Allahabad High Court
Pps International vs Union Of India And 3 Others on 10 April, 2023
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 02.03.2023 Judgment delivered on 10.04.2023 Case :- WRIT - C No. - 38168 of 2018 Petitioner :- PPS International Respondent :- Union of India and 3 others Counsel for Petitioner :- Vivek Kumar Singh, ,Fuzail Ahmad Ansari,N. Sinha,Sr. Advocate Navin Sinha Counsel for Respondent :- Rajnish Kumar Rai Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
(Delivered by Hon'ble Mahesh Chandra Tripathi, J.)
1. Heard Sri Fuzail Ahmad Ansari, learned counsel for the petitioner and Sri Sudarshan Singh, learned counsel for the respondents.
2. Pleadings have been exchanged and with consent of learned counsel for the parties, this writ petition is being finally disposed of under the Rules of the Court.
3. Present Writ Petition under Article 226 of the Constitution of India is preferred seeking following reliefs:-
"A. issue a writ, order or direction in the nature of certiorari to quash the impugned Modification Advice/Orders dated 12/13.09.2018 in respect of Purchase Order No.CORE/S/1271/5530/20478 dated 27.02.2018, Purchase Order No.CORE/S/1271/5226/20473 dated 12.01.2018 and Purchase Order No.CORE/S/1271/4054/20177 dated 13.09.2013 as well as quash the Demand Notice dated 26.09.2018 in respect of purchase order dated 13.09.2013.
B. issue a writ, order or direction in the nature of mandamus directing the respondent authorities to make the entire payments of the petitioner forthwith alongwith 18% interest from the actual date of dues of the petitioner.
C. issue a writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.
D. award the cost to the petitioner."
4. The brief facts of the case are that the petitioner is a partnership firm registered under the Partnership Act, 1932 and engaged in business of supply of specialized electrical equipments imported from Europe to the Indian Railways. The petitioner firm is an agent of Arthur Flury, Switzerland, which is an international company engaged in the business of manufacturing several specialized electrical equipments to be used worldwide in the electrification of railways as well as in other fields also. The petitioner firm inter alia procures "Short Neutral Section Assembly"1 also called "Phase Break", which is approved by the Research Design and Standard Organization (RDSO). This equipment is used to separate two different phases on 25 KV overhead traction of Railways. It is further stated that there is only one approved source for this item in RDSO approved list i.e. M/s Arthur Flury AG Switzerland, the original equipment manufacturer, which sells this product through its authorised Indian distributor i.e. the petitioner firm. The Central Organization for Railway Electrification2 is an organization established by Ministry of Railways, Government of India in the year 1979 for carrying out the railway electrification over the entire network of Indian Railways. In terms of Railway Board's letter bearing No.RE (S)14/11/82/0012Pt. dated 14.11.2017, SNS Assembly is a centralised procurement item of CORE, where demand of all Zonal Railways is consolidated and procured.
5. The CORE floated an online global tender on their website for supply of 28 sets of SNS Assembly (Phase Breaks). The petitioner firm also participated in the global tender floated by the CORE and submitted their quotation in Indian currency for the imported material from AF Switzerland. The petitioner quoted the price on the basis of its previous year purchase directly from AF Switzerland in foreign currency. The petitioner made an offer on fixed price basis, which means that any fluctuation on account of foreign currency or custom duty has to be borne by petitioner only. The petitioner also disclosed its price on the basis of calculation on the current Swiss Franc rates at the time of bidding and also submitted the proforma invoice from AF Switzerland, which is claimed to be same price on which the CORE bought the material directly from AF Switzerland some years back. It is also claimed that Arthur Flury Switzerland - AF prices remained same from the years 2011 till 2018 in foreign currency as it had a policy of fixed prices for final customer and re-seller gets the discount on these prices. The bid was opened on 18.10.2017 and the petitioner's offer was accepted by the Competent Authority. Consequently, legally bounded purchase order was given to the petitioner for supply of 28 sets of SNS Assembly (Phase Breaks) vide their purchase order dated 12.1.2018 with detailed terms and conditions for total value of Rs.2.31 crores. It is undisputed that full material was supplied by the petitioner firm. The copy of the challan-cum-tax invoice showing receipt of articles on 15.3.2018 has also been brought on record as Annexure No.7 to the writ petition.
6. Meanwhile, another global tender was advertised by the CORE on their official website and solicited online global bids, which were opened on 29.11.2017 for supply of 238 sets of SNS Assembly (Phase Breaks). The petitioner firm had again participated in the said global tender. Finally, the Members of the Tender Committee accepted the offer of the petitioner and recommended to procure 176 sets, out of total tender quantity of 238 sets. It is also claimed that the decision of the Tender Committee was accepted by the Higher level Purchase Officer i.e. Principal Chief Material Manager of CORE. Thereafter, the respondent issued the purchase order dated 27.2.2018 with detailed terms and conditions for supply of 170 sets for Rs.14.64 crores. It is not disputed that in response of the purchase order dated 27.2.2018, the petitioner supplied the entire articles through various Challan-cum-Tax Invoices dated 26.6.2018, which is appended as Annexure No.9 to the writ petition. After supply of the materials instead of clearing the outstanding amount to the petitioner firm, the second respondent sent a letter dated 17.05.2018 apprising the petitioner that they have invoked "Book Examination Clause" for the present order as well as the previous order of 2013, which has already attained finality and the payments have also been made to the petitioner in January, 2018 itself, as the respondents felt that the petitioner has made an abnormally high profit while importing the material from AF Switzerland. Thereafter, the CORE has issued impugned modification advice dated 12/13.9.2018, whereby, modification has been made in respect of purchase orders dated 27.2.2018, 12.1.2018 and 13.9.2013. Consequently, the impugned demand order dated 26.9.2018 has been issued, whereby the amendment has been issued by the CORE for lower rates after results of book examination due to discovery of new rates of customs bills of entry @ CHF 6400 for each set vide customs letter dated 22.6.2015 and the petitioner firm was required to deposit Rs.5,19,47,553.80 within 15 days. In case of default to deposit the said amount within stipulated time, the recovery would be made from the pending bills.
