CCI - Amazon Order

NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Competition Appeal (AT) No. 01 of 2022
In the matter of :
Amazon.com NV Investment Holdings LLC
2215-B, Renaissance Drive,
Las Vegas, Nevada,
USA – 89119 ….. Appellant
V
1. Competition Commission of India & Ors.
Through its Secretary
9th Floor, Office Block-I
Kidwai Nagar (East), Opposite Ring Road,
New Delhi – 110023, India …..Respondent No.1
2. Future Coupons Private Limited
2nd Floor, Sobo Central Mall,
Pt. Madan Mohan Malviya Road,
Haji Ali, Tardeo, Mumbai – 400034
Maharashtra …..Respondent No.2
3. Confederation of All India Traders
Through its General Secretary,
Mr. Praveen Khandelwal,
Vyapar Bhawan, 925 / Gali No.1
Pocket B1, Nai Walan,
Karol Bagh, New Delhi – 110005 …..Respondent No.3
Present:
For Appellant : Mr. Gopal Subramanium, Mr. Arun Kathpalia
and Mr. Amit Sibal, Senior Advocates
Mr. Pavan Bhushan, Ms. Ujwala Uppaluri,
Ms. Hima Lawrence, Ms. Bani Brar,
Mr. Kaustubh Prakash, Mr. Aishvary Vikram
Singh, Mr. Swapnil Singh, Mr. Saksham
Dhingra, Mr. Vinay Tripathi, Mr. Anand
Pathak, Mr. Shashank Gautam, Ms. Sreemoyee
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Deb, Mr. Rajat Moudgil, Ms. Anubhuti Mishra,
Mr. Amit Kr. Mishra, Mr. Vijay Purohit,
Mr. Mohit Singh, Mr. Shivam Pandey,
Ms. Samridhi Hota, Ms. Nikita Bangera,
Mr. Chetan Chawla, Ms. Didon Misri,
Mr. Rishabh Juneja, Mr. Sanyam Juneja,
Mr. N. Subramaniam and Ms. Nandini Sharma,
Advocates
For Respondent-1 : ASG Mr. N. Venkataraman with Mr. Manu

Chaturvedi, Mr. Chandrashekhar Bharathi and
Sanyat Lodha, Advocates.
Ms. Shama Nargis (Deputy Director Law, CCI,
R1)
For Respondent-2 : Mr. Mukul Rohatgi and Mr. Harish Salve,

Senior Advocates
Mr. Ramji Srinivasan and Mr. Dayan Krishnan,
Senior Advocates with Mr. Mahesh Agarwal,
Mr. Pranjit K Bhattacharya, Mr. Rishi Agrawala,
Mr. Raghav Shankar, Ms. Rajshree Chaudhary,
Advocates.
For Respondent-3 : Mr. Krishnan Venugopal and Mr. Saurabh

Kirpal, Senior Advocates with Mr. Rajat
Sehgal, Advocate.
With
In the matter of :
All India Consumer Product Distributors Federation
Through its Authorised Signatory
Mr. Dhairyashil Patil
3B, 9149, Multani Dhanda
Paharganj, New Delhi – 55 .…Appellant

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1. Competition Commission of India & Anr.
9th Floor, Office Block-I
2. Amazon.com NV Investment Holdings LLC
Las Vegas, Nevada 89119,
United States of America …..Respondent No.2
Present:
For Appellant : Mr. Darpan Wadhwa, Senior Advocate with
Mr. Arvind Kumar Gupta, Ms. Purti Gupta,
Ms. Henna George, Ms. Shivani Sharma,
Ms. Surbhi Dhanuka and Mr. Amer Vaid,
Advocates
R1)
For Respondent-2 : Mr. Gopal Subramanium, Mr. Arun Kathpalia
Advocates

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With
In the matter of :
Confederation of All India Traders
Through its General Secretary,
Mr. Praveen Khandelwal,
Vyapar Bhawan, 925 / Gali No.1
Pocket B1, Nai Walan,
Karol Bagh, New Delhi – 110005 …..Appellant
1. Competition Commission of India

9th Floor, Office Block – Tower I
2. Amazon.com NV Investment Holdings LLC

Las Vegas, Nevada 89119,
United States of America …..Respondent No.2
3. Future Coupons Private Limited

2nd Floor, Sobo Central Mall,
Pt. Madan Mohan Malviya Road,
Haji Ali, Tardeo, Mumbai – 400034
Maharashtra …..Respondent No.3
Present:
For Appellant : Mr. Krishnan Venugopal and Mr. Saurabh

Kirpal, Senior Advocates with Mr. Rajat
Sehgal, Advocate.

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R1)
For Respondent-2 : Mr. Gopal Subramanium, Mr. Arun Kathpalia

Advocates
For Respondent-3 : Mr. Mukul Rohatgi and Mr. Harish Salve,

Senior Advocates
Mr. Ramji Srinivasan and Mr. Dayan Krishnan,
Senior Advocates with Mr. Mahesh Agarwal,
Mr. Pranjit K Bhattacharya, Mr. Rishi Agrawala,
Mr. Raghav Shankar, Ms. Rajshree Chaudhary,
Advocates.
JUDGMENT
(Virtual Mode)
Justice M. Venugopal, Member (Judicial) :
Preamble:

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Competition Appeal (AT) No. 01 of 2022:
The Appellant/Amazon.com NV Investment Holdings LLC has
preferred the instant Competition Appeal (AT) No. 01 of 2022 as an
Àggrieved Person’ (under Section 53 (B) of the Competition Act, 2002)
on being dissatisfied with the ìmpugned order’ dated 17.12.2021 (vide
Ref No.C-2019/09/688/7099), passed by the `1st
Respondent/Competition Commission of India (CCI)’ in proceedings
under Sections 43A, 44 and 45 of the Competition Act, relating to certain
findings of the `1st Respondent/CCI’ and the consequential directions
imposing a penalty of INR Rs.202 Crores and a further direction that the
Àpproval’ accorded to the Combination Registration No. 688 was kept
in abeyance till disposal of the `Notice’ under Form I with a direction to
the Àppellant’ to refile `for Approval’ in Form II.
2. Earlier, the `1st Respondent/Competition Commission of India’
while passing the ìmpugned order’ dated 17.12.2021 (in Ref No. C-
2019/09/688/7099) against the Àppellant’ (Amazon.com NV
Investment Holdings LLC under Sections 43A, 44 and 45 of the
Competition Act, 2002), among other things at Paragraph Nos. 33 to 40,
41 to 47, 57, 60, 68, 69, 75, 77, 80, 82, 83, had observed the following:

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33. “Prior to the Approval Request, a situation update relating to
the negotiation between the parties, seen as a part of another
internal e-mail dated 10th July, 2018 of Amazon (Situation
Update), elaborates on the background and purpose with which
the Combination was contemplated between Amazon and Future
Group. The relevant extract of the Situation Update is reproduced
below:
“10 July 2018
Project Taj – Investment in National Multi-category Copperfield-
seller Situation Update:
The Taj group is India’s largest and multi-category offline retailer
with 280 multi-category stores, 620 grocery stores and 400 fashion
only stores in top 50 cities. The Taj group’s retail company, Taj
Retail Limited (TRL) is publicly traded and has a market cap of
$4.1B1 (July 9, 2018). Amazon’s India team likes Taj’s
management team, store footprint, private label capability and
believe they are one of the key players in the offline retail market
to partner with. For an overview of relevant Taj group businesses,
please refer to Annexure I.
On 24 May, 2018, we received an approval from … to indicate
interest (to Taj’s founder) to invest between $400 to $500 MM for
upto 9.99% stake in TRL. In India, our ability to pursue
investments / acquisitions of retailers is limited because laws
restrict foreign investment in multi-brand retail assets (i.e.,
retailers selling multiple brands across categories under one
roof). However, because TRL is a listed company, Alpha [Amazon]
can acquire upto 9.99% of TRL directly (as a foreign portfolio
investor). Eventual ownership will vary upon final pricing
discussions.
Upon receiving … approval, we engaged into deeper discussion
with Taj on pricing / valuation, investment structure and strategic
rights that we could get through an investment. As of last week, we
have aligned with Taj on an investment framework to proceed

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further with this transaction. A Business Commercial Framework
(BCF) to build and accelerate Ultra-Fast Delivery across top-20
cities in India leveraging Taj’s national stores footprint as a
Copperfield seller, is agreed in principle with Taj team; please
refer to Annexure II for investment rationale and more details of
the BCF. This note provides background on the transaction,
details of the investment framework and FAQs addressing the key
points to consider before going back to Taj team with our offer…
FAQs
1. What are the strategic objectives that we want to achieve
through Taj?
We are looking to secure the following business objectives through

this transaction:
a. Ability to become the single largest shareholder in India’s
largest offline retailer (TRL) when foreign direct investment (FDI)
opens up in this sector.
b. Precluding / blocking competitive interest in TRL, and
preventing an IC from acquiring TRL.
c. Together with the investment, Alpha will enter into a commercial
agreement to utilize TRL’s pan-India store infrastructure to
bolster Alpha’s ultra-fast delivery program, exclusively carry
private label portfolio in grocery and value fashion, and drive
higher fees for Alpha.
2. What is our business rationale and BCF for Taj?

We believe that a two-hour delivery promise, for 15,000 SKUs
across top-20 cities will be a unique differentiating capability. It
will allow us to cover 85% of our Prime members and 63% of all
customers. To serve this customer base, we believe working closely
with a large Copperfield seller is important. We believe that Taj is
one of two key pan-India retailers worth pursuing (the other being
Brigade). Taj has a strong portfolio of private label selection in

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grocery (450+SKUs, across packaged foods, home and personal
care) and value fashion (27 brands with a median ASP of $9.2
(INR 600), contributing to 80% of their GMS for fashion). Against
our investment of $400 to 600MM in TRL, we estimate the
discounted cash flow value of BCF over 10 years of $702MM (INR
45.6B); please refer to Annexure II for investment rationale and
more details of the BCF. When foreign investment laws are relaxed
and higher stake or acquisition of multi-brand retail assets is
permitted beyond today’s possibilities, we would have a foot-in-
the-door to acquire more in this strategic asset, should we so
desire at the time. For further details please refer to Annexure II –
BCF Strategic Value. Importantly, our investment in TRL will be
liquid given that TRL is publicly traded in the Indian stock market,
and therefore, we can recover our investment in case TRL fails to
deliver.
3. What is the proposed transaction?
An overseas Amazon entity, registered as a ‘foreign portfolio
investor’, will acquire 9.99% (through a fresh issuance of shares)
of TRL. Simultaneous with the investment, Alpha India will enter
into a commercial agreement (BCF) with TRL, and Taj Consumer
Limited (TCL), and Taj Lifestyle Fashion Limited (TLFL) in
relation to the matters listed in FAQ 2…
6. If we were to execute both Taj and Brigade, why is a Call Option
important in both situations?
Our ICs (BB, FK, Paytm Mall) are aggressive on grocery, general
merchandise and general electronics categories. Specifically in
grocery and fresh categories, we are lagging behind BB and FK is
also nipping at our heels. Walmart’s expertise in offline retail will
likely spur FK and Alibaba’s investment and technology will
continue to push BB ahead.
Given the above, we need to build deep strategic alignments with
offline grocery retailers to leverage their execution capabilities to
power our fresh and grocery offering. India has 6 offline retailers

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(Taj, Brigade, Reliance Retail, D-Mart, Spencers and Nature’s
Basket). With a process of elimination on parameters of asset
quality, partner quality and availability, only two i.e. Taj and
Brigade remain. If we are able to close our investment in Brigade,
we would secure a high quality asset, however it will lack the scale
and national footprint that Taj offers. Further, Brigade is our bet
to own a high quality grocery operation. Taj, on the other hand, is
an investment in a multicategory Copperfield seller with a larger
pan-India footprint. Getting a Call option in both assets allows us
to acquire and raise our bet, at our discretion, in the player we feel
best meets our objectives after having tested close operational
alignment with both in 3-7 years following investment; when
regulations permit.
7. If we were to execute both Taj and Brigade, how would we

decide which Call Option to exercise then?
Keeping aside our tenets of Financial Discipline for the moment;
holding a Call Option in both assets keeps our options open and it
also serves as an incentive / deterrent to Brigade / Taj. If Brigade
executes flawlessly, we can exercise our Call Option (when legally
permissible) and make Brigade a spearhead of our 1P grocery
operations. If Brigade doesn’t execute to our bar, then we can
choose to pull back from further investments in Brigade and
double down on our investments in Taj, provided that it meets our
expectations. If Taj executes well both on BCF as well as an
independent retail asset, when regulations relax, we will have the
ability to increase our stake in India’s largest offline retailer and
keep our competition. If Taj doesn’t execute well, we can exit our
ownership in listed stock. Holding Call Options in both assets, thus
allows us to control our destiny in a thoughtful manner in the
future…
Annexure II - Strategic value accruing to Amazon as a result of the

Business Commercial Framework (BCF).

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We started working with Taj, couple of years ago, as a Copperfield
seller in three cities (across 23 stores) to learn and develop the
ultrafast delivery model in India. In April-2018, we served about
2000 orders per day with an AOV of $12.3 (INR 802) and UPO of
9.3. We earn merchant fee of 5.4% and have a CPLF of -$4.55 (-
INR 296) per order (55.5%). If we improve the order economics,
we believe Taj’s footprint of physical infrastructure can offer a
unique 2-hour-delivery service across multiple categories in top-
20 cities. Therefore, we constructed a BCF to estimate value
creation from this partnership across their retail assets and
private label capabilities.
1. Offer 2-hour-ready selection in top 4 cities with improved
economics: An average hypermarket store carries an in-stock
selection of about 15,000 SKUs - 8500 in softlines, 5500 in grocery
and 2000 in general merchandising (primarily home and kitchen).
There are 104 stores in top 4 cities. In five years we can scale to
21K orders/day with an AOV of $24 (INR 1549) and GMS of
$181MM (INR 11B). In this model we will bear only the last mile
costs with increase in SoA fee for grocery at 13.5% (+810bps over
current levels) and 32% for softlines. Therefore, we will improve
our order economics with an OP per order of -$0.8 (- INR 53) or
(+2495bps vs. 2021 LRF). OP less infra will be $1.3 (INR 84)
(+2466 bps vs. 2021 LRF)
2. Build and expand 2-hour-delivery service in the next 16 cities:
These cities are likely to grow faster than the top-4 cities and
therefore will lead in retail consumption. Taj has nearly 120 stores
in these cities and carry an average selection of 12,000 SKUs. We
expect to expand the Copperfield-service to these cities within
three years and scale to 31K orders per day with an AOV of $20.9
(INR 1,363) by year 5. The order economics will be similar to that
in top-4 cities.
3. Carry Taj’s private label selection across grocery and softlines
exclusively: We will leverage Taj’s private label selection to
substitute and accelerate the private label selection in Pantry. Our

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2020-LRP assumes private-label penetration of 7.0% as
proportion of Consumables GMS. We believe we can expand
private-label participation to 18% by year-3 (current penetration
of Taj is at 30% in FMCG and 60% in Staples). This will give
incremental margins of INR 26 per order in Pantry. Taj has
capabilities from design to manufacturing for fast and value-
fashion brands in apparels, shoes and luggage. Leveraging this
capability, we can improve the share of private labels to overall
Softlines business by 10% (+500bps) in Year-5. Secondly, we
expect Taj’s fashion stores Fashion-Big-Bazaar, Central and
Brand Factory to list as a seller, similar to Shopper Stop (we
invested for a 5% stake in India’s largest offline fashion
department store to onboard 200K+ ASINs across 300 fashion
brands) and generate additional 0.5MM order per month. We
expect to improve Softlines CP by 507bps by year- by a
combination of accelerated PL penetration, increased selection of
Central and Brand Factory and improvement in SOA fees.
4. Foot-in-the-door and a strategic option value: Laws in India
currently do not permit foreign investment in offline retail
companies engaged in both food and non-food retail. This could
change in the next 3-5 years, as government of India, is slowly
relaxing the laws. At that point, Taj will likely still be the largest
asset with pan-India footprint and the possibility of greater
control.”
[Emphasis Supplied]
34. Another important internal document of Amazon that shows the basis
of entering into the Commercial Arrangements and the share acquisition
is its internal note dated 24th May, 2018, the relevant extract of which is
reproduced as under:
“Project Taj – National Multi-category Copperfield-seller
Background:…Amazon’s India team likes Taj’s management
team, store footprint, private label capability and believe they are
one of the key players in the offline retail space to partner with. In
January 2018, the founder of Project Taj had visited Seattle and

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presented the Taj Group’s capabilities to Jeff Bezos and the senior
leadership team. Since then, we engaged with Taj and discussed a
Business Commercial Framework (BCF) to build and accelerate
Ultra-Fast Delivery across top-20 cities in India leveraging Taj’s
national stores footprint as a Copperfield seller. In India, our
ability to pursue investments / acquisitions of retailers is limited
because laws restrict foreign investment in multi-brand retail
assets (i.e., retailers selling multiple brands across categories
under one roof). However, because Taj’s Retail entity is a listed
company, we could invest up to 9.99% of the company directly as
foreign shareholders. To execute on the above Business
Commercial Framework (BCF) the founder of Taj believes a close
alignment via a strategic investment with an online player is
important. We seek your approval to indicate our non-binding
interest (to Taj’s founder) to invest between $400 to $500 MM for
up to 9.99% stake in the company. Eventual ownership will vary
upon final pricing discussions. This indication of interest to invest
in Taj will allow us to get engaged deeper into discussion on
pricing / valuation (given fluctuating stock price & regulatory
pricing guidelines), deeper financial performance of Taj,
regulatory hurdles/challenges and strategic rights…
Investment Rationale: We believe that a two-hour delivery
promise, for 15,000 SKUs across top-20 cities will be a unique
differentiating capability. It will allow us to cover 85% of our
Prime members and 63% of all customers. To serve this customer
base, we believe working closely with large Copperfield seller is
important. We believe that Taj is one of two key pan-India retailers
worth pursuing. Other retailers are sub-scale or part of business
groups, or are unsuitable to partner with. Taj has a strong
portfolio of private label selection in grocery (450+SKUs, across
packaged foods, home and personal care) and value-fashion (27
brands with a median ASP of $9.2 (INR 600), contributing to 80%
of their GMS for fashion). An investment in Taj will allow us to
provide the following benefits, based the commercial terms we
have been discussing with Taj: (a) expand coverage in top four

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cities with improve the merchant fee to 13.5% (+850bps); (b) build
a two-hour-delivery service in next 20 cities; (c) exclusively carry
their private label portfolio in grocery and value-fashion; and(d)
obtain option value to increase our equity stake when laws change.
In summary, against an investment of $400 to 500MM in Taj we
estimate the discounted cash flow value of BCF over 10 years of
$702MM (INR 45.6B). Our investment will be liquid given that Taj
is publicly traded in the Indian stock market…”
[Emphasis Supplied]
35. The Commission notes that the above three internal documents
(Internal Correspondence) of Amazon Group are relevant to understand
its focus during negotiation with Future Group and what were its
objectives to be achieved by way of entering into the Combination. As
may be seen, the negotiations between the parties relating to the
Combination were taking place as early as May, 2018, wherein Amazon
initially planned to partner with Future Group, being a key player in the
offline retail market, by acquiring 9.99% shareholding in FRL as well as
entering into a business commercial framework to build and accelerate
ultra-fast delivery services across the top-20 cities in India, leveraging
the national footprints of Future Group. Through these transactions,
Amazon Group wanted to secure its ability to become the single largest
shareholder of FRL when the foreign direct investment opens up in the
retail sector; preclude/ block competitive interest in FRL and utilise the
pan-India store infrastructure of FRL to bolster the ultra-fast delivery
program and exclusively carry private label portfolio in grocery and
value fashion; and drive fees for Amazon. The rationale to enter into such
Combination included the need for Amazon to build deep strategic
alignments with offline grocery retailers to leverage their execution
capabilities to power the fresh and grocery offerings of Amazon.
36. The Approval Request dated 18th July, 2019 suggests that, in view of
certain developments relating to foreign investments in India, instead of
directly acquiring 9.9% shareholding in FRL, Amazon would use a twin-
entity investment structure to invest in FRL i.e., Amazon would acquire
49% shareholding in FCPL which, in turn would hold 8 – 10% of the

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shareholding in FRL. It was further stated that the number of equity
shares of FRL to be held by FCPL was calculated such that Amazon can
indirectly hold the same number of shares of FRL that Amazon would
have acquired if it had directly invested the consideration in FRL.
Further, the consideration has been arrived at on the basis of traded
price of FRL shares, and a 25% premium is paid on account of the
strategic rights and call option. Furthermore, it is evident that
acquisition of shares in FRL/FCPL by Amazon was envisaged as a pre-
requisite to enter into commercial agreements between Amazon and
Future groups.
37. Seen against the above backdrop, the purpose of the Combination,
including the rights over FRL and the Commercial Arrangements with
FRL, as enlisted in the summary dated 18th July, 2019 appended to the
Approval Request was for investment in FRL and establishing a strategic
alignment/partnership between Amazon and Future groups, in the Indian
retail sector.
38. Now coming on to the Notice, it is relevant to look at Item 5.3 of Form
I, which requires the notifying party to disclose ‘Economic and Strategic
purpose (including business objective and rationale for each of the
parties to the combination and the manner in which they are intended to
be achieved) of the Combination’. Amazon submitted the following as its
purpose for the Combination:
“The Investor [Amazon] believes that FCL [FCPL] holds a
potential for long term value creation and providing returns on its
investment. The Investor has decided to invest in FCL with a view
to strengthen and augment the business of FCL (including the
marketing and distribution of loyalty cards, corporate gift cards
and reward cards to corporate customers) and unlock the value in
the company.”18
39. In terms of Regulation 13A of the Combination Regulations, the
notifying party is required to provide a summary of the combination
containing, inter alia, the nature and purpose of the combination. The
relevant extract of the summary filed by Amazon against this requirement
states that:

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“The Investor [Amazon] believes that FCL [FCPL] holds a
potential for long term value creation and providing returns on its
investment. The Investor has decided to invest in FCL with a view
to strengthen 18 Para 30, at pp. 30 and 31, of the Notice Page 32
of 57 and augment FCL’s business relating to marketing and
distribution of corporate gift cards.”19
40. Upon examination of the Notice, a specific query was posed to
Amazon, vide letter dated 9th October, 2019, in relation to Item 5.3 of
the Notice viz., ‘2.13’. With reference to item 5.3 of Form I, please
provide the following: … (c) According to media articles and statements
of Mr. Kishore Biyani, the investment by Amazon is strategic to become
a part of the ecosystem. Please elaborate’. In response, Amazon had
elaborated the gift card business of FCPL and the interest of Amazon to
expand its portfolio in the payments landscape in India and stated that:
“In this backdrop, it is submitted that the Proposed Combination
will enable the Parties to: (i) enhance Investor’s [Amazon]
existing portfolio of investments in the payments landscape in
India, (ii) provide an opportunity to FCL [FCPL] to learn global
trends in digital payments solutions and launch new and
innovative product offerings; and (iii) offer innovative payments
solutions to entities so as to enhance consumer convenience and
user experience”20.
41. A further query on the rationale of the rights under FRL SHA was
posed to Amazon vide letter dated 24th October, 2019 viz. ‘2.5. As per the
notice, Acquirer will get certain rights over the FRL. You are required to
provide details of shareholding (directly / indirectly), affirmative
rights/veto rights/ rights not available with ordinary shareholders in FRL
or rights with respect to FRL being acquired by Amazon and strategic
and or economic rationale for such rights’. In response, Amazon, inter
alia, stated that:
“It is submitted that the Investor's [Amazon] decision to
invest in FCL [FCPL] is, inter alia, based on the following
considerations: (a) the unique business model of FCL
addresses an existing gap in the payments landscape in

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India, thereby making it a strong and sound investment
opportunity for the Investor (who holds similar existing
investments in entities engaged in business activities within
the payments market in India); and (b) while FCL has a
strong growth potential, in the short term, to add credibility
to its financial position, it has invested in, and proposes to
invest in FRL, which is a publicly traded company with
strong financials and futuristic outlook. In other words, the
Investor has considered all the above-mentioned factors in
totality to arrive at the value of the proposed
investment…21”
[Emphasis Supplied]
42. Amazon had further claimed in the said response that it does not have
any direct or indirect shareholding in FRL22, and with a view to protect
its investment in FCPL, certain rights have been granted with respect to
FCPL’s investment in FRL. These rights were stated to be: (a)
‘contractual investor protection right... with no voting rights, with a view
to protect its investment in FCL [FCPL]’23; (b) ‘standard investment
protection rights that are commonplace in investment agreements’24; (c)
‘it would be important to note that not only are investors rights limited
in scope, they also not extend to any subject matter that encroaches upon
the commercial and operation decision making process of the FRL...25’;
and (d) ‘investor drives value of its investment from FCL and FRL (by
virtue of being an underlying asset of FCL). Therefore, it is essential for
the Investor to secure certain rights to protect its investment’26.
43. In stark contrast to the Internal Correspondence of Amazon, the
disclosures made against Item 5.3 of Form I, summary filed pursuant to
Regulation 13A of the Combination Regulations, query 2.13(c) of letter
dated 9th October, 2019 and query 2.5 of the letter dated 24th October,
2019, did not indicate a possibility of the Combination being pursued by
Amazon for having a ‘foot-in-door’ in the Indian retail sector, acquire
strategic rights over FRL or entering into any commercial partnership
with FRL to expand the ability of Amazon in ultra-fast delivery services.
Instead, the business potential of FCPL was shown as the driving factor

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for Amazon to pursue the Combination and FRL was merely shown as a
factor of financial strength. The Internal Correspondence of Amazon
makes it abundantly clear that Amazon was all along focussed/interested
in FRL. The Internal Correspondence of Amazon does not speak about
the business potential of FCPL, as has been claimed and projected in the
Notice and in the responses to the letters of the Commission. Similarly,
the Notice presents the rationale of indirect rights over FRL, as
protection to investment in FCPL but the Situation Update dated 10 th
July, 2018 identifies the same set of rights as answer to the following
question ‘What strategic rights do we get through this investment.’ The
expressions used by Amazon to describe the rationale behind the indirect
rights over FRL varied from time to time: ‘strategic rights’ in its Internal
Correspondence; ‘protection to investment in FCPL’ in the Notice given
to Commission; and ‘rights derived from FRL SHA are to protect the
interest of the investor [Amazon]’ in the response to SCN. While the
object and purport of mere investor protection rights are limited to
protect the investment made, the object and purport of strategic rights,
such as those reflected in the Internal Correspondence, are much
different. Such difference is of significance in establishing a proper
understanding of a combination and its purpose, and accordingly,
deciding the appropriate line of inquiry to assess the effects of the
combination on competition. The Commission observes that, in every
case of investment, the acquirer would want to protect the value of its
investment and the returns therefrom. However, when a strategic
acquisition is contemplated to achieve synergies amongst the business
activities of acquirer and target enterprise through acquisition of
shareholding (or) integration of whole/part of their business (or)
commercial contracts/arrangements (or) a combination of these, any
right accruing to acquirer pursuant to such acquisition would be beyond,
but not limited to, mere investor protection. The purpose of securing
strategic interest over FRL and commercial partnership with FRL is
much different from FRL, a company with strong financials and futuristic
outlook, being merely taken as an element of financial strength and
protection to the investment in FCPL.

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44. In the Notice, Amazon had represented that its rationale behind the
Combination was the business potential of FCPL to create long term
value and provide return on the investment made by Amazon. However,
the Internal Correspondence of Amazon clearly shows different purposes
for envisaging the Combination (i.e., ‘foot-in-door’ in the Indian retail
sector, secure rights over FRL that are considered as strategic by
Amazon and Commercial Arrangements between the retail business of
Future Group and Amazon). In its response to the letters dated 9 th
October, 2019 and 24th October, 2019 of the Commission, Amazon had
continued with the suppression of actual purpose of the Combination.
Amazon has not contested the genuineness of the Internal
Correspondence or their contents. It is obvious that the purpose of
Amazon to pursue the Combination was not the potential of the gift and
loyalty card business of FCPL, as has been claimed in the Notice. Rather,
FCPL was envisaged only as a vehicle in the Combination to which no
value or purpose is ascribed in the Internal Correspondence. Further, it
is clear from the above discussed e-mail dated 19th July, 2019 that the
entire consideration of the Combination has been arrived at on the basis
of 25% premium to the regulatory price of FRL shares and that such
premium was paid on account of the strategic rights and the call option
provided to Amazon. Thus, the instant matter is a clear, conscious and
willful case of omission to state the actual purpose of the Combination
despite the disclosure requirement under Item 5.3 of Form I read with
Regulation 5 of the Combination Regulations and Section 6(2) of the Act.
Further, Amazon has failed to provide any material or plausible
explanation in its response to the SCN and in the subsequent submissions
to demonstrate that its disclosures against Item 5.3 are correct and that
the business potential of FCPL was a consideration for Amazon to pursue
the Combination. Seen in the context of the Internal Correspondence and
failure to provide any of the said material and/or explanation, it is
evident that Amazon, in addition to the omission to state the purpose of
the Combination, has misrepresented the Commission by stating that the
purpose of the Combination is an opportunity arising from the business
potential of FCPL and to add credibility to FCPL’s financial position,
FCPL invested and proposed to further invest in FRL, a company with
strong financials and futuristic outlook. Seen against the backdrop of
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Internal Correspondence, the statements of Amazon in the Notice and
subsequent submissions dated 15th November, 2019 regarding the
purpose of the Combination, stand belied. It is evident that these
statements have been made with full knowledge that the same are false
in material particulars. Amazon had misled the Commission to believe,
through false statements and material omissions, that the Combination
and its purpose were the interest of Amazon in the business of FCPL.
45. At this juncture, it also relevant to look at the disclosure of Amazon
against Item 8.8 of Form I, which requires a notifying party to furnish
documents, material (including reports, studies, plan, latest version of
other documents), etc. considered by and/or presented to the board of
directors and/or key managerial person of the parties to the combination
and/or their relevant group entities, in relation to the proposed
combination. The purpose of this requirement is to understand the
commercial and economic contours of the given combination in addition
to the legal contracts submitted as trigger documents against Item 8.7 of
Form I. True and complete disclosure against Item 8.8 enables the
Commission to determine the appropriate framework for competition
assessment of the Combination. In response to Item 8.8, Amazon had
furnished a presentation titled ‘Taj Coupons - Business Plan for 5 years’.
The eightpage presentation provides only a brief idea of the gift voucher
business of FCPL, its business operating model, estimated five-year
business size, organisation design, sales team and financial summary,
without any reference to FRL.
46. Considering the disclosures in the Notice, including that against Item
8.8, a specific query was posed to Amazon vide letter dated 24th October,
2019 of the Commission: ‘2.1 It is noted that in terms of query 8.8 of
Form I, Parties have not furnished requisite documents. Accordingly, you
are required to provide documents, material (including reports, studies,
plan, latest version of other documents), etc. considered by and/or
presented to the board of directors and/or key managerial person of the
parties to the combination and/or their relevant group entities, in
relation to the proposed combination. Further, for each document,
indicate the date of preparation and the name and title of the
addressee(s)’.
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47. In response, Amazon furnished copies of resolution authorising the
execution of FCPL SSA and FCPL SHA, and copies of the reports on
legal due-diligence and key tax issues relating to FCPL. Neither copies
of the above discussed Internal Correspondence nor any other document
containing the actual purpose reflected in the said documents was
furnished to the Commission. It is noted that no purpose elaborated in
the Internal Correspondence surfaced in any of the material furnished
against Item 8.8 of Form I or query 2.1 of the letter dated 24 th October,
2019 of the Commission. Similarly, the purpose of the Combination
stated in the Notice and subsequent submissions of Amazon, were not a
consideration in the Internal Correspondence. These clearly establish
that Amazon had knowingly suppressed relevant and material documents
to be furnished under Item 8.8 of Form I.
57. It is observed that, in response to Item 5.1.1, no reference was given
to FRL SHA or the Commercial Arrangements. Amazon had merely
submitted that the value of assets and turnover of FRL is higher than the
jurisdictional threshold prescribed under Section 5(a)(i)(A) of the Act.
Based on the information relating to the constituent steps of the
Combination provided in pages 2 and 3 of the Notice and the disclosure
against Item 5.1.2, it is apparent that the financials of FRL were taken
into consideration as it was identified as the target enterprise in
Transaction II. However, no reference was made to FRL SHA in the
disclosures against Items 5.1.1 and 5.1.2. FRL SHA and the commercial
agreements, being inter-connected parts of the Combination, their details
ought to have been furnished in Item 5.1.2 of Form I. In response to Item
5.1.3, Amazon had given a list of rights to be acquired by it in terms of
FCPL SHA to protect its investment in FCPL (Table 3 – The rights
proposed to be acquired by the Investor in terms of the SHA to protect its
investment in FCL) 34. In this section, it has been brought out that FCPL
has to take Amazon’s consent for exercising some of its rights under FRL
SHA. However, it has never been the case that Amazon disclosed the fact
that FRL SHA was negotiated as a part of the Combination and was
executed to achieve one of the objectives of the Combination. Similarly,
no reference about the commercial agreements was made in this section
of the Notice. The Commission observes that mere consideration of the

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values of the asset and turnover of FRL cannot be considered as
notification of FRL SHA and BCAs, as parts of the Combination.
60. As may be seen above, details of FRL SHA were not mentioned in
Item 5.2. As has emerged now, FRL SHA and the commercial agreements
were inter-connected parts of the Combination and accordingly, their
details ought to have been disclosed against Item 5.1.2 and in the above
table.
68. The Internal Correspondence of Amazon clearly highlights that the
rights of Amazon over FRL are at the heart of the negotiations and the
need for FRL SHA was to achieve the said objective of the Combination.
It is for these strategic rights and for the call option, that Amazon had
paid a premium of 25% over the regulatory share price of FRL. This
makes it clear that neither FRL SHA would have been executed in the
absence of other steps/transactions of the Combination nor would
Amazon have gone ahead with Transaction III in the absence of FRL
SHA. However, in blatant disregard of Regulation 9(4) and 9(5), read
with Items 5.1.1, 5.1.2, 5.2 and 8.7 of Form I, FRL SHA was not disclosed
in the Notice in its actual context; its inter-connectedness to FCPL SSA
and FCPL SHA were suppressed in spite of the disclosure requirements
under the said provisions of Combination Regulations. In other words,
the mentioning of FRL SHA in footnote 3 of the Notice can, in no manner,
be considered a notification of the same as a part of the Combination
either in substance or form. This is more so when there were repeated or
categorical assertions that the rights over FRL are limited to investor
protection and no influence over FRL is acquired and FRL SHA was
negotiated independent of the combination. Therefore, Amazon failed to
give a single notice covering all the inter-connected steps of the
combination, as required in Regulation 9(4) read with Regulations 9(5)
and 5 of the Combination Regulations, and Section 6(2) of the Act.
Further, Amazon also failed to give true and complete disclosure with
respect to substance of its combination in this case, as the FRL SHA was
pursued to ensure that the business of FRL become a strategic asset for
Amazon to expand and enhance its ultra-fast delivery services.

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69. The Internal Correspondence show that the strategic rights over FRL
though FRL SHA and FCPL SHA were contemplated by the parties to
establish and cement their strategic partnership through a series of
commercial agreements. The inquiry in pursuance of the SCN reveals
that the Commercial Agreements were essential and inter-connected
parts of the Combination and those were the trigger for Amazon to
acquire shareholding in FCPL as well as secure rights over FRL. The
fact that the commercial agreements are integral parts of the
Combination was suppressed in the Notice and the subsequent
submissions of Amazon. Amazon had consistently represented that BCAs
are independent of the Combination. In para 65 of the Notice, the
arrangements between Amazon and FRL for listing of the products of the
latter in Amazon marketplace were claimed as “neither inter-connected
with, nor part of, the Proposed Combination”. In para 96 of the Notice,
the arrangement between ARIPL and Future Consumer for supply of food
category products to the formers was stated as “not related to the
Proposed Combination, in any manner whatsoever”. Further, in para
100 of the Notice, in relation to the memorandum between APIPL and
FRL to offer the option of making payments through the Amazon Pay
semi-closed wallet to end consumers making purchases across retail
outlets and websites operated by FRL and entities controlled or wholly
owned by FRL, it was clarified that the MoU is not related to the
Proposed Combination, in any manner whatsoever. Amazon continued
with these assertions in paragraphs 45 and 72 of the written submissions
dated 15th November, 2019, filed in response to the letter dated 9th
October, 2021 of the Commission and paragraphs 4 and 44 of the written
submissions dated 15th November, 2019, filed in response to the letter
dated 24th October, 2021 of the Commission. These repeated assertions
invariably suggest that these commercial contracts were negotiated and
executed in the normal course of business of the concerned parties
independent of the Combination. The distorted disclosures and omissions
in the Notice and subsequent submissions dated 15 th November, 2019 of
Amazon, as discussed above, do not allow to even suspect that the
Commercial Arrangements were parts of the Combination to establish a
strategic alignment between the parties in retail sector.

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75. A holistic appreciation of the Notice and material brought on record
reveals that there has been a wilful and deliberate design threaded across
the Notice and subsequent submissions dated 15th November, 2019 of
Amazon, to suggest that the Combination consists of only Transaction I,
Transaction II and Transaction III; and that FCPL SSA and FCPL SHA
are the only two agreements entered into between the parties in relation
to the Combination. The manner and extent of assertions regarding FRL
SHA is that the same was a pre-existing arrangement amongst the
shareholders of FRL, executed pursuant to the Warrants Transaction,
and it was negotiated independent of Transaction III i.e., acquisition of
49% stake in FCPL by Amazon. The inter-connection between FRL SHA
and the Combination was suppressed. Similarly, the BCAs, although
disclosed, were claimed as neither inter-connected with, nor a part of the
Combination. However, the Internal Correspondence brings out that
BCAs and acquisition of strategic rights over FRL, through the
acquisition of shares in FCPL, had been considered together as parts of
one composite package, viz., ‘Project Taj [Future Group] – Investment
in National Multi-category Copperfield Seller’. FCPL was merely a
vehicle for Amazon to acquire interest over FRL, and such interest was
considered necessary to implement strategic alignments between the
business activities of Future and Amazon groups in India.
77. The Commission notes that the details of overlap between FRL and
Amazon Group, provided in the Notice, and subsequent submissions of
Amazon as well as the competition assessment conducted in the Approval
Order are in the context of FCPL holding warrants in FRL. However, the
said assessment is definitely not from the perspective of strategic
alignments between FRL and Amazon Group. This is obvious from the
Approval Order as it does not make any reference to FRL SHA or the
BCAs. The Commission observes that the effect of commercial contracts
entered into between FRL and Amazon Group entities, in their normal
course of business, would be considerably different from parties
contemplating strategic alignments between their business through
strategic investments. The regulatory process of notification by the
parties that would follow an admission of the commercial contracts being
part of the combination and also the purpose of the strategic acquisition

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of shares and rights would entail consequential presentation of facts,
representations, clarifications and undertakings, if any, which would not
be present when such contracts are independent of the combination. The
nature of inquiry by the Commission in these cases would also be
necessarily with due regard to the acquisition and contracts being part
of one single understanding to establish a strategic partnership. This
regulatory process, in itself, makes the notifying party to furnish true,
correct and complete information regarding the actual combination
pursued by the parties and thus, meet the requirements of the Act and the
Regulations framed thereunder. Concurrently, such process would
enable the Commission to appreciate the combination in its actual sense,
and accordingly, discharge its functions in terms of the Act. If one were
to argue otherwise, it would be sufficient that the notice filed with the
Commission merely describes the name of the parties and their business
activities and there would be no need to give any other detail as required
in Form I or Form II, including the scope of arrangements, their
purposes and context of the combination. This is ex facie contrary to the
scheme and intendment of the Act and Combination Regulations.
80. Given that the Combination is between players who are known in the
online marketplace and offline retailing and they have contemplated
strategic alignment between their businesses, the Commission considers
it necessary to examine the combination afresh based on a notice to be
given in Form II with true, correct and complete information, as required
therein. Accordingly, in exercise of the powers conferred under sub-
section (2) of Section 45 of the Act, the Commission hereby directs
Amazon to give notice in Form II within a period of 60 days from the
receipt of this order, and, till disposal of such notice, the approval
granted vide Order dated 28th November, 2019, in Combination
Registration No. C-2019/09/688, shall remain in abeyance.
82. In the instant case, all the contraventions discussed above arise from
a deliberate design on the part of Amazon to suppress the actual scope
and purpose of the Combination, and the Commission finds no mitigating
factor. Resultantly, the Commission considers it appropriate to levy the
maximum penalty of INR One Crore each under the provisions of Section

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44 and Section 45 of Act. Accordingly, Amazon is directed to pay a
penalty of INR Two Crore.
83. As regards failure to notify combination in terms of the obligation
cast under Section 6(2) of the Act, Section 43A of the Act enables the
Commission to impose a penalty, which may extend to one percent of the
total turnover or the assets, whichever is higher, of such a combination.
Accordingly, for the above mentioned reasons, the Commission hereby
imposes a penalty of INR Two Hundred Crore upon Amazon.
and Àmazon’ was directed to pay the `monetary penalty’ as imposed
(vide paras 82 and 83), within a period of 60 days from the date of receipt
of this order.”
Appellant’s Submissions in Competition Appeal (AT) No. 1 of 2022:
3. The Learned Counsel for the Àppellant/Amazon’ submits that the
Ìnvestor Affiliate’, Àmazon Seller Services Private Limited’
(ÀSSPL’) is not acquiring any `Shares’ or `Voting Rights’ or Àssets’
or `Control’ in `Future Retail Limited’ (`FRL’) and as such, Section 5 of
the Competition Act, 2002 is not attracted in the instant case.
4. The Learned Counsel for the Àppellant’ contends that as a matter
of fact, the transaction is between the Ìnvestor’ and `Future Coupons
Private Limited’ (`FCPL’), through a set of three transactions and the
`Proposed Transaction II’ has `FRL’ as the target. Indeed, `FRL’ was

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notified as a `party’ to the combination (bearing Combination
Registration No.2019/09/688) (`Combination’).
5. According to the Learned Counsel for the Àppellant’, the
`Combined Share’ of the Ìnvestor Affiliate’, ASSPL and FRL in the
overall Indian Retail Market was less than 1% in the period between the
Financial Year 2016-2017 to Financial Year 2018-19, which fact is not
disputed by the `1 Respondent/CCI’, in the ìmpugned order’.
6. The Learned Counsel for the Àppellant’ points out that when a
`Notice’ in Form I was filed, the `1 Respondent/CCI’ discharged its
obligation as per Regulation 5 (5) and in the alternative, it is projected on
the side of the Àppellant’, that there is no finding of any appreciable
adverse effect on competition (ÀAEC’) as a consequence of which, a
direction to file a fresh `Notice’ in Form II can be issued.
7. The Learned Counsel for the Àppellant’ adverts to the fact that
the direction to file a `Notice in Form II’, in regard to a transaction that
was consummated two years ago after the receipt of the `1st
Respondent/Commission’s’ approval is àrbitrary’ and `contrary’ to the
Scheme of the Competition Act, 2002.
8. Added further, the Learned Counsel for the Àppellant’ submits
that the `proviso to Section 20 (1) of the Competition Act, 2002, bars the

Page 27 of 310
`1st Respondent/CCI’ from enquiring into a consummated transaction,
more than one year, after the said transaction had taken effect.
9. The other contention advanced on behalf of the Àppellant’ is that,
the date on which the combination took effect is considered to be the date
of payment and that the payment was effected on 26.12.2019 and that
`FCPL SHA’ came into effect on 26.12.2019 and that the limitation under
Section 20 (1) of the Competition Act, 2002 for the `1st Respondent/CCI’
to ìnquire’ into the notified Combination, expired on 25.12.2020, being
a `Holiday’, the `Limitation’ came to an end on 26.12.2020.
10. It is the stand of the Àppellant’ that assuming but not conceding
that the `FRL SHA’ was liable to be notified that the `FRL SHA’ came
into effect on 19.12.2019 and hence the limitation would expire on
18.12.2020, as per proviso to Section 20 (1) of the Competition Act,
2002.
11. The Learned Counsel for the Àppellant’ contends that as per
proviso to Section 20 (1) of the Competition Act, 2002, the `1 st
Respondent/CCI’ cannot cause an ìnquiry’, after one year, from the date
on which the `Combination’ took effect.

