Delhi High Court - Orders
Facebook Inc vs Competition Commission Of India & Anr on 21 June, 2021
Bench: Anup Jairam Bhambhani, Jasmeet Singh
via Video-conferencing
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 164/2021
FACEBOOK INC ..... Appellant
Through: Mr. Mukul Rohatgi, Senior Advocate
with Mr. Naval S. Chopra, Advocate,
Mr. Gauhar Mirza, Advocate, Ms.
Nitika Dwivedi, Advocate and Mr.
Shanatanu Mathur, Advocate.
versus
COMPETITION COMMISSION OF INDIA & ANR. .. Respondents
Through: Mr. Balbir Singh, ASG with Mr.
Samar Bansal, Advocate, Mr.
Anirudh Bakhru, Advocate, Mr.
Shyam Gopal, Advocate, Ms. Monica
Benjamin, Advocate, Ms. Surbhi
Singh, Advocate, Mr. Naman Tandon,
Advocate, Ms. Devahuti Pathak,
Advocate, Ms. Harsheen Madan,
Advocate, and Mr. Sachin Mishra,
Advocate for respondent No.1.
Mr. Varun Pathak, Advocate with Ms.
Mitali Daryanai, Advocate, Ms.
Madhavi Singh, Advocate and Mr.
Thejesh R, Advocate for respondent
No. 2.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 21.06.2021 Signature Not Verified Signed By:SUNITA RAWAT Location: Signing Date:22.06.2021 20:48:09 LPA 164/2021 Page 1 of 6 C.M. No.18799/2021 and 18913/2021 (exemption) Exemptions are allowed, subject to just exceptions; and subject to requisite compliances being made within 01 week of resumption of physical functioning of court.
Applications stand disposed of accordingly. C.M. No.18798/2021 (stay) By way of this application, the appellant/Facebook LLC, seeks stay of notice dated 08.06.2021 issued by the Director General, Competition Commission of India ('DG', for short) as also a restraint against any further action pursuant to order dated 24.03.2021 made by the DG in Suo-Motu case No.1/2021, during the pendency of the present appeal. By way of the Letters Patent Appeal (LPA), the appellant has impugned judgment dated 22.04.2021 rendered by a learned single Judge of this Court, whereby a challenge to order dated 24.03.2021 issued by the DG initiating a certain investigation against the appellant under the provisions of the Competition Act 2002 was rejected.
2. The subject matter of the LPA is, in substance, a challenge to an investigation initiated by the DG to the 2021 Update to the Terms and Privacy Policy of the application/software called 'WhatsApp'.
3. Notice on the LPA was issued by a Division Bench of this court headed by Hon'ble the Chief Justice vidé order dated 06.05.2021.
4. Alongwith the LPA, the appellant had also moved an application seeking interim relief bearing C.M. No.15931/2021, whereby the appellant had sought ex-parte ad-interim stay of operation of impugned judgment dated 22.04.2021 as also a stay against operation of order dated 24.03.2021 made by the DG in Suo-Motu case Signature Not Verified Signed By:SUNITA RAWAT Location: Signing Date:22.06.2021 20:48:09 LPA 164/2021 Page 2 of 6 No.1/2021. On 06.05.2021, the Division Bench had also issued notice on the aforesaid application seeking ex-parte ad-interim relief.
5. Both the LPA and the application seeking interim relief are now posted for 09.07.2021.
6. At this point, it would be relevant to extract the prayers made in C.M. No.15931/2021 and in the present application being C.M. No.18798/2021 :
Prayers made in C.M. No.15931/2021 Prayers made in C.M. No.18798/2021 a. Pass an ex-parte ad interim order a. Pass an ad interim order staying the staying the operation of the Impugned Notice dated June 8, Impugned Judgment and Final 2021, issued by the Director Order dated April 22, 2021, passed General of Respondent No.1; by the Hon'ble Single Judge in Writ Petition 4378 of 2021, during the pendency of the present Appeal;
b. Pass an ex-parte ad interim order b. Pass an order restraining staying the operation of order dated Respondent No.1 from taking any March 24, 2021 passed by the further actions in terms of its order Respondent No.1 in Suo-Motu Case dated March 24, 2021 passed in No.1 of 2021 and restrain Suo-Motu Case No.1 of 2021 during Respondent No.1 from taking any the pendency of the Appeal; and action in terms of the same; and c. Pass any further orders that this Hon'ble Court may deem fit and c. Pass any further orders that this proper in light of the facts and Hon'ble Court may deem fit and circumstances of the present case. proper in light of the facts and (emphasis supplied) circumstances of the present case.