7. Record further reveals that in respect of the purchase order dated 13.9.2013, the bank guarantee which was given by the petitioner, was invoked by the CORE. Consequently, the matter was referred to the Arbitrator and finally, an award was given in favour of the petitioner firm directing the CORE to pay the bank guarantee amount to the petitioner within 30 days from the date of award i.e. 21.09.2017. It is not disputed that the said award has not been subjected to challenge by the CORE and the same has attained finality. Meanwhile, the respondents issued a notice to the petitioner on 17.5.2018 for producing books and records in tender under "Book Examination Clause-IRS 3300" qua the articles supplied by the petitioner in view of purchase order dated 13.09.2013 as well as purchase order dated 12.01.2018. Even though against the purchase order dated 13.09.2013 the respondents had already paid the amount and it was a closed contract. Said notice was responded by the petitioner through its response dated 30.05.2018. Thereafter, the respondents issued a letter to the petitioner on 14.06.2018 and reiterated the earlier demand of supplying the documents. In the notice dated 17.05.2018 the respondent had alleged that the petitioner is taking unreasonable higher profits. Consequently, the second respondent had preferred a complaint dated 12.06.2018 under Section 19 (1) (b) of the Competition Act, 20023 before the Secretary, Competition Commission of India4 alleging that the petitioner flouted the provisions of Sections 3 and 4 of the Act, 2002. The said complaint was treated as a Reference Case No.05 of 2018 (Central Organisation for Railway Electrification Office of the Principal Chief Materials Manager 1, Nawab Yusuf Road, Civil Lines, Allahabd, U.P vs. M/s PPS International, Greater Noida, UP). Finally, the CCI by its judgment and order dated 27.8.2018 had proceeded to decide the reference holding that no case is made out against the petitioner.
8. The petitioner has preferred the present writ petition in the year 2018 seeking aforementioned reliefs. After filing the writ petition, a time barred Appeal dated 11.10.2019 was filed by the CORE before the National Company Law Appellate Tribunal, New Delhi5 under Section 53 (1) & (2) of the Act, 2002 against the judgment and order dated 27.8.2018 and the same was registered as Competition Appeal (AT) No.79/2019 (Central Organization for Railway Electrification vs. M/s PPS International). Notice was also issued to the petitioner, in which petitioner had filed its response/objection on 12.12.2019. Finally, the appeal was dismissed by the NCLAT by its judgment and order dated 23.1.2020. Against the said order, a review application was preferred by the CORE before the Appellate Tribunal, which was registered as Review Application No.01/2020 in Competition Appeal (AT) No.79/2019. The said review application was also rejected by the Appellate Tribunal on 13.4.2022.
9. Initially, present matter was taken up on 28.11.2018 and on the said date, a Division Bench of this Court had proceeded to pass an interim order in favour of the petitioner to the following effect:-
"Heard Sri Navin Sinha, learned Senior Advocate assisted by Sri Vivek Kumar Singh, learned counsel appearing for the petitioner and Sri Rajnish Kumar Rai, learned counsel for the respondents.
By means of this writ petition, the petitioner has come to this Court raising a grievance that for the supply of material imported by the petitioner to the Railway, a contract was entered into between the petitioner and the Railways and rates were fixed. After contract was acted upon, materials were supplied and payments were also made by the Railway to the petitioner. But suddenly an order was passed issuing a show cause to the petitioner stating therein that petitioner is charging inflated rates, why rates should not be revised. Thereafter, the petitioner made a representation, which was not considered and the Railway straightway went before the Competition Commission of India as provided under the Competition Act, 2002. The said act has been enacted to provide, keeping in view of the economic development of the county, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom to trade carried on by other participants in markets, in India, and for matters connected therewith.
The Competition Commission rejected the claim of the Railway by passing an order that no inflated rates have been presented by the petitioner for the Railway to revise the same.
It is to be noted that against the order of Competition Commission, the Railway had the freedom to approach the Tribunal constituted under the Act, which they chose not to and unilaterally revised the rates by passing an order dated 12/13.9.2018 and consequently, has issued a demand notice on 26.9.2018 for a sum of Rs.5,19,47,553.80/-.
It is to be further noted that once the Competition Commission already decided the claim of the Railway, prima facie, we are of the view that without filing an appeal, unilaterally rates could not have been revised.
The matter requires consideration.
Mr. Rajnish Kumar Rai, learned counsel for the respondents prays for and is allowed three weeks' time to file counter affidavit.
List this case after expiry of the aforesaid period.
Considering the aforesaid, no coercive steps shall be taken against the petitioner pursuant to the order dated 26.9.2018 (Annexure No.4 to the writ petition)."
10. Again on 23.1.2023 the Court had directed the parties to bring on record the reference filed by the CORE before the CCI and consequently, supplementary affidavit was filed on 29.1.2023 bringing on record the certified copy of the Reference Case No.05 of 2018 filed by the CORE and order passed in Review Application No.01/2020 as Annexure Nos.SA-4 & 5 to the supplementary affidavit.
11. In this backdrop, Sri F.A. Ansari, learned counsel for the petitioner vehemently contended that in the most arbitrary manner, the respondent had resorted to the "Book Examination Clause" contained in Indian Railway Standard Condition of Contract for procurement of materials and the same could not be invoked as it was not the part of tender condition. Unless the Railways specifically mention the "Book Examination Clause - Special Condition of Contract" and takes the consent of the bidders, they cannot invoke this "Book Examination Clause" at any point of time. The contracts were awarded after inviting online global tender from worldwide companies and settled after the rates and other terms and conditions were negotiated by the Tender Committee. Accordingly, with proper justification of the prices the same were approved by the Purchase Tender Committee. He submitted that admittedly, the petitioner's bid stood the lowest and technically suitable bid. The "Book Examination Clause" was not included in the earlier contract of the year 2013. Even though the same stood concluded with full and final payments in the month of January, 2018 after the arbitration award was passed by the arbitrator in favour of the petitioner on 21.9.2017. Thereafter, no other issues were ever raised by the CORE in respect of any exorbitant price or making any undue profits by the petitioner firm. The entire action of the respondent authorities was arbitrary with malafide reasons as they did not give any notice in respect of the purchase order dated 27.2.2018 and in most arbitrary manner, they had deducted the amount from the bills of the petitioner. The same is also in violation of principle of natural justice.