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12. It is the version of the Àppellant’ the Competition Act does not
empower revisiting or reopening the Àpprovals’ granted after 210 days
in case a notification is filed under Section 6 (2) of the Competition Act
or one year from the date on which a combination took effect, in respect
of cases covered under `Section 20 (1) of the Competition Act, 2002’.
13. The Appellant’s submission is that in the instant case, the
`Notification’ was filed by the Àppellant’ on 23.09.2019 and the `1 st
Respondent/Commission’ having passed an order under Section 31 of the
Competition Act, could not have directed the filing of `FRL SHA’ as a
`Combination’ when the same stood disclosed and was also not the direct
trigger for the Notification.
14. The Learned Counsel for the Àppellant’ projects an argument that
the `1st Respondent/Commission’ issued a `Show Cause Notice’ dated
04.06.2021 under Regulation 48 of the Competition Commission of India
(General) Regulations, 2009 and assuming without admitting that there
was no `notification’ of the `FRL SHA’, then, the bar of one year under
the proviso would operate and that the `1st Respondent/CCI’, had failed
to appreciate this aspect of the matter.

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15. The Learned Counsel for the Àppellant’ submits that penalty
under Section 44 and 45 of the Competition Act, 2002 is only attracted
where the alleged omission / suppression / misrepresentation is material
to the `1st Respondent/CCI’ assessment of the notified combination.
16. The Learned Counsel for the Àppellant’ contends that the
complaint dated 25.03.2021 was filed by `FCPL’ with full knowledge
that `FCPL’ and `FRL’ through their Legal Counsel M/s. Trilegal, were
actively involved in the preparation of and had approved all submissions
made by the Ìnvestor’ in the Notification.
17. The Learned Counsel for the Àppellant’ brings it to the notice of
this `Tribunal’ that the ìmpugned order’ primarily relies upon the
internal correspondence of the Ìnvestor’ dated 24.05.2018, 10.07.2018
and 19.07.2019 and that the emails relating to the year 2018 relate to the
period when Àmazon’ was exploring various investment structures,
including direct investment in `FRL’ under the `Foreign Portfolio
Investment Route’.
18. The Learned Counsel for the Àppellant’ takes a plea that only
such facts which impinge upon assessment of whether a notified
combination causes or is likely to cause ÀAEC’ in terms of the factors

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mentioned in Section 20 (4) of the Competition Act would be considered
as `material’ for the purposes of Section 44 and 45 of the Act, and
therefore, `no penal action’ much less a `revocation’ is warranted.
Furthermore, all information pertaining to `BCAs’ was disclosed and
`BCAs’ would be given effect to, only after the receipt of the approval
from the `1st Respondent/CCI’.
19. The Learned Counsel for the Àppellant’ emphatically takes a
stand that an Àuthority’ created by a `Statute’ must not trespass into the
arena of the matters of Àdjudication’ to be made by an Àrbitral
Tribunal’. Moreover, the `1st Respondent/CCI’ had proceeded to conduct
its ÀAEC’ analysis on the assumption of the Contemplated Integration
of the Ìnvestor Affiliates’ with `FRL’ (even before the Ìnvestor’ is in a
position to exercise the `Call Option’).
20. The Learned Counsel for the Àppellant’ submits that only Section
44 of the Competition Act, 2002 is applicable to the instant case, as it
applies to parties to a `combination’, filing a notice under Section 6 (2)
of the Competition Act. However, in the present case, there is no
`misstatement’ or `misrepresentation’ or `false information’ that was
material to the commission’s assessment of the `notified Combination’

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and hence the said provision is ìnapplicable’ to the present case.
21. The Learned Counsel for the Àppellant’ contends that àny order’
passed by the `Commission’ must be consistent with the ingredients of
the Competition Act, 2002, and any `condition’ mentioned in the
Àpproval Order’ must be pursuant to the exercise of a power which is
expressly conferred on the `1st Respondent/Commission’ and available
under the Competition Act, 2002.
22. It is the stand of the Àppellant’ that the self same contention of
ìnconsistency in positions’ was urged by the `FCPL’, the `Promoters’
and `FRL’ before the Àrbitral Tribunal’ and rejected in the `Partial
Award’ dated 20.10.2021 and that the `Partial Award’ can be questioned
only when the `Final Award’ is passed as per the Àrbitration and
Conciliation Act, 1996 and as such it is not permissible to canvass the
same point in the instant proceedings.
23. The Learned Counsel for the Àppellant’ contends that in the
instant case, the `1st Respondent/CCI’ had acted in breach of the
`Principles of Natural Justice’ when it considered entirely a new case
against the Àppellant’ resting on the confidential internal
documents/emails dated 24.05.2018, 10.07.2018, 04.04.2019 and

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19.07.2019 without issuing a separate `Show Cause Notice’ to the
Àppellant’.
24. The Learned Counsel for the Àppellant’ submits that neither the
`Show Cause Notice’ nor the `FCPLs’ complaint dated 25.03.2021
(which formed basis) contained even a `whisper’ to either the emails /
internal documents or the allegations relating to the failure to notify the
`BCAs’ as part of the `notified Combination’. According to the
Àppellant’ later, these documents/emails were filed by `FCPLs’ as part
of its `Response’ dated 22.11.2021.
25. The plea of the Àppellant’ is that in the absence of a separate
`Show Cause Notice’ setting out the case being considered by the `1st
Respondent/CCI’ against the Àppellant’, the Àppellant’ was not
provided with an adequate opportunity to clarify its position in regard to
the emails/documents. If the Àppellant’ was apprised that an explanation
was required about the context and contents of the internal
documents/emails, it could have put forward relevant evidence to explain
the purpose and the context of these internal documents/emails.
26. The Learned Counsel for the Àppellant’ points out that the
Àppellant’ had raised an objection that the “material adduced by FCPL

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before the Commission being pleadings before the arbitrators are
disclosures made in contravention of the provisions of Section 42A of the
Arbitration and Conciliation Act, 1996”, although, was noted in the
ìmpugned order’ by the `CCI’, this objection, was dismissed by the `1st
Respondent/CCI’ based on the reason that the proceedings before the
`CCI’ and the Àrbitration Proceedings’ were mutually independent.
27. It is represented on behalf of the Àppellant’ that the ìmpugned
order’ had failed to address the Appellant’s objection regarding the fact
that `CAIT’s’ participation in the `Show Cause’ proceedings, inspite of
the fact that `CAIT’ was a `stranger’ to the proceedings initiated based
on `Show Cause Notice’ issued only to the Àppellant’ in violation of the
established `Principles of Confidentiality’.
28. The Learned Counsel for the Àppellant’ submits that the
ìmpugned order’ passed by the `1st Respondent/CCI’ had failed to
deliberate pertaining to the fact whether it has the power to `revoke’ an
àpproval’ inspite of the objections raised by the Àppellant’ in the `Show
Cause Notice’ proceedings, keeping in àbeyance’, an Àpproval Order’
more than two years ago and initiating a fresh enquiry disregarding the
limitation imposed as per Section 20 (1) of the Competition Act and the
indifferent observations pertaining to `Fraud’, without any `prima facie’

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as to how the alleged Misrepresentation/Suppression/
nondisclosures had an impact on the `1st Respondent’s assessment
of the notified transactions all of which may have been given `due
consideration’ in the presence of a `Judicial Member’ which the `1 st
Respondent/CCI’ is presently lacking and on these grounds, the
ìmpugned order’ of the `1st Respondent/CCI’ is to be set aside by this
`Tribunal’.
29. The Learned Counsel for the Àppellant’ comes out with an
argument that the `1st Respondent/CCI’, being a `Statutory Authority’ is
not to be permitted to improve its `case’ in Àppeal’ as per decision of
the `Hon’ble Supreme Court’ in `Mohinder Singh Gill V Chief Election
Commissioner, reported in 1978 1 SCC at page 405, wherein at paragraph
8 it is observed as under:
8.``The second equally relevant matter is that when a statutory

functionary makes an order based on certain grounds, its validity
must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning may, by the
time it comes to Court on account of a challenge, get validated by
additional grounds later brought out. We may here draw attention
to the observations of Bose, J. in Gordhandas Bhanji
(Commissioner of Police, Bombay V Gordhandas Bhanji, AIR
1952 SC 16 C127).

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Public orders, publicly made, in exercise of a statutory authority
cannot be construed in the light of explanations subsequently
given by the officer making the order of what he meant, or of what
was in his mind, or what he intended to do. Public orders made by
public authorities are meant to have public effect and are intended
to affect the actings and conduct of those to whom they are
addressed and must be construed objectively with reference to the
language used in the order itself.
Orders are not like old wine becoming better as they grow older.”
30. The Learned Counsel for the Àppellant’ takes a stand that there is
no inconsistency in Àppellant’s position taken before the Àrbitrational
Tribunal’ and the `Constitutional Courts’ and the `1st
Respondent/Competition Commission of India’.
31. Expatiating his argument, the Learned Counsel for the
Àppellant’/Àmazon’ submits that the context of the `submissions’
made in the `Notification’ was to `notify’ a transaction based on the
Àgreements’ executed between the `parties to the Combination’. But the
context of `submissions’ advanced before the Àrbitration Tribunal’ was
the `Violation of the Agreements’ between the `parties’. In reality, it is
pointed out on behalf of the Àppellant’ that all `submissions’ made in
the `Notification’ were vetted and approved by the common Learned
Counsels for `FCPL’ and `FRL’ and it was a `conjoint effort’.

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32. The Learned Counsel for the Àppellant’ proceeds to point out that
at the time of filing of the said `Notification’, the `parties’ had not
anticipated àny violation’ and this fact was omitted from `consideration’
in the ìmpugned order’ passed by the `1st Respondent/CCI’ and hence,
the said order is vitiated.
33. Advancing his arguments, the Learned Counsel for the Àppellant’
points out that the `Notification’ filed under Section 6 (2) of the
Competition Act is made with a view to enable the `1st Respondent/CCI’
to carry out an ex-anti assessment of the `notified Combination’. Further,
the information submitted in the `Notification’ broadly relates to the
Àgreement’ executed between the `Parties’ the rights being acquired
under these Àgreements’ overlaps in the `Business Activities’ of the
`Parties’ and the existing and potential vertical and complimentary
linkages and market share of the `Parties’ in the relevant market(s).
34. According to the Appellant’s plea, there is no express requirement
under `Form I’ for a notifying party to submit èmails’ exchanged
between the parties and their Learned Counsel (such as the email dated
04.04.2019, being relied upon by the `1st Respondent/CCI’ in the
ìmpugned order. Likewise, there is no requirement under Form I to
disclose the factors considered in deciding the amount of consideration

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paid by an Àcquirer’. In reality, the `price of shares’ is not within the
`purview of enquiry’ in as much as, it is based on `mutual agreement’ and
`multiple Business Factors’.
Àrbitrational Proceeding’ is an Ìnternational Commercial Arbitration’,
as per Part I of the Àrbitration and Conciliation Act, 1996’ seated in
New Delhi. In this connection, it is the contention of the Learned Counsel
for the Àppellant’ that it was led to believe that the case being considered
by the `1st Respondent/CCI’ based on `purported inconsistencies’ in the
pleadings, set out before the Àrbitration Tribunal’ and those made before
the `1st Respondent/CCI’.
36. It is the clear cut stand of the Àppellant’ that the Àrbitration
Tribunal’ had considered the `submissions’ projected before by the
`Parties’ before it, and held that the Àppellant’ has not taken any
`contradictory stand’ before the `1st Respondent/CCI’ and the
Àrbitration Tribunal’.
37. The Learned Counsel for the Àppellant’ by adverting to the
complaint dated 25.03.2021 submits that the `2nd Respondent/FCPL’
mentioned that the submissions made by the Àppellant’ before the

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Èmergency Arbitrator’ and the Ìndian Courts’ on the one hand and the
submissions projected before the `1st Respondent/CCI’ indicate that the
Àppellant’ misleading representations regarding its intention while
seeking an Àpproval’ from the `1st Respondent/CCI’.
`Purview of Combination’ was disclosed to the `1st Respondent/CCI’. In
this regard, it is the plea of the Àppellant’ that there was no
`misrepresentation’ on Appellant’s part because of the fact that (i) The
Warrants Transaction (whereby FCPL had acquired warrants amounting
to 7.3% of the share capital of FRL on a fully diluted basis) and the FRL
SHA were disclosed as constituting the background to the Appellant’s
Investment (vide page 1 of the main Notification Form). (ii) Proposed
Transaction II (whereby FCPL was acquiring an additional 2.52% shares
in FRL) was identified as a condition precedent to the Appellant’s
investment (iii) It was expressly mentioned in the response to query 5.1.1
which required details of acquisition or merger or amalgamation, as the
case may be, with reference to relevant clause of Section 5, that the
combination was notified solely because of FRL. (Para 14 of the
notification form @ page 19 (Volume 1) of Convenience Compilation)
and the combination was notified as a composite combination,

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(Paragraph 21 of the notification form at page 22 (Volume 1) of the
Convenience Compilation). (iv) FRL was identified as a party to the
notified combination and the only Material Entity. (Table 1 @ page 6
(Vol 1) of Convenience Compilation; Paragraph 37 of the response to the
First RFI @ page 679 (Vol 3) of Convenience Compilation). (v) A copy
of the FRL SHA was provided and all inter-connected rights arising from
the FRL SHA, including in relation to FRL (and its retail assets) were
disclosed in the table of rights produced in the main notification form as
well as the subsequent submissions.”
ìmpugned order’ of the `1st Respondent/CCI’ fails to exhibit which
material particulars were suppressed/not disclosed by the Appellant in
the `Notification’, which would otherwise have, even èx facie’ changed
the outcome of `1st Respondent’s Competitive Assessment’, in the teeth
of information it now claims to have, since the contents of email dated
19.07.2019 (internal document relevant to the notified transaction) stood
disclosed in the `Notification’ including (a) the structure of the
transaction; (b) the amount and type of investment; (c) the board
composition (d) the protective rights beg acquired by the Appellant (e)
the restriction in relation to the transfer of shares of FCPL (f) the

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restriction in relation to the transfer of the Retail Assets of FRL (g) the
Call option (h) the exit rights (i) the proposal to enter into commercial
agreements contemporaneous with the investment, and (j) the advantages
of the commercial agreements, were disclosed in the `Notification’.
40. According to the Àppellant’, in response to query 6.7 Form I, it
was expressly mentioned that `the Proposed Combination’ pertains to the
overall `Retail Market’ in India and the applicable `legal framework’
governing `Foreign Investment’ in the `Retail Sector’ was also disclosed.
41. It is represented on behalf of the Àppellant’ that in the main
`Notification Form’ that “neither `FCRPL’ nor `FCL’ is engaged in
`business activity’ relating to the Indian Market”. Moreover, it was
expressly stated that `FRL’ was the `Flagship retail entity of the Promoter
Group’. Apart from that, details of the Àppellant’s Affiliates’ engaged
in Business Activity in India were provided and details of `Portfolio
Companies’ and the `Subsidiaries’ of these `Portfolio Companies’ which
were engaged in the `Retail Business’ , such as (Shopper’s Stop, More
Retail Limited, Cloudtail and Appario) also, were furnished.
42. The Learned Counsel for the Àppellant’ takes a plea that it was
submitted that the Àcquirer’ and target Àffiliates’ ùndertake

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overlapping business activities in the Indian Retail Market’.
Furthermore, `the only plausible relevant market in relation to the
Proposed Combination is the overall retail market in India’. Also that, it
was mentioned that `FRL’ was a registered `Seller’ on the Online Market
Place’, operated by the Àppellant’s Affiliate’, including under the
`Prime Now Program’ which permitted the customers to get products
delivered from the local Kirana Stores or Neighbourhood Stores
(including Big Bazaar Stores of FRL) within two hours of placing the
order or at the preschedule time.
43. The contention of the Àppellant’ is that the details of all existing
and contemplated Commercial Arrangements between the Appellant’s
Àffiliates and `FRL Affiliates’, were disclosed in response to the query
6.5 of the `Form I’ and copies of all the five `Business Commercial
Agreements’ were provided. Besides this, the details of the `rights’
accruing to the Àppellant’s Àffiliates’ under the `Business Commercial
Agreements’ were disclosed along with the rationale behind these rights,
and the justification for the exclusivity covenants contained in the
`Business Commercial Agreements’ were also furnished. Continuing
further, the `Competitive Assessment’ pertaining to the `Business
Commercial Agreements’ was also presented as part of the `Notification

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Form’ and therefore, all information relating to the `Business
Commercial Agreements’ which was relevant for the`1st Respondent
assessment of the notified was furnished in the `Notification’.
44. The Learned Counsel for the Àppellant’ comes out with an
argument it was expressly mentioned that `FCPL’ was not engaged in
any `Business Activities’ in the `Retail Market’. In fact, the combined
and incremental shares of the Àppellant’s Affiliates’ (ÀSSPL’) and
(ÀRIPL’) and (`FRL’) including its subsidiaries were provided in regard
to the òverall Indian Market’ as well as within the Òrganized Segment’
and in each of the overlapping product Categories.
45. It is represented on behalf of the Àppellant’ that the details of
`Commercial Agreements’ between the Àppellant’s Affiliates’ and
`FRL’ and / or its Àffiliates’ Viz. Future Consumer Limited and Future
Life Styled and Fashions Limited were furnished. Besides these, it was
also submitted that the `Business Commercial Agreements’ were
unlikely to cause any ÀAEC’ as (a) sales made by Future Lifestyle and
FRL through third party online channels was less than one percent (< 1%)
in FY 2019 (b) the sales made through the online channel constituted less
than one percent (<1%) of Future Consumer’s total revenue in FY 2019
and (c) wide availability of substitutes across various substitutable

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distribution channels (for instance, Maggi is available in local Kirana
Stores, large format supermarkets such as Big Bazar, Reliance Fresh and
online marketplaces such as Amazon, Flipkart, Big Basket. Blinkit, Insta
Mart by Swiggy). Therefore, it is pointed out on behalf of the Appellant
that the `Competitive Assessment’, presented to the `1st Respondent/CCI’
in the `Notification’ was carried out resting on an assumption of
`Complete Integration’ between the Àppellant’s Affiliates’ and the `FRL
and its Subsidiaries’.
46. The Learned Counsel for the Àppellant’ contends that it was
evident from the queries posed by the `1st Respondent/CCI’ in the `RFIs’
dated 09.10.2019, 24.10.2019 (queries 2.8, 2.18, 2.21, 2.22 and 2.25) of
the `1st RFI (vide page 648-650 of Vol 3 of Convenience Compilation)
and (queries 2.2, 2.3, 2.5, 2.6, 2.9 and 2.10 of `2nd RFI (vide page 721 of
Vol 3 of convenience Compilation)’ as well as Part VI of Form I, read
with notes to Form I that the `1st Respondent/CCI’ that the Commission
had proceeded on the assumption of `Complete Integration’ between the
Àppellant’ and the target group irrespective of the immediate parties to
the Combination.
ìmpugned order’ of the `1st Respondent/CCI’, is ùntenable and bad in

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Law’ because of the fact that it is passed in the absence of a `Judicial
Member’, in complete disregard to the observations made by the
`Hon’ble Supreme Court India in State of Gujarat V Utility Users
Welfare Association, 2018 (6) SCC 21, as relied upon by the Hon’ble
High Court of Delhi in the matter of `Mahindra Electric Mobility Limited
and Another V Competition Commission of India and Others, reported
in 2019, (SCC Online Del 8032). In this regard, it is brought to the notice
of this `Tribunal’ that the said `Judgment’ was not stayed by the Hon’ble
Supreme Court inspite of an Àppeal’ preferred by the Ùnion of India
and the 1st Respondent / CCI’, which among other things, also prayed for
an interim relief of staying the operation of the direction pertaining to the
appointment of a `Judicial Member’.
48. The Learned Counsel for the Àppellant’ contends that the ìssue’
of whether the `1st Respondent/CCI’ actually assessed notified
combination in the context of `FRL’ being a Coupons Issuer’ or as a
player in the Ìndian Retail Market’, can be decided on the basis of report
prepared by the `1st Respondent/CCI’ case Team which was presented to
the `Members of the 1st Respondent/CCI’.
49. The Learned Counsel for the Àppellant’ points out that the `1 st
Respondent/CCI’s stated position is that it was robbed of its jurisdiction

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to conduct an ÀAEC analysis’ because the `disclosures’ made by the
Àppellant’ were accompanied by `Caveats’.
50. According to the Àppellant’, the `1st Respondent/CCI’ had argued
that though information pertaining to `FRL’ was provided, it was
submitted with a `Caveat’ that the Àppellant’ was ``not acquiring any
indirect shareholding or control over `FRL’’. Further, it was stated that
`FCPL’ was an Indian owned and controlled company and the ÌOCC’
Structure was disclosed to the `1st Respondent/CCI’ and as per the terms
of `FDI Policy’ any downstream investment made by an Indian Company
which had received `Foreign Investment’ but is owned and controlled by
`Resident Indian Citizens (such as `FCPL) as not considered while
calculating indirect `Foreign Investment’. As such, an Indian owned and
controlled company’ structure, in the èye of law’ does not constitute
and an Ìndirect Foreign Shareholding’ in the downstream entity as long
as the recipient of the `Foreign Investment’ (which is `FCPL’ in the
instant case), is owned and controlled by `Resident Indian Citizens. In
as much as the Àppellant’ does not exercise any control over `FCPL’, it
cannot be said to exercise control over `FRL’. In fact, this is the position
prevailing under the `FDI Policy’, `NDI rules’, and they are binding on
the `CCI’,

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characterization of the rights as Ìnvestor Protection Rights’ is
appropriate and this was in accordance with `FCPL SHA’ which itself
characterized some of these rights as Ìnvestor Protective’ matters (vide
Section 8 read with Schedule IX of `FCPL SHA’ (Vol I Page 179 of
Convenience Compilation). Moreover the `FCPL SHA’ makes it clear
that the Àppellant’ would not control the affairs of either `FCPL’ or
`FRL’ (vide Clause 10.1, 16.1 in regard to `FCPL’ and Clause 15.17 in
relation to `FRL’ (vide Vol I pages 185, 209 and 210). In fact, the
Àppellant’ does not exercise control over the day-to-day operations of
`FCPL’ and therefore, cannot be said to have acquired control over
`FCPL’ (or) by èxtension of `FRL’.
52. The Learned Counsel for the Àppellant’ contends that Section 26
of the `FCPL SHA’ further states that the Àppellant’ shall not be deemed
to be a `Promoter’ of `FCPL’ or `FRL’ until the `Call Option’ is
exercised. With specific reference to the SEBI (Substantial Acquisition
of Shares and takeover (Regulations), which defines a `Promoter’ with
reference to SEBI (issue of Capital and Disclosure Requirements
(Regulations) , wherein a `Promoter’ is defined as `shall include a person’
... (2) control over the affairs directly or indirectly whether as a

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shareholder or director or otherwise’ and the term `Control’ is defined as
`Control includes the right to a point majority of the Directors or to
control the Management or Policy decisions exercisable by a person or
persons acting individually or in concert, directly or indirectly, including
by virtue of their shareholding or management rights or shareholders’
agreement or voting agreements or in any other manner. This is the
widest definition of `Control’ which is echoed in the explanation (b) to
Section 5 of the Competition Act, 2002, which defines `Control’.
53. The contention of the Àppellant’ is that until the `Call option’ is
exercised by the Àppellant’ it cannot be said the Appellant has acquired
Control over `FCPL’ or `FRL’. Indeed, the `Call option’, was negotiated
so that the Àppellant may have a chance to acquire control in future, if
and when the Ìndian Law’ permit the same and such an exercise of the
`Call option’ will be the subject matter of a future combination and
further that there was a lockin period of 3 years from the effective date
which would lapse on 24.12.2022 and hence, the question of any
`control’ was rendered an ineffectual one.
54. The Learned Counsel for the Àppellant’ points out that there was
no `caveat’ in the submissions made in `Notification’ pertaining to the
`Business Commercial Agreements’ and per contra, there was an

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endorsement that the `1st Respondent/CCI’, is required to analyse the
`Business Commercial Agreements’ in its `Competitive Assessment’
because they are between the parties to the `Notified Combination’ and
their Àffiliates’.
55. Furthermore, the `Form I’ (especially with reference to queries
6.5.5 and 6.6) requires the `1st Respondent/CCI’ to consider the
cumulative impact of the `BCAs’ together with the `Notified
Combination’, in its `Competitive Assessment’, whether or not the
`BCAs’ are part of the `Notified Combination’ and this is because of the
fact that the `BCAs’ are between the parties to the `Notified
Combination’ and their Àffiliate Entities’. As such, it is not correct to
suggest that the `1st Respondent/CCI’ would or would not analyse the
`BCAs’ depending on whether or not they are stated to be part of the
`Notified Combination’. In fact, the Àppellant’ had mentioned in the
main `Notification’ that the `BCAs’ are being disclosed `with a view to
assist the `Commission’ in its assessment of the `Proposed Combination’.
56. In short, the relevant facts the `1st Respondent/CCI’ should have
considered and considered are the rights accruing to the Àppellant’s
Affiliates’ under these `BCAs’ which stood disclosed.

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57. The Learned Counsel for the Àppellant’ submits that the `1st
Respondent/CCI’s own practice is that it necessarily disregards `caveats’
or `qualified submissions’ made by the parties while carrying out
`Competitive Assessment’ of a `Notified Combination’.
58. The Learned Counsel for the Àppellant’ contends that there is `No
Fraud’ in the present case and in reality, the `Finding of Fraud’
necessarily requires a decision that the information/documents
purportedly `suppressed/undisclosed’ as a `material impact’ on the
assessment of the Combination. In this connection, the Learned Counsel
for the Àppellant’ cites the decision of the `Hon’ble Supreme Court in
the matter of Èlectrosteel Castings Limited V UV Asset Reconstruction,
reported in 2021 SCC OnLine SC 1132, wherein the Hon’ble Supreme
Court held that às per the settled proposition of law, mere mentioning
and using the word `Fraud’/`Fraudulent’ without any material particulars,
would not amount to pleading of `Fraud’.
59. The Learned Counsel for the Àppellant’ takes a plea that the
ìmpugned order’ passed by the `1st Respondent/CCI’ does not disclose
what / which `material’ particular(s) were undisclosed/suppressed by the
Àppellant in the `Notification’.

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60. In regard to the email dated 19.07.2019, it is represented on behalf
of the Àppellant’ the Appellant was under the `Bonafide Belief’ that the
contents of this email should disclose in the `Notification’, and that the
said email had contained a summary of the agreements that the
Àppellant’ proposed to execute and copies of these agreements were
provided along with the `Notification’, and as such, `no case of fraud’
can ever be said to be made out merely on account of failure to disclose
an ìnformation / document’ that was purportedly required to be
disclosed.
61. The Learned Counsel for the Àppellant’ adverts to the decision of
Hon’ble Supreme Court in the matter of `Bhaurao Dagdu Paralkar V
State of Maharashtra and Others, reported in 2005, 7 SCC 605, the aspect
of `fraud’ in public Law and `fraud’ in private Law was differentiated an
it was held at Paragraph 12 that (i) fraud in relation to a statute must be a
colourable transaction to evade the provisions of a statute; (ii) it must
result in exercise of jurisdiction which otherwise would not have been
exercised; and (iii) the non-disclosure of a fact not required by a statute
to be disclosed would not amount to fraud.
62. The Learned Counsel for the Àppellant’ contends that the internal
emails dated back to 2018 are not relevant as they contemplated a

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different Investment Structure Viz. a direct investment in `FRL’ under
the `Foreign Portfolio Investment Route, which was not ultimately
undertaken in the transaction notified to the `1st Respondent/CCI’.
63. Yet another plead of the Appellant’s side is that the email dated
04.04.2019, was an email exchanged between the Learned Counsel for
the Àppellant’ and the Future Group and there is no requirement under
query 8.8 (or any other part of the Form I to disclose legally `privileged
communication’ between the Learned Counsels of the parties to a
`Combination’.
64. Furthermore, it is the stand of the Àppellant’ there is no
requirement under Form I of the Competition Act, 2002, to disclose the
factors considered in deciding the sum of consideration paid by the
Àcquirer’. However, it was disclosed by the Àppellant’ FCPL’s
underlying shareholding in `FRL’, was also considered by the
Àppellant’ in deciding the value of the `Proposed Investment’.
65. The Learned Counsel for the Àppellant’ submits that there was
`no requirement’ to disclose àny future intent’ of the Àppellant’ to
acquire a foot-in-the-door in `Retail Sector’, as it was not the subject
matter of the present `Combination’. In fact, the expression `foot-in-the-

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door’ reflected in the emails/internal documents refers to the `Call
option’ which provides the Appellant an Òption’ in the future (not an
obligation) to become the single largest Shareholder in `FRL’, only when
the applicable `FDI Norms’ allow.
66. The emphatic stand of the Appellant is that the èmail’ dated
19.07.2019 acknowledges that the Àppellant’ would have exercised
control over the affairs of `FRL’ only upon the exercise of the `Call
option’ which, in turn, was subject to several conditions including the
occurrence of the change in Law event.
67. In this regard, the Learned Counsel for the Àppellant’ refers to a
decision in Reliance/Bharti AXA (vide Combination Registration No.C-
2011/0/1), wherein AXA had an Òption’ to acquired up to 24% shares
of Bharti AXA Life Insurance and Bharti AXA General Insurance and
when FDI Regulations permit, the 1st Respondent/CCI itself had
observed that `such an acquisition by AXA at a later date is not part of
the present determination and shall be dealt accordingly as per the
applicable laws at that time’. Also that, it was mentioned expressly in the
`Notification’ that any Àcquisition of Shares’ in `FRL’ in future, would
be notified to the `1st Respondent/CCI’ in the later `Notification’.

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68. The Learned Counsel for the Àppellant’ puts forward an argument
that the bundle of rights acquired by the Àppellant’ has part of the
notified transaction was reviewed by ÈA’ and ÀT’ and none had
concluded that these rights amount to control over the affairs of `FRL’.
In this connection, it is represented by the Àppellant’ that ÈA’ order
was upheld by the Hon’ble Supreme Court of India as per Section 17 of
the Àrbitration and Conciliation Act, 1996, through an order dated
06.08.2021. As a matter of fact, the Arbitration Tribunal’s order, is an
òrder of court’, as per Section 17 of the Àrbitration and Conciliation
Act, 1996’. As such, the aspect of whether or not the bundle of rights
accruing to the Àppellant’ amounted to controlling the affairs of `FRL’
was the legal submission made by the Àppellant’ which `per se’ cannot
amount to `Misrepresentation of Fact’ or `Fraud’.
Àppellant’ had highlighted the `synergies’ envisaged in regard to the
payments market in response to the specific query 2.13 (c) of the RFI
dated 09.10.2019, which referred to a statement by Mr. Kishore Biyani
(Promoter of FCPL and FRL), which referred to the `payments
ecosystem’. However, the `1st Respondent/CCI’ had relied on the
response of the Àppellant’ in a out of context manner to allege that when

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asked as to how the Àppellant’ envisaged a part of the `Retail
Ecosystem’, the Àppellant’ gave misleading explanations about the
business of `FCPL’ and other Àmazon Portfolio Companies’ in the
payments market.
70. The Learned Counsel for the ` Appellant’ contends that the `1st
Respondent/CCI’ had failed to consider that `FRL SHA’ was disclosed
in the 1st stage of the main `Notification’ Form as constituting the
background to the Àppellant’s Investment’.
71. The Learned Counsel for the Àppellant’ submits that the `1st
Respondent/CCI’ had failed to consider that Section 43A of the
Competition Act, 2002, is applicable where a party fails to notify a
transaction (Viz., a merger, amalgamation or acquisition) in terms of
Section 2 (a) that constitute a `combination’ as per Section 5 of the
Competition Act, 2002. In short, what is required to be notified to the `1st
Respondent/CCI’ is the transaction which constitutes a `combination’
and not an argument executed in furtherance of the said transaction, per
se. In any event, the Àppellant’ had provided copies of `FRL SHA’, the
five `BCAs’ to the `1st Respondent/CCI’ along with the `Notification’
and disclosed all information pertaining to the rights accruing to the
Àppellant’ under the `FRL SHA’ as well as `BCAs’ and urged the

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`Commission’ to assess the notified combination in the light of such
disclosures. In any case, neither the `FRL SHA’ nor the `BCAs’ were
given effect to before the receipt of `1st Respondent/CCI’s approval.
72. The Learned Counsel for the Appellant points out that the
Competition Act 2002 does not contemplate any power for the
`Revocation Of Approval’ granted by the `1st Respondent/CCI’ as per
Section 31 (1) of the Competition Act, 2002. Further, it is projected on
the side of the Àppellant’ that in the instant case, there is no
`Misstatement of False Information’ or `Misrepresentation’ that was
material to the `1st Respondent/CCI’s assessment of the `Notified
Combination’.
73. The Learned Counsel for the Àppellant’ urges that the `residuary
powers’ conferred upon the `1st Respondent/CCI’s, as per Section 45 (2)
of the Competition Act, 2002, were not available to the Commission, in
the instant case. In this regard, the Learned Counsel for the Àppellant’
refers to the decision of the Hon’ble Supreme Court in Sukhdev Singh V
Bhagatram Sardar Singh, reported in 1975 1 SCC, at page 421, Spl pages
433, 438 and 439, wherein at paragraph 15 and 33, it is observed as under:
15.`` The words "rules" and "regulations" are used in an Act to

limit the power of the statutory authority. The powers of statutory

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bodies are derived, controlled and restricted by the statutes which
create them and the rules and regulations framed thereunder. Any
action of such bodies in excess of their power or in violation of the
restrictions placed on their powers is ultra vires. The reason is that
it goes to the root of the power of such corporations and the
declaration of nullity is the only relief that is granted to the
aggrieved party.
33. There is no substantial difference between a rule and a

regulation in as much as both are subordinate legislation under
powers conferred by the statute. A regulation framed under a
statute applies uniform treatment to every one or to all members
of some group or class. The Oil and Natural Gas Commission, the
Life Insurance Corporation and Industrial Finance Corporation
are all required by the statute to frame regulations inter alia for
the purpose of the duties and conduct and conditions of service of
officers and other employees. These regulations impose obligation
on the statutory authorities. The statutory authorities cannot
deviate from the conditions of service. Any deviation will be
enforced by legal sanction of declaration by courts to invalidate
actions in violation of rules and regulations. The existence of rules
and regulations under statute is to ensure regular conduct with a
distinctive attitude to that conduct as a standard. The statutory
regulations in the cases under consideration give the employees a
statutory status and impose restriction on the employer and the
employee with no option to vary the conditions. An ordinary
individual in a case of master and servant contractual relationship
enforces breach of contractual terms. The remedy in such
contractual relationship of master and servant is damages because
personal service is not capable of enforcement. In cases of
statutory bodies, there is no personal element whatsoever because
of the impersonal character of statutory bodies. In the case of
statutory bodies it has been said that the element of public
employment or service and the support of statute require
observance of rules and regulations. Failure to observe
requirements by statutory bodies is enforced by courts by

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declaring dismissal in violation of rules and regulations be void.
This Court has repeatedly observed that whenever a man’s rights
are affected by decision taken under statutory powers, the Court
would presume the existence of a duty to observe the rules of
natural justice and compliance with rules and regulations imposed
by statute.”
74. The Learned Counsel for the Appellant contends that the `Power
of Recall’, `Review’ or `Revocation’ are `Prescriptive Functions’, to be
specified by the `Parliament’ in its `Primary Legislation’ and further that
there is no `Power of Revocation’, contemplated under the `Statute’.
75. The Learned Counsel for the Àppellant’ submits that in `Law’,
the `General Provisions’ are not to be used where a specific provision
was enacted with a specific purpose in mind, as per decision of the
`Hon’ble Supreme Court’ in J K Cotton Spinning Weaving Mills V State
of Uttar Pradesh, reported in (961) 3 SCR 185, at paragraphs 8 and 9,
wherein it is observed as under:
8.`Ìt is hardly necessary to mention that this rule in Clause 23 was

made with a definite purpose. The provision here is very similar to
Section 33 of the Industrial Disputes Act before its amendment,
though there are some differences. It is easy to see however that
the rule making authority in making this rule was anxious to
prevent as far as possible the recrudescense of fresh disputes
between employers and workmen when some dispute was already
pending and that purpose will be directly defeated if a fresh
dispute is allowed to be raised under Clause 5(a) in the very cases
where Clause 23 in terms applies.
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9. There will be complete harmony however if we hold instead that
Clause 5(a) will apply in all other cases of proposed dismissal or
discharge except where an inquiry is pending within the meaning
of Clause 23. We reach the same result by applying another well
known rule of construction that general provisions yield to special
provisions. The learned Attorney-General seemed to suggest that
while this rule of construction is applicable to resolve the conflict
between the general provision in one Act and the special provision
in another Act, the rule cannot apply in resolving a conflict
between general and special provisions in the same legislative
instrument. This suggestion does not find support in either
principle or authority. The rule that general provisions should
yield to specific provisions is not an arbitrary principle made by
lawyers and judges but springs from the common understanding of
men and women that when the same person gives two directions
one covering a large number of matters in general and another to
only some of them his intention is that these latter directions
should prevail as regards these while as regards all the rest the
earlier direction should have effect. In Pretty v. Solly (quoted in
Craies on Statute Law at p.m. 206, 6th Edition) Romilly, M.R.
mentioned the rule thus: "The rule is, that whenever there is a
particular enactment and a general enactment in the same statute
and the latter, taken in its most comprehensive sense, would
overrule the former, the particular enactment must be operative,
and the general enactment must be taken to affect only the other
parts of the statute to which it may properly apply". The rule has
been applied as between different provisions of the same statute in
numerous cases some of which only need be mentioned: De Winton
v. Brecon (28 LJ Ch 598), Churchill v. Crease (5 Bing 177), United
States v. Chase (135 US 255) and Carroll v. Greenwich Ins. CO.
(199 US 401).”
In effect, the plea of the Àppellant’ is that Section 45 of the

Competition Act, 2002, does not provide for `Revocation of Approvals’.