(emphasis supplied)
7. As is evident from a perusal of the prayers extracted above, there is almost complete identity as far as prayers (b) in the two applications Signature Not Verified Signed By:SUNITA RAWAT Location: Signing Date:22.06.2021 20:48:09 LPA 164/2021 Page 3 of 6 are concerned. Both seek restraint on any further action pursuant to order dated 24.03.2021 issued by the DG.
8. Mr. Mukul Rohatgi, learned Senior Counsel appearing on behalf of the appellant submits, that inspite of pendency of the present LPA before a Division Bench of this court, the DG has issued notice dated 08.06.2021 purporting to be under section 41(2) read with section 36(2) of Competition Act 2002, demanding from the appellant information and response to certain queries, which are 29 in number; and which are already sub-judice in the LPA. Mr. Rohatgi further draws attention to the concluding part of the impugned notice, in which the DG says this:
"4) Since the present investigation is time bound, you are directed to submit the above information, within 15 days from the receipt of this Notice. The reply should be properly indexed and page-numbered, and shall be signed by any director of the company. A soft copy of the reply shall also be sent by email to [email protected] and [email protected].
5) Failure to comply with the Notice may attract penalty u/s 43 of the Competition Act 2002."
(emphasis supplied)
9. Senior counsel submits that in view of the DG's demand for information within 15 days of receipt of notice on pain of penalty, it is clear that the DG proposes to take action against the appellant, without awaiting a decision of the pending issues by the Division Bench, in an act of overreach of the judicial process, which deserves to be stayed.
10. Issue notice.
Signature Not Verified Signed By:SUNITA RAWAT Location: Signing Date:22.06.2021 20:48:09 LPA 164/2021 Page 4 of 611. Mr. Balbir Singh, learned ASG instructed by Mr. Samar Bansal, Advocate appears on advance copy; accepts notice in the application; and seeks time to file a reply. Let reply be filed within 10 days; rejoinder thereto, if any, be filed before the next date of hearing, with advance copy to the opposing counsel.
12. In our view, there is no doubt that the issuance of impugned notice dated 08.06.2021 by the DG is a step in furtherance of the investigation commenced in Suo-Motu case No.1/2021 pursuant to order dated 24.03.2021, which investigation is subject matter of the challenge in the present LPA.
13. However, we find that an application seeking stay of further steps in the investigation already stands filed by way of C.M. No.15931/2021, on which notice has already been issued to the DG; in which no interim relief was given by the Division Bench on 06.05.2021 or thereafter; and which is already listed before the Division Bench (Roster Bench) for further consideration on 09.07.2021. We also find that there is substantial overlap, in fact near identity, as between the prayers made in C.M. No. 15931/2021 and those made in the present application being C.M. No. 18798/2021.
14. For the foregoing reason, we do not consider it appropriate to stay the operation of impugned notice dated 08.06.2021, at this stage.
15. On another note however, Mr. Singh adopts the submission made by Mr. Aman Lekhi, learned ASG appearing in the connected LPA No. 163/2021 to say that though issuance of notice dated 08.06.2021 was perfectly in line with the procedure contemplated under the statute for taking forward an on-going investigation, which has not been stayed Signature Not Verified Signed By:SUNITA RAWAT Location: Signing Date:22.06.2021 20:48:09 LPA 164/2021 Page 5 of 6 by the Division Bench, it would take substantial time for preparation of a report pursuant to the receipt of the information called-for by way of the impugned notice; which report would thereafter be forwarded to the Competition Commission of India. Mr. Singh accordingly submits that preparation of the report would not be completed at least before the next date of hearing before the Roster Division Bench i.e., 09.07.2021.
16. Taking note of Mr. Singh's statement as above, we would only urge the DG to bear in mind that investigation against the appellant is under judicial consideration before a Division Bench of this court ; and we direct that the matter be listed before the Roster Division Bench on 09.07.2021, the date already fixed.
C.M. No.18912/2021 (for bringing on record reply)
17. List before Roster Bench on 09.07.2021.
ANUP JAIRAM BHAMBHANI (VACATION JUDGE) JASMEET SINGH (VACATION JUDGE) JUNE 21, 2021 Ne Signature Not Verified Signed By:SUNITA RAWAT Location: Signing Date:22.06.2021 20:48:09 LPA 164/2021 Page 6 of 6