12. Sri F.A. Ansari further submitted that in the notice dated 17.05.2018 the respondent had alleged that the petitioner is taking unreasonable higher profits without there being any basis for the same. It is factually incorrect as the rates were finalized through proper negotiation between the parties and after due deliberations the price offered by the petitioner firm was duly accepted by the respondent authorities. Accordingly, the purchase order was issued in favour of the petitioner firm. Moreover, the second respondent had filed detailed complaint dated 12.06.2018 before the CCI, registered as Reference Case No.05/2018 under Section 19 (1) (b) of the Act, 2002, against the petitioner alleging contravention of provisions of Sections 3 and 4 of the Act, 2002. On the said complaint/reference the enquiry was made by the CCI on the basis of material filed by the respondent and passed an order on 27.8.2018 and rejected the complaint/reference. He submitted that while preferring the reference against the petitioner the CORE has alleged before the CCI, on the basis of purchase orders, to the effect that the petitioner's monopolistic position of single approved source has increased the rates in recent 12 years without any significant inflation in Switzerland. In support of his submission, he has placed reliance on the Reference Case No.05/2018, wherein the CORE had alleged the excessive pricing viz. "But later on it was revealed vide "Custom's letter dated C. No.VIII/12/ACC-Import/Gr-VA/Misc./841/2013 dated 22.06.2015 that M/s PPS International has imported the material @ CHF 6400 and jacked up prices taking benefit of its monopoly situation." Further, it has been stated in the last paragraph that "From the above it becomes clear that M/s PPS International has misused its dominant position to jack up prices artificially. In the view of above it is requested that a case of misuse of its dominant position to artificially jack up prices may be registered upon M/s PPS International".
13. Learned counsel for the petitioner has also drawn attention on the impugned Modification Advice/Orders dated 12/13.09.2018 in respect of (i) P.O. No.CORE/S/1271/5530/20478; (ii) P.O. No.CORE/S/1271/5226/20473 and (iii) P.O. No.CORE/S/1271/4054/20177 as well as Demand Order dated 26.09.2018 in respect of P.O. No.CORE/S/1271/4054/20177, which state that the amendment has been issued for lower rates after results of book examination due to discovery of new rates of customs bills of entry @ CHF 6400 for each set. The reference is also drawn on the chart supplied by the CORE to the CCI through reference case dated 12.06.2018, wherein the CORE has leveled the same allegation of excessive pricing on the basis of same material against the petitioner. The CORE had also alleged violation of Section 3 (3) (a), 4 (2) (a) (i) and 4 (2) (a) (ii) of the Act, 2002. He has also placed reliance on paras 17, 18 and 19 of the order passed by the CCI. He submitted that after filing the present writ petition and the observations of this Court in the interim order dated 28.11.2018, the CORE preferred a time barred Appeal before the NCLAT under Section 53 (1) and (2) of the Act, 2002 on 11.10.2019 against the order dated 27.08.2018 passed by the CCI. The aforesaid appeal filed by the CORE was dismissed by the NCLAT, New Delhi vide its judgment and order dated 23.01.2020 on the ground of delay as well as on merits also. Against the said order a Review Application was filed by the CORE and the same was also dismissed by the NCLAT on 13.4.2022. While dismissing the review application the NCLAT observed that it is open to the aggrieved party to prefer Civil Appeal before Hon'ble Supreme Court against the judgment dated 23.1.2020. He submitted that till date no appeal is filed and therefore, the order dated 27.1.2018 passed by the CCI has attained finality and findings therein are not amenable to scrutiny of this Court which has been upheld by the NCLAT vide order dated 23.1.2020 and 13.4.2022 (review order) which is not subjected to challenge before the Apex Court under Section 53-T of the Act, 2002. He submitted with utmost respect that once the remedy has not been availed by the CORE even at this belated stage then this Court does not inhere the power to sit in appeal or to interfere or upset the findings recorded by the CCI in its order dated 27.1.2018.
14. In support of his submission, learned counsel for the petitioner has placed reliance upon the judgment of Apex Court in Union of India vs. Tantia Construction Pvt. Ltd.6 and ABL International Ltd. vs. Export Credit Guarantee Corporation of India Limited7. He has also relied upon a Division Bench judgment of Madras High Court in M/s K.J. Hospital vs. M/s Technomed International and others8.
15. On the other hand, Sri Sudarshan Singh, learned counsel for the respondents has vehemently opposed the writ petition and submitted that the petitioner firm is an agent of Arthur Flury, Switzerland since 1st May, 2008. The Arthur Flury, Switzerland (AF) is an international company, which is engaged in the business of manufacturing several specialized electrical equipment to be used worldwide in the electrification of Railway as well as in another field also. The CORE invited an international competitive bid for procurement of Neutral Phase Assembly Break for 347 sets. After opening of the tender in February, 2013 the petitioner's offer stood technically suitable lowest offer. Consequently, the CORE invited the petitioner firm for negotiation with the highest authority and after negotiation the petitioner's bid was accepted. Consequently, a Letter of Intent for the legally binding contract was issued by the Purchase Authority vide letter No.CORE/S/1271/4054 dated 20.08.2013 for supply of 282 sets out of total tendered quantity of 347 sets and issued a purchase order. Further, several tenders were opened; the company participated and regularly supplied the equipment. There is IRS condition in the contract between the parties, which is essential condition of contract and it manifestly provides that the contract will be governed by IRS General and Special Condition of the bid document. It is submitted that the Ministry of Railways issued Government order/letter No.82/F(F.Ex)24.1/CLW/11 New Delhi dated 16th November, 1982 imposing the condition on the commission payable to the Indian agents of foreign firms.
