Supreme Court refuses ‘special treatment’ to CCI in probe against Amazon, Flipkart
The AG argued that the matter affects millions of consumers, and that CCI was in the court in public interest and not as a private litigant.
NEW DELHI: The Supreme Court on Friday told the Competition Commission of India (CCI) that it cannot get any “special treatment” in getting a bunch of petitions challenging its antitrust probe against e-commerce giants Amazon and Flipkart transferred from the high courts to the top court or the Delhi high court.
A single bench of the Karnataka high court is currently hearing a dozen petitions by various e-retailers challenging the commission’s August 28 order. CCI’s petition asked the top court to transfer the cases pending before the high courts of Allahabad, Madras, Telangana, Punjab & Haryana, Delhi and Karnataka, either to the Supreme Court, or alternatively, to the Delhi high court where the matter is pending before a two-judge bench.
A bench headed by justice Abhay S Oka said, “Just because in one high court, it is being heard by a single judge bench and in other high courts, it is a division bench (of two judges), you want us to transfer. It will be accepting a very dangerous precedent.”
The court said that, in the past, when faced with a similar situation, the court has directed the matters to be heard by the leading high court where the matter has substantially progressed. Moreover, a final order passed by the single judge would be appealable before a division bench or the Supreme Court. By bringing the cases to the top court, the bench, also comprising justice Pankaj Mithal observed, “It will bypass their right to file a special leave petition.”
Attorney general (AG) R Venkataramani, appearing for CCI, said that the request was made as various high courts have issued stay orders against the antitrust probe. The investigation has not moved and with the litigation stuck in the high courts, it may take a considerable length of time for the probe to complete.
But the bench told the AG: “Only because some litigant is to be given a special treatment, can we bypass the rules and place the matter before a division bench? If you want all matters to go to the Karntaka high court single judge, we can pass an order right now.”
Without issuing notice on CCI’s appeal, the bench kept the matter on Monday as the AG sought time to take instructions.
The AG argued that the matter affects millions of consumers, and that CCI was in the court in public interest and not as a private litigant.
“Flipkart and Amazon are virtually litigating this matter. Let everything be transferred to the Delhi high court. They (e-commerce firms) can go to any place,” he said, adding: “Our enquiry proceedings have been completely stalled. We need to proceed with our probe.”
The e-retailers, represented by a battery of senior lawyers led by Mukul Rohatgi, Abhishek Manu Singhvi, Neeraj Kishan Kaul and Sajan Poovayya, pointed out that CCI was well aware that the Karnataka high court, where 12 cases are pending, has heard the matter for a considerable length and the proceedings are in the final stages. “This amounts to forum shopping. It raises questions on their conduct,” Singhvi said.
The lawyers agreed to the court’s suggestion to transfer all cases before the Karnataka bench, where the case is listed on Tuesday.
The matter was brought before CCI by Delhi Vyapar Mahasangh alleging various infractions under the Competition Act, 2002 taking place on two of the major e-commerce platforms – Amazon and Flipkart. After registering the case, the commission in January 2020 directed an investigation by the Director General under the Act. At the same time, it gave a prima facie opinion that aspects such as exclusive arrangements, deep discounting and preferential listing on Amazon and Flipkart are violative of Section 3(1) read with Section 3(4) of the Act.
In the order under challenge passed on August 28 this year, the DG’s probe reports were considered and the non-confidential aspects of the report were supplied to the opposite parties. Challenging this order, the e-retailers hosting their products on the two e-commerce platforms claimed that the commission has changed their “status” from “third party” to “opposite party” without giving them a hearing.
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