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76. The Learned Counsel for the Àppellant’ fervently advances an
argument that there is no power to keep the Àpproval Order’ passed by
the `1st Respondent/CCI’ in abeyance, on account of the violation of
Section 43 A of the Competition Act, 2002. That apart, an òrder’ to keep
an Àpproval’ in Àbeyance’ and `Reassess’ the `Combination’ after
receipt of `Notice’ from the Àppellant’ in Form II is totally contrary to
the `Rule of ex ante Analysis’ and it is barred by the one year period of
limitation, as per proviso to Section 20(1) of the Competition Act, 2002,
as the `FCPL SHA’ came into effect on 19.12.2019 (over two years’
before).
77. The Learned Counsel for the Àppellant’ contends that there is no
power enjoined up on the `1st Respondent/CCI’s to direct the filing of
Form II as combined share of parties was less than 1%. In this connection,
the Learned Counsel for the Àppellant’ comes out with a stand that
between the Financial Year 2016 to 2017, Financial Year 2018 to 2019,
the combined share of the Àppellant’s Affiliates ASSPL and FRL’ in the
overall Indian retail market was less than 1%.
78. The Learned Counsel for the Àppellant’ submits that the `Power
to Approve’ does not include the Ìncidental Power’ to `Revoke’ and
refers to the decision of the `Hon’ble Supreme Court’ in Indian National

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Congress (I) V Institute of Social Welfare, reported in 2002 5 SCC, page
685, wherein at paragraphs 39 to 41, it is observed as follows:
39.``We have already extensively examined the matter and found

that Parliament consciously had not chosen to confer any power
on the Election Commission to de-register a political party on the
premise it has contravened the provisions of sub-section (5)
of Section 29A. The question which arises for our consideration is
whether in the absence of any express or implied power, the
Election Commission is empowered to cancel the registration of a
political party on the strength of the provisions of Section 21 of the
General Clauses Act. Section 21 of the General Clauses Act runs
as under:
21. Power to issue, to include power to add to amend, vary

or rescind, notification, orders, rules or bye-laws. Where by
any central Act or regulation, a power to issue notifications,
orders, rules or bye-laws is conferred then that power
includes a power exercisable in the like manner and subject
to the like sanction, and conditions (if any), to add to,
amend, vary or rescind any notifications, orders, rules or
bye-laws so issued."
40. On perusal of Section 21 of the General Clauses Act, we

find that the expression 'order' employed in Section 21 shows that
such an order must be in the nature of notification, rules and bye-
laws etc. The order which can be modified or rescinded on the
application of Section 21 has to be either executive or legislative
in nature. But the order which the Commission is required to pass
under Section 29A is neither a legislative nor an executive order
but is a quasi-judicial order. We have already examined this
aspect of the matter in the foregoing paragraph and held that the
functions exercisable by the Commission under Section 29A is

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essentially a quasi-judicial in nature and order passed thereunder
is a quasi-judicial order. In that view of the matter, the provisions
of Section 21 of the General Clauses Act cannot be invoked to
confer powers of de-registration/cancellation of registration after
enquiry by the Election Commission. We, therefore, hold
that Section 21 of the General Clauses Act has no application
where a statutory authority is required to act quasi-judicially.
41. It may be noted that the Parliament deliberately omitted to vest

the Election Commission of India with the power to de-register a
political party for non-compliance with the conditions for the
grant of such registration. This may be for the reason that under
the Constitution the Election Commission of India is required to
function independently and ensure free and fair elections. An
enquiry into non-compliance with the conditions for the grant of
registration might involve the Commission in matters of a political
nature and could mean monitoring by the Commission of the
political activities, programmes and ideologies of political parties.
This position gets strengthened by the fact that on 30th June, 1994
the Representation of the People (Second Amendment) Bill, 1994
was introduced in the Lok Sabha proposing to introduce Section
29-B whereunder a complaint to be made to the High Court within
whose jurisdiction the main office of a political party is situated
for cancelling the registration of the party on the ground that it
bears a religious name or that its memorandum or rules and
regulations no longer conforming the provisions of Section 29-
A (5) or that the activities are not in accordance with the said
memorandum or rules and regulations. However, this bill lapsed
on the dissolution of the Lok Sabha in 1996, (See p. 507 of "How
India Votes : Election Laws, Practice and Procedure" by V.S.
Rama Devi and S.K. Mendiratta).”
79. The Learned for the Àppellant’ submits that the Àpproval Order’
(under section 31 (1) of the Competition Act, 2002), passed by the `1 st

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Respondent/CCI’ is a `Quasi-judicial Order’, as it requires the `1st
Respondent/CCI’ to form an òpinion’ whether a `notified Combination’
has or is likely to have any ÀAEC’ in the relevant market based on
consideration of numerous factors mentioned in Section 20 (4) of the
Competition Act, 2002.
`Penalty’ of INR 200 Crores imposed in the ìmpugned order’ is without
any basis or justification and under the 1st Respondent/CCI had imposed
a maximum penalty of INR 5 Crores in approximately 40 cases for
`Breach of Section 43A of the Competition Act, 2002’, during the past
eleven years period.
81. The Learned Counsel for the Àppellant’ refers to the decision of
the Hon’ble Supreme Court in Excel Crop Care V Union of India and
Ors., reported in (2017) 8 SCC, page 47, Spl. pages 113 and 114, wherein
at paragraph 109, it is observed as under:
109. `Àt this point, I would like to emphasize on the usage of the
phrase ‘as it may deem fit’ as occurring under Section 27 of the
Act. At the outset this phrase is indicative of the discretionary
power provided for the fining authority under the Act. As the law
abhors absolute power and arbitrary discretion, this discretion
provided under Section 27 needs to be regulated and guided so
that there is uniformity and stability with respect to imposition of

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penalty. This discretion should be governed by rule of law and not
by arbitrary, vague or fanciful considerations. Here we may deal
with two judgments which may be helpful in deciding the
concerned issue. In Dilip N. Shrof v. Joint CIT (2007) 6 SCC 329,
this Court while dealing with the imposition of the penalty has
observed that: (SCC pp. 353-54, para 42)
42. The legal history of section 271(1)(c) of the Act traced

from the 1922 Act prima facie shows that the Explanations
were applicable to both the parts. However, each case must
be considered on its own facts. The role of the Explanation
having regard to the principle of statutory interpretation
must be borne in mind before interpreting the
aforementioned provisions. Clause (c) of sub-section (1)
of section 271 categorically states that the penalty would be
leviable if the assessee conceals the particulars of his
income or furnishes inaccurate particulars thereof. By
reason of such concealment or furnishing of inaccurate
particulars alone, the assessee does not ipso facto become
liable for penalty. Imposition of penalty is not automatic.
Levy of penalty is not only discretionary in nature but such
discretion is required to be exercised on the part of the
Assessing Officer keeping the relevant factors in mind. Some
of those factors apart from being inherent in the nature of
penalty proceedings as has been noticed in some of the
decisions of this court, inheres on the face of the statutory
provisions. Penalty proceedings are not to be initiated, as
has been noticed by the Wanchoo Committee, only to harass
the assesse. The approach of the Assessing Officer in this
behalf must be fair and objective.”
(emphasis supplied)
82. The Learned Counsel for the Àppellant’ raises an argument that
the `1st Respondent/CCI’ had failed to take into account about the aspect

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that `FRL SHA’ or `BCAs’ came in to effect before the Àpproval Order’
and the Ìnvestment’ made by the Àppellant’ had already flown down to
`FRL’ and Àppellant, the Àppellant’ is actually a party suffering
monetary damages due to the `Contractual Breaches’ by the `Future
Group’.
Appellant’s Decisions:
83. The Learned Counsel for the Appellant relies on the decision of
the Hon’ble Supreme Court in State of NCT of Delhi and another V
Sanjeev Alias Bittoo (2005) 5 SCC at page 181 at Spl. page 190, wherein
15.`` One of the points that falls for determination is the scope for
judicial interference in matters of administrative decisions.
Administrative action is stated to be referable to broad area of
Governmental activities in which the repositories of power may
exercise every class of statutory function of executive, quasi-
legislative and quasi-judicial nature. It is trite law that exercise of
power, whether legislative or administrative, will be set aside if
there is manifest error in the exercise of such power or the exercise
of the power is manifestly arbitrary (See State of U.P. and Ors. v.
Renusagar Power Co. and Ors., AIR (1988) SC 1737. At one time,
the traditional view in England was that the executive was not
answerable where its action was attributable to the exercise of
prerogative power. Professor De Smith in his classical work
"Judicial Review of Administrative Action" 4th Edition at pages
285-287 states the legal position in his own terse language that the
relevant principles formulated by the Courts may be broadly

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summarized as follows. The authority in which discretion is vested
can be compelled to exercise that discretion, but not to exercise it
in any particular manner. In general, discretion must be exercised
only by the authority to which it is committed. That authority must
genuinely address itself to the matter before it; it must not act
under the dictates of another body or disable itself from exercising
discretion in each individual case. In the purported exercise of its
discretion, it must not do what it has been forbidden to do, nor
must it do what it has not been authorized to do. It must act in good
faith, must have regard to all relevant considerations and must not
be influenced by irrelevant considerations, must not seek to
promote purposes alien to the letter or to the spirit of the
legislation that gives it power to act, and must not act arbitrarily
or capriciously. These several principles can conveniently be
grouped in two main categories: (i) failure to exercise a discretion,
and (ii) excess or abuse of discretionary power. The two classes
are not, however, mutually exclusive. Thus, discretion may be
improperly fettered because irrelevant considerations have been
taken into account, and where an authority hands over its
discretion to another body it acts ultra vires.”
84. The Learned Counsel for the Appellant cites the decision of the
Supreme Court in Kishore Samrite V State of Uttar Pradesh (2013), 2
SCC, Page 398, at Spl. pgs: 421 and 422, wherein at paragraph 32 to 32.8,
it is observed as under:
32.``The cases of abuse of the process of court and such allied

matters have been arising before the Courts consistently. This
Court has had many occasions where it dealt with the cases of this
kind and it has clearly stated the principles that would govern the
obligations of a litigant while approaching the court for redressal
of any grievance and the consequences of abuse of the process of
court. We may recapitulate and state some of the principles. It is

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difficult to state such principles exhaustively and with such
accuracy that would uniformly apply to a variety of cases. These
are:
(32.1) Courts have, over the centuries, frowned upon litigants who,
with intent to deceive and mislead the Courts, initiated
proceedings without full disclosure of facts and came to the courts
with ‘unclean hands’. Courts have held that such litigants are
neither entitled to be heard on the merits of the case nor entitled
to any relief.
(32.2) The people, who approach the Court for relief on an ex

parte statement, are under a contract with the court that they
would state the whole case fully and fairly to the court and where
the litigant has broken such faith, the discretion of the court cannot
be exercised in favour of such a litigant.
(32.3) The obligation to approach the Court with clean hands is

an absolute obligation and has repeatedly been reiterated by this
Court.
(32.4) Quests for personal gains have become so intense that those
involved in litigation do not hesitate to take shelter of falsehood
and misrepresent and suppress facts in the court proceedings.
Materialism, opportunism and malicious intent have over-
shadowed the old ethos of litigative values for small gains.
(32.5) A litigant who attempts to pollute the stream of justice or

who touches the pure fountain of justice with tainted hands is not
entitled to any relief, interim or final.
(32.6) The Court must ensure that its process is not abused and in
order to prevent abuse of process the court, it would be justified
even in insisting on furnishing of security and in cases of serious
abuse, the Court would be duty-bound to impose heavy costs.

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(32.7) Wherever a public interest is invoked, the Court must
examine the petition carefully to ensure that there is genuine
public interest involved. The stream of justice should not be
allowed to be polluted by unscrupulous litigants.
(32.8) The Court, especially the Supreme Court, has to maintain

strictest vigilance over the abuse of the process of court and
ordinarily meddlesome bystanders should not be granted “visa”.
Many societal pollutants create new problems of unredressed
grievances and the Court should endure to take cases where the
justice of the lis well justifies it (Refer : Dalip Singh V State of
Uttar Pradesh (2010) 2 SCC 114; Amar Singh V Union of India
(2011) 7 SCC 69; and State of Uttaranchal V Balwant Singh
Chaufal (2010) 3 SCC 402.”
85. The Learned Counsel for the Appellant adverts to the decision of
the Hon’ble Supreme Court in Amar Singh V Union of India, reported in
(2011) (7) SCC, Page 69, at Spl. pages 87 to 89, wherein at paragraphs
53 to 61, it is observed as under:
53.``Courts have, over the centuries, frowned upon litigants who,

with intent to deceive and mislead the courts, initiated proceedings
without full disclosure of facts. Courts held that such litigants have
come with "unclean hands" and are not entitled to be heard on the
merits of their case.
54. In Dalglish v. Jarvie10 the Court, speaking through Lord

Langdale and Rolfe B., laid down: (Mac & G p.231: ER p. 89)
"It is the duty of a party asking for an injunction to bring

under the notice of the Court all facts material to the
determination of his right to that injunction; and it is no
excuse for him to say that he was not aware of the

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importance of any facts which he has omitted to bring
forward."
55. In Castelli v. Cook11, Vice-Chancellor Wigram, formulated the

same principles as follows: (Hare p. 94: ER p. 38)
"… a plaintiff applying ex parte comes under a contract with

the Court that he will state the whole case fully and fairly to
the Court. If he fails to do that, and the Court finds, when
the other party applies to dissolve the injunction, that any
material fact has been suppressed or not property brought
forward, the plaintiff is told that the Court will not decide
on the merits, and that, as he has broken faith with the
Court, the injunction must go."
56. In Republic of Peru v. Dreyfus Bros. & Co.12 Kay, J. reminded

us of the same position by holding: (LT p. 803)
"...If there is an important misstatement, speaking for

myself, I have never hesitated, and never shall hesitate until
the rule is altered, to discharge the order at once, so as to
impress upon all persons who are suitors in this Court the
importance of dealing in good faith with the Court when ex
parte applications’ are made."
57. In one of the most celebrated cases upholding this principle, in

the Court of Appeal in R. v. Kensington Income Tax Commissioner
ex p Princess de Polignac13 K.B. Scrutton, L.J. formulated as
under: (KB p. 514)
"…and it has been for many years the rule of the Court, and
one which it is of the greatest importance to maintain, that
when an applicant comes to the Court to obtain relief on an
ex parte statement he should make a full and fair disclosure
of all the material facts - facts, now law. He must not
misstate the law if he can help it - the court is supposed to
know the law. But it knows nothing about the facts, and the

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applicant must state fully and fairly the facts, and the
penalty by which the Court enforces that obligation is that
if it finds out that the facts have been fully and fairly stated
to it, the Court will set aside any action which it has taken
on the faith of the imperfect statement."
58. It is one of the fundamental principles of jurisprudence that

litigants must observe total clarity and candour in their pleadings
and especially when it contains a prayer for injunction. A prayer
for injunction, which is an equitable remedy, must be governed by
principles of ùberrima fides”.
59. The aforesaid requirement of coming to Court with clean

hands has been repeatedly reiterated by this Court in a large
number of cases. Some of which may be noted, they are: Hari
Narain v. Badri Das - AIR 1963 SC 1558, Welcome Hotel v. State
of A.P. - (1983) 4 SCC 575, G. Narayanaswamy Reddy v.
Government of Karnataka - (1991) 3 SCC 261, S.P.
Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1, A.V. Papayya
Sastry v. Government of A.P. - (2007) 4 SCC 221, Prestige Lights
Limited v. SBI – (2007) 8 SCC 449, Sunil Poddar v. Union Bank
of India - (2008) 2 SCC 326, K.D.Sharma v. SAIL - (2008) 12 SCC
481, G. Jayashree v. Bhagwandas S. Patel (2009) 3 SCC 141,
Dalip Singh v. State of U.P. (2010) 2 SCC 114.
60. In the last noted case of Dalip Singh (supra), this Court has
given this concept a new dimension which has a far reaching
effect. We, therefore, repeat those principles here again:
"(a) For many centuries Indian society cherished two basic

values of life i.e. "satya"(truth) and "ahimsa (non-
violence), Mahavir, Gautam Buddha and Mahatma Gandhi
guided the people to ingrain these values in their daily life.
Truth constituted an integral part of the justice-delivery
system which was in vogue in the pre-independence era and
the people used to feel proud to tell truth in the courts
irrespective of the consequences. However, post-
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independence period has seen drastic changes in our value
system. The materialism has overshadowed the old ethos
and the quest for personal gain has become so intense that
those involved in litigation do not hesitate to take shelter of
falsehood, misrepresentation and suppression of facts in the
court proceedings.
(b) In the last 40 years, a new creed of litigants has cropped
up. Those who belong to this creed do not have any respect
for truth. They shamelessly resort to falsehood and
unethical means for achieving their goals. In order to meet
the challenge posed by this new creed of litigants, the courts
have, from time to time, evolved new rules and it is now well
established that a litigant, who attempts to pollute the
stream of justice or who touches the pure fountain of justice
with tainted hands, is not entitled to any relief, interim or
final."
However, this Court is constrained to observe that those principles

are honoured more in breach than in their observance.
61. Following these principles, this Court has no hesitation in

holding that the instant writ petition is an attempt by the petitioner
to mislead the Court on the basis of frivolous allegations and by
suppression of material facts as pointed out and discussed above.
In view of such incorrect presentation of facts, this court had
issued notice and also subsequently passed the injunction order
which is still continuing.”
86. The Learned Counsel for the Appellant seeks in aid of the decision
of the Hon’ble Supreme Court in Dalip Singh V State of Uttar Pradesh,
reported in (2010) 2 SCC, Page 114 at Spl. pgs: 116 and 117, wherein it
is observed as under:

Page 71 of 310
"(a) For many centuries Indian society cherished two basic values
of life i.e. "satya"(truth) and "ahimsa (non-violence), Mahavir,
Gautam Buddha and Mahatma Gandhi guided the people to
ingrain these values in their daily life. Truth constituted an
integral part of the justice-delivery system which was in vogue in
the pre-independence era and the people used to feel proud to tell
truth in the courts irrespective of the consequences. However,
post-independence period has seen drastic changes in our value
system. The materialism has overshadowed the old ethos and the
quest for personal gain has become so intense that those involved
in litigation do not hesitate to take shelter of falsehood,
misrepresentation and suppression of facts in the court
proceedings.
(b) In the last 40 years, a new creed of litigants has cropped up.
Those who belong to this creed do not have any respect for truth.
They shamelessly resort to falsehood and unethical means for
achieving their goals. In order to meet the challenge posed by this
new creed of litigants, the courts have, from time to time, evolved
new rules and it is now well established that a litigant, who
attempts to pollute the stream of justice or who touches the pure
fountain of justice with tainted hands, is not entitled to any relief,
interim or final."
87. The Learned Counsel for the Appellant refers to the decision of
Hon’ble Supreme Court in Union of India and Ors. V Cipla Ltd. and Ors.
(2007) 5 SCC, wherein at paragraph 150, it is observed as under:
150`À classic example of forum shopping is when a litigant

approaches one Court for relief but does not get the desired relief
and then approaches another Court for the same relief. This
occurred in Rajiv Bhatia v. Govt. of NCT of Delhi and others
[MANU/SC/0552/1999 : (1999) 8 SCC 525]. The Respondent-
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mother of a young child had filed a petition for a writ of habeas
corpus in the Rajasthan High Court and apparently did not get the
required relief from that Court. She then filed a petition in the
Delhi High Court also for a writ of habeas corpus and obtained
the necessary relief. Notwithstanding this, this Court did not
interfere with the order passed by the Delhi High Court for the
reason that this Court ascertained the views of the child and found
that she did not want to even talk to her adoptive parents and
therefore the custody of the child granted by the Delhi High Court
to the Respondent-mother was not interfered with. The decision of
this Court is on its own facts, even though it is a classic case of
forum shopping.”
88. The Learned Counsel for the Appellant refers to the decision of the
Hon’ble Supreme Court in Commissioner of Sales Tax, Uttar Pradesh V
R.P. Dixit Saghidar, (2001) 9 SCC Page 324, Spl. pg: 325, wherein at
paragraph 5, it is observed as under:
5.``We are unable to subscribe to the view of the High Court. The
aforementioned passage quoted from the Tribunal’s order shows
that the Tribunal was of the view that once the order is quashed by
the Assistant Commissioner, he could not in law remand the case
for a decision afresh. As has been noted, before the Assistant
Commissioner the counsel for the respondent had contended that
the ex parte order should have been set aside because no notice
had been received. When principles of natural justice are stated to
have been violated it is open to the appellate authority, in
appropriate cases, to set aside the order and require the Assessing
Officer to decide the cases de novo. This is precisely what was
directed by the Assistant Commissioner and the Tribunal, in our
opinion, was clearly in error in taking a contrary view.”

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the Hon’ble Supreme Court in P. Malaichami V Andi Ambalam and
Others, reported in (1972) 2 SCC, page 170 at Spl. pg: 188, wherein at
31.``Finally, we must deal with the appeal made to us that the

justice should be done irrespective of the technicalities. Justice has
got to be done according to law. A Tribunal with limited
jurisdiction cannot go beyond the procedure laid down by the
statute for its functioning. If it does so it would be acting without
jurisdiction.”
90. The Learned Counsel for the Àppellant’ cites a decision of the
Hon’ble Supreme Court in Pancham Chand and Others V State of
Himachal Pradesh (2008) 7 SCC, Page 117 at Spl. pg: 124, wherein at
19.`Àpart from the fact that nothing has been placed on record
to show that the Chief Minister in his capacity even as a member
of the Cabinet was authorised to deal with the matter of transport
in his official capacity, he had even otherwise absolutely no
business to interfere with the functioning of the Regional
Transport Authority. The Regional Transport Authority being a
statutory body is bound to act strictly in terms of the provisions
thereof. It cannot act in derogation of the powers conferred upon
it. While acting as a statutory authority it must act having regard
to the procedures laid down in the Act. It cannot bypass or ignore
the same.”

Page 74 of 310
91. The Learned Counsel for the Àppellant’ adverts to the decision of
the Hon’ble Supreme Court in National Securities Depository Limited V
Securities and Exchange Board of India, reported in (2017) 5 SCC at page
517, Spl. pgs: 523 and 528: wherein at paragraph 8, 9 and 21, it is
observed as under:
8.`` It is interesting to note that under Section 15-M, a person shall

not be qualified for appointment as the Presiding Officer of the
three member Appellate Tribunal unless he is a sitting or retired
Judge of the Supreme Court, or a sitting or retired Chief Justice of
a High Court, or is a sitting or retired Judge of a High Court who
has completed not less than 7 years of service as a Judge in a High
Court. This is one indicia of the fact that the Appellate Tribunal,
being manned by a member of the higher judiciary, is intended to
hear appeals only against quasi-judicial orders.
9. Also, appeals are to be filed by persons aggrieved not only by

an order of the Board made under the SEBI Act, Rules or
Regulations, but by orders made by an adjudicating officer under
the Act. Under Section 15-I, the Board can appoint an officer not
below the rank of a Division Chief to be an adjudicating officer to
hold an inquiry, give a hearing to the person concerned and
thereafter impose a penalty, all of which points to only quasi-
judicial functions being exercised by such officers. Under sub-
section (3) of Section 15-T, every appeal is to be filed within a
period of 45 days from the date on which a copy of the order made
by the Board or the adjudicating officer, as the case may be, is
received by him. Generally administrative orders and legislative
regulations made by the Board are never received personally by
“the person aggrieved”. This is another pointer to the fact that the
order spoken of in sub-section (1) of Section 15-T is only a quasi-
judicial order. Also, it is important to note under sub-section (4)

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that the Appellate Tribunal may ultimately pass orders confirming,
modifying or setting aside the order appealed against. In the
Clariant judgment referred to hereinabove, paragraph 74 clearly
states that: (SCC p. 550)
74.“The jurisdiction of the appellate authority under the Act

is not in any way fettered by the statute and thus, it exercises
all the jurisdiction as that of the Board”.
[emphasis supplied]
This being the case, it is clear that the appeal being a continuation
of the proceeding before the Board, the proceeding can only be
quasi-judicial in nature.”
21. A judgment of this Court dealing with the very Act we are
dealing with is reported as Clariant International Ltd. v. SEBI -
(2004) 8 SCC 524. In our view certain observations made in this
judgment almost conclude the matters raised in this appeal. While
discussing the effect of the Board being an expert body, this Court
in paragraph 71 stated: (SCC p. 549)
“71.The Board is indisputably an expert body. But when it

exercises its quasi-judicial functions, its decisions are
subject to appeal. The Appellate Tribunal is also an expert
Tribunal.”
(emphasis supplied)
In para 77 this Court further went on to state: (SCC p. 550)
“The Board exercises its legislative power by making regulations,

executive power by administering the regulations framed by it and
taking action against any entity violating these regulations and
judicial power by adjudicating disputes in the implementation
thereof. The only check upon exercise of such wide-ranging
powers is that it must comply with the Constitution and the Act. In

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that view of the matter, where an expert Tribunal has been
constituted, the scrutiny at its end must be held to be of wide
import. The Tribunal, another expert body, must, thus, be allowed
to exercise its own jurisdiction conferred on it by the statute
without any limitation.”
the Hon’ble Supreme Court in Clariant International V Securities and
Exchange Board of India, reported in (2004) 8 SCC at page 524, Spl. pg:
549, wherein at paragraph 71, it is observed as under:
71.” The Board is indisputably an expert body. But when it

exercises its quasi-judicial functions; its decisions are subject to
appeal. The Appellate Tribunal is also an expert Tribunal. Only
such persons who have the requisite qualifications are to be
appointed as members thereof as would appear from sub-section
(2) of Section 15-M of the said Act which reads thus:-
"15-M Qualification for appointment as Presiding Officer

or Member of the Securities Appellate Tribunal.__(1)
(2) A person shall not be qualified for appointment as

Member of a Securities Appellate Tribunal unless he is a
person of ability, integrity and standing who has shown
capacity in dealing with problems relating to securities
market and has qualification and experience of corporate
law, securities laws, finance, economics or accountancy:
Provided that a member of the Board or any person holding

a post at senior management level equivalent to Executive
Director in the Board shall not be appointed as Presiding
Officer or Member of a Securities Appellate Tribunal during

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his service or tenure as such with the Board or within two
years from the date on which he ceases to hold office as such
in the Board."
Appellant’s Citations (under `The Competition Act, 2002’) :
93. The Learned Counsel for the Appellant cites a decision of Hon’ble
Supreme Court in SCM Solifert Ltd. and Anr. V Competition
Commission of India, (2018) 6 SCC, at Spl. page 637, wherein at
20.``When the transaction has been completed and acquisition has

been made and the latter transaction has exceeded holding more
than 25% by the second purchase, obviously prior permission was
required, as discussed hereinabove, as its total shareholding
increased to 25.3%. Thus, we have no hesitation to hold that the
notification under Section 6 (2) of the Act has to be ex ante.”
94. The Learned Counsel for the Appellant points out the order dated
24.06.2021 passed by the `1st Respondent/CCI’ under Section 31 (1) of
the Competition Act, 2002 (vide Combination, Registration No. C-
2020/06/747), in the matter of Jaadhu Holdings LLC (Acquirer) / Jio
Platforms Limited (Target), wherein at paragraphs, 4, 5 and 9, it is
observed as under:
4.``Jaadhu was incorporated in March 2020 under the laws of the

State of Delaware, USA, and is currently stated to be not engaged
in any business in India. As stated earlier, it is an wholly owned
subsidiary of Facebook, which is a publicly traded company listed

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on NASDAQ, with its headquarters in California, USA. The
Facebook group offers various products and services in the market
for social networking and advertisement. Globally, Facebook’s
main products / services include Facebook, Messenger,
Instagram, WhatsApp, Oculus, Workplace and Portal. Facebook
generates virtually all its revenue from selling advertising
placements to marketers on its products/ services.
5. Jio Platforms is a company incorporated in India and a

subsidiary of RIL. Jio Platforms owns and operates digital
applications and holds controlling investments in certain
technology related entities. Jio Platforms also holds 100% of the
issued and outstanding share capital of Reliance Jio Infocomm
Limited (RJIO), a public limited company incorporated in India.
RJIO is a licensed telecommunication operator, providing mobile
telephony services to users across India.
9. Based on the submissions of Jaadhu, the Commission observes

that the activities of the Facebook group and Jio Platforms are
similar in consumer communication applications and
advertisement services. Further, the social interaction
applications of Facebook group, particularly WhatsApp chat/
instant messaging application, and the telecommunication
services offered by RJIO, a wholly owned subsidiary of Jio
Platforms, are complementary to each other.”
and submits that the `1st Respondent/CCI’ necessarily had considered the
`Business’ of the group Èntities’ in the `Competitive Assessment’.
95. The Learned Counsel for the Appellant cites the Òrder’ dated
02.09.2014, passed by the `1st Respondent/CCI’ (u/n Section 31 (1) of
the Competition Act, 2002) vide Combination Registration No.

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C-2014/06/184 in Dunearn Investments (Mauritius) Pte. (``Dunearn” or
`Àcquirer”) / Intas Pharmaceuticals Limited (Target), wherein at
paragraphs 2, 4 and 8, it is observed as under:
2.” The proposed combination relates to acquisition of 10.16

percent of the issued, subscribed and paid-up share capital of Intas
Pharmaceuticals Limited. (“Intas”) by Dunearn from Mozart
Limited (“Mozart”), a wholly owned subsidiary of ChrysCapital
III LLC. (hereinafter “Dunearn”, “Mozart” and “Intas” are
together referred to as “parties”)
4. Dunearn, incorporated in Mauritius is an investment holding

company. It is an indirect subsidiary of Temasek Holding (Private)
Limited (“Temasek”). Temasek is an investment company owned
by the Government of Singapore. As stated in the notice as of date,
Dunearn does not own any interests in the Indian pharmaceutical
sector.
8. As stated earlier, the Acquirer is an investment holding company

and an indirect subsidiary of Temasek. As per the information
provided in the notice, there are no horizontal overlaps between
the products and services of Intas and the rest of the Temasek
group. As stated in the notice, Temasek has some minority
investment in the companies engaged in the pharmaceutical and
health sector in India including Medreich Limited, a
pharmaceutical company in India. However, Temasek has entered
into an agreement of divestment of its shareholding in Medreich
Ltd. Moreover, as per the available records and information given
by the Acquirer, even in respect of the overlapping products of
Intas and Medreich Ltd., the combined market share is of minimal
nature. Further, as stated in the notice neither Temasek nor any of
its subsidiaries, associates or joint ventures has any significant
vertical linkage with any of the business activities of Intas or its
subsidiaries in India.”

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96. The Learned Counsel for the Àppellant’ adverts to the order dated
22.02.2021, passed by the `1st Respondent / CCI’ (u/n Section 31 (1) of
the Competition Act, 2002) vide (Combination Registration No.C-
2021/01/805) in CDPQ Private Equity Asia Pte. Ltd. (Acquirer) / API
Holdings Pte. Ltd. (Target), wherein at paragraphs 2, 4, 5, 7 and 8, it is
observed as under:
2. “The Proposed Combination envisages an increase of

shareholding of the Acquirer by approximately 2% in the Target
by way of both a secondary acquisition of shares and a
Combination Registration No. C-2021/01/805 Page 2 of 4 primary
issuance of shares and compulsorily convertible preference shares
by the Target. The increase of shareholding is accompanied by
acquisition of certain additional rights as well. [Hereinafter,
CDPQ Asia and API Holdings are collectively referred to as
‘Parties’.]
4. CDPQ Asia is a wholly-owned subsidiary of Caisse de Depot et

Placement du Quebec (‘CDPQ’) and is located in Singapore.
CDPQ is a Canadian institutional fund, which manages and serves
depositors which comprises public and private pension and
insurance funds in Quebec. In India, the Acquirer is present
through its subsidiaries, viz. CDPQ India Private Limited, Ivanhoe
Cambridge Investment Advisory (India) Private Limited and SITQ
India Private Limited.
5. CDPQ is also present in India through its investments in various

portfolio companies including, inter alia, Piramal Enterprises
Limited (which is present in the pharmaceutical segment) (‘PEL’)

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and TVS Supply Chain Solutions Limited (which is engaged in the
business of providing logistics services) (‘TVS’).
7. Based on the submissions, the Commission noted that Target

exhibits horizontal overlaps with CDPQ’s portfolio companies,
namely PEL and TVS in the segment of manufacture of
pharmaceuticals and provision of logistics services, respectively.
The Commission decided to leave the delineation of the relevant
markets open as it was observed that the Proposed Combination
is not likely to cause an appreciable adverse effect on competition
in any of the relevant markets. As per the information submitted,
the presence of the Target is minimal in these segments.
8. Similarly, based on the submission of the Acquirer, the

Commission noted that there are various vertical relationships,
existing and potential, between the portfolio companies of CDPQ
and the Target. However, the presence of the Target in these
segments is minimal and accordingly, it appears that the Parties
do not have any ability or incentive to foreclose competition.”
97. The Learned Counsel for the Àppellant’ adverts to the Òrder’
dated 22.03.2019, passed by the `1st Respondent/CCI’ (u/n Section 31(1)
of the Competition Act, 2002) in Deli CMF Pte. Limited (Acquirer) /
Delhivery Private Limited (Target) (vide Combination Registration
No.C-2019/02/640), wherein at paragraphs 4, 6, 7 and 9, it is observed as
under:
4. ``The proposed combination is notified in relation to

subscription by the Acquirer of preference shares in the Target
(Proposed Combination). The Acquirer is an existing shareholder
of the Target and currently holds 4.76% of the share capital, on a
fully diluted basis. Post the Proposed Combination, the

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shareholding of Acquirer in Target will be 4.51%, on fully diluted
basis (Deli and Delhivery are collectively referred to as the
Parties).
6. The Acquirer, incorporated in Singapore, is a wholly owned

subsidiary of China Momentum Fund, L.P. [CMF]. Acquirer has
been incorporated solely for the purpose of making investments in
the Target. CMF, established in accordance with the laws of
Cayman Islands, is a private equity fund. Fosun China Momentum
Fund GP, Ltd. [General Partner/FCM], a wholly owned
subsidiary of Fosun International Ltd. [Fosun International], is
the general partner of CMF.
7. In the notice, it has been submitted that the Proposed

Combination is not notifiable in terms of the Section 5 of the Act,
as it does not meet the financial thresholds prescribed thereunder.
It has been further submitted that the Acquirer is filing the notice
by way of abundant caution only. However, as per the submissions
of the Acquirer, the management, control and operation of CMF
including the authority to determine its policy, investment and
other activities, are vested exclusively with FCM, which is a
subsidiary of Fosun International Ltd. (FIL). Thus, FCM has the
ability to control the affairs of CMF. Accordingly, the assets and
liabilities of FIL are also required to be considered for the purpose
of financial thresholds prescribed under Section 5 of the Act.
Taking into account said financials of FIL, the proposed
acquisition by the Acquirer qualifies as a combination under
Section 5 of the Act.
9. It has been submitted that the Parties to the Proposed

Combination do not produce/provide similar or identical or
substitutable products or services either directly or indirectly. It
has been further submitted that the Parties to the Proposed
Combination are not engaged in any activity relating to
production, supply, distribution, storage, sale and service or trade
in products or provision of services, which is at different stages or

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level of the production chain. However, one of the companies
beneficially owned by FIL is seen to have investments in an entity
that is engaged in leasing of trucks in Karnataka, Tamil Nadu and
Mumbai. This is suggestive of a limited vertical overlap between
the activities of the Parties and they are not engaged in similar line
of business.”
98. The Learned Counsel for the Àppellant’ refers to the Òrder’
of the Competition Act, 2002) in Canary Investments Limited and Link
Investment Trust II (Acquirers) Intas Pharmaceuticals Limited (Target
(vide Combination Registration No.C-2020/04/741), wherein at
paragraphs 2, 3, 9, 10 and 13, it is observed as under:
2. “The Proposed Combination envisages acquisition of ~ 3% of

the shareholding in Intas by the Acquirers, along with certain
contractual rights under SHA.
3. Canary is an investment company registered in Mauritius. It is

wholly owned by ChrysCapital VIII LLC, which in-turn has been
set up by ChrysCapital. ChrysCapital is engaged in the business
of making investments in different sectors including consumer
goods and services, financial services, healthcare and
pharmaceuticals.
9. In the instant matter, it is observed that the activities of Intas

are similar to a few of the other pharmaceutical companies in
which ChrysCapital has shareholding and contractual rights to
participate in some of their strategic corporate actions.
ChrysCapital currently holds less than or equal to 10 percent of

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the share capital in each of Mankind Pharma Limited (Mankind)
and Eris Lifesciences Limited (Eris); and less than 20 percent of
the share capital in each of GVK Biosciences Private Limited
(GVK) and Curatio Healthcare Private Limited (Curatio).
10. The interest of ChrysCapital in Eris is limited to its

shareholding. Therefore, Eris has not been considered for
identification of overlaps between the portfolio of ChrysCapital
and Intas. However, its interest in GVK, Curatio and Mankind
include board representation, right to seek information as well as
the right to veto certain corporate actions including the change in
capital structure, mergers and acquisitions, commencing new line
of business and amendment to charter documents (GVK, Curatio
and Mankind shall be together referred to as Portfolio Entities).
A holistic appreciation of these rights suggest that ChrysCapital
enjoys the ability to influence the strategic focus and operations of
GVK, Mankind and Curatio. By way of the Proposed Combination,
the Acquirers now propose to acquire minority shareholding in
Intas along with rights to participate in some of its strategic
corporate actions.
13. The business of Intas and the Portfolio Entities are similar in
respect of more than 150 pharmaceutical products. The combined
market share of the parties is greater than 30% in more than 20
pharmaceutical products. These products are used to treat
ailments falling under the categories of (a) alimentary tract and
metabolism; (b) cardiovascular system; (c) dermatologicals; (d)
genito-urinary system and sex hormones; (e) musculo-skeletal
system; (f) nervous system; (g) respiratory system; and (h)
various.”
99. The Learned Counsel for the Àppellant’ cites to the Òrder’ dated
01.09.2017, passed by the `1st Respondent/CCI’ (u/n Section 31(1) of the
Competition Act, 2002) in Copper Technology Pte. Ltd. (Acquirer) ANI

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Technologies Private Limited (Target) (vide Combination Registration
No.C-2017/08/525), wherein at paragraphs 2, 4 and 6, it is observed as
under:
2. ``The proposed combination relates to subscription by CTPL of

9.57% fully diluted paidup share capital of ANI. In addition,
CTPL is entitled to nominate a non- executive director on the
board of ANI.
4. CTPL, a newly incorporated private company in Singapore, is

an investment holding company. Currently, it does not carry out
any business activities in India and is a wholly owned subsidiary
of Aceville Pte. Ltd. (“Aceville”), an entity incorporated in
Singapore. Tencent Holdings Limited (“Tencent”), a company
incorporated in the Cayman Island, is the ultimate parent company
of Aceville. Tencent is inter-alia, engaged in provision of value-
added services and online advertising services to users in China.
6. The Commission observed that neither Tencent nor its

subsidiaries are engaged in production, distribution or trading of
similar or identical or substitutable products as of the main
activities of ANI in India. However, Tencent group has investment
in Flipkart through one of its portfolio company, which is inter-
alia, engaged in the business of issuance of semi-closed prepaid
instruments (i.e. Mobile Wallets) under the brand name of
“PhonePe”. The Commission noted that PhonePe may be
substitutable to Ola Money. In this regard, the Commission
observed that these entities have insignificant presence in the
activity of mobile wallet in India and accordingly there seems to
be no competition concerns.”

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100. The Learned Counsel for the Àppellant’ points out to the Òrder’
of the Competition Act, 2002) in Marble II Pte. Limited (Acquirer) /
Mphasis Limited (Target) (vide Combination Registration No.C-
2016/04/391), wherein at paragraphs 2, 5, 9, 10 and 11, it is observed as
under:
2. “The notice was given pursuant to execution of a Share

Purchase Agreement (“SPA”) between EDS Asia Pacific
Holdings (“EDS Asia”), EDS World Corporation (Far East) LLC
(“EDS Far East”), EDS World Corporation (Netherlands) LLC
(“EDS Netherlands”) and the Acquirer on 4th April 2016 for
acquisition of up to 60.17% equity share capital of Mphasis.
(Hereinafter, EDS Asia, EDS Far East and EDS Netherlands are
collectively referred to as “Sellers”)
5. Marble II, a private limited company incorporated in Singapore,

is a special purpose vehicle incorporated for the purpose of the
Proposed Combination. It is a wholly owned subsidiary of Marble
I Pte. Ltd. (“Marble I”) and an indirect subsidiary of Blackstone
Capital Partners (Cayman II) VI L.P. (“BCP VI”), a private
equity fund managed / advised by affiliates of The Blackstone
Group L.P. (“Blackstone”). Blackstone listed on the New York
Stock Exchange (“NYSE”) and headquartered in the United
States, is a global alternative asset manager and provider of
financial advisory services.
9. The Commission noted that at broader level, activities of the

parties’ overlap in the business of IT and ITeS in India. While, the
Acquirer, being a special purpose vehicle, is not engaged in any
business activity, the portfolio companies of Blackstone and the
Target are engaged in the overlapping activities i.e. IT and ITeS
Page 87 of 310
business in India. The Commission further noted that the provision
of services relating to IT and ITeS can be sub-segmented into the
provision of Consulting, Implementation Services and ITO
services in India. However, in the instant case as the market shares
of the parties are insignificant and there is presence of several
other players, the market definition may be left open.
10. On the basis of the submissions of the Acquirer, the

Commission noted that there is insignificant vertical relationship
between the Target and portfolio companies of Blackstone in
India.
11. It is observed that the competition assessment of the proposed

combination for overlapping businesses of namely, (i) Mpahsis
and the Acquirer, and (ii) Mpahsis and the relevant portfolio
companies of Blackstone, would relate to the business of IT and
ITeS in India. It is observed that the combined market share of the
Target and portfolio companies of Blackstone, post-combination,
are insignificant regardless of how the market is delineated.
Further, other players, with a sizeable market share, are present
in each of the sub-segment of the IT and ITeS business in India.”
101. The Learned Counsel for the Àppellant’ adverts to the Òrder’
dated 21.05.2014 in Thomas Cook Vs Sterling Holiday Resorts India
Limited (u/n Section 43A of the Competition Act, 2002) (vide
Combination Registration No.C-2014/02/153), wherein at paragraphs 8
to 11, it is observed as under:
8. “The Parties have also contended that even assuming for

the sake of argument that the concept of ‘composite
combination’ is regulated and controlled under the Act,

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based on the previous decisions of the Commission, the
Market Purchases do not meet the requirements of a
composite combination. Citing reference to the earlier
decisions of the Commission (Case bearing Reg. Nos. C-
2012/03/45, C-2012/03/48 and C-2013/05/122), it has been
argued that mutual interdependence is the relevant test to
see whether two transactions are part of one composite
combination. However, the Commission has never held that
mutual interdependence is the only test to determine a
composite combination. It is relevant to note sub-regulation
(4) of Regulation 9 which states that a business transaction
could be achieved by way of a series of steps or smaller
individual transactions which are inter-connected or inter-
dependent on each other. Even in the case bearing Reg. No.
C-2013/05/122, the Commission regarded different
steps/transactions as one combination as they were related
to each other and there was no conclusion that mutual
interdependence is the only test to determine a composite
combination. It is observed that considering two different
transactions as one combination depends on the facts and
circumstances of each case with due regard to the subject
matter of the transactions; the business and entities
involved; simultaneity in negotiation, execution and
consummation of the transactions; and also, whether it is
practical and reasonable to isolate and view the
transactions separately. In the instant case, though
different, the Market Purchases are inherently related to the
other transactions (Scheme and other acquisitions) and
would not have been pursued in the absence of Parties
envisaging the Scheme and other acquisitions.
9. In terms of sub-section (2) of Section 6 of the Act, any

person or enterprise, who or which proposes to enter into a
combination, shall give notice to the Commission disclosing
the details of the proposed combination within the time
prescribed therein. Whereas, at the time of giving notice to

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the Commission, TCISIL had already consummated the
Market Purchases. Therefore, the Parties have failed to give
notice under sub-section (2) of Section 6 of the Act.
10. In terms of Section 43A of the Act, if any person or

enterprise fails to give notice under sub-section (2) of
Section 6 of the Act, the Commission shall impose on such
person or enterprise, a penalty which may extend to one
percent of the total turnover or the assets, whichever is
higher, of such a combination.
11. Though the penalty under section 43A of the Act may
extent up to one percent of the total turnover or the assets of
such a combination whichever is higher, the Commission
has sufficient discretion to consider the conduct of the
Parties and the circumstances of the case to arrive at an
appropriate amount of penalty. In the instant case, the
Parties consummated the Market Purchases between 10th
and 12th February 2014 and same was disclosed in the
notice filed on 14th February 2014. Though the parties have
made full disclosure of all the transactions and there was no
effort on their part to conceal information, the Commission
discovered the violation of the provisions of the Act only
from the notice given by the Parties. These facts go to
suggest that the conduct of the Parties was not such that
attracts severe penalty. Considering the facts and
circumstances of the case, the Commission considers it
appropriate to impose a relatively nominal penalty on the
Parties. Therefore, in exercise of the powers under Section
43A of the Act, a penalty of INR 1,00,00,000 (Rupees one
crore) is imposed on the Parties. The parties to the
combination shall pay the penalty within 60 days from the
date of receipt of this order.”