16. He further submitted that in IRS condition, books and account examination is part of the contract and after examining the books and account of the petitioner, the respondent found that the petitioner concealed the actual rate of the equipment and the petitioner firm had obtained purchase order by giving false documents regarding actual price of material to be supplied by M/s Arthur Flury, Switzerland. The alleged document submitted by the petitioner has been brought on record as Annexure CA-4 to the counter affidavit. Consequently, the recovery was made after the actual price of material imported from M/s Arthur Flury, Switzerland was found to be on much lower side as CHF 6400, CHF 7200 & CHF 7200 against the order rate CHF 8600, CHF 8580 & CHF 8580. The said recovery was done by invoking "Book Examination Clause" as mentioned in Para 3300 of IRS conditions of contract. He has placed reliance on Para-42 of the counter affidavit filed by the CORE, wherein it has been stated that in case of any dispute there is a provision of arbitration clause - 2900 IRS conditions as mentioned in the contract. After the amendment in Arbitration and Conciliation Act, 1996 the condition clause 2900 was accordingly amended by the Railway Board and the same is applicable being statutory amendment.
17. It has been further submitted that while submitting the offer on behalf of M/s Arthur Flury, Switzerland, the petitioner has given proforma invoice in which higher CHF rate was quoted by the petitioner but at the time of supplying the material they have paid only CHF 6400, CHF 7200, CHF 7200 per unit respectively in purchase orders dated 13.9.2013, 12.1.2018 and 27.2.2018. Further the petitioner has declared in their calculation sheet submitted during the negotiation that they were claiming a profit of 2% over and above the offered prices in the tender i.e. CHF 8600, CHF 8590 and CHF 8590 in purchase orders dated 13.9.2013, 12.1.2018 and 27.2.2018 respectively, whereas the actual prices of these material were CHF 6400, CHF 7200 and CHF 7200. The petitioner had misrepresented the actual prices and on the basis of fraud, they have obtained the purchase order on high rate by concealing the material fact. Due to this difference of prices the Book Examination as per IRS-3300 has been conducted and modified advices have been issued for reduction in the rates of all three purchase orders and bills have been passed on reduced rates. Since for these three purchase orders, supply of material has already been completed and all bills have been paid, a recovery notice of Rs.5,19,47, 553.80 has been served on the petitioner for depositing the said amount. The CORE had filed the case in CCI challenging the monopoly and abuse of dominant position of the petitioner under Sections 3 & 4 of the Act, 2002. It is not right to link CCI case with recovery made by invoking "Book Examination Clause", which is statutory in nature. Learned CCI has not considered the issue of difference of rates quoted by the petitioner in the tender and rates at which the material was actually imported by them. Therefore, both the cases i.e. invoking "Book Examination Clause" and complaint file at CCI are different and CCI case should not be linked with the present case. As mentioned in these purchase orders, this contract is governed by IRS conditions, General conditions & Special conditions of Contract. In para no.26 of General Condition of Contract as well as in Para 2900 of IRS Conditions, it is clearly mentioned that in the event of any question, dispute or differences arising the same shall be referred for approval of arbitrator by GM/CORE/Allahabad. Once the parties entered into the contract then they cannot go beyond the conditions of the contract in view of principles of judicial discipline. Therefore, the present writ petition is not maintainable for contractual dispute and the same is liable to be dismissed on this ground.
18. Heard rival submissions and perused the record.
19. Before proceeding to consider the rival submissions, it would be appropriate to re-produce the relevant provisions of the Act, 2002:-
"3. Anti-competitive agreements.-
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.
2. Any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void.
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 of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which-
a. directly or indirectly determines purchase or sale prices;
b. limits or controls production, supply, markets, technical development, investment or provision of services;
c. shares the market or source of production or provision of services by way of allocation of geographical area of market, or 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.
4. Abuse of dominant position.-
1. No enterprise shall abuse its dominant position.
2. There shall be an abuse of dominant position under sub-section (1), if an enterprise or a group,-
a. directly or indirectly, imposes unfair or discriminatory-
i. condition in purchase or sale of goods or service; or ii. price in purchase or sale (including predatory price) of goods or service.
Explanation.- For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition.
53A. Appellate Tribunal.- The National Company Law Appellate Tribunal constituted under Section 410 of the Companies Act, 2013 (18 of 2013) shall, on and from the commencement of Part XIV of Chapter VI of the Finance Act, 2017, be the Appellate Tribunal for the purposes of this Act and the said Appellate Tribunal shall-
(a) hear and dispose of appeals against any direction issued or decision made or order passed by the Commission under sub-sections (2) and (6) of Section 26, Section 27, Section 28, Section 31, Section 32, Section 33, Section 38, Section 39, Section 43, Section 43A, Section 44, Section 45 or Section 46 of this Act; and
(b) adjudicate on claim for compensation that may arise from the findings of the Commission or the orders of the Appellate Tribunal in an appeal against any finding of the Commission or under Section 42A or under sub-section (2) of Section 53Q of this Act, and pass orders for the recovery of compensation under Section 53N of this Act.
53B. Appeal to Appellate Tribunal.- (1) The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by any direction, decision or order referred to in clause (a) of section 53A may prefer an appeal to the Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the Central Government or the State Government or a local authority or enterprise or any person referred to in that sub-section and it shall be in such form and be accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that period.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against.
(4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to the appeal.
(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within six months from the date of receipt of the appeal.
53T. Appeal to Supreme Court.- The Central Government or any State Government or the Commission or any statutory authority or any local authority or any enterprise or any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to them:
Provided that the Supreme Court may, if it is satisfied that the applicant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed after the expiry of the said period of sixty days."
20. So far as the "Book Examination Clause-IRS 3300" is concerned, the same is incorporated in the letter of the Railway Board dated 27.01.1983, which includes "Book Examination Clause - Special Conditions of Contract". The Book Examination Clause is reproduced hereinafter:-
"BOOK EXAMINATION CLAUSE
(i) The Contractor shall whenever called upon and requiring to produce or cause to be produced for examination by any Government Officer duly authorised in that behalf any cost or other account book of account, voucher, receipt, letter, memorandum, paper or writing or any copy of or extract from any such document and also, furnish information anywise relating to such transaction and produce before the duly authorised Government Officer returns verified in such manner as may be required relating in any way to the execution of this contract or relevant for verifying or ascertaining the cost of execution of this contract (the decision of such Government Officer on the question of relevancy of any document, information or return being final and binding on the parties).
