National Stock Exchange of India Limited v. Vetsus

1. On 29th April 2011, acting on a complaint of Respondent No. 2, the Competition Commission of India ('CCI') Respondent No. 1 considered the repoft of thc Director General ('DG') and directed the Secretary of the CCI to issue to the Petitioner a show cause notice under Section 27 of the Cornpetition Act, 2002 ('Act') read with Regulation 48 of the Competition Commission of India (General) Regulations 2009 ('Regulations') for irnposition of penalty. The proceeding of the CCI of that date reads,as under: w.P. (c) No.3327/2077 2011:DHC:18967 "The Commission considered the matter in the ordinarn meeting held on 29.4.2011. f'he Commission considered the information filed by the informant, DG report and all the replies/written submissions of the parties available on record and the Commissicin by its majority found that opposite party no. t has contravened the provisions contained in section 4 of Competition Act, 2002. The Secretary is accordingly directed to issue a show cause notice under section 27 of the Competition Act,2002 read with Regulation 48 of the Competition Commission of India (General) Regulation 2009 to the opposite party no. 1 for irnposition of penalty." \

2. The shoft point in the present petition is whether the Petitioner is entitled to a copy of the order dated 29th Aprrl2OIl of the CCI to which a refbrence has been made in the subsequent proceedings of the CCI of 5th May zlrj, para 6 of which reads as under: "6. The Commission after carefully perusing and considering the information, reports of the DG and obj ecti ons/rcpl ies including written/oral submissions fi led/made by the parties and further after examining in detail the entire material on record vide its order dated 29.04.2011 has found, inter alia, that the opposite party No. 1 in its Currency Derivatives (CD) Segment by waiving transaction fee, admission fee and data feed fee as also by keeping the deposit levels low has abused its dominant position in the relevant A o w.P. (c) No.3321/2011 Poge 2 of[4] market and has thereby contrived the provisions contained in section 4 of the Act."

3. Notice. Mr. Ritesh and Ms. Durga Bose, Advocates accept notrce Respondent Nos. 1 and 2 respectively. \Mith the consent of the counsel the parties the writ petition is finally heard.

4. Mr. A.S. Chandhiok, learned ASG appearing for the CCI refers"to Section 27 of the Act and states that the CCI is expected to pass a final order thereunder after hearing the Petitioner pursuant to the show cause notice. It is that final order alone that is required to be given to the Pctitioner.

5. Ihis Court is unable to accept the above submission. No doubt the CCI has to pass a final order after hearing the Petitioner in tenns of Section 27 of the Act. However, the CCI has to furnish the Petitioner its order dated 29tt' Aprll20II which forms the basis of the show cause notice directed to be issued by the CCI to the Petitioner on 29th April 20IL The principles of natural justice require that any material which is used against the Petitioner should be fuinished to it. ) for for

6. Mr. Mukul Rohatgi, learned Senior No. 2 has no objection to a copy of the w.P. (C) No. s327/2077 counsel appearing for Respondent order dated 29tr'ApriI2011 of the Poge 3 of 4 CCI being given to the Petitioner.

7. In the circumstances, the CCI is directed to furnish to the Petitroner a copy of the order passed by it on 29th April 20II in the matter within a period of one week from today. The Petitioner will reply to the show cause notice within a fuilher period of one week thereafter.

8. Mr. Chandhiok states that there is a subsequent amendment to Itegulation 48 with effect from 21't March 2011 dispensing with the requirement of a prior show bause notice in such circumstances. It is clarified that this order will not be treated as a precedent.

9. The writ petition and the pending application are disposed of in the abovc tenns.

10. A copy of this order be given dasti to the parties under signature of the q/ MAY 18,2011

S. MURALIDHAR' J ad a,,, -\ *Wh en[4] Surylt' fT{ t!;Yet'l'\C/-I w.P. (c) No.3321/2011 f $- {< + IN THE IIIGH COURT OF DELHI AT NEW DELHI w. P. (C) 332tt20rr NATIONAL STOCK EXCHANGE OF..... Petitioner INDIA LIMITED Through: Mr. Arvind Nigam, Senior Advocate with lZr. Amit Sibal, I\4r. Naval Chopra, IW' Aashish Gupta and Mr. Satyajit Sarna, Advocates VETSUS COMPETITION COMMISSION OF INDIA & ANR..... Ri:spondents Through: Mr. A-S. Chandhiok, Additional. So[ci6r General wiih Mr. Ritesh' Mr' Neil Hildreth,Mr.SamirGandhiandMs'FJirnangini Dadwal, Advocatei' for CCI' Mr. A.N. Haksar, Senior Advocate with Mr' Udayan Jain, Mr. Anand S' Pathak and Mr' G' Durga Boss, Advocates for R-2' CORAM: JUSTICE S. MURALIDHAR -: ORDER oh 31.05.2011; CM APPL Nol 8078/2011 (for directiont

1. This court.had, by an.orcler dated 18th May 20I!, directed the competition cornmission of India ('ccl') to furnish to the Petitioner a copy of the ofder passed by it on 29tr'April 20lI within one week'

2. pursuant to the above order, on 25th May 20II the CCI furnished to the ( petitioner a copy of the order dated 29th Aprtl 2Ot[1] as well as a 'reasoned \O order' dated 25th May 20IL It is not in dispute that the reasoned order dated ( 25,h May zLl]gives the reasons for the order dated 29th April 20ll'

3. The grievance of the ApplicantlPetitioner is that what has been furnished to it is only a majority opinion and not the dissenting view of some of the members of the CCI. On27th May z11!,the CCI passed an order in which inter alia ttwas "clarified that the majority order is to be treated as the order of the Commission. The final order of the majority as well as that"of minority (dissenting) shall be provided to the parties after the same is passed under Section 27 of the Act'"