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12. Instead of identifying such alleged ant-competitive agreements the Impugned Order refers to the ... alleged unilateral practices of the Petitioner. .... It is respectfully submitted that mere unilateral practices of an enterprise do not amount to an "agreement" for the purpose of Section 3 of the Competition Act. An agreement by its very definition under the Competition Act, requires the concurrence of wills, i.e, it is a bilateral action having the concurrence of two or more parties.

11. The order passed by the CCI dated 13.1.2020 is reproduced as under;

Directions for investigation under Section 26(1) of the Competition Act, 2002

1. The present information has been filed by Delhi Vyapar Mahasangh (hereinafter,referred to as 'Informant'/'DVM'), a society registered under the Societies Registration Act, 1860 under Section 19(1)(a) of the Competition Act, 2002 (hereinafter, the 'Act') alleging contravention, of the relevant provisions of Section 3(4) read with Section 3(1) and Section 4(2) read with Section 4(1) of the Act, by Flipkart Internet Services Pvt. Ltd. (hereinafter, 'Flipkart/Flipkart marketplace') and Amazon Seller Services Pvt. Ltd. (hereinafter, 'Amazon/Amazon marketplace'). Flipkart and Amazon are, hereinafter, collectively referred to as 'Opposite Parties/'OPs' Facts and Allegations, as stated in the Information

52. Smt. Madhavi Diwan further submitted that the Foreign Exchange Management Act is an earlier Act, and Competition Act has come into force later. Section 60 of the Competition Act provides that it shall have overriding effect. Section 62 of the Act provides that the provisions of Competition Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force.

53. With regard to investigation by the Enforcement Directorate, Shri. Abhir Roy submitted that ED is not a regulator but a quasi-judicial body. Placing reliance on Lafarge Umiam Mining Pvt. Ltd., Vs. Union of India and others, reported in (2011) 7 SCC 338 (paragraph No.122) he submitted that the regulator is a pro-active body with power to frame statutory Rules and Regulations. Regulatory mechanism warrants open discussion, public participation, and circulation of draft paper inviting suggestions. ED is not clothed with those powers and does not have other attributes. Therefore, ED is not a regulator.

(Emphasis supplied)

56. In response to petitioner's contention that CCI could not have taken a contrary stand to the one taken in AIOVA case, Smt. Madhavi Diwan submitted that there is no res judicata in the case of orders passed by CCI because, Competition Act relates to preservation of competitive forces in the market place. She submitted that the Hon'ble Supreme Court of India has held in Samir Agrawal Vs. Competition Commission of India, reported in 2020 SCC Online SC 1024 that Competition Act operates in 'rem' and not in 'personam', since it concerns public interest. Placing reliance on Cadila Healthcare Limited and Anr Vs. CCI, reported in 2018 SCC Online Del 11229 (paragraph 59) she submitted that the CCI or an expert body should ordinarily not be crippled or hamstrung in their efforts by application of technical rules of procedure.