The obligation imposed by this clause is without prejudice to the obligation of the Contractor under any statute, rules or orders shall be binding on the Contractor.
(ii) The Contractor shall, if the authorised Government Officer so requires (whether before or after the prices have been finally fixed), afford facilities to be Government Officer concerned to visit the Contractors works for the purpose of examining the processes of manufacturer and estimating or ascertaining the cost of production of the articles. If any portion of the work be entrusted or carried out by a sub-contractor or any of its subsidiary or allied firm or company, the authorised Government Officer shall have the power to examine all the relevant book of such sub-contractor or any subsidiary or allied firm or company shall be open to his inspection as mentioned in clause (i).
(iii) If on such examination, it is established that the contract price is in excess of the actual cost plus reasonable margin of profit, the purchaser shall have the right to reduce the price and determine the amount to a reasonable level.
(iv) Whether a contract provided for book examination clause the Contractor or its agency bound to allow examination of its books within a period of 60 days from the date the notice is received by the Contractor, or its agencies calling for the production of documents as under clause (i) above. In the event of Contractor's or his agencies failure to do so, the contract price would be reduced and determined according to the best judgment of the purchase which would be final and binding on the Contractor and his agencies."
(emphasis supplied)
21. We have proceeded to examine the record in question and find that the CORE is an organization under the Ministry of Railways and is entrusted with the responsibility to carry out railway electrification over the entire network of the Indian Railways. The CORE inter alia procures SNS Assembly also called 'Phase Break' for various Railways Zones from M/s Arthur Flury AG Switzerland, which sells this product through its authorised Indian distributor (petitioner firm). In terms of Railway Board letter dated 14.11.2017, SNS Assembly is a centralised procurement item of CORE, where demand of all Zonal Railways is consolidated and procured. The petitioner entered into an agreement with M/s Arthur Flury AG. The CORE floated the online global tender on their website for supply of 28 sets of SNS Assembly (Phase Breaks). The petitioner firm also participated in the global tender. The bid was opened on 18.10.2017 and the petitioner's bid was accepted. Consequently, the purchase order was given to the petitioner on 12.1.2018 for supply of 28 sets of SNS Assembly (Phase Breaks) for Rs.2.31 crores. Admittedly, the said material was supplied by the petitioner firm. Meanwhile, another global tender was published by the CORE and the global bids were opened on 29.11.2017 for supply of 238 sets of SNS Assembly (Phase Breaks). The petitioner firm again participated in the said global tender and it's bid was accepted for supply of 176 sets, out of total tender quantity of 238 sets. The decision of the Tender Committee was accepted by the Principal Chief Material Manager of CORE. Consequently, the respondent issued purchase order dated 27.2.2018 for supply of 170 sets for Rs.14.64 crores. Admittedly, in response of the purchase order dated 27.2.2018, the petitioner supplied the entire articles through various Challan-cum-Tax Invoices dated 26.6.2018 but instead of clearing the outstanding amount to the petitioner firm, the second respondent sent a letter dated 17.05.2018 stating that they have invoked "Book Examination Clause" for the present order as well as the previous order of 2013.
22. This much is also reflected from the record that the matter was referred to the Arbitrator and finally, the award was given in favour of the petitioner firm on 21.09.2017 directing the CORE to pay the bank guarantee amount to the petitioner within 30 days. It is not disputed that the said award has not been challenged by the CORE and the same has attained finality. Meanwhile, the respondents issued notice to the petitioner on 17.5.2018 for production of books and records under "Book Examination Clause - IRS 3300" qua the articles supplied by the petitioner against purchase order dated 13.09.2013 as well as purchase order dated 12.01.2018. Against the purchase order dated 13.09.2013 the respondents had already paid the amount and it was a closed contract. The petitioner submitted reply to the said notice on 30.05.2018. Thereafter, the second respondent preferred complaint dated 12.06.2018 under Section 19 (1) (b) of the Act, 2002 before the Secretary, CCI against the petitioner for flouting provisions of Sections 3 and 4 of the Act, 2002, registered as a Reference Case No.05 of 2018. Finally, the Commission has decided the reference on 27.8.2018. The operative portion of the judgment dated 27.8.2018 is reproduced hereinafter:-
"8. The Commission has perused the reference and the documents filed therewith and also considered the material available in public domain.
9. At the outset, the Commission notes that though the Informant has alleged contravention of the provisions of both Sections 3 and 4 of the Act, yet looking at the nature of allegations and the relationship of the OP with the OEM, the provisions of Section 3 (3) (a) of the Act are not applicable to the present case as the OP (distributor) and OEM (manufacturer) are operating at different levels of the production chain in different markets. Thus, prima facie the provisions of Section 3 (3) (a) of the Act are not attracted.
10. Next, for the purpose of examining the allegations of the Informant under the provisions of Section 4 of the Act, it is necessary to determine the relevant market at the first instance. Thereafter it is necessary to assess whether the OP enjoys a position of strength required to operate independently of the market forces in the relevant market. Only when such a position is established, the Commission is required to examine whether the impugned conduct amounts to abuse of dominance or not.
11. The Commission observes that the product involved in the instant case is SNS Assembly, which is used mainly by the Railways to isolate different phases of power supply in adjoining Over Head Equipment (OHE) fed by adjacent substations, which are normally connected to different phases of supply. Thus, it is used in overhead contact lines of the Railways to act as an insulator between different power lines (phases). In this regard, the Commission observes that SNS Assembly is a light weight contact wire insulator of composite type (Rasin bonded glass fibre core protected with wear resistance ceramic beads) with Poly Tetra Fluro Ethylene (PTFE). Thus, its physical characteristics indicate that it is a specialised equipment having a specific function. Moreover, SNS Assembly is a distinct product in itself having no close substitute. Accordingly, the relevant product market in the instant case is 'market for supply of SNS Assembly'.