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Appellant’s Decisions (on `Decisional Practice’ under Competition
Act, 2002):
102. The Learned Counsel for the Àppellant’ refers to the Òrder’
of the Competition Act, 2002) in Jaadhu Holdings LLC (Acquirer) / Jio
Platforms Limited (Target) (vide Combination Registration No.C-
2020/06/747), wherein at paragraphs 12, 13, 14, 16, 24, 25 and 28, it is
observed as under:
12. “Jaadhu has submitted that there is no need to specifically

define a relevant market in respect of consumer communication
applications as the Proposed Combination is only a minority
acquisition. The parties would continue to operate independently
and therefore, the Proposed Combination would not alter the
competitive landscape in any potential relevant market in any
manner. Without prejudice to such submission, it has also
submitted that Jaadhu firmly believes that it competes in the
overall broader ‘market for user attention’. Facebook group (and
Jio Platforms) compete broadly with all digital products and
services that seek to capture user attention, which can be through
a number of different services such as social networking,
messaging, gaming, content viewing and sharing, music, amongst
many others. Without prejudice to the above submissions, Jaadhu
has further submitted that the Commission, in Vinod Gupta v.
WhatsApp Inc. (Order dated 01.06.2016 in Case No. 99 of 2016) ,
had adopted a narrower market definition by covering consumer
communication applications only. For such narrower market,
Jaadhu has given submissions to suggest that the Proposed
Combination is not likely to raise any competition concern. It has
further submitted that it would be unrealistic to segregate

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consumer communication applications based on functionality or
platform.
13. The Commission observes that JioChat, Messenger and

WhatsApp are all consumer communication applications that
primarily enable users to interact with each other. The purpose
and features of these applications serve the particular purpose of
interaction between individuals or groups and thus, it may not be
appropriate to consider the relevant market as all user attention
products/ services. Further, consumer communication
applications can be segmented based on functionality –
messaging, voice call and video call; platforms – applications
meant for desktop, smartphones, tablets, mobile devices, etc.; and
operating systems (OS) - proprietary applications and those that
run over different mobile operating systems.
14. In Vinod Gupta case (supra), the Commission dealt with

alleged abuse of dominant position by WhatsApp. While defining
the relevant market, the Commission noted that “‘WhatsApp’, an
instant communication app for smartphones using standard
cellular mobile numbers, is a platform for communication through
texting, group chats and voice and video calls. It is noted that
instant communication apps cannot be compared with the
traditional electronic communication services such as text
messaging, voice calls etc. as provided by various
telecommunication operators. It is so because unlike traditional
modes of communication, instant messaging using communication
apps are internet based and provide additional functionalities to
the users. For example, users of communication apps can see when
their contacts are online, when they are typing or when they last
accessed the application. Further, instant communication apps
can be used through smartphones only whereas traditional
electronic communication services can be used through any
mobile phone. There are also differences in the pricing conditions
in both the abovesaid modes of communication. ‘WhatsApp’ is a
free to download communication application which does not

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charge any fee from its users for providing the services and just
uses internet connection on the device to send instant messages,
connect voice calls etc. Further, text messaging through
traditional modes can be done between people who do not use the
mobile service of the same service provider, whereas instant
messaging services typically require you and your contacts to be
on the same communication application platform. Thus, the
Commission is of the view that the relevant product market in this
case may be considered as ‘the market for instant messaging
services using consumer communication apps through
smartphones’
(emphasis added)
16. The Commission observes that all the three consumer

communication applications of the parties viz. WhatsApp,
Messenger and Jio Chat offer similar functionalities and are
available free of cost. It has been stated that applications like Duo
and Hangout of Google, Snapchat, Wechat, imessage and
FaceTime of Apple, Telegram and Viber also offer similar
combination of functionalities and are available free of cost. These
are seemingly the result of convergence in the consumer
communication applications market. Thus, for the purpose of
assessment of the Proposed Combination, it may not be relevant to
further segment consumer communication applications based on
functionalities.
24. Jaadhu has submitted that there is no need to specifically

define a relevant market in respect of advertisement services as the
Proposed Combination is only a minority acquisition. The parties
would continue to operate independently and therefore, the
Proposed Combination would not alter the competitive landscape
in any potential relevant market in any manner. Without prejudice
to such submission, Jaadhu has submitted that advertising is a

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large, diverse segment made up of many forms and mediums such
as billboards, radio and television spots, print advertising, online
advertising, etc. It has been further submitted that the purchasers
of advertising services (i.e, advertisers) procure advertising space,
often across mediums, to promote a product, service, or cause. It
has been submitted that the mediums for conveying advertisements
have expanded in the recent years and now include a wide range
of platforms including print, television, radio, billboards, cinemas,
etc. (commonly referred to as offline mediums of advertising) and
also apps, websites, emails, etc. (commonly referred to as online
mediums of advertising).
25. Jaadhu has however submitted that there is no need to

segregate online and offline advertisements as the purpose and
end-use of advertisements across all mediums is the same and
these different segments are substitutable from both demand and
supply side perspectives. Creating awareness of brands, products,
services and ideas amongst customers / potential customers;
persuading target customers to buy products or avail services
and/or reinforcing/ maintaining the demand for products and
services, all are indicated as intended uses of any advertisement.
Further submissions have been made regarding fluidity between
different mediums of advertising, including from a supply side
perspective. Without prejudice to the above submissions on
relevant market for advertising services, Jaadhu has also given
submissions and details for a narrower market like online
advertisement services and a further narrower market for online
display advertisement services. The estimates given by Jaadhu for
these three different alternative markets viz. advertisement
services, online advertisement and online display advertisement
are as under:

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Table 1 Advertising Services in India for FY 2019
Sales Market
Name of Enterprise (INR Cr.) Share
(%)
Facebook **** ****
Jio **** ****
Star India **** ****
Google **** ****
Bennett Coleman **** ****
Zee Entertainment **** ****
Sony Pictures **** ****
Viacom 18 **** ****
Others **** ****
Total **** ****
Table 2 Online Advertising in India for FY 2019
Sales Market
Enterprise (INR Cr.) Share (%)
Facebook **** ****
Jio **** ****
Google **** ****
Hotstar **** ****
Amazon Ads **** ****
Flipkart **** ****
InMobi **** ****
Page 95 of 310
Others **** ****
Total **** ****
Table 3 Online Display Advertising in India for FY 2019
Sales Market
Enterprise (INR Cr.) Share (%)
Facebook **** ****
Jio **** ****
Google **** ****
Hotstar **** ****
Amazon Ads **** ****
Flipkart **** ****
InMobi **** ****
Others **** ****
Total **** ****
28. The Commission is of the view that the market definition for
advertisement services may be left open as the Proposed
Combination is not likely to increase concentration in any of the
plausible relevant markets for advertisement services. The revenue
of Jio Platforms from advertising services is only *** ** crore and
*** ** crore in the preceding two financial years. Even in the
narrowest possible market viz. market for online display
advertisement services, the revenue of Jio Platforms for FY 2018-
19 translates into only ***** of the total market. While earnings
from advertisement is the main stream of revenue for Facebook,
revenue of Jio Platforms from advertisement services is
insignificant and constitutes less than 1% of its total revenue. The
Commission also observes that online advertisement space

Page 96 of 310
features the presence of Google, which as per the data provided
by Jaadhu, has a significant market position.”
103. The Learned Counsel for the Appellant points out the Òrder’
dated 02.09.2014, passed by the `1st Respondent/CCI’ (u/n Section 31 (1)
of the Competition Act, 2002) vide Combination Registration No. C
2014/06/184 in Dunearn Investments (Mauritius) Pte. (``Dunearn” or
`Àcquirer”) / Intas Pharmaceuticals Limited (Target), wherein at
paragraphs 3 and 7, it is observed as under:
3. “The notice was given pursuant to an

application/communication dated 22nd May 2014, filed by Intas
with the Foreign Investment Promotion Board (“FIPB”). As stated
in the notice and other documents available on records, no
definitive agreement for the proposed transaction had been
executed by the parties till the date of application with the FIPB.
In the notice, the Acquirer had stated that it might seek certain
affirmative voting rights in its favour in the definitive agreements
to be entered between the parties and accordingly, the notice was
being given by them in abundant caution under subsection (2) of
Section 6 of the Act, keeping in view the proviso to sub-regulation
(8) of Regulations 5 of the Competition Commission of India
(Procedure in regard to the transaction of business relating to
combinations) Regulations (“Combination Regulations”).
7. The Acquirer has submitted, vide its reply dated 25th August,
2014 that the Share Purchase Agreement and the Shareholders’
Agreement in relation to the proposed combination have been
executed between the parties on 22nd August 2014. It is observed
that pursuant to the proposed combination, Dunearn would secure
all the affirmative voting rights which were earlier available to

Page 97 of 310
Mozart. Further, as stated by the Acquirer, such rights are for the
purpose of protecting the minority stake of the Acquirer in the
target and would not be intended, nor likely, to result in
operational control of Intas by the Acquirer, as promoters will
continue to remain in its control and management.”
104. The Learned Counsel for the Appellant relies on the Òrder’ dated
the Competition Act, 2002) vide Combination Registration No. C
2018/01/550-553 in Reliance Jio Infcomm Limited (Acquirer) / Reliance
Communications Limited, Reliance Telecom Limited and Reliance
Infratel Limited (Targets) wherein at paragraphs 24 and 26, it is observed
as under:
24. “With regards to the proposed combination relating to

acquisition of the MCN assets from RCOM Entities by RJIO, it
has been stated that the notice has been given by Acquirer in
abundant caution as the turnover attributable to the MCN Assets
is below INR 1000 Crore and as such transaction qualifies for de
minimis exemption, in terms of Ministry of Corporate Affairs
notification dated 27th March, 2017.
26. MCN assets are required by the telecom operators for

provision of telephony services but no specific turnover can be
assigned to it. The MCN Assets on a standalone basis do not
perform any revenue generation activities and are merely used to
support the provision of telecom business. In light of the above, the
Commission is of the view that entire turnover of the mobile
telephony business ought to be attributed to these assets.”

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105. The Learned Counsel for the Appellant cites the Òrder’ dated
the Competition Act, 2002) vide Combination Registration No. C
2015/05/276 in Cairnhill CIPEF Limited (CCL) and Cairnhill CGPE
Limited (CGL) (Acquirers / Mankind Pharma Limited (Target), wherein
at paragraphs 5 and 6, it is observed as under:
5. “In relation to applicability of Item 1 to the proposed

combination, it is noted that the SHA entitles the Investors to
appoint 1 (one) director on the board of directors of Mankind.
Further, the SHA confers certain affirmative rights to the Investors
inter alia including commencement of a new business. Moreover,
an acquisition could be considered to be made solely as an
investment if the acquirer has no intention to directly or indirectly
participate in the formulation and determination of the business
decisions of the target. In view of the above, the acquisition of 11
per cent of equity share capital of Mankind would not be treated
as solely as an investment and thus, the Commission is of the view
that the proposed combination is not covered under Item 1 of
Schedule 1 of the Combination Regulations and is notifiable under
sub-section (2) of Section 6 of the Act.
6. It is also observed that the trigger for notification under sub-

section (2) of Section 6 of the Act, in respect of the proposed
combination, arose from the acquisition of shares in terms of the
provisions of the SPAs. Further, as per the SPAs, the execution of
SHA was a condition precedent for the closing of the proposed
combination. Therefore, in terms of regulation 9(4) of
Combination Regulations, the execution of SPAs and SHA are
interconnected and interdependent on each other. Accordingly, it
appears that the notice in the instant case ought to have been filed
within 30 days of the execution of the SPA 1.”
Page 99 of 310
Appellant’s Case Laws:
106. The Learned Counsel for the Àppellant’ refers to the decision in
Amazon Seller Services Private Limited V Amway India Enterprises Pvt.
Ltd. and Ors., reported in 2020 SCC Online Delhi 454, wherein at
paragraphs 150 to 152, it is observed as under:
“The tort of inducement to breach of contract necessitates that

there should be a contract in the first place between the online
platforms and the Direct Selling Entities (DSEs. The mere fact that
the online platforms may know the Code of Ethics of the DSEs, and
the contractual stipulation imposed by such DSEs on their
distributors, is insufficient to lay a claim of tortious interference.
It was incumbent on plaintiffs to demonstrate active efforts on the
part of or contracts entered into by the appellants/defendants to
make a viable case for the tort of inducement to breach of contract.
In this case, contentious issues have been raised which can be
decided through trial. The single Judge could not, at the
interlocutory stage, have ignored the rival contentions. Whether
the online platforms induced a breach of contract between the
DSEs and its ABOs/sellers is at best a matter of evidence, and not
of inference.”
107. The Learned Counsel for the Àppellant’ relies on the decision of
the Hon’ble Supreme Court in Ram Parshotam Mittal and Ors. V Hotel
Queen Road Private Limited and Ors reported in 2019, 20 SCC 326 at
Spl. pg: 351, wherein at paragraph 63, it is observed as under:
63. “In view of the observations made by this Court, the order in
Ram Purshottam Mittal V Hillcrest Realty Sdn. Bhd. (2009) 8 SCC

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79, is not final and is only a prima facie view in the matter of
injunction. We find force in the submission of learned counsel
appearing for the appellants that the observations in interim order
cannot be taken as binding even for the purpose of deciding this
matter as held in the State of Assam v. Barak Upatyaka D.U.
Karamchari Sanstha (2009) 5 SCC 694, SCC 702 Para 21)
“21. A precedent is a judicial decision containing a principle,

which forms an authoritative element termed as ratio decidendi.
An interim order which does not finally and conclusively decide an
issue cannot be a precedent. Any reasons assigned in support of
such nonfinal interim order containing prima facie findings, are
only tentative. Any interim directions issued on the basis of such
prima facie findings are temporary arrangements to preserve the
status quo till the matter is finally decided, to ensure that the
matter does not become either infructuous or a fait accompli,
before the final hearing.”
108. The Learned Counsel for the Àppellant’ falls back upon the
decision of the Hon’ble High Court of Delhi in Spread Info Tech
Consultants Private Limited V ZTE Kangxun Telecom Co. India Private
Limited and another, reported in (2014) SCC Online Del 4137, wherein
14.`Ìt is settled law that observations made at interim stage are

not binding. The defendants are seeking to rely on the observations
on merit made by this Court in order dated 29th September, 2011
while dismissing its application under Order VII Rule 11 CPC. It
is settled by the Supreme Court in a catena of judgments wherein
it has been held that the observations made at interim stage are
not binding at subsequent stages of the same proceeding either

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before the learned Single Judge or W.S.G. Cricket PTE. Ltd., AIR
2003 SC 1177, has held as under:
31. In the instant case, though the learned single judge proceeded
on the prima facie finding that the proceedings in the English
Courts would be oppressive and vexatious, in our view, those
finding, recorded at the stage of passing an ad-interim order,
would not bind the same learned judge much less they would bind
the appellate court or the parties thereto at subsequent stage of the
same proceeding because it cannot operate as issue estoppel…..”
109. The Learned Counsel for the Àppellant’ refers to the judgment of
the Hon’ble Supreme Court Premlata @ Sunita V Naseeb Bee Ors., dated
23.03.2022 vide Civil Appeal Nos. 2055 – 2056 of 2022, wherein at
4.`Àt the outset, it is required to be noted and it is not in dispute

that the plaintiff instituted the proceedings before the Revenue
Authority under Section 250 of the MPLRC. These very defendants
raised an objection before the Revenue Authority that the Revenue
Authority has no jurisdiction to deal with the matter. The Tehsildar
accepted the said objection and dismissed the application under
Section 250 of the MPLRC by holding that as the dispute is with
respect to title the Revenue Authority would not have any
jurisdiction under MPLRC. The said order passed by the Tehsildar
has been affirmed by the Appellate Authority (of course during the
pendency of the revision application before the High Court). That
after the Tehsildar passed an order rejecting the application under
Section 250 MPLRC on the ground that the Revenue Authority
would have no jurisdiction, which was on the objection raised by
the respondents herein – original defendants, the plaintiff
instituted a suit before the Civil Court. Before the Civil Court the
respondents – original defendants just took a contrary stand than

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which was taken by them before the Revenue Authority and before
the Civil Court the 5 respondents took the objection that the Civil
Court would have no jurisdiction to entertain the suit. The
respondents – original defendants cannot be permitted to take two
contradictory stands before two different authorities/courts. They
cannot not be permitted to approbate and reprobate once the
objection raised on behalf of the original defendants that the
Revenue Authority would have no jurisdiction came to be accepted
by the Revenue Authority / Tehsildar and the proceedings under
Section 250 of the MPLRC came to be dismissed and thereafter
when the plaintiff instituted a suit before the Civil Court it was not
open for the respondents – original defendants thereafter to take
an objection that the suit before the Civil Court would also be
barred in view of the Section 257 of the MPLRC. If the submission
on behalf of the respondents – defendants is accepted in that case
the original plaintiff would be remediless. The High Court has not
at all appreciated the fact that when the appellant – original
plaintiff approached the Revenue Authority / Tehsildar he was
nonsuited on the ground that Revenue Authority / Tehsildar had
no jurisdiction to decide the dispute with respect to title to the suit
property. Thereafter when the suit was filed and the respondents -
defendants took a contrary stand that even the civil suit would be
barred. In that case the original plaintiff would be remediless. In
any case the respondents – original defendants cannot be
permitted to approbate and reprobate and to take just a contrary
stand than taken before the Revenue Authority.”
110. The Learned Counsel for the Àppellant’ cites the decision in
Antaios Compania S.A. v Salen Rederierna A.B. (1985) AC 191, 192
(H.L. (E.), wherein it is observed that if conclusions of words in a
`Commercial Contract’ flout business sense, it must be made to yield
business common sense.

Page 103 of 310
111. The Learned Counsel for the Appellant cites the decision of
Hon’ble Supreme Court in Md. Serajuddin and Ors. V The State of
Orissa, reported in (1975) 2 SCC, page 47 at Spl. pg: 73 and 74, wherein
at paragraphs at 61, 62 and 63, it is observed as under:
61.`Òne important criterion in order to determine as to whether

the contract of sale between the appellant and STC occasioned the
export is to find whether STC could divert the goods supplied by
the appellant for a purpose other than the export to the foreign
buyer. If the answer be in the negative, it would necessarily follow
that the contract between the appellant and STC resulted in the
export of chrome concentrates. The above criterion was applied in
a number of cases. In the case of Ben Gorm Nilgiri Plantations Co.
(supra) Shah speaking for the majority observed :
There is no statutory obligation upon the purchaser to export the

chests of tea purchased by him with the export rights. The export
quota merely enables the purchaser to obtain export licence, which
he may or may not obtain. There is nothing in law or in the contract
between the parties, or even in the nature of the transaction which
prohibits diversion of the goods for internal consumption."
In the case of K. G. Khosla & Co. (supra) Sikri J. speaking. for this
Court observed :
"Movement of goods from Belgium to India was in pursuance of

the conditions of the contract between the assessee and the
Director-General of Supplies. There was no possibility of these
goods being diverted by the assessee for any other purpose.
Consequently we hold that the sales took place in the course of
import of goods within section 5 (2) of the Act, and are, therefore,
exempt from taxation.

Page 104 of 310
In the case of Coffee Board (supra) Hidayatullah CJ observed The
compulsion to export here is of a different character. It only
compels persons who buy on their own to export in their own turn
by entering into another sale. It is a sale for export. Even with the
compulsion the sale may not result for clauses 26, 30 and 31
visualize such happenings.”
62. Coming to the facts of the present case, I find that it was an
f.o.b. sale and there was absolutely no chance of diversion of the
goods by STC for a purpose other than the export to the foreign
buyer.
63. It may also be mentioned that the position of STC under the
contract between the appellant and STC was not of a purchaser in
the ordinary sense of the term. Unlike such a purchaser, STC was
not entitled to get profits and was not liable to bear losses resulting
from fluctuations in the market rate of the goods specified in the
contract. It was not open to STC to charge any price for the goods
exported to the foreign buyer. The price to be charged from the
foreign buyer was already fixed in the contract between the
appellant and STC. An ordinary purchaser of goods is entitled to
resell the goods or retain them with himself for any length of time.
There is no obligation upon him to export the goods, much less to
export them to a specified foreign buyer. As against that, in the
present case is a result of the agreement between the appellant and
STC, the latter was not entitled to retain the goods but was bound
to export them immediately to the specified foreign buyer at a price
which was already mentioned in the agreement between the
appellant and STC. In fact, the arrangement for export of the
goods was also made by the appellant because the contract of sale
between the appellant and STC was f.o.b. contract. STC came into
the picture as a statutory intermediary because of the legal
requirements under the Exports Control Order. All that STC was
entitled in the bargain was a commission of one 'dollar per ton.
Indeed, STC in one of its letters described its remuneration as
commission. In the case of M/s Daruka & Co. V. The Union of

Page 105 of 310
India & Ors.(1) this Court observed in para 23 of the judgment
that the Corporation like STC is in the nature of a commercial
undertaking to which a licence has been granted for the export of
certain commodities and the service charges are nothing but quid
pro quo for the services rendered by the Corporation. The
introduction of a statutory intermediary Eke STC with only
entitlement of commission of one dollar per ton would not, in my
opinion, affect the real nature of the transaction that it was the
appellant who was to export the chrome concentrates to the
foreign buyer.”
112. The Learned Counsel for the Appellant points out the decision of
the Hon’ble Supreme Court in Shyam Telelink Limited V Union of India,
reported in (2010) 10 SCC at page 165 at Spl. pg:174, wherein at
27. “In America Estoppel by acceptance of benefits is one of the

recognized situations that would prevent a party from taking up
inconsistent positions qua a contract or transaction under which
it has benefited. American Jurisprudence, 2nd Edition, Volume 28,
pages 677-680 discusses Èstoppel by acceptance of benefits' in
the following passage:
"Estoppel by the acceptance of benefits: Estoppel is frequently

based upon the acceptance and retention, by one having
knowledge or notice of the facts, of benefits from a transaction,
contract, instrument, regulation which he might have rejected or
contested. This doctrine is obviously a branch of the rule against
assuming inconsistent positions.
As a general principle, one who knowingly accepts the benefits of
a contract or conveyance is estopped to deny the validity or
binding effect on him of such contract or conveyance.

Page 106 of 310
This rule has to be applied to do equity and must not be applied in
such a manner as to violate the principles of right and good
conscience."
113. The Learned Counsel for the Appellant adverts to the decision of
the Hon’ble Supreme Court in Hari Shankar and Ors. V The Deputy
Excise and Taxation Commissioner and Ors., reported in (1975) 1 SCC
at page 737 at Spl. pgs: 745 and 746, wherein at paragraphs 16, it is
among other things observed as under:
16.``……… The bids given in the auctions were offers made by

prospective vendors to the Government. The Government's
acceptance of those bids was the acceptance of willing offers made
to it. On such acceptance, the contract between the bidders and
the Government became concluded and a binding agreement came
into existence between them. The successful bidders were then
granted licences evidencing the terms of contract between them
and the Government, under which they became entitled to, sell
liquor. The licensees exploited the respective licences for a portion
of the period of their currency, presumably in expectation of a
profit. Commercial considerations may have revealed an error of
judgment in the initial assessment of profitability of the adventure
but that is a normal incident of the trading transactions. Those who
contract with open eyes must accept the burdens of the contract
along with its benefits. The powers of the Financial Commissioner
to grant liquor licenses by auction and to collect licence fees
through the medium of auctions cannot by writ petitions be,
questioned by those who, had their venture succeeded, would have
relied upon those very powers to found a legal claim. Reciprocal
rights and obligations arising out of contract do not depend for
their enforceability upon whether a contracting party finds it

Page 107 of 310
prudent to abide by the terms of the contract. By such a test no
contract could ever have a binding force.”
the Hon’ble Supreme Court in Vijay Karia and Ors. V Prysmian Cavi E
Sistemi SRL and Ors. (2020) 11 SCC 1, at Spl. pg: 5, wherein it is
observed and held as under:
“Enforcement of a foreign award may under Section 48 be refused

only if the party resisting enforcement furnishes to the Court proof
that any of the grounds stated in Section 48 has been made out to
resist enforcement __ The said grounds are watertight, and no
ground outside Section 48 can be looked at __ Given the “pro-
enforcement bias” of the New York Convention, which has been
adopted in Section 48, burden of proof on parties seeking
enforcement has now been placed on parties objecting to
enforcement and not the other way around ___ The challenge
procedure in the primary jurisdiction gives more leeway to courts
to interfere with a foreign award than the narrow restrictive
grounds contained the New York Convention when a foreign
award’s enforcement is resisted __ Further, the expression used in
Section 48 is “may __ Thus, even if grounds for refusal of
recognition and enforcement of an award are proved to exist, in
one class of cases, the enforcing Court is not obliged to refuse
enforcement.”
the Hon’ble Supreme Court in Pradeep V Goa State Co-operative Bank,
reported in (2017) (3) Maharashtra Law Journal, at page 274, Spl. pgs:
281 and 282, wherein at paragraphs 26 and 27, it is observed as under:

Page 108 of 310
26. ``….mere allegation of fraud in the background, is of no
assistance to disturb such transactions and / or proceedings which
are initiated by the Financial Institution / Bank by following the
due procedure of law’
27. ……the amount/payment deposited in the Court pursuant to

the order passed by this Court, that itself, cannot be read and/or
for the entire amount due to the respondent Bank has been duly
paid. The respondent bank has taken action based upon the then
existing facts of no payment on demand and the provision.
Admittedly, there was no challenge raised or objection filed that
itself concluded the situation. The actions so initiated by the bank
in no way can be stated to be contrary to law. Therefore, SJS
Business Enterprises (2004) 7 SCS 166 on fact itself distinct and
distinguishable. Ludovico Sagrado Goveia (2017) (1)
MH.L.J.(S.C. 608) is also of no assistance as petitioner in case in
hand never raised appropriate application within time before
conclusion of first sale. Therefore, there was no question of
holding that sale in question was in violation of provisions of Rule
22 of the Rules as no case was made out by the petitioner to set
aside even the second sale and consequent action arising out of
the same.”
116. The Learned Counsel for the Àppellant’ relies on the decision of
the Hon’ble Supreme Court in Electrosteel Castings Limited V U V Asset
Reconstruction (2021) SCC Online SC 1132, at page 385, wherein at
29.“However it is required to be noted that except the words used

`fraud’/`fraudulent’ there are no specific particulars pleaded with
respect to the `fraud’. It appears that by a clever drafting and
using the words `fraud’/`fraudulent’ without any specific
particulars with respect to the `fraud’, the plaintiff-appellant

Page 109 of 310
herein intends to get out of the bar under Section 34 of the
SARFAESI Act and wants the suit to be maintainable. As per the
settled preposition of law mere mentioning and using the word
`fraud’/`fraudulent’ is not sufficient to test of `fraud’. As per the
settled preposition of law such a pleading/using the word
`fraud’/`fradulent’ without any material particulars would not
tantamount to pleading of `fraud’. In case of Bishundeo Narain
and Anr. 1951 SCR 548) in para 28, it is observed and held as
under:
“….. Now if there is one rule which is better established

than any other, it is that in cases of fraud, undue influence
and coercion, the parties pleading it must set forth full
particulars and the case can only be decided on the
particulars as laid. There can be no departure from them in
evidence. General allegations are insufficient even to
amount to an averment of fraud of which any court ought to
take notice however strong the language in which they are
couched may be, and the same applies to undue influence
and coercion. See Order 6, Rule 4, Civil Procedure Code.”
117. The Learned Counsel for the Àppellant’ cites the Judgment of this
Tribunal dated 08.09.2021 in Devas Multimedia Private Limited V
Antrix Corporation Limited, reported in (2021) SCC Online NCLAT
448, wherein at paragraphs 192 to 208, it is observed as under:
192. “Fraud vitiates every solemn proceeding and no right can be

claimed by a fraudster the ground of technicalities. On behalf of
the appellants, reliance has been placed on the definition of
"fraud" as defined in Black's Law Dictionary, which is as under:
“Fraud: (1) A knowing misrepresentation of the truth or

concealment of a material fact to induce another to act to
his or her detriment. Fraud is usually a tort, but in some
cases (esp. when the conduct is willful) it may be a crime.

Page 110 of 310
… (2) A misrepresentation made recklessly without belief in
its truth to induce another person to act. (3) A tort arising
from a knowing misrepresentation, concealment of material
fact, or reckless misrepresentation made to induce another
to act to his or her detriment. (4) dealing; esp., in contract
law, the unconscientious use of the power arising out of the
parties' relative positions and resulting in an
unconscionable bargain.”
193. Halsbury's Laws of England has defined "fraud" as follows:

Whenever a person makes a false statement which he does not
actually and honestly believe to be true, for purpose of civil
liability, the statement is as fraudulent as if he had stated that
which he did know to be true, or know or believed be false. Proof
of absence of actual and honest belief is all that is necessary to
satisfy the requirement of the law, whether the representation has
been made recklessly or deliberately, indifference or recklessness
on the part of the representor as to the truth or falsity of the
representation affords merely an instance of absence of such a
belief.
194. In Kerr on the Law of Fraud and Mistake, “fraud” has been
defined thus:
"It is not easy to give a definition of what constitutes fraud

in the extensive significance in which that term is
understood by Civil Courts of Justice. The courts have
always avoided hampering themselves by defining or laying
down as a general proposition what shall be held to
constitute fraud. Fraud is infinite in variety… Courts have
always declined to define it, … reserving to themselves the
liberty to deal with it under whatever form it may present
itself. Fraud ... may be said to include property properly) all
acts, omissions, and concealments which involve a breach
of legal or equitable duty, trust or confidence, justly
reposed, and are injurious to another, or by which an undue

Page 111 of 310
or unconscientious advantage is taken of another. All
surprise, trick, cunning, dissembling and other unfair way
that is used to cheat anyone is considered as fraud. Fraud
in all cases implies a wilful act on the part of anyone,
whereby another is sought to be deprived, by legal or
Inequitable means, of what he is entitled to.”
195. In Ram Chandra Singh v. Savitri Devi ((2007) 10 SCC 674

Sunil Pannalal Banthia v City & Industrial Development Corpn.
Of Maharashtra Ltd.), it was observed that fraud vitiates every
Solemn act. Fraud and justice never dwell together and it cannot
be perpetuated or saved by the application of any equitable
doctrine Including res judicata. This Court observed as under:
(SCC pp. 327-29, paras 15-18, 23 & 25)
"15. Commission of fraud on court and suppression of

material facts are the core issues involved in these matters.
Fraud, as is well known, vitiates every solemn act. Fraud
and justice never dwell together.
16. Fraud is a conduct either by letter or words, which

induces the other person or authority to take a definite
determinative stand as a response to the conduct of the
former either by word or letter.
17. It is also well settled that misrepresentation itself

amounts to fraud. Indeed, innocent misrepresentation may
also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and

consists in leading a man into damage by wilfuly or
recklessly causing him to believe and act on falsehood. It is
a fraud in law if a party makes representations which he
knows to be false, and injury ensues therefrom although the
motive from which the representations proceeded may not
have been bad.

Page 112 of 310
23. An act of fraud on court is always viewed seriously. A
collusion or conspiracy with a view to deprive the rights of
the others in relation to a property would render the
transaction void ab initio. Fraud and deception are
synonymous.
25. Although in a given case a deception may not amount to

fraud, fraud is anathema to all equitable principles and any
affair tainted with fraud cannot be perpetuated or saved by
the application of any equitable doctrine including res
judicata.
(emphasis supplied)
196. In Madhukar Sadbha Shivarkar v. State of

Maharashtra ((2006) 13 SCC 382, Nagar Nigam v Alfaheem
Meat Exports (P) Ltd.), this Court observed that fraud had
been played by showing the records and the orders obtained
unlawfully by the declarant, would be a nullity in the eye of
the law though such orders have attained finality. Following
observations were made: (SCC pp. 569-70, para 27)
27. The said order is passed by the State Government only

to enquire into the landholding records with a view to find
out as to whether original land revenue records have been
destroyed and fabricated to substantiate their unjustifiable
claim by playing fraud upon the Tahsildar and appellate
authorities to obtain the orders unlawfully in their favour by
showing that there is no surplus land with the Company and
its shareholders as the valid sub-leases are made and they
are accepted by them in the proceedings under Section 21
of the Act, on the basis of the alleged false declarations filed
by the shareholders and sub-lessees under Section 6 of the
Act. The plea urged on behalf of the State Government and
the de facto complainant owners, at whose instance the
orders are passed by the State Government on the alleged

Page 113 of 310
ground of fraud played by the declarants upon the Tahsildar
and appellate authorities to get the illegal orders obtained
by them to come out from the clutches of the land ceiling
provisions of the Act by creating the revenue records, which
is the fraudulent act on their part which unravels everything
and therefore, the question of limitation under the
provisions to exercise power by the state Government does
not arise at all. For this purpose, the Deputy Commissioner
of Pune Division was appointed as the enquiry officer to
hold Such an enquiry to enquire into the matter and submit
his report for consideration of the Government to take
further action in the matter. The legal contentions urged by
Mr. Naphade, in justification of the impugned judgment and
order prima facie at this stage, we are satisfied that the
allegation of fraud in relation to getting the landholdings of
the Villages referred to supra by the declarants on the
alleged ground of destroying original records and
fabricating revenue records to show that there are 384 sub-
leases of the land involved in the proceedings to retain the
surplus land illegally as alleged, to the extent of more than
3000 acres of land and the orders are obtained unlawfully
by the declarants in the land ceiling limits will be nullity in
the eye of the law though such they are tainted with fraud,
the same can be interfered with by the State Government
and officers to pass appropriate orders. The landowners are
also aggrieved parties to agitate their rights to get the
orders which are obtained by the declarants as they are
vitiated in on account of nullity is the tenable submission
and the same is well founded and therefore, we accept the
submission to justify the impugned judgment and order
Babu Maruti Dukare v. State of Maharashtra ((2006) 3 SCC
549, Intellectuals Forum v State of A. P) of the Division

Bench of the High Court.”
(emphasis supplied)

Page 114 of 310
197. In Jai Narain Parasrampuria v. Pushpa Devi Saraf
((2006) 3 SCC 434 Bombay Dyeing & MFG. Co. Ltd., (3) v
Bombay Environmental Action Group), this Court observed
that fraud Vitiates every solemn act. Any order or decree
obtained by practicing fraud is a nullity. his Court held as
under:
“55. It is now well settled that fraud vitiates all solemn act.
Any order or decree obtained by practising fraud is a
nullity. [See (1) Ram Chandra Singh v. Savitri Devi ((2007)
10 SCC 674, Sunil Paannalal Banthia v City & Industrial
Development Corpn. Of Maharashtra Ltd.,) followed in (2)
Kendriya Vidyalaya Sangathan v. Girdharilal Yadav
((2005) 13 SCC 495: (2006) SCC (L & S) 1225, State of
Orissa v Gopinath Dash; (3) State of A.P. v. T.
Suryachandra Rao ((2004) 4 SCC 489, Special Response
No. 1 of 2001, In Re. (4) Ishwar Dutt v. LAO ((2004) 3 SCC
214, Jamshed Hormusji wadia v Port of Mum bai (5)
Lillykutty v. Scrutiny Committee, SC & ST; (6) Maharashtra
SEB v. Suresh ((2002) 2 SCC 333, BALCO Employees’
Union v Union of India (6) Suresh Raghunath Bhokare
((2001) 3 SCC 635, Ugar Sugar Works Ltd. v Delhi Admn.;
(7) Satya v. Teja Singh ((2000) 5 SCC 287, Monarch
Infrastructure P. Ltd.,v Ulhasnagar Municipal Corpn.; (8)
Mahboob Sahab v. Syed Ismai ((1997) 1 SCC 388, M. C.
Mehta v Kamal Nath ; and (9) Asharfi Lal v. Koili ((1996)
6 SCC 558, Shivsagar Tiwari v Union Of India.]
(emphasis supplied)
198. In State of A.P. v. T. Suryachandra Rao ((2004) 4 SCC

489, Special Reference No. 1 of 2001, In Re, it was observed
that where the land which was offered for surrender had
already been acquired by the State and the same had vested
in it. It was held that merely because an enquiry was made,
the Tribunal was not divested of the power to correct the

Page 115 of 310
error when the respondent had clearly committed a fraud.
Following observations were made: (SCC pp. 152-53 &
155, paras 7-10 & 13-16)
“7. The order of the High Court is clearly erroneous. There

is no dispute that the land which was offered for surrender
by the respondent had already been acquired by the State
and the same had vested in it. This was clearly a case of
fraud. Merely because an enquiry was made, the Tribunal
was not divested of the power to correct the error when the
respondent had clearly committed a fraud.
8. By "fraud" is meant an intention to deceive; whether it is

from any expectation of advantage to the party himself or
from ill-will towards the other is immaterial. The expression
"fraud" involves two elements, deceit and injury to the
person deceived. Injury is something other than economic
loss, that is, deprivation of property, whether movable or
immovable or of money and it will include any harm
whatever caused to any person in body, mind, reputation or
such others. In short, it is a non-economic or non-pecuniary
loss. A benefit or advantage to the deceiver, will almost
always cause loss or detriment to the deceived. Even in
those rare cases where there is a benefit or advantage to the
deceiver, but no corresponding loss to the deceived, the
Second condition is satisfied. [See Vimla v. Delhi Admn.
((1996) 6 SCC 530, Common Cause v Union of India and
Indian Bank v. Satyam Fibres (India) (P) Ltd.((1996) 5 SCC
510, New India Public School v HUDA]
9. A “fraud" is an act of deliberate deception with the design

of securing something by taking unfair advantage of
another. It is a deception in order to gain by another's OSs.
It is a cheating intended to get an advantage. (See S.P,
Chengalvaraya Naldu V. Jagannath ((1996) 2 SCC 405
Delhi Science Forum v Union of India.)

