MakeMyTrip India Pvt Ltd v. Competition Commission of India

1. This hearing has been done through hybrid mode.

2. The present petition has been filed by the Petitioners impugning the order dated 6th December, 2022 passed by the NCLAT, Principal Bench, New Delhi in the Competition Appeal (AT) No.57/2022 titled “Make My Trip (India) Pvt. Ltd. & Anr. v. Competition Commission of India”. The said appeal arises out of the order dated 19th October, 2022 passed by the Competition Commission of India (hereinafter, “CCI”) in Case No.14 of 2019 titled “Federation of Hotel & Restaurant Associations of India (FHRAI) and Anr. v. MakeMyTrip India Pvt. Ltd. and Ors.”, to the following effect.

3. Aggrieved by the above order dated 19th October, 2022, the Petitioner No.1 - Make My Trip (India) Pvt. Ltd. challenged the same before the NCLAT, Principal Bench, Delhi. Vide the impugned order dated 6th December, 2022, the NCLAT has admitted the said appeal, however, directed a deposit of 10% of the penalty amount, which was imposed by the CCI as a condition for admission of the appeal. The impugned order dated 6th December, 2022 passed by the NCLAT, reads as under: “06.12.2022. Heard Mr. Mukul Rohatagi, Ld. Sr. Counsel with Mr. Ranjit Srinivasan, Ld. Sr. Counsel assisted by Mr. Shashank Gautam, Ld. Counsel for the Appellant, Mr. Samar Bansal Ld. Counsel for the CCI/R-1 as well as Mr. Vaibhav Gaggar, Ld. Counsel for the Respondent No.3. The present Appeal has been preferred against an order dated 19.10.2022 passed by CCI in Case Nos.14 of 2019, 01 of 2020. Mr. Mukul Rohatgi, Ld. Sr. Counsel tried to persuade the court that penalty has incorrectly been imposed and as such even while admitting it requires to be stayed however, considering the fact that in one another identical matter i.e. Competition Appeal (AT) No. 55 of 2022, this Court while admitting has directed for depositing 10% of the penalty amount, there is no reason to pass a different order. This appeal requires hearing. Admit. It is admitted subject to deposit of 10% of penalty amount which is to be deposited within a period of six weeks. Deposit shall be made in the nature of FDR in favour of Registrar, National Company Law Appellate Tribunal, New Delhi. This Appeal shall be heard side by side of Competition Appeal (AT) No. 55 of 2022 which has directed to be listed ‘For Hearing’ on 11.04.2023. It is clarified that we have admitted the appeal on deposit of 10% of the penalty and we have not dealt with any other part of the order passed by the CCI.”

4. Mr. Rohatgi and Mr. Srinivasan, ld. Senior Counsels appearing for the Petitioners submit that the impugned order dated 6th December, 2022 passed by the NCLAT is completely ambiguous as to the reasons for which the direction for deposit of 10% of the penalty amount imposed by the CCI has been issued. It is clear that the said impugned order does not grant any interim protection qua the remaining 90% of the penalty amount, or any other directions issued by the CCI vide impugned order dated 19th October, 2022. Thus, they submit that the impugned order dated 6th December, 2022, directing deposit of 10% of the penalty amount, merely as a pre-deposit for the admission of the appeal, would be unsustainable. Mr. Rohatgi, thus, submits that the Court ought to clarify that if the deposit as directed is made, the recovery of the remaining 90% penalty amount ought to be stayed. It is further submitted that an appeal against the order of the CCI would lie before the NCLAT, under Section 53B of The Competition Act, 2002.

5. Mr. Venkataraman, ld. Additional Solicitor General appearing for the CCI, submits that the NCLAT has merely followed the pattern, which was followed in the order dated 22nd November, 2022 passed by the NCLAT in Oravel Stays Limited v. CCI & Ors. Be that as it may, it is submitted that the clear understanding of the parties present, while the impugned order dated 6th December, 2022 was passed, was that, subject to deposit of 10% of the penalty amount imposed by the CCI, the recovery of the remaining 90% of the penalty amount would remain stayed. He further submits that, insofar as the remaining directions issued by the CCI vide impugned order dated 19th October, 2022 are concerned, the NCLAT has made it clear that it has not dealt with any other part of the order passed by the CCI. In addition, it is contended that the appeal against the order passed by the NCLAT would lie to the Supreme Court under Section 53T of The Competition Act, 2002.

6. Heard ld. Counsel for the parties. This Court has also perused the order dated 6th December, 2022 passed by the NCLAT, as also, the order dated 19th October, 2022 passed by the CCI. Various directions have been issued by the CCI vide order dated 19th October, 2022, which were challenged before the NCLAT. One of the components of the said order dated 19th October, 2022 is the aspect relating to penalty. The total amount, which has been fixed as penalty in the case of the Petitioner herein, is to the tune of Rs.223.48 crores.

7. The appeal before the NCLAT, admittedly, challenges the entire order dated 19th October, 2022 passed by the CCI. The impugned order dated 6th December 2022 passed by the NCLAT, however, while admitting the appeal, does not give any reasons for directing the deposit of 10% of the penalty amount. Further, no interim protection has been explicitly granted in the said impugned order, in respect of the recovery of the remaining 90% of the penalty amount.

8. The appeal before the NCLAT is a first appeal challenging the order passed by the CCI. Thus, in the opinion of this Court, a pre-deposit of 10% of the penalty amount could not have been made for mere admission of the appeal. It is obvious that the intention, which may not be explicitly made clear in the entire order dated 6th December, 2022 passed by the NCLAT, is against the recovery of the remaining 90% of the penalty amount.

9. Upon a specific query by the Court as to whether the Petitioner No.1 is willing to deposit the 10% of penalty amount, subject to which there shall be stay on the recovery of the remaining 90% of the penalty amount, Mr. Srinivasan, ld. Senior Counsel submits, under instructions from Mr. Adhiraj Singh, authorized signatory of the Petitioner No.1, that insofar as the said interim protection is concerned, the matter may be relegated back to the NCLAT.