Shri Rm. M.
Annamalai, it becomes clear that the appellant had not imposed any ban on the
screening of film ‘Osthe’ on 08.12.2011. Not only this, in the opening sentences of
the statement made by him at the press conference, Shri R. Panneerselvam had
made it clear that he was giving his views regarding the crisis, which had emerged
in the industry. He referred to an emergency meeting of the Tamil Nadu Exhibitors
Association held on 09.11.2011, where issue relating to dues owed by Sun Pictures
to exhibitors in Tamil Nadu was discussed. He also referred to the agreement
between Respondent No.2 and Sun TV and stated that notwithstanding the contrary
impression sought to be conveyed by Tamil Nadu Producer’s Council, the screening
of ‘Osthe’ will not be allowed. If the statement made by Shri R. Panneerselvam is
read in isolation, then one may get an impression that what has been spelt out by
him represents the decision of the Association, but if the same is read in conjunction
with what the President of the Association categorically stated in reply to Question
No.7 and various resolutions passed between May 2009 to December 2011, it
becomes clear that the views expressed by Shri R. Panneerselvam were not those
of the association. In any case, whatever stated by him in the press conference
cannot be equated with the decision taken by the Committee of the appellant which,
as mentioned above, is required to be reduced in writing and entered in the books
maintained for the purpose.
30.
As a sequel to the above discussion, it is held that the finding recorded by
Joint D.G. and the Commission on the issue of abuse of dominant position by the
appellant is legally unsustainable.
52
31.
In the result, the appeal is allowed, the impugned order is set-aside and the
complaint filed by Respondent No.2 is dismissed. The amount of penalty deposited
by the appellant shall be refunded to it within three months.
(G.S. Singhvi)
Chairman
28.04.2015