Page 116 of 310
10. "Fraud" as Is well known vitiates every solemn act.
Fraud and justice never dwell together. Fraud is a conduct
either by letter or words, which includes or the other person
authority to take a definite determinative stand as a
response to the conduct of the former either by words or
letter. It is also well settled that misrepresentation amounts
itself relief against to fraud. Indeed, Innocent
misrepresentation may also give reason to claim fraud. A
fraudulent misrepresentation is called deceit and consists in
leading a man into damage by wilfully or recklessly causing
him to believe and act on falsehood. It is a fraud in taw if a
party makes representations, which he knows to be false,
and injury ensures therefrom although the motive from
which the representations proceeded may not have been
bad. An act of fraud on court is always viewed seriously. A
collusion or conspiracy with a view to deprive the rights of
the others in relation to a property would render the
transaction void ab initio. Fraud and deception are
synonymous. Although In a given case a deception may not
amount to fraud, fraud is an anathema to all equitable
principles and any affair tainted with fraud cannot be
perpetuated or saved by the application of any equitable
doctrine including res judicata. (See Ram Chandra Singh v.
Savitri Devi ((2007) 10 SCC 674, Sunil Pannalal Banthia V
City Industrial Development Corpn. Of Maharashtra Ltd..)
13. This aspect of the matter has been considered recently

by this Court in Roshan Deen v. Preeti Lal ((1995) 5 SCC
482, LIC v Consumer Education & Research Centre, Ram
Preeti Yadav v. U.P. Board of High School and Intermediate
Education ((1995) 2 SCC 161, Ministry of Information &
Broadcasting Govt. of India v Cricket Assn. of Bengal, Ram
Chandra Singh v. Savitri Devi ((20007) 1o SCC 674 Sunil
Pannalal Banthia V City Industrial Development Corpn. Of
Maharashtra Ltd..) and Ashok Leyland Ltd. v. State of T.N

Page 117 of 310
((1993) 52 DLT 168, Home communication Ltd. v Union of
India)
14. Suppression of a material document would also amount

to a fraud on the court. (See Gowrishankar v. Joshi Amba
Shankar Family Trust((1991) 2 SCC 48, Premchand
Somchand Shah v Union of India and S.P. Chengalvaraya
Naidu v. Jagannath ((1996) 2 SCC 405 Delhi Science
Forum v Union of India.)
15. "Fraud" is a conduct either by letter or words, which

former either by words or letter. Although negligence is not
fraud but it can be evidence of fraud; as observed in Ram
Preeti Yadav ((1995) 2 SCC 161 Ministry of Information &
Broadcasting, Govt. of India v Cricket Assn. of Bengal).
16. In Lazarus Estates Ltd. v. Beasley2, Lord Denning

observed at QB pp. 712 and 713: (All ER p. 345 C)
‘No judgment of a court, no order of a minister can be

allowed to stand if it has been obtained by fraud. Fraud
unravels everything.’
In the same judgment, Lord Parker, L.J. observed that fraud

'vitiates all transactions known to the law of however high
a degree of solemnity' (All ER p. 351 E-F)."
(emphasis supplied)
199. In A.V. Papayya Sastry v. State of A.P, ((1987) 2 SCC 295

Sachidanand Pandey v State of W.B.) , this Court as to the effect
of fraud on the Judgment or order observed thus: (SCC pp. 231 &
236-37, paras 21-22 & 38-39)

Page 118 of 310
“21. Now, it is well-settled principle of law that If any
judgment or order is obtained by fraud, it cannot be said to
be a judgment or order in law. Before three centuries, Chief
Justice Edward Coke proclaimed:
'Fraud avoids all judicial acts, ecclesiastical or temporal."
22. It is thus settled proposition of law that a judgment,

decree or order obtained Dy playing fraud on the court,
tribunal or authority Is a nullity and non est in the eye of the
law. Such a judgment, decree or order-by the first court or
by the final court-has to Decree treated as nullity by every
court, superior or Inferior. It can be challenged in any
court, at any time, in appeal, revision, writ or even in
collateral proceedings.
38. The matter can be looked at from a different angle as

well. Suppose, a case is decided by a competent court of law
after hearing the parties and an order is passed in favour of
the plaintiff applicant which is upheld by all the courts
including the final court. Let us also think of a case where
this Court does not dismiss special eave petition but after
granting leave decides the appeal finally by recording
reasons. Such order can truly be said to be a judgment to
which Article 141 of the Constitution applies. Likewise, the
doctrine of merger also gets attracted. All orders passed by
the courts/authorities below, therefore, merge in the
judgment of this Court and after such judgment, it is not
open to any party to the judgment to approach any court or
authority to review, recall or reconsider the order.
39. The above principle, however, is subject to exception of

fraud. Once it is established that the order was obtained by
a successful party by practising or playing fraud, it is
vitiated. Such order cannot be held legal, valid or in
consonance with law. It is non-existent and non est and

Page 119 of 310
cannot be allowed to stand. This is the fundamental
principle of law and needs no further elaboration.
Therefore, it has been said that a judgment, decree or order
obtained by fraud has to be treated as a nullity, whether by
the court of first instance or by the final court. And it has to
be treated as non est by every court, superior or inferior."
Supervisory jurisdiction of the court can be exercised in

case of error apparent on the face of the record, abuse of
process and if the issue goes to the root of the matter.
200. In S.P. Chengalvaraya Naidu v. Jagannath ((1996) 2 SCC

405, Delhi Science Forum v Union of India), this Court noted that
the issue of fraud goes to the root of the matter and it exercised
powers under Article 136 to cure the defect. The Court observed:
(SCC p. 5, paras 5-6)
“5. The High Court ((1986) 2 SCC 594 Chaitanya Kumar v

State Bank of Karnataka), in our view, fell into patent error.
The short question before the High Court was whether in the
facts and circumstances of this case, Jagannath obtained the
preliminary decree by playing fraud on the court. The High
Court, however, went haywire and made observations which
are wholly perverse. We do not agree with the High Court
that 'there is no legal duty cast upon the plaintiff to come to
court with a true case and prove it by true evidence'. The
principle of 'finality of litigation' cannot be pressed to the
extent of such an absurdity that It becomes an engine of
fraud in the hands of dishonest litigants. The courts of law
are meant for imparting justice between the parties. One
who comes to the court, must come with clean hands. We
are constrained to say that more often than not, the process
of the court is being abused. Property-grabbers, tax
evaders, bank loan-dodgers and other unscrupulous
persons from all walks of life find the court-process a
convenient lever to retain the illegal gains indefinitely. We

Page 120 of 310
have no hesitation to say that a person, whose case is based
on falsehood, has no right to approach the court. He can be
summarily thrown out at any stage of the litigation.
6. The facts of the present case leave no manner of doubt

that Jagannath obtained the preliminary decree by playing
fraud on the court. A fraud Is an act of deliberate deception
with the design of securing something by taking unfair
advantage of another It is a deception in order to gain by
another's loss. It Is a cheating intended to get an advantage.
Jagannath was working as a clerk with Chunilal Sowcar.
He purchased the property in the court auction on behalf of
Chunilal Sowcar. He had, on his own volition, executed the
registered release deed (Ext. B-15) in favour of Chunilal
Sowcar regarding the property in dispute. He knew that the
appellants had paid the total decretal amount to his master
Chunilal Sowcar. Without disclosing all these facts, he filed
the suit for the partition of the property on the ground that
he had purchased the property on his own behalf and not on
behalf of Chunilal Sowcar. Non-production and even non
mentioning of the release deed at the trial is tantamount to
playing fraud on the court. We do not agree with the
observations of the High Court that the appellant
defendants could have easily produced the certified
registered copy of Ext. B-15 and non-suited the plaintiff. A
litigant, who approaches the court, is bound to produce all
the documents executed by him which are relevant to the
litigation. If the withholds a vital document in order to gain
advantage on the other side then he would be guilty of
playing fraud on the court as well as on the opposite party.
In addition, the Learned Counsel for the 1st Respondent

refers to the decision of Hon’ble Supreme Court in Bhaurao
Dagdu Paralkar V State of Maharashtra and Ors reported
in (2005) 7 SCC 605 wherein at para 9-16 it is observed as

under:
9. By "fraud" is meant an intention to deceive; whether it is

from any expectation of advantage to the party himself or
Page 121 of 310
from ill will towards the other is immaterial. The expression
"fraud" involves two elements, deceit and injury to the
person deceived. injury is something other than economic
loss, that is, deprivation of property, whether movable or
immovable or of money and it will include any harm
whatever caused to any person in body, mind, reputation or
such others. In short, it is a non-economic or non-pecuniary
loss. A benefit or advantage to the deceiver, will almost
always cause loss or detriment to the deceived. Even in
those rare cases where there is a benefit or advantage to the
deceiver, but no corresponding loss to the deceived, the
second condition is satisfied. [See Vimla (Dr.) v. Delhi
Admn. ((2003) 8 SCC 319 Ram Chandra Singh V Savitri
Devi) and Indian Bank v. Satyam Fibres (India) (P) Ltd.
((2003) 8 SCC 311 Ram Preeti Yadav V U.P Board of High
School & Intermediate Education]
10 . A “fraud” is an act of deliberate deception with the

design of securing something by taking unfair advantage of
another. It is a deception in order to gain by another's loss.
It is a cheating intended to get an advantage. (See S.P.
Chengalvaraya Naidu v. Jagannath ((2002) 1 SCC 100:
(2002) SCC (L & S) (1997, Roshan Deen v Preeti Lal)
11. "Fraud" as is well known vitiates every solemn act.

Fraud and justice never dwell together. Fraud is a conduct
either by letters or words, which induces the other person
or authority to take a definite determinative stand as a
response to the conduct of the former either by words or
letters, It is a well settled that misrepresentation itself
amounts to fraud. Indeed, innocent misrepresentation may
also give reason to claim relief against fraud. A fraudulent
misrepresentation is called deceit and consists in leading a
man into damage by wilfully or recklessly causing him to
believe and act on falsehood. It is a fraud in law if a party
makes representations, which he knows to be false, and

Page 122 of 310
injury ensues therefrom although the motive from which the
representations proceeded may not have been bad. An act
of fraud on court is always viewed seriously. A collusion or
conspiracy with a view to deprive the rights of others in
relation to a property would Ender the transaction void ab
initio. Fraud and deception are synonymous. Although a
given case a deception may not amount to fraud, fraud is
anathema to all equitable principles and any affair tainted
with fraud cannot be perpetuated or saved by the
application of any equitable doctrine including res judicata.
(See Ram Chandra Singh v. Savitri Devi ((2001) 8 SCC 8:
(2001) AIR SCW 3843, Gurdial Singh v Union of India).
12. In Shrisht Dhawan v. Shaw Bros. ((1996) 5 SCC 550,

Indian Bank v Sathyam Fibres (India) (P) Ltd.,), it was
observed as follows: (SCC p. 553, para 20) “Fraud” and
collusion vitiate even the most solemn proceedings in any
civilized System of jurisprudence. It is a concept descriptive
of human conduct. Michael Levi kens a fraudster to Milton's
sorcerer, Camus, who exulted in his ability to, "wing me into
the easy-hearted man and trap him into snares". It has been
defined as an act or trickery or deceit. In Webster's Third
New International Dictionary "fraud" in equity has been
defined as an act or omission to act or concealment by
which one person obtains an advantage against conscience
over another or which equity or public policy forbids as
being prejudicial to another. In Black's Law Dictionary
“fraud” is defined as an intentional perversion of truth for
the purpose of inducing another in reliance upon it to part
with some valuable thing belonging to him or Surender a
legal right a false representation of a matter of fact whether
by words or by conduct, by false or misleading allegations,
or by concealment of that which should have been disclosed,
which deceives and if intended to deceive another so that he
shall act upon it to his legal injury. In Concise Oxford
Dictionary, it has been defined as Criminal Deception, use

Page 123 of 310
of false representation to gain unjust advantage; dishonest
artifice or trick.
Accordingly to Halsbury’s Law of England, a

representation is deemed to have been false, and therefore
a misrepresentation, if it was at the material date false in
substance and in fact. Section 17 of the Contract Act, 1872
defines “Fraud” as an act committed by a party to a
contract with intend to deceive another. From the dictionary
meaning or even otherwise fraud arises out of a deliberate
active role of the representator about the fact, which he
knows to be untrue yet he succeeds in misleading the
representee by making him believe it to be true. The
representation to become fraudulent must be of fact with
knowledge that it was false. In a leading English Case that
is Derry v Peek ((1996) 3 SCC 310, Gowrisankar v Joshi
Amba Sankar Family Trust what constitutes “Fraud” was
described thus: (All ER P 22 B-C)
“Fraud’ is proved when it is shown that your false

representation has been made (I) knowingly , or (II) without
belief in its truth, or (III) recklessly, careless whether if be
true or false.:
But “fraud” in public law is not the same as ‘fraud” in

private law. Nor can the ingredients, which establishes
“fraud” in commercial transactions, be of assistance in
determining fraud in administrative law. It has been aptly
observed by Lord Bridge in Khawaja V Secy. Of State for
Home Dept.,((2004) 3 SCC 1 Ashok Leyland Ltd., v State of
T. N) that it is dangerous to introduce maxims of common
law as to the effect of fraud while determining the fraud in
relation to statutory law. “Fraud” in relation to the statute
must be a colorable transaction to evade the provisions of a
statute.

Page 124 of 310
“If statute has been passed for someone particular purpose,
a court of law will not countenance any attempt which may
be made to extend the operation of the act to something else
which is quite foreign to its object and beyond its scope.
Present day concept of fraud on statute has veered round
abuse of power or malafide exercise of power. It may arise
due to overstepping the limits of power or defeating the
provisions of statute by adopting subterfuge or the power
may be exercise for extraneous or irrelevant consideration.
The colour of fraud in public law or administrative law, as
it is developing, is assuming differentiates. It arises from a
deception committed by disclosure of incorrect facts
knowingly and deliberately to invoke exercise of power and
procure an order from an authority or Tribunal. It must
result in exercise of jurisdiction which otherwise would not
have been exercised. That is misrepresentation must be in
relation to the conditions provided in a section on existence
or non existence of which power can be exercised. But non
disclosure of a fact not required by a statute to be disclosed
may not amount to fraud. Even in commercial transactions
non disclosure of every fact does not vitiate the agreement.
‘ In a contract every person must look for himself and ensure
he acquires the information necessary to avoid bad
bargain’. In public law the duty is not to deceive.” (see
Shrisht Dhawan v Shaw Bros) ((1996) 5 SCC 550, Indian
Bank v Satyam Fibres (India) (P) Ltd., SCC P. 554, Para
20)
13. This aspect of the matter has been considered recently

by this court in Roshan Deen V Preeti Lal ((1993) Supp (3)
SCC 2 ; AIR 1993 SC 2127, Mukund Lal Bhandari v Union
of India), Ram Preeti Yadav v U.P Board of High School
and Intermediate Education0 ((1992) 1 SCC 534, Shrisht
Dawan v Shaw Bros. ), Ram Chandra Singh ((2001) 8 SCC
8 ; (2001) AIR SCW 3843, Gurudial Singh V Union of India)
and Ashok Leyland Ltd. v State of T.N ((1983) 1 All ER 765;

Page 125 of 310
1984 AC 74; (1982) 1 WLR 948 (HL) Khawaja v Secy. Of
State of Home Deptt. )
14. Suppression of a material document would also amount

to a fraud on the court. See Gowrishankar v. Joshi Amba
Shankar Family Trust ((1963) Supp (2) SCR 585; AIR 1963
SC 1572, Vimla (Dr) v Delhi Admn. and S.P. Chengalvaraya
Naidu cases. ((2002) 1 SCC 100; (2022) SCC (L & S) 97,
Roshan Deen v Preeti Lal)
15. “Fraud” is a conduct either by letter or words, which

former either by words or letter. Although negligence is not
fraud but it can be evidence on fraud; as observed in Ram
Preeti Yadav case ((1992) 1 SCC 534, Shrisht Dawan v
Shaw Bros).
16. In Lazarus Estates Ltd. V. Beasley ((1956) 1 QB 702;

(1956) 1 All ER 341; (1956) 2 WLR 502 (CA), Lazarus
Estates Ltd., v Beasley , Lord Denning observed at QB pp.
712 and713: (All ER p. 345 C)
"No judgment of a court, no order of a minister, can

be allowed to stand if it has been obtained by fraud.
Fraud unravels everything." Tn the same judgment
Lord Parker, L.J. observed that fraud vitiates all
transactions known to the law of however high a
degree of solemnity. (pn722 These aspects were
recently highlighted in State of A.P. v. T.
Suryachandra Rao ((1886-90) All ER Rep 1 ; (1889)
14 AC 337; 61 LT 265 (HL) Derry V Peek.)
The Learned Counsel for the 1st Respondent seeks in

aid of the Hon’ble Supreme Court in Shrisht Dhawan
(SMT) V M/s. Shaw Brothers reported in (1992) 1
SCC 534 at para 534 wherein it is observed as under:

Page 126 of 310
20. Fraud and collusion vitiate even the most solemn
proceedings in any civilized system of jurisprudence.
It is a concept descriptive of human conduct. Michael
Levi likens a fraudster to Milton's sorcerer, Comus,
who exulted in his ability to, 'wing me into the easy-
hearted man and trap him into snares'. It has been
defined as an act of trickery or deceit. In Webster's
Third New International Dictionary fraud in equity
has been defined as an act or omission to act or
concealment by which one person obtains an
advantage against conscience over another or which
equity or public policy forbids as being prejudicial to
another. In Black's Legal Dictionary, fraud is defined
as an fraud is defined as an intentional perversion of
truth for the purpose of inducing another in reliance
upon it to part with some valuable thing belonging to
him or surrender a legal right; a false representation
of a matter of fact whether by words or by conduct,
by false or misleading allegations, or by concealment
of that which should have been disclosed, which
deceives and is intended to deceive another so that he
shall act upon it to his legal injury. In Concise Oxford
Dictionary, it has been defined as criminal deception,
use of false representation to gain unjust advantage;
dishonest artifice or trick. According to Halsbury's
Laws of England, a representation is deemed to have
been false, and therefore a misrepresentation, if it
was at the material date false in substance and in fact.
Section 17 of the Contract Act defines fraud as act
committed by a party to a contract with intent to
deceive another. From dictionary meaning or even
otherwise fraud arises out of deliberate active role of
representator about a fact which he knows to be
untrue yet he succeeds in misleading the representee
by making him believe it to be true. The
representation to become fraudulent must be of a fact
Page 127 of 310
with knowledge that it was false. In a leading English
case (Derry V Peek (1886-90) All ER 1: 1889 14 SC
337: 5TLR 625) what constitutes fraud was described
thus: (All ER p. 22 B-C)
"[F]raud is proved when it is shown that a false

representation has been made (i) knowingly, or (ii)
without belief in its truth, or (iii) recklessly, careless
whether it be true or false.”
But fraud in public law is not the same as fraud in

private law. Nor can the ingredients which establish
fraud in commercial transaction be of assistance in
determining fraud in Administrative Law. It has been
aptly observed by Lord Bridge in Khawaja (Khawaja
v Secy of State for Home Deptt., (1983) 1 All ER 765)
that it is dangerous to introduce maxims of common
law as to effect of fraud fraud while determining
fraud in relation to statutory law. In Pankaj Bhargav
v Mohinder Nath, (1991) 1 SCC 556; AIR 1991 SC
1233) it was observed that fraud in relation to statute
must be a colourable transaction to evade the
provisions of a statute. A statute has been passed for
some one particular purpose, a court of law will not
countenance any attempt which may be made to
extend the operation of the Act to something else
which is quite foreign to its object and beyond its
scope." (Craies on Statue Law, 7th Edn., P.79).
Present day concept of fraud on statute has veered
round abuse of power or mala fide exercise of power.
It may arise due to overstepping the limits of power
or defeating the provision of statute by adopting
subterfuge or the power may be exercised for
extraneous or irrelevant considerations. The
administrative law, as it is developing, is assuming
different shades. It arises from a deception committed

Page 128 of 310
by disclosure of incorrect facts knowingly and
deliberately to invoke exercise of power and procure
an order from an authority or tribunal. It must result
in exercise of jurisdiction which otherwise would not
have been exercised. That is misrepresentation must
be in relation to the conditions provided in a section
on existence or non-existence of which power can be
exercised. But fraud. Even in fact not required by a
statute to be disclosed may not amount to fraud. Even
in commercial transactions nondisclosure of every
fact does not vitiate the agreement. In a contract
every person must look for himself and ensures that
he acquire deceive. Information necessary to avoid
bad bargain.” (Anson’s Law of Contract) In public
law the duty is not to deceive. For instance non-
disclosure of any reason in the application under e
remises Act about its need after expiry of period or
failure to give reason that the premises shall be
required by son, daughter or any other family
member does not result in misrepresentation or fraud.
It is not misrepresentation under section 21 to state
that the premises shall be needed by the landlord after
expiry of the lease even though the premises in
occupation of the landlord on the date of application
or, after expiry or period were or may be sufficient. a
non-disclosure of fact which is not required by law to
be disclosed does not amount to misrepresentation.
section 21 does not place any positive or
comprehensive duty on the landlord to disclose any
fact except that he did not need the premises for the
specified period. even the controller is not obliged
with a pro-active duty to investigate. silence or non-
disclosure of facts not required by law to be disclosed
does not amount to misrepresentation. even in
contracts it is excluded as is clear from explanation
to section 17 unless it relates to fact which is likely to
Page 129 of 310
affect willingness of a person to enter into a contract.
fraud or misrepresentation resulting in vitiation of
permission in context of section 21 therefore could
mean disclosure of false facts but for which the
Controller would not have exercised jurisdiction. The
Learned Counsel for the 1st Respondent adverts to
the Judgment of the Hon’ble Supreme Court in
Venture Global Engineering V Tech Mahindra
Limited reported in (2018) 1 SCC 656 wherein at
para 76-83 it is observed as under:
201. The expression “fraud”, what it means and once proved to

have been committed by the party to the lis against his adversary
then its effect on the judicial proceedings was succinctly explained
by this Court in Ram Chandra Singh v. Savitri Devi ((2010) 8 SCC
660; (2010) 3 SCC (CIV) 523, Venture Global Engg. V Satyam
computer Services Ltd.) in the following words: (SCC p. 322b-d)
“Fraud as is well known vitiates every solemn act. Fraud

and justice never dwell together. Fraud is a conduct either
by letter or words, which induces the other person or
authority to take a definite determinative stand as a
response to the conduct of the former either by word or
letter. It is also well settled that misrepresentation itself
amounts to fraud. Indeed, innocent m is representation may
also give reason to claim relief against fraud. A fraudulent
misrepresentation is called deceit and consists in leading a
man into damage by wilfully or recklessly causing him to
believe and act on falsehood. It is a fraud in law if a party
makes representations which he knows to be false, and
injury ensues therefrom although the motive from which the
representations proceeded may not have been bad. An act
of fraud on court is always viewed seriously. A collusion or
conspiracy with a view to deprive the rights of others in
relation to a property would render the transaction void ab
initio. Fraud and deception are synonymous. Although in a

Page 130 of 310
given case a deception may not amount to fraud, fraud is
anathema principles and any affair tainted with fraud
cannot be judicata." perpetuated or saved by the application
of any equitable doctrine including res judicata.”
202. Similarly, how the leading authors have dealt with the
expressions "fraud", misrepresentation", suppression of material
facts" with reference to various English cases also need to be taken
note of. This is what the learned author Kerr in his book Fraud
and Mistake has said on these expressions.
203. While dealing with the question as to what constitutes fraud,

the learned author said, "What amounts to fraud has been settled
by the decision of House of Lords in Derry Peek ((2010) 7 SCC 1,
Reliance Natural Resources Ltd., v Reliance Industries Ltd., where
Lord Herschell said: (AC p. 374)
‘… fraud is proved when it is shown that a false

representation has been made (1) knowingly, or (2) without
belief in its truth, or (3) recklessly, careless whether it be
true or false." (See Kerr on Fraud and Mistake, 7th Edn.,
pp. 10-11.)
204. The author has said that, Courts of Equity have from a very
early period had jurisdiction to set aside awards on the ground of
fraud, except where it is excluded by the statute. So also, if the
award was obtained by fraud or concealment of material
circumstances on the part of one of the parties so as to mislead the
arbitrator or if either party be guilty of fraudulent concealment of
matters which he ought to have declared, or if he wilfuly mislead
or deceive the arbitrator, such award may be set aside. (See Kerr
on Fraud and Mistake, 7th Edn., pp. 424-25.)
205. The author said that, if a man makes a representation in point

of fact, whether by suppressing the truth or suggesting what is
false, however innocent his motive may have been, he is equally
responsible in a civil proceeding as if he had while committing
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these acts done so with a view to injure others or to benefit himself.
It matters not that there was no intention to cheat or injure the
person to whom the statement was made. (See Kerr on Fraud and
Mistake, 7th Edn., p. 7.)
206. This rule of law is applicable not only between the two
individuals entering into any contract but is also applicable
between an individual and a company and also between the two
companies. (See Kerr on Fraud and Mistake, 7th Edn., p. 99.)
207. The author said that this principle is also not limited to cases
where an express and distinct representation by words has been
made, but it applies equally to cases where a man by his silence
causes another to believe in the existence of a certain state of
things, or so conducts himself as to Induce a reasonable man to
take the representation to be true, and to believe that it was meant
that he should act upon it, and the other accordingly acts upon it
and so alters his previous position. (See Kerr on Fraud and
Mistake, 7th Edn., p. 110.)
208. The author said that where there is a duty or obligation to

speak, and a man in reach of that duty or obligation holds his
tongue and does not speak and does not say the thing which he was
bound to say, if that be done with the intention of inducing the
other party to act upon the belief that the reason why he did not
speak was because he had nothing to say, there is a fraud. (See
Kerr on Fraud and Mistake, 7th Edn., p. 110).
Para 7. The Learned counsel of the 1st Respondent cites two

decision of Hon’ble Supreme Court in Panther Fincap and
Management Services Ltd V Central Government through
the Department of Company Affairs reported in (2005) SCC
Online Bom 386 wherein at para 33 it is observed as under:
33. I have considered these rival submissions of the parties
and I am of the opinion that the jurisdiction and the power
of the various investigating authorities derived from the

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jurisdiction vested in them by the various legislations or
statutes, the authority which is doing the inquiry and or
conducting the investigation is required to carry out
investigation keeping in mind the legal provisions and legal
limitations which are stipulated under the respective statute.
Undoubtedly it can be that there may be an overlapping
investigation but in my opinion such an eventuality cannot
prevent any investigating authority from carrying out
investigation in respect of their jurisdiction conferred on
them under the statute. I am also of the further opinion that
the investigation in respect of the corporate fraud can be
initiated and considered by the central government under
section 237 (b)(i) of the companies Act. I have not been able
to come across any provisions under the SEBI act in which
any corporate fraud can be investigated by the SEBI.
Undoubtedly it can be investigated under normal criminal
law by the CBI. I am further of the opinion that merely
because the material on the basis of which investigation is
being undertaken is identical to the material which is
subject matter of investigation by the other authority it
cannot be stated that both the authorities cannot
simultaneously investigate pursuant to power conferred on
them under their respective statutes. I am of the opinion that
every authority is entitled to investigate even may be in
respect of the same material as well as from the angle and
facet in which they have been asked to carry out
investigation. It is possible that the SEBI may be
investigating the same material on the ground of breach of
the various provisions of the SEBI act and other security
related legislations whereas the central government,
department of company affairs can consider and/or
investigate the fraud and/or breach of various provisions of
law in the light and context of the provisions of the
companies act may be in respect of the same material.
However, I am of the opinion that the contentions advanced
by the learned counsel for the appellant cannot be accepted
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particularly in view of the fact that every authority has been
conferred various powers in their respective legislation. A
similar issue aroused before the English Court under the
identical provisions of investigation under the Companies
Law and the Court of Appeal in the case of Re London
United Investments plc reported in 1992 BCLC 285
equivalent to 1971 All England Law Reports page 849 it is
held as under:
The power of the secretary of state to appoint inspectors to

investigate the affairs of a company and to report is an
important regulatory mechanism for ensuring probity in the
management of companies' affairs. That of course is in the
public interest. Since the Secretary of State's powers under
s 432(2) are exercisable where there are circumstances
suggesting fraud, it is likely that in many cases where
inspectors are appointed an investigation by the police or
the Serious Fraud Office could also be appropriate. But the
code under the 1985 Act is a separate code even though it
may overlap the field of criminal investigation.”
Para 8. The Learned Counsel for 1st Respondent points out

the decision of Hon’ble Supreme Court in Dharampal
Satyapal Ltd V Deputy Commissioner of Central Excise,
Gauhati & Ors reported ion (2015) 8 SCC 519 where in
para 39 & 40, it is observed as under:
39. We are not concerned with these aspects in the present

case as the issue relates to giving of notice before taking
action. While emphasising that the principles of natural
justice cannot be applied in straitjacket formula, the
aforesaid instances are given. We have highlighted the
jurisprudential basis of adhering to the principles of natural
justice which are grounded on the doctrine of procedural
fairness, accuracy of outcome leading to general social
goals, etc. Nevertheless, there may be situations wherein for

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some reason perhaps because the evidence against the
individual is thought to be utterly compelling it is felt that a
fair hearing "would make no difference"-meaning that a
hearing would not change the ultimate conclusion reached
by the decision-maker-then no legal duty to supply a hearing
arises. Such an approach was endorsed by Lord Wilberforce
in Malloch v. Aberdeen Corpn.((1971) 1 WLR 1578; (1971)
2 All ER 1278 (HL), who said that: (WLR p. 1595: All ER p.
1294)
“… A breach of procedure. cannot give [rise to] a remedy

in the courts, unless behind it there is something of
substance which has been lost by the failure. The court does
not act in vain."
Relying on these comments, Brandon L.3 opined in

Cinnamond v. British Airports Authority ((1980) 1 WLR
582; (1980) 2 ALL ER 368 (CA) that: (WLR p. 593: All ER
p. 377)
“… no one can complain of not being given an opportunity

to make representations if such an opportunity would have
availed him nothing. “In such situations, fair procedures
appear to serve no purpose since the "right" result can be
secured without according such treatment to the
individual.”
40. In this behalf, we need to notice one other exception

which has been carved out to the aforesaid principle by the
courts. Even if it is found by the court that there is a
violation of principles of natural justice, the courts have
held that it may not be necessary to strike down the action
and refer the matter back to the authorities to take fresh
decision after complying with the procedural requirement
in those cases where non-grant of hearing has not caused
any prejudice to the person against whom the action is

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taken. Therefore, every violation of a facet of natural justice
may not lead to the conclusion that the order passed is
always null and void. The validity of the order has to be
decided on the touchstone of "prejudice". The ultimate test
is always the same viz. the test of prejudice or the test of fair
hearing.”
118. In the decision of the Hon’ble Supreme Court in Vidya Drolia V

Durga Trading Corporation, reported in (2021) 2 SCC at page 146,
wherein at paragraph 146 to 153, it is observed and held as under:
146. ``We now proceed to examine the question, whether the word
‘existence’ in Section 11 merely refers to contract formation
(whether there is an arbitration agreement) and excludes the
question of enforcement (validity) and therefore the latter falls
outside the jurisdiction of the court at the referral stage. On
jurisprudentially and textualism it is possible to differentiate
between existence of an arbitration agreement and validity of an
arbitration agreement. Such interpretation can draw support from
the plain meaning of the word “existence’. However, it is
equally possible, jurisprudentially and on contextualism, to hold
that an agreement has no existence if it is not enforceable and not
binding. Existence of an arbitration agreement presupposes a
valid agreement which would be enforced by the court by
relegating the parties to arbitration. Legalistic and plain meaning
interpretation would be contrary to the contextual background
including the definition clause and would result in unpalatable
consequences. A reasonable and just interpretation of ‘existence’
requires understanding the context, the purpose and the relevant
legal norms applicable for a binding and enforceable arbitration
agreement. An agreement evidenced in writing has no meaning
unless the parties can be compelled to adhere and abide by the
terms. A party cannot sue and claim rights based on an
unenforceable document. Thus, there are good reasons to hold that
an arbitration agreement exists only when it is valid and legal. A

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void and unenforceable understanding is no agreement to do
anything. Existence of an arbitration agreement means an
arbitration agreement that meets and satisfies the statutory
requirements of both the Arbitration Act and the Contract Act and
when it is enforceable in law.
147. We would proceed to elaborate and give further reasons:
147.1. In Garware Wall Ropes Ltd., this Court had examined the
question of stamp duty in an underlying contract with an
arbitration clause and in the context had drawn a distinction
between the first and second part of Section 7(2) of the Arbitration
Act, albeit the observations made and quoted above with reference
to ‘existence’ and ‘validity’ of the arbitration agreement being
apposite and extremely important, we would repeat the same by
reproducing paragraph 29 thereof: (SCC p. 238)
“29. This judgment in Hyundai Engg. case is important in

that what was specifically under consideration was an
arbitration clause which would get activated only if an
insurer admits or accepts liability. Since on facts it was
found that the insurer repudiated the claim, though an
arbitration clause did “exist”, so to speak, in the policy, it
would not exist in law, as was held in that judgment, when
one important fact is introduced, namely, that the insurer
has not admitted or accepted liability. Likewise, in the facts
of the present case, it is clear that the arbitration clause that
is contained in the sub- contract would not “exist” as a
matter of law until the sub-contract is duly stamped, as has
been held by us above. The argument that Section 11(6-A)
deals with “existence”, as opposed to Section 8, Section
16 and Section 45, which deal with “validity” of an
arbitration agreement is answered by this Court's
understanding of the expression “existence” in Hyundai
Engg. case, as followed by us.”;

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Existence and validity are intertwined, and arbitration agreement
does not exist if it is illegal or does not satisfy mandatory legal
requirements. Invalid agreement is no agreement.
147.2. The court at the reference stage exercises judicial powers.

‘Examination’, as an ordinary expression in common parlance,
refers to an act of looking or considering something carefully in
order to discover something (as per Cambridge Dictionary). It
requires the person to inspect closely, to test the condition of, or
to inquire into carefully (as per Merriam- Webster Dictionary). It
would be rather odd for the court to hold and say that the
arbitration agreement exists, though ex facie and manifestly the
arbitration agreement is invalid in law and the dispute in question
is non-arbitrable. The court is not powerless and would not act
beyond jurisdiction, if it rejects an application for reference, when
the arbitration clause is admittedly or without doubt is with a
minor, lunatic or the only claim seeks a probate of a Will.
147.3. Most scholars and jurists accept and agree that the
existence and validity of an arbitration agreement are the same.
Even Starvos Brekoulakis accepts that validity, in terms of
substantive and formal validity, are questions of contract and
hence for the court to examine.
147.4. Most jurisdictions accept and require prima facie review by

the court on non-arbitrability aspects at the referral stage.
147.5. Sections 8 and 11 of the Arbitration Act are complementary

provisions as was held in Patel Engineering Ltd.. The object and
purpose behind the two provisions is identical to compel and force
parties to abide by their contractual understanding. This being so,
the two provisions should be read as laying down similar standard
and not as laying down different and separate parameters. Section
11 does not prescribe any standard of judicial review by the court
for determining whether an arbitration agreement is in
existence. Section 8 states that the judicial review at the stage of
reference is prima facie and not final. Prima facie standard
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equally applies when the power of judicial review is exercised by
the court under Section 11 of the Arbitration Act. Therefore, we
can read the mandate of valid arbitration agreement in Section
8 into mandate of Section 11, that is, ‘existence of an arbitration
agreement’.
147.6. Exercise of power of prima facie judicial review of existence

as including validity is justified as a court is the first forum that
examines and decides the request for the referral. Absolute “hands
off” approach would be counterproductive and harm arbitration,
as an alternative dispute resolution mechanism. Limited, yet
effective intervention is acceptable as it does not obstruct but
effectuates arbitration.
147.7. Exercise of the limited prima facie review does not in any
way interfere with the principle of competence– competence and
separation as to obstruct arbitration proceedings but ensures that
vexatious and frivolous matters get over at the initial stage.
147.8. Exercise of prima facie power of judicial review as to the

validity of the arbitration agreement would save costs and check
harassment of objecting parties when there is clearly no
justification and a good reason not to accept plea of non-
arbitrability. In Subrata Roy Sahara v. Union of India,75 this
Court has observed:
“191. The Indian judicial system is grossly afflicted with

frivolous litigation. Ways and means need to be evolved to
deter litigants from their compulsive obsession towards
senseless and ill-considered claims. One needs to keep in
mind that in the process of litigation, there is an innocent
sufferer on the other side of every irresponsible and
senseless claim. He suffers long-drawn anxious periods of
nervousness and restlessness, whilst the litigation is
pending 75 (2014) 8 SCC 470 without any fault on his part.
He pays for the litigation from out of his savings (or out of
his borrowings) worrying that the other side may trick him
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into defeat for no fault of his. He spends invaluable time
briefing counsel and preparing them for his claim. Time
which he should have spent at work, or with his family, is
lost, for no fault of his. Should a litigant not be compensated
for what he has lost for no fault? The suggestion to the
legislature is that a litigant who has succeeded must be
compensated by the one who has lost. The suggestion to the
legislature is to formulate a mechanism that anyone who
initiates and continues a litigation senselessly pays for the
same. It is suggested that the legislature should consider the
introduction of a “Code of Compulsory Costs”.
147.9. Even in Duro Felguera, Kurian Joseph, J., in paragraph 52,

had referred to Section 7(5) and thereafter in paragraph 53
referred to a judgment of this Court in M.R. Engineers and
Contractors Private Limited v. Som Datt Builders Limited to
observe that the analysis in the said case supports the final
conclusion that the Memorandum of Understanding in the said
case did not incorporate an arbitration clause. Thereafter,
reference was specifically made to Patel Engineering Ltd. and
Boghara Polyfab Private Limited to observe that the legislative
policy is essential to minimise court’s interference at the pre-
arbitral stage and this was the intention of sub-section (6)
to Section 11 of the Arbitration Act. Paragraph 48 in Duro
Felguera 76 (2009) 7 SCC 696 specifically states that the
resolution has to exist in the arbitration agreement, and it is for
the court to see if the agreement contains a clause which provides
for arbitration of disputes which have arisen between the parties.
Paragraph 59 is more restrictive and requires the court to see
whether an arbitration agreement exists – nothing more, nothing
less. Read with the other findings, it would be appropriate to read
the two paragraphs as laying down the legal ratio that the court is
required to see if the underlying contract contains an arbitration
clause for arbitration of the disputes which have arisen between
the parties - nothing more, nothing less. Reference to decisions in
Patel Engineering Ltd. and Boghara Polyfab Private Limited was

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to highlight that at the reference stage, post the amendments vide
Act 3 of 2016, the court would not go into and finally decide
different aspects that were highlighted in the two decisions.
147.10. In addition to Garware Wall Ropes Limited case, this

Court in Narbheram Power and Steel Private Limited and
Hyundai Engg. & Construction Co. Ltd., both decisions of three
Judges, has rejected the application for reference in the insurance
contracts holding that the claim was beyond and not covered by
the arbitration agreement. The court felt that the legal position
was beyond doubt as the scope of the arbitration clause was fully
covered by the dictum in Vulcan Insurance Co. Ltd. Similarly, in
M/s. PSA Mumbai Investments PTE. Limited, this Court at the
referral stage came to the conclusion that the arbitration clause
would not be applicable and govern the disputes. Accordingly, the
reference to the arbitral tribunal was set aside leaving the
respondent to pursue its claim before an appropriate forum.
147.11. The interpretation appropriately balances the allocation

of the decision-making authority between the court at the referral
stage and the arbitrators’ primary jurisdiction to decide disputes
on merits. The court as the judicial forum of the first instance can
exercise prima facie test jurisdiction to screen and knockdown ex
facie meritless, frivolous and dishonest litigation. Limited
jurisdiction of the courts ensures expeditious, alacritous and
efficient disposal when required at the referral stage.
148. Section 43(1) of the Arbitration Act states that the Limitation
Act, 1963 shall apply to arbitrations as it applies to court
proceedings. Sub-section (2) states that for the purposes of
the Arbitration Act and Limitation Act, arbitration shall be
deemed to have commenced on the date referred to in Section. 21.
Limitation law is procedural and normally disputes, being factual,
would be for the arbitrator to decide guided by the facts found and
the law applicable. The court at the referral stage can interfere
only when it is manifest that the claims are ex facie time barred

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and dead, or there is no subsisting dispute. All other cases should
be referred to the arbitral tribunal for decision on merits. Similar
would be the position in case of disputed ‘no claim certificate’ or
defence on the plea of novation and ‘accord and satisfaction’. As
observed in Premium Nafta Products Ltd., it is not to be expected
that commercial men while entering transactions inter se would
knowingly create a system which would require that the court
should first decide whether the contract should be rectified or
avoided or rescinded, as the case may be, and then if the contract
is held to be valid, it would require the arbitrator to resolve the
issues that have arisen.
149. We would also resolve the question of principles applicable

to interpretation of an arbitration clause. This is important and
directly relates to scope of the arbitration agreement. In Premium
Nafta Products Ltd., on the question of interpretation and
construction of an arbitration clause, it is observed: (Bus LR p.
1723, para 6)
6.`Ìn approaching the question of construction, it is

therefore necessary to inquire into the purpose of the
arbitration clause. As to this, I think there can be no doubt.
The parties have entered into a relationship, an agreement
or what is alleged to be an agreement or what appears on
its face to be an agreement, which may give rise to disputes.
They want those disputes decided by a tribunal which they
have chosen, commonly on the grounds of such matters as
its neutrality, expertise and privacy, the availability of legal
services at the seat of the arbitration and the unobtrusive
efficiency of its supervisory law. Particularly in the case of
international contracts, they want a quick and efficient
adjudication and do not want to take the risks of delay and,
in too many cases, partiality, in proceedings before a
national jurisdiction.”
150. In Narbheram Power and Steel Private Ltd., this Court while
dealing with the arbitration clause in the insurance agreement, has
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held that the arbitration clause should be strictly construed,
relying on the principles of strict interpretation that apply to
insurance contracts. These observations have been repeated in
other cases.
151. What is true and applicable for men of commerce and

business may not be equally true and apply in case of laymen
and to those who are not fully aware of the effect of an arbitration
clause or had little option but to sign on the standard form
contract. Broad or narrow interpretations of an arbitration
agreement can, to a great extent, effect coverage of a retroactive
arbitration agreement. Pro-arbitration broad interpretation,
normally applied to international instruments, and commercial
transactions is based upon the approach that the arbitration
clause should be considered as per the true contractual language
and what it says, but in case of doubt as to whether related or close
disputes in the course of parties’ business relationship is covered
by the clause, the assumption is that such disputes are
encompassed by the agreement. The restrictive interpretation
approach on the other hand states that in case of doubt the disputes
shall not be treated as covered by the clause. Narrow approach is
based on the reason that the arbitration should be viewed as an
exception to the court or judicial system. The third approach is to
avoid either broad or restrictive interpretation and instead the
intention of the parties as to scope of the clause is understood by
considering the strict language and circumstance of the case in
hand. Terms like ‘all’, ‘any’, ‘in respect of’, ‘arising out of’ etc.
can expand the scope and ambit of the arbitration clause.
Connected and incidental matters, unless the arbitration clause
suggests to the contrary, would normally be covered.
152. Which approach as to interpretation of an arbitration

agreement should be adopted in a particular case would depend
upon various factors including the language, the parties, nature of
relationship, the factual background in which the arbitration
agreement was entered, etc. In case of pure commercial disputes,

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more appropriate principle of interpretation would be the one of
liberal construction as there is a presumption in favour of one-stop
adjudication.
153. Accordingly, we hold that the expression ‘existence of an

arbitration agreement’ in Section 11 of the Arbitration Act, would
include aspect of validity of an arbitration agreement, albeit the
court at the referral stage would apply the prima facie test on the
basis of principles set out in this judgment. In cases of debatable
and disputable facts, and good reasonable arguable case, etc., the
court would force the parties to abide by the arbitration agreement
as the arbitral tribunal has primary jurisdiction and authority to
decide the disputes including the question of jurisdiction and non-
arbitrability.”
1st Respondent’s Contentions (Competition Commission of India)

(In Competition Appeal (AT) Nos. 1, 2 and 3 of 2022):
119. The Learned Additional Solicitor General for the 1st
Respondent/Competition Commission of India’ submits that the
Àppellant’ (a direct Subsidiary of Amazon.com Inc (ACI), was issued
with a `Show Cause Notice’ dated 04.06.2021, by the 1st
Respondent/Commission and that the ìmpugned order dated 17.12.2021
was passed against the Àppellant’/Àmazon’ under Sections 43A, 44
and 45 of the Competition Act, 2002.
120. According to the 1st Respondent/CCI, the Àppellant’ wanted to
notify a `Combination’ (Bearing Combination Registration No. C-

Page 144 of 310
2019/09/688 to it (1st Respondent/CCI), through `Notification’ dated
23.09.2019 (`Notice’) as per Section 6 (2) of the Competition Act, 2002,
in Form I of Schedule II to the Competition Commission of India
(Procedure in regard to the transaction of business relating to
combinations) Regulations, 2011 (Combination Regulations).
121. It is represented on behalf of the 1st Respondent/CCI that the
`Proposed Combination’, as sought to be notified by the Àppellant’ to
the `1st Respondent/CCI’ caused acquisition of 49% shares of the `FCL’
by the Àcquirer’ (Transaction III), constituent steps among other things
concerning Intra-promoter group transactions between 1) `Future
Coupons Private Limited’ 2) `Future Corporate Resources Private
Limited’ (`FCRPL’) and 3) `Future Retail Limited’ (`FRL’).
122. It is the stand of the 1st Respondent/CCI that the Àppellant’ /
Àmazon.com NV Investment Holdings LLC’, during the time of
`notifying the Combination’, had stated that the intended ambit and
purpose of the `Combination’ Viz., its investment in `FCPL’ (2nd
Respondent) was in view of the `FCPL’s potential’ for `Long Term Value
Creation’ and providing `Returns’ on its Ìnvestment’; and also with a
view to strengthen and augment the `Business of `FCPL’/2nd Respondent.

