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7. It was further alleged by the informant that the OP had large economic strength as compared to the Informant and to buttress this averment the informant contended that the OP was a renowned player in coal, ash handling as well as in BoP and EPC space with impressive growth backed by escalation perspective of over Rs. 1,300 billion in BoP space during the ensuing five years. The OP catered to various sectors e.g. cement, steel and mainly power which contributed a large part to its revenue. Over last few years the OP had seen significant rise in order intake on account of huge Investments in core sector. The OP had grown from Rs. 1,000 million in financial year 2008 to over Rs. 46 billion during financial year 2012. Power segment contributed over 70% to the OP‟s order book, followed by orders from steel sector and with 8% in cement. The OP after entering into an exclusive collaboration with Nanjing Triumph Kaineng Environment and Energy Company Limited, China (NTK), for supply of boilers, turbine and generators (BTG) booked five orders worth INR 3.24 billion in the WHR segment. NTK was the leader of WHR power plants in China, having executed more than 120 WHR projects. The OP was a major player in the EPC market with a turnover of Rs. 2541.22 crore during the financial year 2012 and the Informant had an annual turnover of only INR 114 Crore during the financial year 2011-12. Furthermore, after the entry of the OP into the WHRPP market in March 2011, the OP had been continuously winning orders from cement companies, the latest being in June 2012, by quoting an abnormally low prices, which could not be justified as per the standard norms for working out cost in project related systems like WHRPP. The gravamen of the information was thus that the OP abused its dominance in collaboration with the major Chinese Company NTK by strategically quoting very low prices with an intention to eliminate the Informant from the market. Apart from this apparent predatory pricing strategy, the OP had also indulged in non-price predatory behaviour against the informant by hiring its key managerial staff.

14. Presuming that OP was a dominant player, let us see if it resorted to predatory pricing as alleged. As per the informant, OP has been continuously winning orders from cement companies since 2011, the latest being in June 2012, by quoting low prices as compared to the Informant. It is alleged that prices quoted by OP were predatory prices and had the effect of driving out existing competitors of the market.

15. The Act was enacted with the intention to promote and sustain competition, to protect the interests of consumers and to ensure freedom of trade carried on by other participant in markets, in India, but the same does not envisage the protection of any competitor from losing due to stiff competition in the market.

21. Predatory pricing cannot be assessed on the basis of estimated cost projected in the information given by the informant. The informant though had executed similar kind of projects for more than five years, but has not disclosed actual cost of a project executed by it and the projected costs on which it got the contracts so as to give to the Commission the actual data about the variance between the bid price and the actual price and the extent of profit margins.

22. Under section 4 (b) „explanation‟, predatory price is defined as under:-

"predatory price" means the sale of goods or provision of services, at a price which is below the cost, as may be determined by regulation, of production of the goods or provisions of services, with a view to reduce competition or eliminate the competitors."

23. In order to find out whether the opposite party resorted to the predatory pricing, the Commission has to give a finding that the prices of the goods or services of the OP were at a very low level with the object of driving out competitors from the market, who due to low pricing would be unable to compete at that price. In predatory pricing, there is always a significant planning to recover the losses if any after the market rises again and the competitors have already been forced out. It is considered that only a dominant company in such a market may have inclination and resources to finance such a strategy.