12. In respect of the relevant geographical market, it may be noted that CORE is a centralised procurement agency for the SNS Assembly as it consolidates the demand of all Railway Zones and centrally procures them. This shows pan India nature of the demand by different Zones of Railways and its subsequent distribution. Thus, the relevant geographic market in this case would be 'India'.
13. Thus, the relevant market in the present case is the 'market for supply of SNS Assembly in India'.
14. On the issue of dominance of the OP in the aforesaid relevant market, the Commission notes that the OP is the sole authorised distributor of M/s Arthur Flury AG, Switzerland in India. Further, it is also observed that there is only one single approved source in the RDSO approved list i.e. M/s Arthur Flury AG and its Indian distributor. The requirement of the RDSO approved sources has also resulted in a situation of high dependence of the Indian Railways for the SNS Assembly on the OP. Thus, the Commission observes that the OP can be said to be dominant in the above defined relevant market.
15. In view of the above assessment, the Commission is of the view that the OP appears to be dominant in terms of the provisions of Section 4 of the Act.
16. To examine the alleged abuse of dominant position by the OP in the relevant market delineated supra, it is noted that the Informant has not specified any specific condition which can be examined within the framework of Section 4 (2) (a) (i) of the Act.
17. However, on a closer scrutiny of the information, it appears that the Informant is essentially aggrieved by the allegedly high prices charged by the OP for supply of SNS Assembly to CORE. The informant has claimed that the OP has increased the prices in last 12 years without any significant inflation in Switzerland. Thus, the informant has essentially raised the issue of excessive pricing. To support the allegations, it has been pointed out that in purchase order dated 13.09.2013, the OP had supplied 282 sets of SNS Assembly on behalf of M/s Arthur Flury AG on the basic rice (excluding all taxes, duties, freight charges, insurance charges & other expanses) i.e. @ 8600 Swiss Franc (CHF) per set. But, later on, it was revealed to the informant that the OP had imported the same goods on the basic price of 6400 Swiss Franc per set. Similarly, the informant provided another evidence where the OP in response to the purchase order dated 12.01.2018 had supplied 28 SNS Assembly on the basic price of 8580 Swiss Franc but, later on, it was found through the invoice of M/s Arthur Flury AG & Bill of Entry that the OP had imported the same at 7200 Swiss Franc per set.
18. In order to appreciate the allegation of excessive pricing, the Commission deems it appropriate to examine the percentage increase in the prices of SNS Assembly over period of time i.e. from 2006 to 2018. The table beneath shows the percentage rise in prices of SNS Assembly between 2006-2018:
Table No.2: Percentage change in BSE price.
SN Year Basic Price (Quoted by OP in the Purchase Order) Year on year percentage change in price 1 2006 6602.55 Swiss Franc
-
2 2008 6934.20 Swiss Franc 5.02% 3 2012 8600 Swiss Franc 24.00% 4 2013 8600 Swiss Franc 0.00% 5 2016 8580 Swiss Franc
-0.23% 6 2018 8580 Swiss Franc 0.00%
19. From the above table, it appears that there has not been a continuous trend of price increase over a period of time which could show excessive prices being charged by the OP. Also between 2013 and 2018, there was either no increase in the prices and rather in year 2016, prices even decreased. Thus, the price trend does not support the allegation of abuse of dominant position made by the informant by artificially determining the sale price in terms of the provisions contained in Section 4 (2) (a) (ii) of the Act.
20. In view of the above assessment, the Commission is of the view that the OP does not appear to have abused its dominant position in terms of the provisions of Section 4 of the Act.
21. Resultantly, the Commission is of the opinion that no case of contravention of the provisions of Section 4 of the Act is made out against the OP and the matter is ordered to be closed in terms of the provisions contained in Section 26 (2) of the Act.
22. The Secretary is directed to communicate to the informant, accordingly."
(emphasis supplied)
23. This much is also reflected from the record that against the said order, the Appeal (AT) No.79/2019 was filed by the CORE before the NCLAT and the same was dismissed by the NCLAT on 23.1.2020 with following observations:-
"After hearing learned counsel for the appellant, we find that there is no plausible explanation offered for inordinate delay of 330 days (wrongly described as 350 days) in preferring the appeal. Admittedly, the impugned order was passed by the Competition Commission of India based at New Delhi and it is inconceivable that the appellant was not aware of the appellate mechanism and the forum empowered to entertain the appeal. The ground sought to be projected for condonation of delay does not constitute a "sufficient cause" so as to warrant condonation as sought. Viewed in that context, we find that the huge delay of 330 days has not been explained satisfactorily and no sufficient cause has been assigned for such delay. The application for condonation of delay is accordingly dismissed.
That apart, on merit we find that the Commission has noticed the trend in decrease of price of the relevant product in 2016 and 2018 and in view of the same, no prima facie case for directing investigation by Director General was made out. We find no reason to disagree with the view taken by the Commission. There being no infirmity in the impugned order, we decline to intervene.
Appeal is accordingly dismissed."
(emphasis supplied)
24. Against the said order, the Review Application No.01/2020 in Competition Appeal (AT) No.79/2019 was preferred by the CORE and the same was also dismissed by the Appellate Tribunal vide its order dated 13.4.2022 with following observations:-
"There is no representation on the side of the review applicant at the time of calling the matter. It comes to be known that on 23.01.2020 this Tribunal has dismissed the application for condonation of delay. Likewise, this Tribunal had also not interfered with the impugned order passed by the concerned authorities.
There being no infirmity in the impugned order and accordingly dismissed the appeal. As such, this Tribunal is of the earnest opinion that as against the dismissal of the appeal in Competition Appeal (AT) No.79 of 2019 judgment dated 23.01.2020, it is open to the aggrieved party concerned to prefer Civil Appeal before the Hon'ble Supreme Court of India as against the judgment dated 23.01.2020 passed by this Tribunal.
The instant Review Application No.01 of 2020 in Competition Appeal (AT) No.79 of 2019 is perse not maintainable and the same is hereby dismissed. However, there is no order as to costs."