Page 145 of 310
123. On behalf of the 1st Respondent/CCI, it is submitted that the
Àppellant’ / Àmazon.com NV Investment Holdings LLC’, had
mentioned that ìt does not have any direct or indirect Shareholding’ in
`FRL’ and further that it would not acquire directly any rights in `FRL’
and was only acquiring `Limited Investor Protection Rights’ via `FCPL’
(2nd Respondent) with a view to protect the value of its investment in
`FCPL’. That apart, it was also mentioned that rights were derived from
the rights granted to `FCPL’ (2nd Respondent) in terms of the `FRL SHA’,
which was negotiated by the `Promoters’, `FRL’ and `FCPL’,
independent of the investment by Àppellant’ in `FCPL’ (2 nd
Respondent) and with a view to unlock value for `FCPL’ (2 nd
Respondent). Therefore, a plea is taken on behalf of the `1 st
Respondent/CCI’ that the whole attention, as represented, during the time
of notifying the `Combination’ was `FCPL’/`2nd Respondent’ and its
`Business’ with `rights’ in `FRL’ being reflected as mere Ìnvestor
Protection Rights’.
124. The stand of the 1st Respondent/CCI is that as per terms of `Part
V’, description of the `Combination’ of the abovementioned `Notice’, the
`Combination’ notified by the Àppellant’ encompassed the
undermentioned three transactions:

Page 146 of 310
i) Transaction I: The issue of 9,183,754 Class A voting equity shares
of Future Coupons Private Limited (FCPL) to Future Coupons
Resources Private Limited (FCRPL). Prior to, and immediately post
issuance of such equity shares, FCPL will be a wholly owned subsidiary
of FCRPL (This was presented as being nothing but an internal re-
organization within the Future Group); and
ii) Transaction II: Transfer of 13,666,287 shares of FRL held by

FCRPL (representing Two decimal Five Two Percent (2.52%) of the
issued, subscribed and paid-up equity share capital of Future Retail
Limited (FRL), on a Fully Diluted Basis) to FCPL (This was also
presented as being nothing but an internal re-organization within the
Future Group); and
iii) Transaction III: The acquisition of the Subscription Shares

representing Forty Nine percent (49%) of the total issued, subscribed and
paid-up equity share capital of FCPL (on a Fully Diluted Basis) by the
Appellant, by way of a preferential allotment and coupon business with
a view to unlock value for FCPL as it showed potential for long terms
value creation and return on investment).
125. On behalf of the 1st Respondent/CCI it is brought to the notice of
this `Tribunal’ that the Appellant’s `Notice’ among other things had
mentioned the following:
i) The Appellant and the relevant entities and persons, belonging

to the Future Group had entered into: (a) a share subscription agreement
dated 22.08.2019 (FCPL SSA); and (b) a shareholders agreement dated

Page 147 of 310
22.08.2019 to determine respective rights and obligations as shareholders
of FCPL (FCPL SHA).
ii) The parties had only executed FCPL SSA and FCPL SHA in
relation to the Combination. (As aforementioned, it was represented that
FCPL’s potential for long term value creation and providing returns on
its investment, with a view to strengthen and augment the business of
FCPL).
iii) The Appellant would acquire certain rights in terms of FCPL

SHA to protect its investment in FCPL.
iv) Before the `Combination’, `FCPL’ had acquired equity

warrants of `FRL’, Convertible into Èquity Shares’ representing 7.30%
of the share capital of `FRL’, within 18 months of the date of allotment
(Warrants Transaction). FCPL and FRL had entered into FRL SHA,
which sets forth inter se mutual rights and obligations of the parties as
shareholders.
v) The Appellant had submitted a presentation captioned `Taj

Coupons – Business Plan for Five Years’ in response to Item 8.8 of Form
I, which require the `notifying party’ to disclose documents, material
(including reports, studies, plan, latest version of other documents, etc.)
considered by and/or presented to the board of directors and/or key
managerial person, in relation to the `proposed combination’.
vi) Existing and contemplated business arrangement/agreements

between FRL and Amazon Seller Services Private Limited (ASSPL)
(Business Solutions Agreement, Prime Now Program Terms, Prime Now
FRL Amendment Agreement and Softlines FRL Agreement, referred to
Page 148 of 310
in paras 62 to 66, pages 46 to 48 of the Notice at pages 54 to 56,
Convenience Compilation-II); agreement between Amazon Retail India
Private Limited (ARIPL) and Future Consumer Limited (Future
Consumer); Memorandum of Understanding among Amazon Pay
(India) Private Limited (APIPL) and FRL; collectively referred to as
Commercial Arrangements or Business Commercial Agreements.
But it was mentioned that all these `Business Commercial Agreements’

were neither inter connected with, nor part of the `Combination’; or not
related to the `Combination’ whatsoever.
126. The categorical version of the `1st Respondent/CCI’ is that the
`Retail Business’ of `FRL’ and the Àppellant’s interest in the same were
not represented to the 1st Respondent/CCI as being the `focus’, `purpose’
and the àmbit’ of the `Combination’. In this connection, it is projected
on the side of the 1st Respondent/CCI that pertaining to the rationale of
the `Combination’, the Àppellant’ had stated that it believed that `FCPL’
held potential for `Long Term Value Creation’ and providing `Returns’
on its Ìnvestment’. Moreover, it was mentioned that the Àppellant’ had
determined to invest in `FCPL’ with a view to strengthen and augment
the business of `FCPL’ (including the Marketing and Distribution of
`Loyalty Cards’, `Corporate Gift Cards’ and `Reward Cards’ to
Corporate Customers) and ùnlock the value’ in the Company.

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127. The Learned Additional Solicitor General, appearing for the 1st
Respondent/CCI brings it to the notice of this `Tribunal’ that the 1 st
Respondent/CCI in regard to the considerations for the Àppellant’s
Investment’ in `FCPL’, the nature and rationale of the rights, in respect
of the Àppellant’ under `FRL SHA’, raised some queries and that the
Àppellant’ through letter dated 15.11.2019, again emphasized `FCPL’
to be the àttention of the Combination’ and mentioned the following:
(i) The Appellant’s decision to invest in `FCPL’ is, among other things
rested on the following considerations;
(a) the unique business model of FCPL addresses an existing gap in the
payments landscape in India, thereby making it a strong and sound
investment opportunity for Appellant (which holds similar existing
investments in entities engaged in business activities within the payments
market in India);
(b) while FCPL has a strong growth potential, in the short term, to add
credibility to its financial position, it has invested in and proposes to
invest in FRL, which is a publicly traded company with strong financials
and futuristic outlook (vide Response to query No.2.5 of the letter dated
24th October, 2019 available at para 35 at page 35 of the submissions
dated 15th November, 2019 of Appellant at page 104, Convenience
Compilation-I) (Para 8.2 of the Impugned Order).
(ii) It does not have any direct or indirect shareholding in FRL. It would
not acquire directly any rights in FRL. Appellant has only limited

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Ìnvestor Protection Rights’ in FCPL with a view to protect the value of
its investment in FCPL. These rights can be exercised only through FCPL
and not directly by Appellant. The said rights have been derived from the
rights granted to FCPL in terms of `FRL SHA’ which was negotiated by
the Promoters, FRL and FCPL, independent of the investment by
Appellant in FCPL and with a view to unlock value for FCPL. (vide
Response to query No.2.5 of the letter dated 24th October, 2019 and Para
8.3 of the Impugned Order).
(iii) The Commercial Arrangements have not been entered into pursuant
to the Combination and are not part of, or connected with, the
Combination in any manner whatsoever. (Para 72 at page 45 of the
submissions dated 15th November, 2019 of Appellant submitted in
response to query 2.21 of the letter dated 9th October, 2019 at Page 100,
Convenience Compilation-I. It was further asserted that though being
executed contemporaneously with FCPL SHA and FCPL SSA, these are
in no way connected with the Combination and each such commercial
agreement has been negotiated between its respective parties, in
isolation, and independent of the Combination. (vide para 45 at page 32
of the Appellant’s submission dated 15.11.2019 in response to query 2.12
of the Letter dated 9th October, 2019 at page 97 of Convenience
Compilation-I). Furthermore, the Commercial Arrangements need not be
examined under the framework for the regulation of combinations in
terms of the Act and the Combination Regulations. (vide Para 4 of the
Appellant’s submission dated 15.11.2019 furnished in response to query
2.5 of the Letter dated 24.10.2019 (Para 8.4 of the Impugned Order at
page 8 of Convenience Compilation-I).

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128. The crystalline stand of the 1st Respondent/CCI is that the
`Combination Approval Process’ requires the `notifying person’ to
submit the true, correct and complete information as regards the actual
`Combination’ pursued by the `parties’ and to meet the requirements of
the `Competition Act, 2002 and Regulations prescribed thereunder. Only
then, the 1st Respondent/CCI will evaluate the effects of a `Combination’
in a proper perspective.
129. For the aforesaid reason, according to the 1st Respondent/CCI, it
assessed the `Combination’ in the context of Àppellant’s Assertions’ in
the `Notice’ and later representations whereunder the disclosures
pertaining to the overlapping activities of Amazon’s group and `FRL’
were stated to be merely by way of abundant caution as `FCPL’ held
warrants issued by `FRL’.
130. Apart from that, in as much as `FRL SHA’ and `BCAs’ were not
notified as inter connected parts of the `Combination’, the 1 st
Respondent/Commission had no possibility in directing the Àppellant’
to file form II in the subject.
131. Yet another contention of the 1st Respondent/CCI is that there was
no possibility for it to conduct `Combination Assessment’ from the `point

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of Strategic Alignments’ between `FRL’ and Àmazon group’.
Continuing further, it is pointed out on behalf of the 1st Respondent/CCI
that the effect of Commercial Contracts entered into between `FRL’ and
Àmazon group’ entities in their normal course of `Business’ would be
considerably different from `parties’ envisaging `Strategic Alignments’
between their `Business’ though `Strategic Investments’. Therefore, it is
the plea of the 1st Respondent/CCI that the `Regulatory Process’ of
`Notification’ and the nature of Èconomic’ and `Legal’ enquiry would
differ in the two situations.
132. It is projected on the side of the 1st Respondent/CCI that resting
upon the Appellant’s `Notice’ and `Representations/Amplifications’
placed before the 1st Respondent/CCI, the `Combination’ was approved
on 28.11.2019 and further that the `Competition Assessment’ in the said
Àpproval Order’ dated 28.11.2019 was limited to the overlapping
`Business Activities’ of the Àppellant’, `FCPL’ and the `Group Entities’
and was adjudged unlikely to cause any Àppreciable Adverse Effect’ on
`Competition’ in India, as per Para 9 of the Ìmpugned Order’.
133. At this juncture, it is pointed out by the 1st Respondent/CCI that in
the Àpproval Order’ dated 28.11.2019 given by the 1st Respondent/CCI
at paragraph 16, it was mentioned that the Àpproval’ was `contingent’

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and shall stand `revoked’ if at any time, the information provided by the
Àppellant’ was found to be incorrect. In this connection, it is the stand
of the 1st Respondent/CCI the Àpproval’ ought not to be construed as
showering immunity in any manner from later proceedings before it for
the `Breach of other Sections of the Act’.
134. According to the 1st Respondent/CCI, the Àppellant’ had
presented a complete false portrayal of the `Combination’ which runs as
under:
Intended scope and purpose Intended scope and purpose of the

of the Combination as Combination concealed from
presented to Respondent Respondent No.1
No.1
Proposed Transaction: Business Transaction:
The Combination that was The Combination was intended to be an

presented by the Appellant investment in FRL and its retail
for approval to the business, whereby the Appellant would
Respondent No.1 was gain a `foot-in-the-door’ in the Indian
confined to investment in offline retail market.
FCPL’s coupons and
payments business.
The Appellant stated in its The Actual Combination can be

Notice that the Proposed identified from internal communications
Combination would include between the Appellant’s key managerial
3 proposed transactions. personnel (which were never disclosed
The first two being internal to Respondent No. 1 by the Appellant).
reorganisations whereby: The internal communications discuss
the `modus operandi’ for indirectly
investing FRL wherein Mr. Jeff Bezos’s
Page 154 of 310
- Future Coupons Pvt. Ltd. approval for a `twin-entity’ structure in
(FCPL) would issue voting this regard was sought [Internal email
equity shares to Future dt.19.07.2019 at Page 244 of
Coupons Resources Pvt. Convenience Compilation – II (Vol. 1)].
Ltd. (FCRPL)
The aforementioned internal
- Shares of Future Retail communications further identify FRL as
Ltd. (FRL) held by FCRPL a key player in the offline retail space to
would be transferred to partner with, while also noting FRL’s
FCPL. founder’s belief that a `close alignment
via a strategic investment’ is important
The third proposed [Internal email dt. 24.05.2018 at Page
transaction envisaged the 228 of Convenience Compilation-II
Appellant acquiring 49% of (Vol.1)].
the FCPL’s total share
capital. Further, in these internal
communications, the Appellant
[Notice at Pages 9 & 10 of identifies its strategic objectives for the
Convenience Compilation-II proposed Combination as the ability to
(Vol. 1)]. become the single largest shareholder in
FRL when FDI Policy allows the same,
blocking competitive interest in FRL,
ultra-fast delivery and finally to gain a
`foot-in-the-door’ of Indian offline retail
(qualified as a `Strategic Value Option’)
[Internal email dt. 10.07.2018 at Page
230 of Convenience Compilation-II
(Vol.1)].
Significantly, the internal

communications expressly discuss how
the proposed Combination would be
structured to achieve the
aforementioned strategic objectives
whereby it is stated that:
- The number of FRL shares to be held

by FCPL was calculated so that the
Appellant can indirectly hold the same
number of shares in FRL.

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- A premium of 25% was paid on
account of the strategic rights and a call
option in FRL being provided to the
Appellant
[Internal email dt. 19.07.2019 at Page

244 of Convenience Compilation-II
(Vol. 1)]
Rationale and nature of True nature and rationale of rights

rights over FRL, as over FRL concealed from Respondent
disclosed to Respondent No.1 in furtherance of the `Business
No.1 in furtherance of Transaction”
“Proposed Transaction”
[Strategic Rights]
[Investor Protection
Rights]
Vide Item 5.1.3 of Form I, The rights the Appellant sought to

[Schedule II, Competition acquire qua FRL have to be understood
Commission of India in the context of the Business
(Procedure in regard to the Transaction i.e., the strategic
transaction of business integration of the Appellant’s online
relating to combinations) retail business and FRL’s offline retail
Regulations, 2022 business highlighted above.
(Regulations) the Appellant
was asked to clarify the The rights that the Appellant sought to
rights it would acquire out acquire qua FRL (as mentioned in the
of or in connection with the preceding column) would clearly enable
transactions comprising the the Appellant to achieve the strategic
proposed Combination objectives stated by its key managerial
[Notice at Page 30 of personnel in their internal
Convenience Compilation- communications.
II (Vol.1)]. The Appellant
stated that the rights it will The true rationale behind the Appellant
acquire qua FRL pursuant acquiring these rights qua FRL is
to Transaction III are `mere further evidenced by a bare perusal of

Page 156 of 310
investor protection rights’ internal email dt. 04.04.2019, in sofar as
that do not confer control the rights mentioned therein (i.e., the
over FRL [Para 22 of the rights the Appellant sought to acquire
Notice at Page 30 of FRL) which accrue to the Appellant vide
Convenience Compilation- FCPL SSA have been mirrored in the
II (Vol. 1)]. Even in FRL SHA.
response to subsequent
pointed queries by
Respondent No.1, on the
same issue, the Appellant
repeatedly stated that the
rights it will acquire qua
FRL are merely investor
protection rights as
opposed to strategic rights
acquired with the ultimate
objective of entering the
Indian Retail Market [Para
44, Response to Query 2.12,
Response-I at Page 285 of
Convenience Compilation-
II (Vol. 1)] [Part A,
Annexure E of Response-I
available at Page 703 of
Appellant’s Convenience
Compilation (Vol.3)], [Para
Response-II at Page 344 of
Convenience Compilation-
II (Vol.2)], Table in Para
Response-II at Pages 344-
352 of Convenience
Compilation-II (Vol. 2)
(Relevant Table)].
Importantly, the internal email dt.
Importantly, the Appellant’s 04.04.2019 specifically states in regard
submission before this to these rights that unless the same are
Hon’ble Tribunal – that the `captured by way of a specific
Appellant’s aforementioned agreement between the FCPL, the
use of the term ìnvestor Promoter, and FRL’ the Appellant

Page 157 of 310
protection’ to describe would have no recourse to give effect to
rights it acquired in FRL the provisions in the FCPL SSA and the
amount to sufficient rights would not be enforceable against
disclosure of the Appellant’s FRL (Email dt. 04.04.2019 at Page 240
intended purpose of of Convenience Compilation – II (Vol.
investing in FRL’s retail 1)].
business – are contradicted
by a bare perusal of the Therefore, the actual rationale for the
Relevant Table supplied by Appellant acquiring rights qua FRL
the Appellant itself. Therein, pursuant to the Proposed Combination
the Appellant justified: was to protect Combination was to
protect the Appellant’s investment in
i. Its right to request FRL and its retail business.
appointment of observer to Accordingly, it is clear that the actual
FRL’s board of directors by rationale aligns with the Business
stating that FRL represents Transaction; and has not connection to
a significant investment by the Proposed Transaction.
FCPL and will therefore
have a direct impact on
FCPL’s financial position
(Sr. No.1 of the Relevant
Table);
ii. The requirement for its

prior written consent in
relation to inter alia certain
`Reserved Matters’ by
stating that any investor in
FCPL will have an interest
in preserving FCPL’s
shareholding in FRL which
derives its value from FRL’s
asset base as FCPL’s
shareholding, warrants in
FRL are pertinent to
FCPL’s market valuation
(Sr No.2 of the Relevant
Table);
iii. The requirement for its

prior written consent before

Page 158 of 310
FRL’s retail assets can be
transferred by stating that
any negative effect on FRL’s
retail assets will indirectly
affect the Appellant’s
investment in FCPL as
FRL’s retail assets are an
integral part of the valuation
of FRL’s share (Sr. No.3 of
the Relevant Table; and
iv. Its right to purchase FRL

securities when it exits
FCPL on the happening of
certain `Mandatory Exit
Events’ by stating that FRL,
a public listed company will
provide more liquidity / ease
of selling (`more `liquid’
security’) than a private
company like FCPL (Sr. No.
4 of the Relevant Table).
The Appellant pointedly

portrayed the purpose of
each right acquired in FRL
via the FCPL SSA and FRL
SHA as intended to protect
its primary investment in
FCPL’s coupons and
payments business in a
myriad of ways. The
Appellant therefore
presented the combination
as the Proposed
Combination even with
regard to the rights it sought
to acquire qua FRL and its
retail business.

Page 159 of 310
135. It is the plea of the 1st Respondent/CCI that the 1st Respondent/CCI
was presented with only the `Proposed Transaction’ by the Àppellant’
and not the `Business Transaction’. As such, the Àpproval’ for the
`Combination’ was granted, as per `1st Respondent/CCI’s order dated
28.11.2019 (under Section 31 (1) of the Competition Act, 2002).
136. It is represented on behalf of the 1st Respondent/CCI that the
Àppellant’ filed its `Notice’ in Form I and in terms of Item 8.8 of Form
I, the Àppellant’ was required to disclose documents considered by and
/ or presented to the `Key Managerial Personnel’ in relation to the
`Proposed Combination’ (vide Notice at Page 108 of the Convenience
Compilation – II, Vol – 1). In fact, the Àppellant’ furnished a
presentation captioned `Taj Coupons Presentation – Business Plan for
five years’, which mentioned that the Àppellant’s objective has entering
Future Coupons Private Limited (FCPL) gift voucher business and made
no reference to `FRL’ and its `Retail Business’, being the subject matter
/ intended purpose of the `Proposed Combination’, contrary to the
Àppellant’s submissions’ (vide `Notice’ at Page 219 of `Convenience
Compilation – II, Vol. (I), Annexure – 32). As a matter of fact, the 1st
Respondent/CCI had not furnished the (a) internal email dated
24.05.2018 (b) internal email dated 10.07.2018 (c) internal email dated
Page 160 of 310
19.07.2019 which were exchanged between the Key Managerial
Personnel of the Àppellant’, which emails mentioned the true intended
scope and purpose of the `Proposed Combination’.
137. The contention of the `1st Respondent/CCI’ is that inspite of further
opportunities, the Àppellant’ had failed to submit the aforesaid Key
Internal Documents as per Item 8.8 and instead, provided the documents
relating to the Coupons and Payments Business of `FCPL’ (vide Query
2.1; RFI – II at Page 306 of Convenience Compilation-II (Vol. 2) r/w.
Response of the Appellant at Table below Para 3, Response to Query 2.1,
Response-II at Page 310 of Convenience Compilation-II (Vol. 2)].
138. The Learned Counsel for the `1st Respondent/CCI’ submits that the
Àppellant’ as per Item 5.3 of Form I was required to clarify the
Èconomic’ and `Strategic Purpose’ (Rationale) of the `Proposed
Combination’ and that the Àppellant’, in response had stated that its
rationale as FCPL’s potential for long term value creation, returns on
investment and to strengthen FCPL’s business of loyalty, gift and reward
cards (Para 30 and Statutory Summary under Regulation 13 (1A) of the
Regulations, Notice at Page 38 and 217 of Convenience Compilation-II
(Vol.1).

Page 161 of 310
139. On behalf of the `1st Respondent/CCI’, it is brought to the notice
of this `Tribunal’ that the Àppellant’ had accentuated that its decision to
invest was based on `FCPL’s unique business model and the proposed
investment’ in `FRL’ was to add credibility to its Financial position (vide
paragraph 35 – 36, Response to Query 2.10, Response-I at Page 281 of
Convenience Compilation-II (Vol. 1)], (para 35, Response to Query 2.5,
Response to at Page 343 of Convenience Compilation-II (Vol.2).
140. The Learned Counsel for the `1st Respondent/CCI’, points out that
in response to the `1st Respondent/CCI’s query, based on `Media
Articles’ and statements of Mr. Kishore Biyani, in regard to the
Àppellant’s investment being strategic, the Àppellant’ reiterated the
business model in `FCPL’, interest in payment landscape in India (vide
Query 2.13 (c), RFI-I at Page 252 of Convenience Compilation-II (Vol.
1 read with) Para 51 and 53, Response to Query 2.13 (c); Response-I at
Page 287 and 288 of Convenience Compilation-II (Vol.1.)].
141. Besides the above, according to the `1st Respondent/CCI’, the
Àppellant’ had stated that its investment in `FCPL’ to be a financial
investment aligned with its investment focussed in India (vide paragraphs
39-41, Response to Query 2.6, Response-II at Pages 353-354 of
Convenience Compilation-II (Vol. 2)], and that the `FCPL’ Group’s

Page 162 of 310
objective to invite investment was to partner with an investor with
experience in the payments market and a desire to ìnvest in the Business
for marketing and distribution of `Gift Cards’ [vide Para 43, Response to
Query 2.6, Response-II at Page 354 of Convenience Compilation-II
(Vol.2)].
142. According to the `1st Respondent/CCI’, the Àppellant’ had
misrepresented the scope and purpose of the `Proposed Combination’ in
two additional manner (a) the Appellant was asked (vide Item 2.16 of
RFI – I) to state `FRL’s business linkage with `FCPL’ (vide page 252 of
convenience compilation (II) – Vol. (1) and that the Àppellant’ had
responded by stating that `FRL’ was related to `FCPL’ merely as a
`Coupon Issuer’ (vide Sr. No. 1, Table 3, Para 56, Response to Query
2.16, Response-I at Page 289 of Convenience Compilation-II (Vol.1)].
(b) the Appellant had identified certain over lapse between its affiliates
and FRL in the retail market, but stated that the same was provided only
as a `matter of abundant caution’ [vide Para 80 of RFI-II at Page 379 of
Convenience Compilation-II (Vol.2.)].
143. As a result, it is submitted on behalf of the `1st Respondent/CCI’
that the Àppellant’ repeatedly asserted that its decision to invest in
`FCPL’ was based on the `Long Term Potential’ of `FCPL’ and its

Page 163 of 310
`Corporate Gift Cards’, `Loyalty Cards’ and `Reward Cards’ business
and there was no `Strategic Intent’ vis-à-vis `FRL’ and its `Retail
Business’. For that reason, the `1st Respondent/CCI’s Àpproval Order’
and the underlying `Competitive Assessment’ of the `Proposed
Combination’ (vide paragraphs 13 and 14 of the Àpproval Order’) were
focussed solely on the aforementioned Coupons and Payments landscape
and not on `FRL’ and its `Retail Business’.
144. It is the version of the `1st Respondent/CCI’ that the Àppellant’
had `misrepresented’, the character of the Àpproval’ granted to it, as per
the Àpproval Order’ before the numerous `Forums’ like before the
`Hon’ble High Court of Delhi’ and the Àrbitral Tribunal’.
145. Indeed, according to the `1st Respondent/CCI’, the Àppellant’ in
its Àppeal’ dated 23.12.2021 (Before the `Hon’ble High Court of Delhi)
had submitted that its `Notice’ demonstrated that the Àppellant’ was the
ultimate Beneficiary of the Rights granted to `FCPL’ under the `FRL
SHA’. Moreover, the Àppellant’ had submitted that the FCPL SHA,
FCPL SSA and the FRL SHA were negotiated together with the
Appellant; and constitute a single integrated transaction that demonstrate
the Appellant’s strategist interest in FRL’s business (vide page 46 of the

Page 164 of 310
Compilation of Relevant Extracts) and this was the misrepresentation
made by the Àppellant’.
146. According to the `1st Respondent/CCI’, the Àppellant’ however
before the Àrbitral Tribunal’, in its statement of claim dated 04.07.2021
in the Àrbitration Proceedings’ stated that the `1st Respondent/CCI’ had
approved the `Proposed Combination’ after considering the Àppellant’s
consistent stand that `FRL’, its Retails Assets were material inducement
for the investment (vide page 41 of the Compilation of Relevant
Extracts).
147. Thus, according to the `1st Respondent/CCI’, contrary to the
factual position of Àpproval’ of the `Proposed Transaction’, the
Àppellant’ has misrepresented before various `Forums’ that the
`Business Transaction’ was notified to and approved by the `1 st
Respondent/CCI’.
148. It is represented on behalf of the `1st Respondent/CCI’ that a `Show
Cause Notice’ was issued to the Àppellant’, highlighting the
fundamental discrepancies in respect of the `Proposed Transaction’ and
`Business Transaction’ (vide pages 402 to 405 of Convenience
Compilation-II (Vol.2).

Page 165 of 310
149. The Learned Counsel for the `1st Respondent/CCI’ submits that
because of the (a) Non Disclosure (b) Suppression (c) Misrepresentation
and (d) Failure to notify the `Combination’ by the Àppellant’, in the
Ìmpugned Order’, the `1st Respondent/CCI’ had found that the
Àppellant’ had found (i) Suppressed and misrepresented material
particulars of the `Proposed Combination’ (scope and purpose in respect
of Item 5.3, Form I and the nature of rights acquired under Item5.1.3.
(Form I) (vide Para 48 of the Impugned Order at page 66 of Compilation
of Relevant Extracts) (ii) The Appellant had provided the `Taj Coupons
Presentation’, in response to Item 8.8, Form I and suppressed the internal
communications (vide paragraphs 45, 47 of the Impugned Order - Page
65 of Compilation of Relevant Extracts) (iii) The Appellant had notified
`FRL SHA’ and `Commercial Agreements’ as part of the Combination
or in response to Items 5.1.1. and 5.1.2. of Form I (vide paragraphs57,
60, 69 and 75 of the Impugned Ord at Pages 68, 70, 74 of Compilation of
Relevant Extracts) (iv) The Appellant had failed to issue a single notice
covering all inter-connected steps of the `Combination’ as is required by
Regulations 9 (5) and 5 of the Regulations.
150. Because of the Àppellant’s aforesaid acts, the `1 st
Respondent/CCI’ had kept the Àpproval Order’ in abeyance, while

Page 166 of 310
directing the Àppellant’ to make a `Fresh Notification’ under Section 6
(2) of the Competition Act, 2002, in Form II which is a permissible, based
on the `1st Respondent/CCI’s discretion, as per Regulation 5 (5) of the
Regulations, since the `Regulations’ do not levy a mandatory threshold.
151. The Learned Counsel for the `1st Respondent/CCI’ vehemently
puts forward a legal plea that the Àrbitral Tribunal’ had committed an
èrror’ in exercising `jurisdiction’ and `rendering a finding’ on the ambit
and nature of the `1st Respondent/CCI’s Àpproval Order’ of course,
behind the back of`1st Respondent/CCI’. In this regard, it is the stand of
the `1st Respondent/CCI’ that `Disputes in rem’ and the Àrbitral
Tribunal’ could not and should not have given the findings as regards the
nature of Àpproval’ granted, as per decision of the `Hon’ble Supreme
Court’ in Vidya Drolia and Others V Durga Trading Corporation,
reported in (2021) 2 SCC 1 (vide paragraphs 15, 46, 50, 54, 76, 77 and
78).
152. To lend support to the contention that merely furnishing the `1st
Respondent/CCI’ with certain documents or making a reference to a
document in a foot note by the Àppellant’ does not result in compliance
with the Àppellant’s duty to notify and does not amount to `full
disclosure’, the Learned Counsel for the `1st Respondent/CCI’ refers to

Page 167 of 310
the decisions in (a) Indian Hume Pipe Co. Lt. V Assistant Commissioner
of Income Tax and Others, reported in (2011) SCC Online Bom 1863,
vide paragraphs 6 and 9) (b) Sitara Diamonds Private Limited V ITO,
2013 SCC Online Bom 1221 (vide paragraphs 12 and 13) and (c) Garden
Finance Ltd. V Additional Commissioner of Income Tax, 2001 SCC
Online Guj 319, vide Paras 27 and 30).
153. On behalf of the `1st Respondent/CCI’, an argument is advanced
that because of Appellant’s repeated `Wilful Misrepresentations and
Omissions’, it cannot be said that the ingredients of Section 6 (2) of the
Competition Act, 2002, read with Regulations were satisfied by the
Àppellant’.
154. Yet another argument, projected on the side of the `1 st
Respondent/CCI’ is that the Àppellant’ had committed (a)
`Misrepresentation’ (b) `Fraud’ and (c) `Suppression’ and in Law, a
`Litigant’ who has approached the Court with ùncleaned hands’ is not
entitled to any `Relief’ as per decisions of Hon’ble Supreme Court in (a)
Kishore Samrite V State of Uttar Pradesh, 2013 2 SCC 398, Para 37-38;
(b) New Okhla Industrial Development Authority V Ravindra Kumar
Singhvi, 2022 SCC Online SC 186, Para 19).

Page 168 of 310
155. It is projected on the side of the `1st Respondent/CCI’ that
interpreting the profusion of `Residuary Powers’ under Section 45 (2) of
the Competition Act, 2002, an interpretation ought to be provided, which
is in consonance with the objectives of aiming (a) to achieve highest
sustainable levels of economic growth (b) entrepreneurship (c) protection
of economic rights for just, equitable, inclusive, sustainable, economic
and social development (d) promotion of economic democracy and
supporting good governance. As per decision in Excel Crop Care Ltd. V
Competition Commission of India, reported in (2017) 8 SCC, Page 47
Paragraph 108.
156. On behalf of the `1st Respondent/CCI’, a plea is taken that the `1st
Respondent/CCI’ has the power to revoke an Àpproval’/keep the same
in abeyance as per decision of the Hon’ble Supreme Court in (i) Sahara
India Real Estate Corporation Ltd. V SEBI & Another, at paragraphs
303.1, 304.1 and 304.2, reported in (2013) 1 SCC, Page 1 and (ii) in
Shankar Sharma V SEBI, 2001, SCC Online Securities Appellate
Tribunal.
157. It is the contention of the `1st Respondent/CCI’ side that `1st
Respondent/CCI’ has an ancillary and implied power to either suspend
or revoke an Àpproval’, as per Section 45 (2) of the Competition Act,

Page 169 of 310
2002, and such powers are ìnherent’, permitting the `Statutory
Regulator’ to satisfy the purpose of its `Parent Statute’. Therefore, it is
submitted on behalf of the `1st Respondent/CCI’ that the `1st
Respondent/CCI’s power to grant an Àpproval’ includes the power to
revoke the said Àpproval’ as per decisions (i) in State of Uttar Pradesh
V Dharmander Prasad Singh and Others, reported in AIR 1989 Supreme
Court Page 997 (ii) Ultratech Cement Limited, Combination Registration
No. C-2015/02/246, Para 12.1 and (iii) Malik Medical Hall V Union of
India, AIR 1975 Raj 108 and (iv) Tappers Co-operative Society, Maddur
V Superintendent of Excise, Mahaboobnagar, 1984 (2) APLJ (HC) 1.
158. It is represented on behalf of the `1st Respondent/CCI’ that as per
Section 45 (2) of the Competition Act, 2002, in term of the general
power, the 1st Respondent/CCI’s power to undue an Àpproval’ granted
cannot be precluded as per decisions, reported in (i) Sahiti and Others V
Chancellor, Dr. N.T.R. University of Health Science and Others, reported
in (2009) 1 SCC Page 599 (vide paragraphs 26, 28 and 32) (ii) Arabinda
Das and Etc., V State of Assam & Ors., reported in 1980 SCC Online
Gau 13, Para 22.
159. In this connection, the Learned Counsel for the `1 st
Respondent/CCI’ by adverting to the words occurring in the language of

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Section 45 (2) of the Competition Act, 2002, `pass such orders as it deems
fit’, points out that the same is to be interpreted widely, as per the purpose
of the Statute and in the teeth of the Competition Act 2002, Preamble,
i.e., (i) `to prevent’ practices having adverse effect on Competition (ii)
`to promote’ and sustain Competition in Markets, the `1 st
Respondent/CCI’ does have the `power to undue’ an Àpproval Order’,
as per Section 45 (2) of the Competition Act, 2002, and in this regard
cites the decisions of the Hon’ble Supreme Court (i) in the matter of V.C.
Rangadurai V D. Gopalan and Others, reported in AIR 1979 Supreme
Court Page 281 (ii) Babulal Nagar V Shree Synthetics 1984 (Supp) SCC
Page 128, paragraphs 16 and (iii) Nagin Das Kesharlal Mehta and Ors. V
The Competent Authority, reported in AIR 1988 Guj Page 162.
160. In pith and substance, the contention of the `1st Respondent/CCI’
is that the `1st Respondent/CCI’ has the requisite power to annul an
Òrder’ if the same was procured by means of `Fraud’ or
`Misrepresentation’ and as such, the ìmpugned order’ is a correct one,
whereby and whereunder the `1st Respondent/CCI’ has exercised its
power in this regard and a reference is made to the decisions of the
Hon’ble Supreme Court in (i) Meghmala and Ors. V G Narasimha Reddy
and Ors, reported in (2010) 8 SCC Page 383 (vide paragraphs 28 to 33

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and Para 36 (ii) Industrial Infrastructure Development Corporation
(Gwalior) M.P. Ltd. V Commissioner of Income Tax, Gwalior, AIR 2018
Supreme Court (iii) United India Insurance Co. Ltd. V Rajendra Singh
and Ors., reported in AIR 2000 SC 1165 (iv) Indian National Congress
(I) V Institute of Social Welfare and Ors., reported in AIR 2002 SC 2158
(v) Rajendra Tripathi V Deputy Director of Education, 1976 (2) AIR 518
and (vi) Radhey Shyam Chaube and Ors. V District Inspector of Schools,
Jaunpur and Ors. 1978 Labour & Industrial Cases 191.
161. The Learned Counsel for the `1st Respondent/CCI’ comes out with
a plea that Section 17 of the Indian Contract, Act, 1872 defines `Fraud’
to mean and include among other things, the suggestion of an untrue fact
as true by a person who does not believe it to be true, active concealment,
any other act fitter to deceive as long as it is done with an intent to
deceive. In this connection, the `1st Respondent/CCI’ points out that the
Àppellant’s conduct is that it had deliberately strived to `Misrepresent’
and `Suppress’ material particulars and documents vis-à-vis the
`Proposed Combination’ and in short, the Àppellant’ had repeated the
same false statements in relation to ambit and purpose of the `Proposed
Combination’, etc., even after being asked with the pointed follow up
questions as per RFI-I and RFI-II.

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162. The Learned Counsel for the `1st Respondent/CCI’ takes a pivotal
stance that `Fraud’ vitiates every solemn act and points out that
irrespective of the 1st Respondent/CCI’s eventual conclusion on the
`Combinations’ (ÀAEC’), the `Fraud’ played by the Àppellant’ upon
the `1st Respondent/CCI’ (Statutory Regulator) wholly vitiates the
Àpproval’ granted, as per the Àpproval Order’. To fortify the 1 st
Respondent/CCI’s stand, reliance is placed upon the Hon’ble Supreme
Court decisions in (i) Satluj Jal Vidyut Nigam V Raj Kumar Rajinder
Singh, 2019 14 SCC 449, Para 68-76; (ii) Bhaurao Dagdu Parlkar V State
of Maharashtra , 2005 7 SCC 605, Para 9 – 16; (iii) Commissioner of
Customs V Aafloat Textiles India Pvt. Ltd., 2009 11 SCC 18, Para 11;
(iv) Shrisht Dhawan V M/s. Shaw Brothers, 1992 1 SCC 534, Para 20;
and (v) Venture Global Engineering LLC V Tech Mahindra Ltd. & Anr.,
2018 1 SCC 656, Paras 76-78.
163. The Learned for the `1st Respondent/CCI’ submits that a cursory
reading of the ingredients of Section 20 (1) of the Competition Act, 2002,
makes it clear that the same and its proviso applied to the Commission/1 st
Respondent inquiring into a `Fresh Combination’ `suo moto’ or basis of
an information being filed in this regard. But the `Notice’ filed by the
Àppellant’ was a `Voluntary Notification’, in the instant case, as per

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Section 6 (2) of the Act, in fact, Section 6 (2) of the Competition Act,
2002, concerns with `voluntary reporting’, mutually exclusive to Section
20 (1) of the Competition Act, 2002. Hence, it is the submission of the
`1st Respondent/CCI’ side that the limitation imposed by the proviso to
Section 20 (1) of the Competition Act, 2002, will not apply.
164. The other contention advanced on behalf of the `1 st
Respondent/CCI’ is that the Appellant’s `Fraud’ will vitiate the
Àpproval Order’ together with the fact that it failed to notify the
`Proposed Combination’ in its whole, meaning that the one year
limitation imposed by the proviso to Section 20 (1) of the Competition
Act, 2002, is ìnapplicable’, because of the fact that there is `no
Notification’ and `no Approval’.
165. The Learned Counsel for the `1st Respondent/CCI’ comes with an
emphatic plea that the ìmpugned order’ of the `1 st Respondent/CCI’
cannot contain any analysis of the `Combinations’ (ÀAEC’) because the
focus of `1st Respondent/CCI ìnquiry’ in the ìmpugned order’ is not to
substantively `revaluate’ the correct `Combination’ (ÀAEC’). In fact,
the ìmpugned order’ rightly determines that the Àppellant’ had not
supplied the correct and sufficient particulars, information and
documents.

Page 174 of 310
166. The Learned Counsel for the `1st Respondent/CCI’ submits that a
`detailed analysis’ of the `Combinations’ (ÀAEC’) can only be made
afterwards, when the Àppellant’ files Form II with correct, true and
complete/information/particulars/documents that disclose the àmbit’
and intended purpose of the `Combination’.
167. The Learned Counsel for the `1st Respondent/CCI’ contends that
the ìmpugned order’ in directing the Àpproval’ secured by the
Àppellant’ shall be kept in abeyance, while granting the Àppellant’ an
opportunity to file Form II afresh is à correct and proper one’ in the èye
of Law’ and therefore, prays for dismissal of the (i) Competition Appeal
(AT) No.1 of 2022; Competition Appeal (AT) No. 2 of 2022 and (iii)
Competition Appeal (AT) No. 3 of 2022.
Contentions of 2nd Respondent (in Comptn. App (AT) No. 01 of 2022)

and Pleas of 3rd Respondent (in Comptn. App (AT) No. 03 of 2022
(`Future Coupons Private Limited’):
168. The Learned Counsel for the 2nd Respondent/Future Coupons
Private Limited (`FCPL’) contends that as per Section 6 (2) of the
Competition Act, 2002 (“Act”), read with `Regulations 9 (4) and 9 (5)
of the Competition Commission of India (Procedure in Regard to the
Transaction of Business Relating to Combinations Regulations, 2011)

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(“Combination Regulations”) an Àcquirer’ is required to notify all the
inter- connected steps and individual transactions, that form part of the
`Combination’ to achieve the ùltimate intended effect’ of the
`Combination’. In fact, the `Statutory Scheme’ visualizes that a full, true
and fair disclosure must be made by the Àcquirer’ at the stage of seeking
an Àpproval’ for the contemplated transaction.
169. The Learned Counsel for the 2nd Respondent submits that the `1st
Respondent/CCI’ and the Àppellate Tribunal’ dip into the numerous
pages of the documents read, `between the lines’ of Àppellant/Amazon’s
filings and form an independent assessment of the Appellant’s ultimate
intent while ignoring the unequivocal and demonstrably the false
statements in its real filings – is topsy-turvy to the plain language, òbject
and scheme of the Competition Act, 2002’, and its `Regulations’, made
thereunder.
170. The Learned Counsel for the 2nd Respondent points out that in the
present case, the `Combination’ notified was clearly investment in to
`FCPL’ by Àmazon’ considering the growth potential of the `Corporate
Gift Cards / Coupons Business of `FCPL’ and nothing more. In short, the
assessment of ÀAEC’ by the `1st Respondent/CCI’ on any relevant
market is only for this `Combination’ and the Àssessment’ could not and

Page 176 of 310
would not have been for a `Combination’ which was in the mind of
Àmazon’ but was not notified in its filings. Moreover, the Appellant’s
assertion that the combination approved by the CCI is for its `single
integrated transaction’ Viz., an investment in `FRL’ for Àmazon’s
strategic interest over assets’ of `FRL’ and àcquisition of strategic
rights’ over `FRL’ and also for `Business Collaboration Agreements’
defies any logic. To put it differently, the plea of the Learned Counsel for
the 2nd Respondent/FCPL is that an Àpproval’ can be given in respect of
the `Combination’ for which an Àpproval’ is sought for and not
otherwise.
171. The Learned Counsel for the 2nd Respondent submits that failure
to give a `Notice’ under Section 6 (2) of the Competition Act, 2002, is a
breach of `Law’ and the `Combination’ is `non est’ in `Law’.
172. The Learned Counsel for the 2nd Respondent takes a plea that the
Appellant’s filings in clear term mentions that `the (FCPL) SHA and the
SSA are the only transactional documents executed pursuant to the
Proposed Combination’ and further that the paragraph 5.1.2 of the
`Notice Format’ specifically requires the Àcquirer’ to `disclose’ any
other transactions that is/are inter-connected in the context of the
`Combination’ being notified. Indeed, a reference to the `FRL SHA’ and

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`BCFs’ is visibly absent in Appellant’s response to this requirement in its
`Notice’ dated 23.09.2019.
173. The Learned Counsel for the 2nd Respondent advances an
argument that the Àppellant’ made it clear that `BCAs’ were not part of
the `Proposed Combination’ stating that these agreements were neither
inter-connected with, nor part of the `Proposed Combination’ (vide
paragraph 5 of the Appellant’s `Notice’ dated 23.09.2019, page 47 of
Vol. (1) of Amazon’s Convenience Compilation), which was reiterated
in its responses to the questions raised by the 1 st Respondent/CCI (vide
paragraph 44 of Response dated 15.11.2019 to RFI 2 dated 24.10.2019,
Page 769 – Vol. (3) Appellant’s Convenience Compilation).
174. The Learned Counsel for the 2nd Respondent brings it to the notice
of this `Tribunal’ that in regard to the `FRL SHA’, the Appellant’s filings
before the 1st Respondent/CCI stated that this agreement was entered into
in the course of Ìntra-Promoter Group Transactions’ (vide II of
Appellant’s Notice dated 23.09.2019, Page 2, Vol. (1) of Appellant’s
Convenience Compilation), to which, the parties were `FCPL’ and
`persons’ belonging to the `Biyani Group’.

Page 178 of 310
175. The Learned Counsel for the 2nd Respondent points out that in
regard to a specific question posed by the 1st Respondent/CCI as to
whether it was gaining any direct right over `FRL’ (vide Query 2.5 of
RFI 2 dt. 24.10.2019, Page 721, Vol (3) of Appellant’s Convenience
Compliance), the Appellant reiterated that its investment was in to
`FCPL’ and not `FRL’ and that whatever rights were granted to it were
with respect to FCL’s investment in `FRL’ and can be exercised only
through `FCL’ and not directly by it (Àmazon’).
176. The Learned Counsel for the 2nd Respondent comes out with a plea
that the Àppellant’ further stated that ìmportantly, these rights have
been derived from the rights granted to `FCL’ in terms of the `FRL SHA,
which was negotiated by the Promoters, FRL and FRL (sic., FCPL)
independent of the investment by the Investor in FCL and with a view to
unlock value for `FCL’ (Para 37 of Response dt. 15.11.2019 to RFI 2 dt.
24.10.2019, Page 758, Vol. (3) of Appellant’s Convenience
Compilation).
177. The Learned Counsel for the 2nd Respondent contends that the
Àppellant’, with reference to the `Show Cause Notice’ issued by the 1 st
Respondent/CCI endeavoured to overcome this statement by rewriting it,
claiming that various words were in-advertently left out in its earlier

Page 179 of 310
response, and what was ìndependently negotiated was the `Warrants
Transaction’ between the `Promoters’, `FCPL’ and `FRL’ and not the
`FRL SHA’ (vide paragraph 39 of the Àppellant’s response to the `Show
Cause Notice’, Page 1409 – 1410, Vol. (6) of Appellant’s Convenience
Compilation).
178. The Learned Counsel for the 2nd Respondent submits that in
response to paragraph 8.8 of its Form I filing, the Appellant was required
to disclose any and all documents considered by the `Board of
Directors’/`Key Managerial Personnels’ of its group entities in relation
to the `Proposed Combination’ and that the `Law’ requires that the
internal documents which were suppressed by the Àppellant’ Viz., the
documents which brought out the intention of the Àcquirer’ in making
the Àcquisition’ be placed before the 1st Respondent/CCI, and further
that the Àppellant’ had failed to comply with the requirement of `Law’
in Form or in substance.
179. According to the Learned Counsel for the 2nd Respondent the
Àppellant’ disclosed a single document (vide Appellant’s Notice dt.
23.09.2019, Page 100, Vol. (1) of Appellant’s Convenience
Compilation), which was a `presentation’ dealing with the Five Years’
Business Plan of `FCPL’ that is of the `coupons business’, which

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emphasized that its ìnvestments’ was in to `FCPL’ alone and that its
ìntent’ in entering in to the `Combination’ was to further to the coupons
business of `FCPL’ and that the 1st Respondent/CCI sought a full
disclosure (vide Query 2.1 of RFI 2 dt. 24.10.2019, Page 720, Vol. (3) of
Appellant’s Convenience Compilation), because the filing of the
Àppellant’ was found to be inadequate.
180. The contention of the Learned Counsel for the 2nd Respondent is
that the Àppellant’ later, disclosed three additional documents (vide
paragraph 3 of Response dated 15.11.2019 to RFI-2 dated 24.10.2019 –
page 724 Amazon’s Convenience Compilation) and the two documents
related exclusively to `FCPL’ and the third one was a `Resolution’
authorizing Àmazon Entities’ to enter in to `FCPL SHA’ and the `FCPL
SSA’ and these documents reiterated the Appellant’s assertion
throughout its filings it was making an investment into `FCPL’ alone and
was acquiring rights only in `FCPL’ alone.
181. The Learned Counsel for the 2nd Respondent points out that by
means of the Appellant’s disclosures made pursuant to the Òrders’
issued by the Àrbitral Tribunal’, a reading of the internal documents
(vide internal notes dt. 24.05.2018, page 1908, Vol. 9 of Appellant’s
Convenience Compilation; 10.07.2018 (vide page 1910, Vol. 9 of

Page 181 of 310
Appellant’s Convenience Compilation and internal email dated
19.07.2019 (vide page 1918 – Vol. 9 of Appellant’s Convenience
Compilation) indicates that the Appellant’s actual intent in entering in to
the `Combination’ was completely irreconcilable with what it had
mentioned in its filings, and that it was actively supressing the same.
182. According to the Learned Counsel for the 2nd Respondent these
documents bring out that the Appellant was investing into `FCPL’ with a
view to acquire strategic rights in `FRL’ and was treating `BCAs’ as in
integral part of the `Combination’. Moreover, these documents, reveal
that `FCPL’ was nothing more than an `SPV’ and a `Conduit’ and part of
the `Twin Entity Structure’ through which investment was made in to
`FRL’. In fact, no value was attributed to `FCPL’ by the Àppellant’.
183. The Learned Counsel for the 2nd Respondent adverts to the fact that
in the internal documents the value of the investment of Rs.1431 Crore
was arrived at only on the basis of the Regulatory Share Prices of `FRL’
with a 25% premium (for the `Strategic Rights’ acquired) multiplied by
the indirect number of `FRL’ shares which Àmazon’ would be holding
through `FCPL’. Apart from this, the Àppellant’ had submitted before
the `Tribunal’ that the filing premised on active suppression,

Page 182 of 310
misrepresentation and fraud ought not to be interfered with and the said
plea, according to the 2nd Respondent is an absurd one.
184. The Learned Counsel for the 2nd Respondent proceeds to point out
that the Regulation 14 clearly mentions that a `Notice’ shall not be valid
unless it is complete and inconformity with the `Regulations’ and `Sub-
Regulation 2A) empowers the 1st Respondent/CCI to invalidate a
`Notice’ when it comes to its knowledge that such `Notice’ was not valid
as per the `Sub-Regulation 1’. Besides this, in the ìmpugned order’, the
1st Respondent/CCI had invalidated the `Notice’ and directed the
Àppellant’ to file a fresh `Notice’.
185. The Learned Counsel for the 2nd Respondent contends that the
Appellant’s filing in its `Notice’ made no reference to any direct
enforceable rights acquired by it, in `FRL’, in its response to this
requirement. Per contra, the Appellant’s filing reaffirmed that the
rationale for the `Combination’ was `with a view to strengthen and
augment the `business of `FCL’ (including the marketing and
distribution of loyalty cards, corporate gift cards and reward cards
corporate consumers)’ and ùnlock the value in `FCPL’. Therefore, it is
the plea of the 2nd Respondent that the Àppellant’ had not only
suppressed but deliberately misrepresented the ùltimate intended effect’

Page 183 of 310
of the `Combination’ and committed a flagrant violation of Section 6 (2)
read with Regulation 9 of the `Combination’ Regulations.
186. The Learned Counsel for the 2nd Respondent submits that the
Appellant’s submissions in regard to the supposed breach of orders of the
Àrbitral Tribunal’ hearing a dispute initiated by the Àppellant’ against
`FCPL’, `FRL’ and others was an in-appropriate one, before the
`Tribunal’, because of the fact that they are irrelevant to the present
Àppeal’ and each of the contentions is `subjudice’ before the Hon’ble
High Court of Delhi in numerous pending proceedings in which the
Àppellant’ and `FCPL’ are parties. In short, the Appellant’s endeavour
to advance a misconceived submissions in parallel proceedings before
the different Judicial Authorities is an àbuse of process’ and to be
deprecated.
187. The Learned Counsel for the 2nd Respondent points out that the
identity / even an existence of a Complainant does not control the
exercise of 1st Respondent/CCI’s jurisdiction, because the 1st
Respondent/CCI is enjoined to act even `suo moto’ or based on
information in Public domain to prevent violation of the provisions of the
Competition Act, 2002.

Page 184 of 310
188. It is represented on behalf of the 2nd Respondent that the
Àppellant’ was provided with a full opportunity to respond to the
documents and in fact, it took full advantage of the same in submitting a
detailed oral and written submissions to the 1st Respondent/CCI on this
aspect (vide Appellant’s Rejoinder submissions dated 12.12.2021, pages
1882 – 1884, Vol. (9) of Appellant’s Convenience Compilation).
189. The Learned Counsel for the 2nd Respondent refers to the judgment
of the Hon’ble Supreme Court in the State of Uttar Pradesh V Sudhir
Kumar Singh (vide Civil Appeal No. 3498 of 2020 with Civil Appeal
Nos. 3499 and 3500 of 2020 dated 16.10.2020), wherein it is held that
`natural justice is a flexible tool in the hands of the judiciary to reach out
in fit cases to remedy injustice. The breach of the àudi alteram partem
rule’ cannot by itself, without more, lead to the conclusion that prejudice
is thereby caused’.
190. The Learned Counsel for the 2nd Respondent contends that in the
instant case the Àppellant’ was given the full opportunity and which was
availed by it and hence, the Àppellant’ has not suffered any `prejudice’.
191. The Learned Counsel for the 2nd Respondent puts forward a plea that
the `power to grant an Approval`, carries with it the power to revoke such

Page 185 of 310
an Àpproval’ as per the decisions of the Hon’ble Supreme Court in the
matter of Shree Sidhbali Steels Ltd. V State of U.P., (2011) 3 SCC 193;
Indian National Congress (I) V Institute of Social Welfare, (2002) 5 SCC
685, particularly when it is evident that the Àpproval’ was obtained,
based on material omissions, suppression of material particulars,
misrepresentation and / or fraud.
192. According to the Learned Counsel for the 2nd Respondent Section
21 of the General Clauses, Act, 1897 expressly mentions that the `power
to issue orders’, includes the `power to amend’, `vary’ or `rescind’ such
orders, thereby obviating the requirement for a specific provision to such
effect in the Act.
193. The Learned Counsel for the 2nd Respondent contends that
Regulation 14 of the Combination Regulation which specifies that a
`Notice’ shall not be valid unless it is in conformity with the Regulations.
In fact, Regulations 14 (2A), specifically envisages invalidation by the
1st Respondent/CCI of a `Notice’ that it is not in conformity with the
Regulations.
194. The Learned Counsel for the 2nd Respondent points out that Section
45 (1) of the Competition Act, 2002, is expressly clarified to be without

Page 186 of 310
prejudice to the power under Section 44 of the Act and the power under
Section 45 (2) of the Act is stated to be without prejudice to the power
under Section 45 (1) of the Act. More importantly, it is the version of the
2nd Respondent that `no provision of the Statute’ stands `breached’ by the
exercise of the jurisdiction as per Section 45 (2) of the Competition Act,
2002, by the 1st Respondent/CCI.
195. It is the stand of the 2nd Respondent that a failure to notify, the
rights purportedly claimed by the Appellant/Amazon in `FRL’, `FRL
SHA’ and `BCFs’ undoubtedly, constitutes a failure to disclose material
particulars as per Section 44 and 45 of the Competition Act, 2002, and in
this connection, a reliance is placed on the decision of the Hon’ble
Supreme Court in Harkirat Singh V Amrinder Singh, (2005) 13 SCC 511,
wherein at paragraph 51 and 52, it is observed as under:
51.`À distinction between 'material facts' and 'particulars',

however, must not be overlooked. 'Material facts' are primary or
basic facts which must be pleaded by the plaintiff or by the
defendant in support of the case set up by him either to prove his
cause of action or defence. 'Particulars', on the other hand, are
details in support of material facts pleaded by the party. They
amplify, refine and embellish material facts by giving distinctive
touch to the basic contours of a picture already drawn so as to
make it full, more clear and more informative. 'Particulars' thus
ensure conduct of fair trial and would not take the opposite party
by surprise.

Page 187 of 310
52. All 'material facts' must be pleaded by the party in support of
the case set up by him. Since the object and purpose is to enable
the opposite party to know the case he has to meet with, in the
absence of pleading, a party cannot be allowed to lead evidence.
Failure to state even a single material fact, hence, will entail
dismissal of the suit or petition. Particulars, on the other hand, are
the details of the case which is in the nature of evidence a party
would be leading at the time of trial.”
196. The Learned Counsel for the 2nd Respondent adverts to the Òrder’
dated 21.11.2019 passed by the 1st Respondent/CCI (under Section 43A
and 44 of the Competition Act, 2002, wherein at paragraphs 35 to 37, it
is observed and held as under:
35. “CPPIB has contended that it had mentioned in the Notice that
“The proposed Transaction represents an opportunity for ReNew
to enable smooth shareholder transition, and secure primary
funding to leverage for growth and expansion plans.”. This
according to CPPIB amounts to full disclosure and thus, there was
no suppression or omission on its part. The Commission notes that
Form I under the Combination Regulations inter alia requires the
notifying party to “Please explain the purpose (including business
objective and/or economic rationale for each of the parties to the
combination and how are they intended to be achieved) of the
combination”. In spite of this requirement, no detail regarding
Transaction II was disclosed to the Commission in the Form I filed
by CPPIB in Combination Registration No. C-2017/11/536. Mere
statement that Transaction I would secure primary funding to
leverage the growth and expansion plans of ReNew cannot be
taken as a disclosure about Transaction II. Such vague statements
cannot meet the requirement to disclose material particular to the
Commission. Having seen the extent of knowledge and the linkage
between Primary Acquisition in Transaction I and Transaction II,

Page 188 of 310
CPPIB ought to have disclosed the details of Transaction II in the
combination Notice filed for Transaction I. However, CPPIB
having failed to do so, the Commission has no hesitation in
concluding that CPPIB omitted to disclose a material particular,
knowing it to be material.
36. In terms of Section 43A of the Act, if any person or enterprise

fails to give notice under sub-section (2) of Section 6 of the Act,
the Commission shall impose on such person or enterprise, a
penalty which may extend to one percent of the total turnover or
the assets, whichever is higher, of such a combination. In case of
contravention under Section 44, the person shall be liable to a
penalty which shall not be less than rupees fifty lakhs but which
may extend to rupees one crore, as may be determined by the
Commission.
37. Though the penalty under sections 43A and 44 of the Act can
be to the extent mentioned therein, the Commission has sufficient
discretion to consider the conduct of the Parties and the
circumstances of the case to arrive at an appropriate amount of
penalty. In the instant case, CPPIB and ReNew have extended
cooperation in the inquiry and supplied requisite material/
documents in response to the information requirement of the
Commission. Such material/ documents formed the basis of above
findings of contravention. Considering these, the Commission
considers it appropriate to impose a penalty of INR 50,00,000
(Rupees fifty lakh) on CPPIB. CPPIB shall pay the penalty within
60 days from the date of receipt of this Order.”
197. The Learned Counsel for the 2nd Respondent takes a plea that the
Àppellant’ had issued a `Notice’ to the 1st Respondent/CCI on
23.09.2019 notifying the `Combination’ and secured the Àpproval’ of
the CCI for the same, albeit based on material omissions, suppression of

Page 189 of 310
material particulars, misrepresentation and fraud and in fact, Section
20(1) of the Competition Act, 2002, has no application in respect of a
`matter’ where a `Notice’ was filed.
198. While rounding up, the Learned Counsel for the 2nd Respondent
submits that the 1st Respondent/CCI had passed the ìmpugned order’ and
penalised the Àppellant’ correctly.
Contentions of 3rd Respondent (in Comptn. App No. 01 of 2022) &

Submissions of Appellant in Comptn. App No. 03 of 2022
(`Confederation of All India Traders’):
199. The Learned Counsel for the `3rd Respondent’ / `Confederation of
All India Traders’ - submits that the Competition Appeal No. 3 of 2022
filed by the Àppellant’ (`3rd Respondent’ – (`Confederation of All India
Traders’-in Competition Appeal No. 1 of 2022), is maintainable and that
the Àppellant / 3rd Respondent’ (`CAIT’) has the locus to appear before
the 1st Respondent/CCI.
200. It is contended on behalf of the `3rd Respondent / CAIT’ that it is a
necessary and proper party to the present proceedings and in fact, it has
a substantial interest in the outcome of the proceedings.

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201. In this connection, it is pointed out on behalf of the `3rd Respondent
/ CAIT’ that in Writ Petition (C) 12889 / 2021 filed by the 3 rd Respondent
/ CAIT (Àppellant’ in Comptn. App AT No. 3 of 2022) that the Hon’ble
High Court of Delhi by an Òrder’ dated 16.11.2021 had directed the `1st
Respondent / CCI’ to decide the issue raised in the `1st Respondent /
CCI’s `Show Cause Notice’ dated 04.06.2021, `within a period of two
weeks’ from today’ and that `such decision shall be taken by CCI, after
giving an opportunity of hearing to the stakeholders’. Furthermore, the
Àppellant / Amazon’s’ `Special Leave Petition’ against the Òrder’ of
the Hon’ble High Court of Delhi dated 16.11.2021 was dismissed by the
Hon’ble Supreme Court of India.
202. The Learned Counsel for the `3rd Respondent / CAIT’ comes out
with a plea that the Àppellant / Amazon.com NV Investment Holdings
LLC’ had deceived the `1st Respondent / CCI’ and secured an Àpproval
Order’ and illegally entered the `MBRT Sector’ in India, in violation of
the `Foreign Direct Investment Laws of India’.
203. According to the Learned Counsel for the `3rd Respondent / CAIT,
the relevant `Regulatory regime’, governing Àmazon’s investment
through the `Proposed Combination’ as notified to the `1 st Respondent /
CCI’ is:

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(a) Foreign Exchange Management (Transfer or Issue of Security by a
Person Resident Outside India) Regulations, 2017 (“FEMA
Regulations”), (vide Annexure R-1 of CAIT Reply in Àmazon’s
Appeal’ (Pgs. 23 – 68), which was thereafter replaced with by the
`Foreign Exchange Management’ (Non-debt Instruments) Rules, 2019
(`FEMA Rules’) (vide Annexure R-2 of CAIT’s Reply in Àmazon’s
Comptn. App (AT) No. 1 of 2022 (Pgs: 69 – 116). In fact, the provisions
relating to investment in `MBRT’ are identical in both the abovesaid
Rules and Regulations.
(b) Regulations 5 of the FEMA Regulations, Foreign Direct Investment

(“FDI”) by a person resident outside (like Amazon in the present case) is
subject to the entry routes, sectoral caps and investment limits as laid
down in Schedule 1 of the Regulations (Regulation 5 at Page 26 of
Annexure R-1 of CAIT Reply in Amazon Appeal). Under item 15.4 of
Schedule 1 of the FEMA Regulations, any investment in MBRT is
allowed only with prior approval of the Government of India (Item 15.4,
Schedule 1 @ Pg.: 46 of Annexure R-1 of CAIT’s Reply in Amazon’s
Comptn. Appeal No. 1 of 2022).
(c) `Foreign investment in e-commerce is regulated by FEMA Rules and

Regulations and Press Note No.2 of 2018 (“PN2”). Under PN2, effective
from 01.02.2019, a retailer selling on the platform cannot be a `group
company’ of the e-commerce platform entity (vide Annexure R-3 of
CAIT’s Reply in Àmazon’s Comptn. Appeal (AT) No. 1 of 2022 .(Pgs:
117–120).

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204. The Learned Counsel for the `3rd Respondent / CAIT’ contends that
the three Agreements, Viz., `FRL SHA’, `FCPL SSA’ and `FCPL SHA’
purportedly consisting of a `single integrated transaction’ for an
investment of Rs.1431 Crores by Amazon ìndirectly’ in `FRL’ are in
substance and in reality. an investment in MBRT and directly contrary to
the `FEMA Regulations’;
205. The Learned Counsel for the `3rd Respondent / CAIT’ points out
that the Amazon’s contentions that `FRL’ was the object of attention and
purpose of Amazon’s investment would make the investment directly
contrary to the `FEMA Regulations’ and `PN2’ as it effectively would
have entered the MBRT sector.
206. The Learned Counsel for the `3rd Respondent / CAIT’ submits that
the Àmazon’s (and its Affiliates) by way of its investment (directly or
indirectly) in `FRL’ cannot list any `Retail Products’ on the Amazon e-
commerce market place in India in view of the FEMA Regulations and
PN2. As such, Amazon (and its Affiliates) could not enter into the
`BCAs’.
207. The Learned Counsel for the `3rd Respondent / CAIT’ contends that
the Amazon’s internal emails now exhibit that it adopted a convoluted

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structure to enter MBRT and deceive statutory authorities in order to skirt
PN2 and the FEMA Regulations. Furthermore, the Àmazon’ had not
invested in `FCPL’ (or `FRL’ as it now claims) as a `Foreign Portfolio
Investor’ (`FPI). Even otherwise, an `FPI’ cannot invest in and exercise
any form of control over an Ìndian Entity’ – which is exactly the
situation in the present case às Amazon is seeking to exercise and control
the management decisions of `FRL’.
208. The Learned Counsel for the `3rd Respondent / CAIT’ proceeds to
point out that the Amazon’s pleas before the 1st Respondent/CCI directly
contradict the representation made by it to the `Court’s’ and the Àrbitral
Tribunal’ and its own internal documents, among other things that the
`FRL SHA’, `FCPL SHA’ and `FCPL SSA’ constituted a `single
integrated transaction’ that Àmazon’ was really investing in `FRL’ and
not `FCPL’ and that the `BCAs’ were an integral part of the `Proposed
Combination’.
the 1st Respondent/CCI being the `Statutory Authority’ cannot approve a
transaction that is an ìllegality’. The 1st Respondent/CCI is to safeguard
that all `Combinations’ for which an Àpproval’ is sought from the
`Commission’ are legal and not in `violation of any law’.

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210. On behalf of the `3rd Respondent / CAIT’, it is represented that the
Àmazon’ had knowingly made a `False Statement’ and withheld the true
nature of the `transaction’ and stated that àpart from the approval of the
Hon’ble Commission, no other regulatory approvals will be required
from any other government department / authority for consummating the
`Proposed Combination’ since it was investing in `FCPL’ and not `FRL’
[Amazon’s Response dated 15.11.2019 @ Pgs. 254-305 of CCI
Convenience Compilation].
211. The other contention of the 3rd Respondent / CAIT is that had the
Àppellant’ disclosed the exact/true nature of `transaction’ notified all the
`relevant Agreements’ as part of the `Proposed Combination’ and
claimed approval thereof from the 1st Respondent / CCI, then CCI might
have obtained an Òpinion’ from the Ènforcement Directorate’ or `such
Authority’ ìn relation to the `Combination’, as per Regulation 34 of the
`Combination Regulations’.
212. According to the Learned Counsel for the `3rd Respondent / CAIT’,
Regulations 9 (4) and (5) of the `Combination Regulations’ require the
Àcquirer’ to notify each of the `transactions’ that are part of the
`Proposed Combination’ and further that the mere disclosure of the
Àgreements’ does not amount to the fulfilment of the requirements of

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the Regulations and in this regard, the relevant decisions relied on by the
3rd Respondent/CAIT are:
(i) Competition Commission of India v Thomas Cook (India) Ltd.

& Anr. (2018) 6 SCC 549,
(ii) Sterlite Industries (Combination Registration No.: C-

2012/03/45; order dated 12.04.2012,
(iii) Tech Mahindra (Combination Registration No.: C-2012/03-

48, order dated 26.04.2012.
213. The Learned Counsel for the `3rd Respondent / CAIT’ brings it to
the notice of this `Tribunal’ that the `Regulation 9 (4) of the Combination
Regulation was amended on 01.07.2015 to introduce the `words’, shall
be filed by the `Parties’ to the `Combination’ – thereby imposing a
`Mandatory Obligation’ to notify àll Series or Small Individual
Transactions which are inter-connected’.
that from the representations made by Àmazon’ in its notice and later
responses at several places where it made `False Statements’ (vide
paragraphs 9, 35, 37, Internal Pgs : 40, 43, 71, Paragraphs 36 and 21 of
the Response dated 15.11.2019 to the 1st Respondent/CCI at Pages 254 –
305 and Pages 309 – 383 of Part II of 1st Respondent/CCI’s Convenience
Compilation.

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215. The Learned Counsel for the `3rd Respondent / CAIT’ contends
that in the Àpproval Order’ the 1st Respondent/CCI had notified the
`Proposed Combination’ (which had not included `FRL SHA’ and
examined the `Proposed Combination’ in regard to the coupons / gift
cards activities of `FCPL’. Moreover, the 1st Respondent/CCI vide
Paragraphs 11 to 13 had not defined the `relevant market’ in regard to
`FRL’ because Àmazon’ is not investing in `FRL’ (vide Àpproval
Order’ Annexure A-19 of 3rd Respondent / CAIT’s Appeal, Page 769).
Àmazon’ had suppressed its `strategic rights’ deliberately over `FRL’ so
that it can start `deep discounting’ products (similar to its illegal practices
on its website Amazon.com) at FRL’s brick and mortar stores which will
have a direct anti-competitive impact on `small traders’ and `kirana store
owners’, including the members of CAIT. Apart from that, it is submitted
by the 3rd Respondent / CAIT that the Amazon’s control over `FRL’ will
negatively impact `small traders’ who supply `FRL’ as Àmazon’
through its `BCAs’ will ensure that those `small traders’ will be replaced
by `manufacturing units’ owned by it.
that the `BCAs’ between Amazon’s Affiliates and `FRL’ would also

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ensure that only `Future Retail’ will sell its products on Amazon’s
website which would not only negatively impact `small traders’ who also
sell their products on Àmazon’s website’, but would also be contrary to
Ìndian Foreign Exchange Regulations’. In this connection, the Learned
Counsel for the `3rd Respondent / CAIT’ adverts to the decision of the
Hon’ble Supreme Court in State of Rajasthan V Gotan Lime Stone
Khanij Udyog (P) Ltd., (2016) 4 SCC, Page 469, wherein at paragraph
36, it is held that such àrrangements’ or `devices’ cannot be used by
ùnscrupulous parties’ to `circumvent the law’.
218. The Learned Counsel for the `3rd Respondent / CAIT’ contends
that Section 21 of the General Clauses Act, 1897, enjoins that;
``the Power to issue, to include power to add to, amend, vary or rescind
notifications, orders, rules or bye-laws. Where, by any [Central Act] or
Regulations a power to [issue notifications,] orders, rules or bye-laws is
conferred, then that power includes a power, exercisable in the like
manner and subject to the like sanction and conditions (if any), to add to,
amend, vary or rescind any [notifications,] orders, rules or bye-laws so
[issued].”
ìf a person’ misrepresents and obtain any Àpproval’ or `Permission’ on
the basis of the such misrepresentation, the Àuthority’ granting such
Àpproval’ or `Permission’ has the implicit `Power’ to `revoke’ the
Àpproval’ or `Permission’.

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220. In this regard, the Learned Counsel for the `3rd Respondent / CAIT’
adverts to the decision of the Hon’ble Supreme Court in Sardar
Govindrao V State of Madhya Pradesh in AIR 1965, SC 1222, wherein
at paragraphs 9 and 10, it is observed as under:
9. “In all cases an enquiry has to be made which generally follows

a pattern disclosed by rule 4, sub-rules (a) to (e). But in cases of
maufi or inam held by religious, charitable or public institutions
or service or in case of a maufi or inam for the maintenance of a
descendant of a former ruling chief additional enquiries have to
be made. The rules highlight the distinction between revocation of
exemption in the case of persons belonging to two special
categories and the revocation of exemption in the case of others.
It will be noticed presently that Section 5 of the Act also follows
the same scheme and the rules do no more than emphasise the
special character of sub-section (3) of Section 5. Power has been
conferred on Government to make some other lands free from land
revenue so that sometimes a grant of money or pension and
sometimes exemption from land revenue may be resorted. It could
hardly have been intended that sub-section (3) of Section (5) was
to be rendered nugatory in its purpose by the operation of the
discretion conferred by sub-section (2). The two sub-sections have
to be read separately because though the word "may" appears in
both of them that word in sub-section (3) takes its meaning from
an obligation which is laid upon Government in respect of certain
institutions and persons if the stated conditions are fulfilled. It is
impossible to think that in the case of a religious, charitable or
public institution which must be continued or in the case of
descendants of former ruling Chiefs Government possessed an
absolute discretion to refuse to make a grant of money or pension
for their maintenance or upkeep even though they satisfied all the
conditions for such a grant and were deserving of a grant of money
or pension. The word "may" in Section 5(3) must be interpreted as

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mandatory when the conditions precedent, namely, the existence
of a religious, charitable or public institutions which ought to be
continued or of the descendants of a ruling Chief, is established.
The words "may pass such orders as it deems fit" in sub-section
(2) mean no more than that Government must make its orders to
fit the occasion, the kind of order to be made being determined by
the necessity of the occasion. As stated in Maxwell on the
Interpretation of Statutes:
“Statutes which authorise persons to do acts for the benefit

of others, or, as it is sometimes said, for the public good or
the advancement of justice, have often given rise to
controversy when conferring the authority in terms simply
enabling and not mandatory. In enacting that they `may’: or
`shall, if they think fit,’ or, `shall have power,’ or that "it
shall be lawful" for them to do such acts a statute appears
to use the language of mere permission, but it has been so
often decided as to have become an axiom that in such cases
such expressions may have__to say the least__ a
compulsory force, and so would seem to be modified by
judicial exposition."
This is an instance where, on the existence of the condition

precedent, the grant of money or pension becomes obligatory on
the Government notwithstanding that in Section 5 (2) the
Government has been given the power to pass such orders as it
deems fit and in sub-section (3) the word "may" is used. The word
"may" is often read as "shall" or "must" when there is something
in the nature of the thing to be done which makes it the duty of the
person on whom the power is conferred to exercise the
power. Section 5 (2) is discretionary because it takes into account
all cases which may be brought before the Government of persons
claiming to be adversely affected by the provisions of Section 3 of
the Act. Many such persons may have no claims at all though they
may in a general way be said to have been adversely affected by
Section 3. If the power was to be discretionary in every case there

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was no need to enact further than sub-section (2). The reason why
two sub-sections were enacted is not far to seek. That Government
may have to select some for consideration under sub-section (3)
and some under Section 7 and may have to dismiss the claims of
some others requires the contenment of a discretion and sub-
section (2) does no more than to give that discretion to
Government and the word "may" in that subsection bears its
ordinary meaning. The word "may" in sub-section (3) has,
however, a different purport. Under that sub-section Government
must, if it is satisfied that an institution or service must be
continued or that there is a descendant of a former ruling Chief,
grant money or pension to the institution or service or to the
descendant of the former ruling Chief, as the case may be. Of
course, it need not make a grant if the person claiming is not a
descendant of a former ruling Chief or there is other reasonable
ground not to grant money or pension. But, except in those cases
where there are good grounds for not granting the pension,
Government is bound to make a grant to those who fulfil the
required condition and the word "may" in the third sub-section
though apparently discretionary has to be read as "must".
The High Court was in error in thinking that the third sub- section
also like the second conferred an absolute discretion.
10. The next question is whether Government was justified in

making the order of April 26, 1955? That order gives no reasons
at all. The Act lays upon the Government a duty which obviously
must be performed in a judicial manner. The appellants do not
seem to have been heard at all. The Act bars a suit and there is all
the more reason that Government must deal with such cases in a
quasi-judicial manner giving an opportunity to the claimants to
state their case in the light of the report of the Deputy
Commissioner. The appellants were also entitled to know the
reason why their claim for the grant of money or a pension was
rejected by Government and how they were considered as not
falling within the class of persons who it was clearly intended by
the Act to be compensated in this manner. Even in those cases

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where the order of the Government is based upon confidential
material this Court has insisted that reasons should appear when
Government performs curial or quasi-judicial functions (see Hari
Nagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala –
06.10.1964). The High Court did not go into any other question at
all because it rejected the petition at the threshold on its
interpretation of Section 5 (3). That interpretation has been found
by us to be erroneous and the order of the High Court must be set
aside. As the order of Government does not fulfil the elementary
requirements of a quasi-judicial process we do not consider it
necessary to order a remit to the High Court. The order of the State
Government must be set aside and the Government directed to
dispose of the case in the light of our remarks and we order
accordingly. The respondents shall pay the costs of the appellants
in this Court and the High Court. Appeal allowed.”
221. The Learned Counsel for the `3rd Respondent / CAIT’ takes a stand
a `Party’ cannot to be allowed to get away from the consequences of the
`Suppression’, `False Statements’ and `Misrepresentations’ and further
that it makes a no difference whether an Òrder’ of is a `Court’ or àn
Àdministrative’ or `Statutory Authority’, and refers to the Judgement of
the Hon’ble Supreme Court in A.V. Papayya Sastry V Govt. of A.P.,
(2007) 4 SCC Page 221 at Spl. Page 231, wherein at paragraphs 22 and
23, it is observed as under:
22. “ It is thus settled proposition of law that a judgment, decree

or order obtained by playing fraud on the court, tribunal or
authority is a nullity and non est in the eye of law. Such a judgment,
decree or order__by the first court or by the final court__has to be

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treated as nullity by every court, superior or inferior. It can be
challenged in any court, at any time, in appeal, revision, writ or
even in collateral proceedings.
23. In the leading case of Lazarus Estates Ltd. v. Beasley (1956) 1

All ER 341; Lord Denning observed: (All ER p. 345 C).
“No judgment of a court, no order of a Minister, can be

allowed to stand if it has been obtained by fraud.”
222. The Learned Counsel for the `3rd Respondent / CAIT’ relies on the
decision of the Hon’ble Supreme Court in Hamza Haji v. State of Kerala,
reported in 2006 7 SCC at Page 416; Spl Pages 427 and 428, wherein at
Paragraph 25, it is observed as under:
25. “Thus, it appears to be clear that if the earlier order from the
Forest Tribunal has been obtained by the appellant on perjured
evidence, that by itself would not enable the Court in exercise of
its power of certiorari or of review or under Article 215 of the
Constitution of India, to set at naught the earlier order. But if the
Court finds that the appellant had founded his case before the
Forest Tribunal on a false plea or on a claim which he knew to be
false and suppressed documents or transactions which had
relevance in deciding his claim, the same would amount to fraud.
In this case, the appellant had purchased an extent of about 55
acres in the year 1968 under Document No. 2685 of 1968 dated 2-
6-1968. He had, even according to his evidence before the Forest
Tribunal, gifted 5 acres of land to his brother under a deed dated
30-1-1969. In addition, according to the State, he had sold, out of
the extent of 55.25 acres, an extent of 49.93 acres by various sale
deeds during the years 1971 and 1972. Though, the details of the
sale deeds like the numbers of the registered documents, the dates
of sale, the names of the transferees, the extents involved and the
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considerations received were set out by the State in its application
for review before the High Court, except for a general denial, the
appellant could not and did not specifically deny the transactions.
Same is the case in this Court, where in the counter affidavit, the
details of these transactions have been set out by the State and in
the rejoinder filed by the appellant, there is no specific denial of
these transactions or of the extents involved in those transactions.
Therefore, it stands established without an iota of doubt as found
by the High Court, that the appellant suppressed the fact that he
had parted with almost the entire property purchased by him under
the registered document through which he claimed title to the
petition schedule property before the Forest Tribunal. In other
words, when he claimed that he had title to 20 acres of land and
the same had not vested in the State and in the alternative, he bona
fide intended to cultivate the land and was cultivating that land, as
a matter of fact, he did not have either title or possession over that
land. The Tribunal had found that the land was a private forest
and hence has vested under the Act. The Tribunal had granted
relief to the appellant only based on Section 3(3) of the Act, which
provided that so much extent of private forest held by an owner
under a valid registered document of title executed before the
appointed day and intended for cultivation by him and that does
not exceed the extent of the ceiling area applicable to him under
Section 82 of the Kerala Land Reforms Act, could be exempted.
Therefore, unless, the appellant had title to the application
schedule land and proved that he intended to cultivate that land
himself, he would not have been entitled to an order under Section
3(3) of the Act. It is obvious that when he made the claim, the
appellant neither had title nor possession over the land. There
could not have been any intention on his part to cultivate the land
with which he had already parted and of which he had no right to
possession. Therefore, the appellant played a fraud on the Court
by holding out that he was the title-holder of the application
schedule property and he intended to cultivate the same, while
procuring the order for exclusion of the application schedule
lands. It was not a case of mere perjured evidence. It was
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suppression of the most vital fact and the founding of a claim on a
non-existent fact. It was done knowingly and deliberately, with the
intention to deceive. Therefore, the finding of the High Court in
the judgment under appeal that the appellant had procured the
earlier order from the Forest Tribunal by playing a fraud on it,
stands clearly established. It was not a case of the appellant merely
putting forward a false claim or obtaining a judgment based on
perjured evidence. This was a case where on a fundamental fact of
entitlement to relief, he had deliberately misled the Court by
suppressing vital information and putting forward a false claim,
false to his knowledge, and a claim which he knew had no basis
either in fact or on law. It is therefore clear that the order of the
Forest Tribunal was procured by the appellant by playing a fraud
and the said order is vitiated by fraud. The fact that the High Court
on the earlier occasion declined to interfere either on the ground
of delay in approaching it or on the ground that a Second Review
was not maintainable, cannot deter a Court moved in that behalf
from declaring the earlier order as vitiated by fraud.”
223. The Learned Counsel for the `3rd Respondent / CAIT’ cites the
decision of the Hon’ble Supreme Court in United Insurance Company v.
Rajendra Singh, reported in (2000) 3 SCC 581 at Spl. Page: 587, wherein
at Paragraph 16, it is observed as under:
16. ``Therefore, we have no doubt that the remedy to move for

recalling the order on the basis of the newly-discovered facts
amounting to fraud of high degree, cannot be foreclosed in such a
situation. No court or tribunal can be regarded as powerless to
recall its own order if it is convinced that the order was wangled