(emphasis supplied)
25. We further find that while deciding the aforesaid reference on 27.8.2018, the CCI found that there has not been a continuous trend of price increase over a period of time which could show excessive prices being charged by the petitioner between 2013 and 2018, and there were no increase in the prices rather prices were even decreased in year 2016. Thus, the price trend does not support the allegation of abuse of dominant position made by the informant by artificially determining the sale price in terms of the provisions contained in Section 4 (2) (a) (ii) of the Act, 2002. In view of the above assessment, the Commission was of the view that the petitioner does not appear to have abused its dominant position in terms of the provisions of Section 4 of the Act, 2002 and no case of contravention of the provisions of Section 4 of the Act, 2002 was made out against the petitioner, accordingly the matter was ordered to be closed in terms of the provisions contained in Section 26 (2) of the Act, 2002. The judgment of the CCI was challenged before the NCLAT in Appeal (AT) No.79 of 2019 and finally, the Appellate Tribunal had also dismissed the appeal on the ground that there was no plausible explanation offered for inordinate delay of 330 days in preferring the appeal and no sufficient reason or cause has been assigned for such delay. Consequently, the application for condonation of delay was accordingly dismissed. Further, on merit the NCLAT found that the Commission has noticed the trend in decrease of price of the relevant product in 2016 and 2018 and in view of the same, no prima facie case for directing investigation by Director General was made out. The NCLAT found no reason to disagree with the view taken by the Commission and declined to intervene. The review application was also dismissed by the NCLAT on 13.4.2022 as not maintainable, leaving it open to the aggrieved party to prefer Civil Appeal before the Hon'ble Supreme Court of India against the judgment dated 23.01.2020 passed by the Tribunal in Competition Appeal (AT) No.79 of 2019.
26. It is admitted that the observations and findings returned by the CCI in its order dated 27.8.2018 stood upheld by the NCLAT in its orders dated 23.1.2020 and 13.4.2022. The said orders could only be tested or upset by Hon'ble Apex Court under Section 53-T of the Act, 2002. Therefore, we do not find any justification to entertain the writ petition to sit in appeal or to upset the findings recorded by the CCI in its order dated 27.8.2018, which was affirmed by the NCLAT in the order dated 23.1.2020 and in the review order dated 13.4.2022. In response to the earlier order dated 23.1.2023 supplementary affidavit dated 30.1.2023 was filed by the petitioner bringing on record the certified copy of the Reference Case No.05/2018; memo of appeal (AT) No.79/2019 preferred before NCLAT. Even at that stage leave was available to the respondents to take a stand before us that they are inclined to prefer an appeal before the Hon'ble Apex Court as provided under Section 53T of the Act, 2002. However, they have filed the reply but there is no whisper that the respondents are inclined to challenge the aforesaid orders before Hon'ble Apex Court.
27. A Constitutional Bench of Hon'ble Supreme Court in L. Chandra Kumar vs. Union of India9 has held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution and the decisions of Tribunals would be subject to the High Court's Writ jurisdiction under Article 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. Relevant paragraph nos.37, 79, 80, 87, 91, 92, and 93 of the judgment are reproduced hereinafter:-
"37. Certain problems have arisen in the functioning of these Tribunals especially in respect of the manner in which they exclude the jurisdiction of their respective High Courts. This aspect can be illustrated by briefly adverting to the broad facts of two of the matters before us. C.A. No. 1532-33 of 1993 arises as a result of conflicting orders issued by the West Bengal Taxation Tribunal and the Calcutta High Court. Certain petitioners had challenged the constitutional validity of some provisions in three legislations enacted by the West Bengal Legislature before the west Bengal Taxation Tribunal. After examining the matter and hearing the arguments advanced in response by the State of West Bengal, the West Bengal Taxation Tribunal, by this order dated 9.10.1991, upheld the constitutional validity of the impugned provisions. Thereafter, the constitutional validity of the same provisions was challenged in a Writ Petition before the Calcutta High Court. During the proceedings, the State of West Bengal raised the preliminary objection that by virtue of Section 14 of the West Bengal Taxation Tribunal Act, 1987, which excluded the jurisdiction of the High Court in all matters within the jurisdiction of the Taxation Tribunal, the Calcutta High Court had no jurisdiction to entertain the writ petition. However, the High Court proceeded with the case and, by its judgment dated 25.11.1992, declared the impugned provisions to be unconstitutional. These developments have resulted in an interesting situation, where the same provisions have alternately been held to be constitutional and unconstitutional by two different form, each of which considered itself to be empowered to exercise jurisdiction.
79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.
80. However, it is important to emphasise that though the subordinate judiciary or Tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Court, there is no constitutional prohibition against their performing a supplemental--as opposed to a substitution - role in this respect. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses Clause (3) ofArticle 32 of the Constitution which reads as under:
32. Remedies for enforcement of rights conferred by this Part.--(1)..
(2) ..
(3) Without prejudice to the powers conferred on the Supreme Court by Clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2).
(Emphasis supplied)
87. It is important to realise that though the theory of alternative institutional mechanisms was propounded in Sampath Kumar's case in respect of the Administrative Tribunals, the concept itself--that of creating alternative modes of dispute resolution which would relieve High Courts of their burden while simultaneously providing specialised justice-is not new. In fact, the issue of having a specialised Tax Court has been discussed for several decades; though the Report of the High Court Arrears Committee (1972) dismissed it as "ill-conceived", the LCI, in its 115th Report (1986) revived the recommendation of setting up separate Central Tax Courts. Similarly, other Reports of the LCI have suggested the setting up of 'Gram Nyayalayas' (1986) LCI, 114th Report , Industrial/Labour Tribunals 1987 LCI, 122nd Report and Education Tribunals (1987) [LCI, 123rd Report .
91. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.
92. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a First Appellate Court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of Tribunals under Article 227 of the Constitution. In R.K. Jain's case, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunals on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the afore-stated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.
93. We may add here that under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above-mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution."
(emphasis supplied)
28. In L. Chandra Kumar's case (supra) once a Constitution Bench of the Apex Court declared the law that "all decisions of Tribunals created under Article 323A and Article 323B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls", then it is impermissible to make any further construction on the said issue. The expression "all decisions of these Tribunals" used by the Constitution Bench will cover and take within its sweep orders passed on applications or otherwise in the matter of transfer of Original Applications from one Bench of the Tribunal to another Bench of the Tribunal in exercise of the power under Section 25 of the Administrative Tribunals Act, 198510. In other words, any decision of such a Tribunal, including the one passed under Section 25 of the Act could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls. This unambiguous exposition of law has to be followed scrupulously while deciding the jurisdictional High Court for the purpose of bringing in challenge against an order of transfer of an Original Application from one bench of Tribunal to another bench in the invocation of Section 25 of the Act.
29. A careful perusal of Section 53T of the Act, 2002 would show that an appeal to the Supreme Court is provided against "any order passed by the Appellate Tribunal". Therefore, the appropriate remedy for the respondent was to file an appeal against the judgment and order dated 23.01.2020 passed by the Tribunal before Hon'ble Supreme Court of India in terms of the aforesaid provisions of the Act, 2002 within the period of limitation prescribed therein. Admittedly, the respondent did not prefer any appeal before Hon'ble Supreme Court neither within the period of limitation nor even any delayed appeal was filed after expiry of the limitation period. Once the respondent had lost the Reference made on similar allegation of excessive pricing on the same materials on record before the CCI, which are referred in the impugned orders; thereafter, the Appeal and Review Application preferred by the CORE before the NCLAT have also been dismissed and the findings recorded by the CCI have attained finality then the issue involved in the present writ petition stood settled and covered by the CCI order dated 27.8.2018 and approved/affirmed by the NCLAT.
30. In M/s K.J. Hospital vs. M/s Technomed International and others (supra) the Madras High Court had dismissed the writ petition on the ground that the petitioner has not given any explanation for not having availed the efficacious alternative remedy by way of appeal under Section 53-T of the Act, 2002 before the Hon'ble Supreme Court of India to challenge the order. Relevant paragraphs of the judgment are reproduced hereinafter:-
"6. Having due regard to this incontrovertible legal position, in the absence of any explanation from the Petitioner for not having availed the efficacious alternative remedy by way of appeal under Section 53-T of the Competition Act, 2002, before the Hon'ble Supreme Court of India to challenge the impugned order, we do not find any justification to entertain the present Writ Petition and accordingly, the same is dismissed. No costs."
31. In Union of India vs. Tantia Construction Pvt. Ltd. (supra) Hon'ble Supreme Court has dismissed the SLP on the ground that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. Relevant portion of the judgment is reproduced herein below:-
"27. Apart from the above, even on the question of maintainability of the writ petition on account of the Arbitration Clause included in the agreement between the parties, it is now well-established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. We endorse the view of the High Court that notwithstanding the provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent Company."
32. In the case of ABL International Ltd. vs. Export Credit Guarantee Corporation of India Limited (supra) the Supreme Court has considered the issue of maintainability of the writ petition involving disputed question of fact and grant of the monetary relief claimed by the petitioner. Relevant paragraph nos.28, 29, 53 and 54 of the judgment are reproduced hereinafter:-
"28. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition :-
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
29. However, while entertaining an objection as to the maintainability of a writ petition under Article 226of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power [See: Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors. [1998 (8) SCC 1]. And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the court thinks it necessary to exercise the said jurisdiction.
53.On the basis of the above conclusion of ours, the question still remains why should we grant the reliefs sought for by the appellant in a writ petition when a suitable efficacious alternate remedy is available by way of a suit. The answer to this question in our opinion, lies squarely in the decision of this Court in the case of ShriLekha Vidyarthi (supra) wherein this court held :
"The requirement of Article 14 should extend even in the sphere of contractual matters for regulating the conduct of the State activity. Applicability of Article 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, the State cannot thereafter cast off its personality and exercise unbridled power unfettered by the requirements of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more. The personality of the State, requiring regulation of its conduct in all spheres by requirement of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirement of Article 14 and contractual obligations are alien concepts, which cannot co-exist. The Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. Therefore, total exclusion of Article 14 - non-arbitrariness which is basic to rule of law - from State actions in contractual field is not justified. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals. xxx Unlike the private parties the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions. x x x "
54. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution. Thus if we apply the above principle of applicability of Article 14 to the facts of this case, then we notice that the first respondent being an instrumentality of State and a monopoly body had to be approached by the appellants by compulsion to cover its export risk. The policy of insurance covering the risk of the appellants was issued by the first respondent after seeking all required information and after receiving huge sums of money as premium exceeding Rs.16 lacs. On facts we have found that the terms of the policy does not give room to any ambiguity as to the risk covered by the first respondent. We are also of the considered opinion that the liability of the first respondent under the policy arose when the default of the exporter occurred and thereafter when Kazakhstan Government failed to fulfil its guarantee. There is no allegation that the contracts in question were obtained either by fraud or by misrepresentation. In such factual situation, we are of the opinion, the facts of this case do not and should not inhibit the High Court or this Court from granting the relief sought for by the petitioner."
33. Once the respondent/CORE has lost the reference made on similar allegations of excessive pricing on the same material on record before the CCI, which are referred in the impugned orders, and the appeal and review preferred by the CORE before the NCLAT have also been dismissed, the findings arrived by the CCI has attained finality in the event of the order not challenged before Hon'ble Supreme Court in terms of Section 53T of Act, 2002, then the issue involved in the present writ petition stood settled and covered by the order passed by the CCI dated 27.08.2018.
34. In the aforesaid facts and circumstances, the writ petition deserves to be allowed and the impugned orders dated 12/13.9.2018 as well as demand notice dated 26.9.2018 are liable to be set aside.
35. Accordingly, the writ petition is allowed and the impugned orders dated 12/13.9.2018 as well as demand notice dated 26.9.2018 are set aside. The respondent authorities are directed to make the entire payments to the petitioner forthwith.
Order Date :- 10.04.2023 RKP/