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through fraud or misrepresentation of such a dimension as would
affect the very basis of the claim.”
224. The Learned Counsel for the `3rd Respondent / CAIT’ falls back
upon the decision of the Hon’ble Supreme Court in Indian Bank v.
Satyam Fibres (India) Pvt. Ltd., reported in (1996) 5 SCC 550 at Spl.
Page: 563, wherein at Paragraph 23, it is observed as under:
23.``Since fraud affects the solemnity, regularity, and orderliness

of the proceedings of the court and also amounts to an abuse of
the process of court, the courts have been held to have inherent
power to set aside an order obtained by fraud practised upon that
court. Similarly, where the court is misled by a party or the court
itself commits a mistake which prejudices a party, the court has
the inherent power to recall its order (See: Benoy Krishna
Mukerjee v. Mohanlal Goenka (AIR 1950 Cal 287), Gajanand Sha
v. Dayanand Thakur (AIR 1943 Pat 127), Krishnakumar v. Jawand
Singh (AIR 1947 Nag 236), Devendra Nath Sarkar v. Ram
Rachpal Singh (AIR 1926 Oudh 315), Saiyed Mohd. Raza v. Ram
Saroop (AIR 1929 Oudh 385 (FB), Bankey Behari Lal v. Abdul
Rahman (AIR 1932 Oudh 63), Lekshmi Amma Chacki Amma v.
Mammen Mammen (1955 Ker LT 459). The court has also the
inherent power to set aside a sale brought about by fraud practised
upon the court (Ishwar Mahton v. Sitaram Kumar (AIR 1954 Pat
450), or to set aside the order recording compromise obtained by
fraud (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh (AIR
1958 Pat 618), Tara Bai v. V.S. Krishnaswamy Rao (AIR 1985
Kant 270).”
that in the ìmpugned order’, findings on `Fault Statements’,

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`Suppression’, and `Misrepresentations’ were rendered by the 1st
Respondent / CCI and that the `Commission’ had no other option but to
revoke the Àpproval Order’, but the `Commission’ had directed the
keeping in àbeyance’ of the Àpproval Order’.
The Competition Act, 2002:
226. The Competition Act, 2002, does not specify any qualification for a
person who desires to file an information under Section 19 (1) (a) of the Act.
A mere glance of the simpliciter language of Sections 18 and 19 read with 26
(1) of the Competition Act, 2002, shows that it cannot be inferred by an Homo-
sapien that the 1st Respondent/CCI has the power to refuse a relief claimed
from investigation into the allegations concerning the breach of Section 3 and
4 of the Act. Further, the Scheme of the Competition Act is an inquisitorial one
and the 1st Respondent/CCI in appropriate case.
Agreement:
227. Section 2 (b) of the Competition Act, 2002, defines Àgreement’,
includes any arrangement or understanding or action in concert,_
“(i) whether or not, such arrangement, understanding or action is

formal or in writing; or
(ii) whether or not such arrangement, understanding or action is

intended to be enforceable by legal proceedings”

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Enterprise:
228. Section 2 (h) of the Competition Act, 2002, defines Ènterprise’,

meaning
“a person or a department of the Government, who or which is,

or has been, engaged in any activity, relating to the production,
storage, supply, distribution, acquisition or control of articles or
goods, or the provision of services, of any kind, or in investment,
or in the business of acquiring, holding, underwriting or dealing
with shares, debentures or other securities of any other body
corporate, either directly or through one or more of its units or
divisions or subsidiaries, whether such unit or division or
subsidiary is located at the same place where the enterprise is
located or at a different place or at different places, but does not
include any activity of the Government relatable to the sovereign
functions of the Government including all activities carried on by
the departments of the Central Government dealing with atomic
energy, currency, defence and space.
Explanation.—For the purposes of this clause,—
(a) “activity” includes profession or occupation;
(b) “article” includes a new article and “service”

includes a new service;
(c) “unit” or “division”, in relation to an enterprise,

includes—
(i) a plant or factory established for the production,

storage, supply, distribution, acquisition or control of
any article or goods;
(ii) any branch or office established for the provision

of any service;

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(i) “goods” means goods as defined in the Sale of
Goods Act, 1930 (8 of 1930) and includes—
(A) products manufactured, processed or mined;
(B) debentures, stocks and shares after allotment;
(C) in relation to goods supplied, distributed or

controlled in India, goods imported into India;”
Relevant Market:
229. Section 2 (r) of the Competition Act, 2002, defines `relevant
market’, meaning,
“the market which may be determined by the Commission with

reference to the relevant product market or the relevant
geographic market or with reference to both the markets.”
Indeed, for determining whether a market constitutes à relevant market’
for the purpose of the Competition Act, 2002, the `Competition
Commission’ shall have due regard to the `relevant geographic market’
and `relevant product market’ as per Section 19 (5) of the Competition
Act. Really speaking, the `relevant market’ comprises a `product’ or
`group of products and geographic area’, which these products are
produced or traded. As a matter of fact, the `term’ `relevant market’ is
used with a view to identify the `products’ and ènterprises’ which are

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directly competing in business. `Relevant Market’ is a `market’, where a
`competition’ takes place.
Relevant Geographic Market:
230. The `relevant geographic market’ is defined in Section 2 (s) of the
Competition Act, 2002, in terms of area, in which, the conditions of the
Competition for supply of goods or provision of services or demand of
goods or services are distinctly homogenous and can be distinguished
from the conditions prevailing in the neighbouring areas. In this
connection, this `Tribunal’ points out that it can be understood as the
geographical region within which `substitutable product’ can be made
available at a similar price.
231. As per Section 19 (6) of the Competition Act, 2002, the factors to
be taken into consideration while deciding the `relevant geographic
market’ include; (a) regulatory trade barriers; (b) local specification
requirements; (c) national procurement policies; (d) adequate distribution
facilities; (e) transport costs; (f) language; (g) consumer preferences; (h)
need for secure or regular supplies or rapid after-sales services.

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Relevant Product Market:
232. Section 2 (t) of the Competition Act, 2002, defines `relevant
product market’, meaning,
“a market comprising all those products or services which are

regarded as interchangeable or substitutable by the consumer, by
reason of characteristics of the products or services, their prices
and intended use”
233. In fact, the factors which may be taken in to account while deciding
the `relevant product market’ include (a) physical characteristics or end
use of `Goods’; (b) price of `Goods’ of services; (c) consumer
preferences; (d) Exclusion of in-house production; (e) Existence of
specialised producers.
Turnover:
234. Section 2 (y) of the Competition Act, 2002, defines `turnover’,
includes, “value of sale of goods or services”.
235. The `term’ `turnover’ occurring in Section 27 (b) and its proviso
of the Competition Act, 2002, pertain to the `Goods’, `Produces’ and
`Qua’ which `finding of violation of Section 3 and / or Section 4 was
recorded’ and while imposing `penalty’, the `Commission’ cannot take

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average turnover of last three preceding financial years’ products in
respect of other Goods or Services of an Ènterprise’ or Àssociation of
Enterprise’ or a `Person’ or Àssociation of Persons’.
Combination:
236. To be noted, that Section 5 of the Competition Act, 2002, sees at
acquisition of control, shares, voting rights or Assets while determining
if a transaction is to be notified to the Commission under Section 6 of the
Act. As a matter of fact, if a particular transaction or a series of
transactions falls within the purview of `Combination’, it is obligatory to
report the same to the Competition Commission of India, as per Section
6 of the Competition Act, 2002. In fact, the definition of `Group’, relies
on the understanding of `control’.
237. In terms of the `Scheme of the Act’, Ènterprises’ proposed to enter
into `Combination’ will have to notify the `Commission’ before making
an entry into such `Combination’.
238. In Competition Law practice, `Control’ is considered as a matter
of `degree’. However, all `degrees’ and forms of control nevertheless
constitute `control’ as per decision in Telenor ASA (India)
Communications Pvt Ltd and Telenor South Asia Investments Pte Ltd

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(decided on 03.07.2018). Further, it is pointed out that the definition of
`control’ is not ìndicative of any right’, which if present, may `confer’
`control’.
239. It is to be pointed out that the `Combination Regulations’, 2011,
have clarified that any `reference’ to `combination’ shall mean a
`Proposed Combination’ shall mean `combination’ or `combined entity’,
if the `combination’ has come in to effect, as the case may be. Further,
`parties to the combination’, mean `persons’ or ènterprises’ entering in
to a `combination’ and shall include the `combined entity’ if the
`combination’ come in to effect.
240. The `term’ `Merger’ or Àmalgamation’ is not defined under the
Competition Act, 2002. The word Àmalgamation’ has no definite
meaning. In Halsbury’s Law of England, Àmalgamation’ is defined as
`blending of two or more existing Ùndertakings’ into òne Undertaking’
the `Shareholders’ of each blending company become substantially the
`Shareholders’ in the company, which is to carry on the blended
undertaking.
241. That apart, Àmalgamation’ contemplates a `state of things’ under
which two companies are so joined as to form a `third entity’ or òne

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company’ is absorbed into and blended with ànother company’, vide Re
Walker’s Settlement (1935) 1 Ch 567.
242. The task of `Merger’ bringing under unified control over the
ènterprises’ that was previously independent and this is accomplished
either through Àcquisition’ of `stock’ or through `purchase of physical
Assets’.
Regulation of Combination (Section 6 of The Competition Act,

2002):
243. It is pointed out that the `Competition Assessment’ of a
`Combination’ in words of two `counter factual market scenarios’, Viz.
with or without `Combination’. In fact, the `Commission’ considers the
relevant factors mentioned in Section 20 (4) of the Competition Act,
2002, which among other things includes `market share of the parties to
the Combination’, èntry barriers’, èxtent of vertical integration’ and
èconomic strength of parties’ and `determines the effect of `Proposed
Combination’ on `Competition’ in `relevant market’.
244. It is significantly pointed out that `Regulation 9 of the Competition
Commission of India (Procedure in regard to the Transaction of Business
relating to Combinations) Regulations, 2011’, pertains to an òbligation’

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to file the `Notice’. In fact, Regulation 9 (1) of the Combination
Regulations proceeds as under:
``9. Obligation to file the notice. –

(1) In case of an acquisition or acquiring of control of
enterprise(s), the acquirer shall file the notice in Form I or Form
II, as the case may be, which shall be duly signed by the person(s)
as specified under regulation 11 of the Competition Commission
of India (General) Regulations, 2009.
Provided that in case of a company, apart from the persons
specified under clause (c) of sub-regulation (1) of regulation 11 of
the Competition Commission of India (General) Regulations,
2009, Form I or Form II may also be signed by [any person duly
authorised by the (Company)].
(2) In case the enterprise is being acquired without its consent, the
acquirer shall furnish such information as is available to him, in
Form I or Form II, as the case may be, relating to the enterprise
being acquired:
Provided that all information required to be filed, relating to the
enterprise being acquired shall be filed with the Commission
within fifteen days from filing of the notice and in case the acquirer
is not in a position to furnish all the required information in Form
I or Form II, as the case may be, relating to the enterprise being
acquired, the Commission may direct the enterprise being
acquired to furnish such information as it deems fit and the time
taken by the parties to the combination or the acquired enterprise,
as the case may be, in furnishing the required information
including document(s) shall be excluded from the period provided
in [sub-section (2A) of section 6 of the Act,] sub-section (11) of
section 31 of the Act and sub-regulation (1) of regulation 19 of
these regulations.
(3) In case of a merger or an amalgamation, parties to the
combination shall jointly file the notice in Form I or Form II, as

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the case may be, duly signed by the person(s) as specified under
regulation 11 of the Competition Commission of India (General)
Regulations, 2009.
Provided that in case of a company, apart from the persons
specified under clause (c) of sub-regulation (1) of regulation 11 of
the Competition Commission of India (General) Regulations,
2009, Form I or Form II may also be signed by [any person duly
authorised by the Company].
(4) Where the ultimate intended effect of a business transaction is

achieved by way of a series of steps or smaller individual
transactions which are inter-connected or inter-dependent on each
other, one or more of which may amount to a combination, a single
notice, covering all these transactions, [shall be filed by the
parties] to the combination.
(5) The requirement of filing notice under regulation 5 of these

regulations shall be determined with respect to the substance of
the transaction and any structure of the transaction(s), comprising
a combination, that has the effect of avoiding notice in respect of
the whole or a part of the combination shall be disregarded.”
245. If the parties to a `Combination’ failed to file `Notice’ under sub-
section (2) of Section 6 of the Competition Act, 2002, the `Commission’
may under sub-section (1) of Section 20 of the Act, upon its own
knowledge or information relating to such `Combination’ inquire into
which such a `Combination’ has caused or is likely to cause an
Àppreciable’, Àdverse’ effect on `Competition’ in India.
246. Furthermore, the `Notice’ of `Proposed Combination’ under
Section 6 (2) of the Competition Act, 2002, is to be given prior to

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`consummation of Combination’. As a matter of fact, Ex Post Facto
`Notice’ is not envisaged as per Section 6 (2) of the Competition Act,
2002. It is important that the Competition Commission of India receives
prior Ex ante Notification of `Proposed Combination’ in order for it, to
effectively prevent ante-competitive Àcquisitions’ and `Mergers’.
Inserted Regulation:
247. The newly inserted Regulation 16A (1) enjoins the parties to the
`Combination’ to withdraw and refile the `Notice’ (either filed
voluntarily or under CCI’s directions) with permission of the
`Commission’ before the issuance of `Show Cause Notice’ under Section
29 (1) of the Competition Act, 2002. By virtue of this amendment, the
parties can address the material defects / deficiencies in `Notice’ without
facing an invalidation by the `Commission’.
248. Dealing with `Notice’ to the `Combination’ as per Section 6 (3) of
the Competition Act, 2002, once mandatory `Notice’ is given under
Section 6 (2) of the Competition Act, 2002, the Competition Commission
of India is to deal with the same as per provisions of Section 29, 30 & 31
of the Competition Act, 2002.

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249. Added further, the `prepayment of consideration in part’ or `full
amounts’ to `consummation of a part of a Combination’ and àmounts to
violation of an obligation’ contained in `Section 6 (2) read with Section
6 (2-A) of the Competition Act, 2002. Indeed, the Competition
Commission of India may `suo moto’ issued a `Show Cause Notice’ to
the `Parties’ to its `Combination’ under Section 29 of the Act for an
ìnvestigation of Combination’. In this connection, it is not out of place
for this `Tribunal’ to make a pertinent mention that if the `Commission’
deems it necessary to provide an òpportunity of being heard to the
Parties’ to the `Combination’ before deciding to deal with the case in
accordance with the provisions contained in Section 31 of the
Competition Act, 2002, the `Secretary’ shall convey its `directions’ to the
said `Parties’ to àppear’ before it by giving a `Notice’ of such period as
directed by the `Commission’ [vide Competition Commission of India
(procedure in regard to the transaction of business relating to
Combinations) Regulations, 2011)]. After the enquiry, the `Competition
Commission’ may àpprove’ the `pro-combination’ or may `propose
modification’ to the `Combination’ (known as `Remedies’) or may
òpine’ that the `Proposed Combination’ be not given effect to.

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250. It is to be remembered that the `Competition Commission of India’
may pass an Òrder’ for Àpproval’, where the Commission is of the
opinion that the `Combination’ does not or is not likely to have an
ÀAEC’. Besides this, the Competition Commission of India is likely to
approve `Combination’ where there is no horizontal or vertical overlap
or even there is an overlap, there is either an insignificant overlap or the
market is fragmented to contain `multiple prominent players’ and the
`combined market share’ of the `Proposed Combination’ is insignificant.
Duties of 1st Respondent/Competition Commission:
251. The aim of 1st Respondent/CCI is the Institution of a system of
undistorted competition which is commensurate to the promotion of the
interest of the Consumers. Further the exercise of power as per Section
18 of the Competition Act, 2002, is subject to the other provisions of the
Competition Act, 2002. In fact, the preamble of the Competition Act,
2002 and Section 18 of the Competition Act, 2002, mandates the
`Commission’ to `protect the Consumers interest and to ensure that the
Consumers surplus is not adversely impacted’.

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Purview of Section 19 of the Competition Act, 2002:
252. It must be borne in mind that as per the Scheme of the Competition
Act, 2002, it is not obligatory that there must be an Ìnformant’ to initiate
an ìnquiry’ for an ìnvestigation’ the `Commission’ can proceed even
`suo moto’ on any reference being made by the Central Government or
State Government or any Statutory Authority. Suffice it for this
`Tribunal’ to point out that the facts and allegations mentioned /
highlighted in the Ìnformation’ the `Competition Commission of India’
is more concerned with the fair functioning of the `market’ and the
motive with which the Ìnformant’ has approached the `Commission’ is
subservient to that purpose.
253. The 1st Respondent/CCI can take `suo moto cognisance’ of the
case based on an anonymous complaint. But the Commission must be
satisfied that there exists a prima facie case for ordering into the
allegation of violation of Section 3 (1) or Section 4 (1) of the Act. Also
that, the 1st Respondent/CCI may take cognisance of the Reports
appearing in `Print’ or Èlectronic Media’ or Ànonymous Complaint’ /
`Representation’ suggesting a Breach of Section 3 and 4 of the Act, and
issue direction for an investigation under Section 26 (1) of the Act, 2002.

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254. In a given case, the Commission may not act upon information
filed under Section 19 (1) (a) of the Competition Act, 2002, but may `suo
moto’ take cognisance of facts constituting violation of Section 3 (1) or
Section 3 (4) of the Act, 2002 and direct an investigation.
255. It is to be pointed out that Section 19 of the Competition Act, 2002,
originally stated that `receipt of complaint’ from any person, consumer
or their association or trade association. In fact, the expression `receipt
of a complaint’ (with effect from 20.05.2009 was substituted by Act 39
of the 2007) with an expression `receipt of any information’ in such
manner, by virtue of amendment brought in 2007. In fact, Regulation 10
of Competition Commission of India (General) Regulations, 2009, does
not require an informant to state how he is personally aggrieved by
violation of the Competition Act. As per Regulation 25 of the
Competition Commission of India (General) Regulations, 2009. The
public interest must be foremost in the consideration of the `Commission’
when an Àpplication’ is made in writing. A reading of Section 35 of the
Competition Act, 2002, in which an earlier term `complainant’ or
`defendant’ was substituted by the expression `person’ or àn Enterprise’.

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Inquiry into `Combination’:
256. Section 20 (4) of the Competition Act, 2002, prescribes factors that
1st Respondent/CCI will take into account to decide whether a
`Combination’ will have or is likely to have ÀAEC’ in relevant market.
Procedure for Investigation of `Combinations’:
257. Section 29 of the Competition Act, 2002, lays down a detailed
procedure for an investigation of `Combination’ if the `Commission’ is
of the opinion that any `Combination’ is likely to cause, or has caused an
Appreciable Adverse Effect on Competition within the relevant market
in India. Also that, Section 29 of the Competition Act, 2002, prescribes
a time bound procedure for an Ìnvestigation’ of `Combinations’.
Further, the 137 days does not cover the time taken by the `Director
General’ in submitting his report or the `Competition Commission’ for
hearing the matter orally, if necessary, and passing àppropriate orders’.
258. It is up to the `Competition Commission of India’ after considering
the facts on records, details provided in `Notice’ and `Responses’ filed
by the `Parties’ may form a prima facie opinion that the `Proposed
Combination’ is likely to cause an Appreciable Adverse Effect within
`relevant market’ in India.

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Procedure in case of `Notice’ under Section 6 (2):
259. Section 30 of the Competition Act, 2002, envisages that `where
any `Person’ or Ènterprise’ has given a `Notice’ under `Section 6 (2) of
the Act’, the `Commission’ shall examine such `Notice’ and form its
prima facie opinion as mentioned in sub-section 1 of Section 29 and
proceed as per provisions contained in that Section.
Orders of `Commission’ on certain `Combinations’:
260. Section 31 (2) of the Competition Act, 2002, enjoins that where
the `Commission’ is of the opinion that the `Combination’ has, or is likely
to have, an Appreciable Adverse Effect on Competition, it shall direct
that the `Combination’ shall not take effect.
261. Section 31 (3) of the Competition Act, 2002, points out that, if the
`Commission’ approves the `Combination’ with modification, the
Commission’s order approving the `Combination’ shall specify that
terms and conditions and the time for all `Constituent activities’ giving
effect to the `Proposed Combination’ and shall call for a `Compliance
Report’.

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Imposition of `Penalty:
262. Section 43A of the Competition Act, 2002, speaks of the power of
the `Commission’ to levy penalty for non-furnishing of information and
the `penalty’ shall be imposed by the `Competition Commission’ upon
any `Person’ or Ènterprise’ who had failed to issue `Notice’ to the
`Commission’ as per Section 6 (2) of the Act, extending to 1% of the total
turnover or the assets, whichever is higher of such `Combination’.
Penalty for making false statement, etc.:
263. Section 44 of the Competition Act, 2002, deals with the aspect of
penalty being imposed upon any `Person’ being a party to a
`Combination’ for making `false statements’ or òmission’ to furnish
`material information’ and such penalty shall not be less than rupees fifty
lakh, but it may extend to rupees one crore, as may be determined by the
`Commission’.
Penalty for offences in relation to furnishing of information:
264. Section 45 of the Competition Act, 2002, relates to the `penalty
when a person furnishes or is required to furnish any particulars,
documents or information makes any statement or furnishes any

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document which he knows or has reason to believe to be false in any
material particular or omits to state any material fact knowing it to be
material, etc., and such person shall be punishable with fine which may
extend to rupees one crore as may be determined by the `Commission’.
265. This Àppellate Tribunal’ has heard the Learned Senior Counsels,
the Learned Counsels and the Learned Additional Solicitor General,
appearing for the respective `Parties’ and noticed their contentions.
Appraisal in Competition Appeal (AT) No. 1 of 2022:
266. At the outset this `Tribunal’, points out that the `1st
Respondent/Competition Commission of India’ had received a `Notice’,
on 23.09.2019 in terms of Section 6 (2) of the Competition Act, 2002,
filed by the Àppellant’/Àmazon.com NV Investment Holdings LLC’
(Àmazon/Acquirer’) and this `Notice’ was filed in carrying out the
execution of `Share Subscription Agreement’ (`SSA’) and `Shareholders
Agreement’ (`SHA’) both dated 22.08.2019. Furthermore, these
Àgreements’ were entered into Èntities’, the Àppellant’
(Àmazon.com NV Investment Holdings LLC’), `Future Coupons
Private Limited’ (`FCL / Target’) and the Promoters of `FCL’).

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267. It comes to be known that under `Part V’ `Description of the
`Combination’ of the `Notice’ dated 23.09.2019, the `Combination’
informed by the Àppellant’/Àmazon’ encompassed the three following
transactions’, which are to the undermentioned effect:
“Transaction I: The issue of Nine Million one Hundred and Eighty

Three Thousand Seven Hundred and Fifty-Four (9,183,754) Class
A voting equity shares of FCPL to Future Coupons Resources
Private Limited (FCRPL). Prior to, and immediately post issuance
of such equity shares, FCPL will be a wholly owned subsidiary of
FCRPL; and
Transaction II: The transfer of Thirteen Million Six Hundred and

Sixty Six Thousand Two Hundred and Eighty Seven (13,666,287)
shares of FRL held by FCRPL (representing Two decimal Five
Two Percent (2.52%) of the issued, subscribed and paid-up equity
share capital of Future Retail Limited (FRL), on a Fully Diluted
Basis) to FCPL; and
Transaction III: The acquisition of the Subscription Shares

representing Forty Nine percent (49%) of the total issued,
subscribed and paid-up equity share capital of FCPL (on a Fully
Diluted Basis) by Amazon, by way of a preferential allotment.”
268. At this juncture, this `Tribunal’ relevantly points out that in the
`Notice’ of Àmazon’ dated 23.09.2019, it was mentioned that the
obligation of Àppellant’ / Àmazon.com NV Investment Holdings LLC’
was depending upon the accomplishment of Transaction I and II.
Continuing further, it was made mention of that neither the Transaction I

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nor Transaction II was to be notified to the `1st Respondent / CCI’ on a
standalone basis being visualised concerning a parent and its subsidiary.
In respect of Transaction III, it was mentioned that (on a standalone basis)
benefits from `target exemption’ was below the verge specified for such
commitment, in view of the fact that the `Value of Assets’ and `Turnover’
of `FCPL / 2nd Respondent’ as on 31.03.2019. Besides these, the
Àppellant’ had mentioned that in the event of the `1st Respondent/CCI’
pondering that the `Combination’ to be notifiable, the Àppellant’ will
notify the `Combination’ as per Section 6 (2) of the Competition Act,
2002, read with Regulation 9 (4) of the Competition Commission of India
(procedure in regard to the transaction of business relating to
Combination) Regulations, 2011.
269. It cannot be gainsaid that in the `Notice’ of the Àppellant’ dated
23.09.2019 as per Section 6 (2) of the Act in Form I of Schedule II of the
Competition Commission of India (Procedure in regard to the transaction
of business relating to Combination) Regulations, 2011. The Àppellant’
had mentioned that the parties had entered into `FCPL SSA’ and `FCPL
SHA’ as regards the `Combination’.

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270. According to the Àppellant’/Àmazon’ the `rights’ proposed to be
acquired by the Ìnvestor’ in terms of `SHA’ to protect its investment in
`FCL’ is mentioned in Table 3 in brief, which runs as under:
Sr.No. Reference to Subject matter of Brief Description of the

the SHA the right acquired required right
i. Section 6.2.1 Appointments to The Board will comprise of five(5)
read with the board of directors, out of which two (2) will
Section 6.2.2 directors of FCL be nominated and appointed by the
and Section (“Board”) quorum Investor (each such director, an
6.2.3; and other “Investor Director"), as long as the
Section associated rights. Investor holds Forty Nine percent
6.8(vii); (49%) of the equity share capital of
Section FCL. In case of a change in the
6.9(i); shareholding of FCL, if the Investor
Section 6.11 holds less than forty nine percent
and Section (49%) of the equity share capital,
6.12 but at least twenty five percent
(25%) of the equity share capital of
FCL, it will have the right to
nominate one (1) Investor Director
to the Board. A meeting of the
Board can be called on a shorter
notice only if the same has been
consented to by at least one (1)
Investor Director and at least one
(1) director nominated by the
Promoters. If a meeting of the
Board involves an Investor
Protective Matter (as defined in the
SHA), no business in respect of such
Investor Protective Matter may be
conducted without the presence and
participation of at least one (1)
Investor Director.
ii. Section 6.22 Right to request The Investor may request FCL to
appointment of an appoint an Investor Director as an
observer to the observer on the board of the
board of directors Material Entities who may attend
of any Material (but not vote in) board proceedings,
Entity (as defined receive all information that is
in the SHA). provided to the members of the

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board of all Material Entities (as
defined in the SHA).
iii. Section 8 Consideration of Items identified in Schedule IX and
read with Investor Protective Schedule X have a direct bearing on
Schedule IX matters (as defined Investor's investment in as FCL.
and X in the SHA) and Accordingly, items identified in the
Investor Protective Schedule IX can only be considered
Notice Matters (as and by FCL's Board or a committee
defined in the SHA) thereof:
(a) after procuring a prior written
consent from the Investor; or
(b) if at least one (1) Investor
Director is present and has voted in
favour of such an item.
Items Identified in Schedule X can
only be considered by FCL’s Board
or shareholders if a prior notice of
at least fifteen (15) business days
has been served to the Investor and
the Investor Directors.
iv. Section 9 Reporting The Investor has the right to seek
Information and and examine financial reports and
Access Rights other books and records
maintained by FCL, and its
subsidiaries.
v. Section 13 Consent and Prior written consent from the
compliance in Investor would be required before:
relation to (a) FCL decides implements any on
Material Entity or matter under the FRL SHA which
matters. requires FCL's consent;
(b) FCL decides to decline, recuse
itself, or not subscribe to its pro-
rata entitlement in relation to
issuance of securities by a Material
Entity;
(c) Any updates to the list of
"Restricted Persons" and its
communication to FRL under the
FRL SHA; and
(d) Assignment of the rights and
obligations of FCL and the
Promoters (as defined in the SHA)
under the FRL SHA.
vi. Section 14 Transfer of Retail FCL and the Promoters have
Assets (as defined agreed not to undertake any sale,
in the SHA) divestment, transfer, disposal, etc.
of retail outlets across various
formats operated by FRL (which is
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an integral part of the business
conducted by FRL) except as
mutually agreed (in writing)
between the Promoters and the
Investor, or contained in the FRL
SHA or any commercial agreement
between a Material Entity (as
defined in the SHA) and an affiliate
of the Investor. FCL and the
Promoters have also agreed not to
transfer, encumber, divest or
dispose of these retail Assets (as
defined in the SHA), directly or
indirectly, in favour of a mutually
agreed list of Restricted Persons (as
defined in the SHA)
271. Further, the Àppellant’/Àmazon’ in the `Notification’ dated
23.09.2019 (Form I) in Table 4, under the caption `Milestones to the
Proposed Combination’ had mentioned as under:
Milestone Date
Execution of the SSA amongst the Investor, August 22, 2019
Promoters and FCL in relation to the acquisition
of the Subscription Shares
Execution of SHA amongst the Investor, August 22, 2019
Promoters and FCL
272. Moreover, the Àppellant’/Àmazon’ had stated that the Proposed
Transaction I and Proposed Transaction II are conditions precedent to
Proposed Transaction III. Therefore, after receipt of the approval of the
Hon’ble Commission, in order to effectuate Proposed Transaction III, the
Promoter Group will carry out Proposed Transaction I and Proposed

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Transaction II. Under the SSA, the Long Stop Date is 180 days from the
date of execution, i.e., 18 February 2020 (or such date as may be mutually
agreed between the parties (Section 5.1 of the SSA).
273. Indeed, the Àppellant’ / Àmazon’ in the `Notification’ dated
23.09.2019 (Form I) under the subject Èconomic and strategic purpose
(including business objectives and rationale for each of the parties to the
combination and the manner in which they are intended to be achieved)
of the combination, had described the following:
“Rationale for FCRPL:
FCRPL, being the parent entity of FCL and a part of the Promoter
Group, has invited the Investor to invest in FCL with a view to
strengthen and augment the business of FCL.
Rationale for FCL:
FCL is currently engaged in the business of inter alia marketing

and distribution of corporate gift cards, loyalty cards and reward
cards to corporate customers. The Promoters have invited the
Investor to invest in FCL with a view to strengthen and augment
the business of FCL. FCL believes that the Proposed Combination
will provide an opportunity to FCL to learn global trends in digital
payments solutions and launch new products and usage of in-built
payment mechanisms can lead to acquisition of customers base
and increased loyalty.

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Rationale for the Investor:
The Investor believes that FCL holds a potential for long term
value creation and providing returns on its investment. The
Investor has decided to invest in FCL with a view to strengthen
and augment the business of FCL (including the marketing and
distribution of loyalty cards, corporate gift cards and reward
cards to corporate customers) and unlock the value in the
company.”
274. In fact, in the Notification dated 23.09.2019 (Form-I) under the
Caption `Non-compete obligation, if any: Duration, scope in terms of
persons, product(s) / service(s) and territory(ies) and corresponding
justification’, the Àppellant’/Àmazon’ had mentioned the following at
paragraph 34 :
`` The Parties have only executed the SSA and the SHA in relation
to the Proposed Combination. It is submitted that neither the SSA,
nor the SHA contain any noncompetition covenants (vide Page 43
of Convenience Compilation II (Vol.I - of `1st Respondent/CCI’).”
275. Apart from the above, while responding to queries No. 6 & 7, the
Appellant had furnished the details of the Parties to the `Combination’
and gave a brief description being undertaken by the Parties concerned.
The Appellant had also described the relevant market (The product and
geographic market) along with a brief description of retail market in India
(vide pages 44-108 of Convenience Compilation – II (Vol.I) of `1st
Respondent/CCI’).

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276. It transpires that the Àppellant’/Àmazon’ had provided a
presentation `Taj Coupons’ – `Business Plan’ for five years (while
responding Item 8.8 of Form-I) under the Head `Document material
(including reports, studies, plan, latest version of other documents), etc.
considered by and/or presented to the board of directors and/or key
managerial person of the parties to the combination and/or their relevant
group entities, in relation to the proposed combination’.
277. Also that, at Annexure 30 `Summary of the `Proposed
Combination’ in terms of Regulation 13(1A) of Competition
Commission of India (Procedure in regard to transaction of business
relating to Combinations) Regulations, 2011 as amended by the
Competition Commission of India (Procedure in regard to transaction of
business relating to combinations) Amendment Regulations, 2019
[vide Pgs 217-218 of 1st Respondent/CCI’s Convenience Compilation-II
(Vol.1)] under the caption `B’ – The nature and purpose of Combination
at S.No.5, it is mentioned as under:
“The Investor believes that FCL holds a potential for long term
value creation and providing returns on its investment. The
Investor has decided to invest in FCL with a view to strengthen
and augment FCL’s business relating to marketing and
distribution of corporate gifts cards.”

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278. The `1st Respondent/CCI’ as per Regulation 14 – `Scrutiny of
Notice’ of the Competition Commission of India (Procedure in regard to
the transaction of business, etc.) Regulations, 2011, had addressed the
communications dated 09.10.2019 and 24.10.2019 to the
Àppellant’/Àmazon’ to delete specified information disparity in the
`Notice’.
279. The Àppellant’/Àmazon’ in its `Reply’/`Response’ dated
15.11.2019 (To the Query No.2.13(c) raised by the `1st Respondent/CCI’
in its Letter dated 09.10.2019, (vide 1st Respondent/CCI’s Convenience
Compilation, Page 288 (Part II) at paragraph 53) Viz., “According to
media articles and statements of Mr. Kishore Biyani, the investment by
Amazon is strategic to become a part of the ecosystem. Please elaborate”
had mentioned the following:
53.“….. it is submitted that the Proposed Combination will enable

the Parties to (i) enhance Investor’s existing portfolio of
investments in the payments landscape in India; (ii) provide an
opportunity to FCL to learn global trends in digital payments
solutions and launch new and innovative product offerings; and
(iii) offer innovative payments solutions to entities so as to enhance
consumer convenience and user experience”
280. To the Query No. 2.5 of the letter dated 24.10.2019 raised by the
`1st Respondent/CCI’ addressed to the Àppellant’/Àmazon’ to the effect
“As per the notice, Acquirer will get certain rights over the FRL. You are

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required to provide details of shareholding (directly/indirectly),
affirmative rights/veto rights/rights not available with ordinary
shareholders in FRL or rights with respect to FRL being acquired by
Amazon and strategic and or economic rationale for such rights.”, the
Àppellant’/Àmazon’ had submitted its `Response’ dated 15.11.2019
mentioning that;
(1) “the unique business model of FCPL addresses an existing gap

in the payments landscape in India, thereby making it a strong and
sound investment opportunity for Amazon (which holds similar
existing investments in entities engaged in business activities
within the payments market in India), and
(2) while FCPL has a strong growth potential, in the short term,
to add credibility to its financial position, it has invested in and
proposes to invest in FRL, which is a publicly traded company with
strong financials and futuristic outlook.”
281. To put it precisely, the Àppellant’/Àmazon’ had mentioned that
it does not have any direct or indirect shareholding in `FRL’ and further
it would not acquire directly any rights in `FRL’ and also claimed that
`Commercial Arrangements’ were not entered into pursuant to the
`Combination’ and were not part of, or connected with the `Combination’
in any manner whatsoever. Moreover, the Àppellant’/Àmazon’ stated
that `Commercial Arrangements’ need not be examined under the
framework of the Regulation of Combinations as per the Competition Act
and Combinations Regulations.

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282. Viewed in this background, the `1st Respondent/CCI’ had issued
the Àpproval Order’ on 28.11.2019 as per Section 31 (1) of the
Competition Act based on the `Competition Assessment’ of the
overlapping business activities of Àmazon’, `FCPL’ and their `group
entities’ and after arriving at the opinion that the `Combination’ is not
likely to cause any appreciable adverse effect on `competition’ in India.
In fact, the `1st Respondent/CCI’ had left the exact `relevant market
definition’ being left open.
283. It is evident that the `2nd Respondent/FCPL’ (in Comptn. App (AT)
No. 1 of 2022) had addressed a Letter dated 25.03.2021 to the `Secretary
of the 1st Respondent/CCI’, averring among other things to the following
effect beginning from paragraphs 8 to 19 (vide Pages 1377 to 1382 -
Vol.VI of Convenience Compilation of the Àppellant’/Àmazon’):
8.`Às explained hereinafter, Amazon has now made it apparent

that the real transaction was not the investment in FCPL. Instead
the real intention of Amazon in entering into this transaction was,
from its perspective, the creation of a set of contractual rights,
which it could manipulate to ensure that FRL does not enter into
any transactions with Amazon’s competitors. The two main pillars
of Amazons complaint now are that;
a. Amazon invested Rs. 1400 crores in FCPL, the real object
of which was fund FRL, and
b. Amazon through the maze of agreements obtained a
contractual right to prevent FRL from doing business with
Amazon’s competitors.

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9. If this intent – viz. to invest Rs.1431 crores primarily to
obtain a call option in case of change in regulation, and until then
to prevent FRL from entering into a contract with Amazon’s
competitors- was disclosed to the CCI, it is highly unlikely that the
CCI would have allowed the transaction.
10. Amazon instituted proceedings before the Emergency

Arbitrator under the Rules of the Singapore International
Arbitration Centre (“SIAC”) against FCL, FRL and the
promoters of FRL alleging, inter alia, that the Scheme is in breach
of the respective obligations of FCL, FRL and the promoters of
FRL under the FRL SHA, FCPL SHA and FCPL SSA. The
proceedings have been instituted on the basis, inter alia;
(i) That the foundation of the relationship between Amazon

and the promoters of FRL “was and remains the special and
material sights available with FCPL with respect to FRL’s
business and its Retail Assets”. Amazon’s investment in
FCPL was made on the “express understanding” that it
would have rights in FRL.
(ii) Amazon’s investment was made on the “primary
inducement” that it will have special and material rights in
FRL.
[NOTE: (i) and (ii) are directly contrary to the statement
of Amazon before the Hon’ble Commission that its
investment is in the gift card business of FCPL and not the
retail assets of FRL, and that its rights over FRL are only
intended to protect its investment in FCPL]
(iii) The FCPL SHA, FCPL SSA and FRL SHA, constitute a
“single integrated transaction” and the interplay amongst
the three agreements demonstrates the “unequivocal
intention and interest of the parties was to have one
integrated understanding”.
[NOTE: This is ex facie contrary to Amazon’s statement
before the Hon’ble Commission that the negotiation of the
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FRL SHA by FCPL, FRL and its promoters was
independent of the Investment by Amazon in FCL]
(iv) Amazon’s Investment in FRL (indirectly) is permitted

under the extant FDI regulations.
[NOTE: Any investment by a foreign entity in the MBRT
sector is prohibited under the FDI Regulations. Amazon
submitted to the Hon’ble Commission that it was not
investment in the retail assets of FRL as it was prohibited
from doing so under the FDI Regulations and therefore,
FRL’s business would not constitute a “relevant market”.
Amazon’s submission now is contrary to that submitted to
the Hon’ble Commission].
A copy of the application filed by Amazon before the Emergency

Arbitration (without the annexures thereto) is annexed hereto as
Annexure “6”. On the basis of these submissions, the Emergency
Arbitrator passed an order dated 25.10.2020 restraining FRL and
its promoters from pursuing the Scheme. A copy of the order dated
25.10.2020 passed by the Emergency Arbitrator is annexed hereto
as Annexure “7”.
11. Various proceedings have been instituted by, against and

between Amazon and FRL before the SIAC, Hon’ble Delhi High
Court, the NCLT and the Hon’ble Supreme Court wherein,
Amazon has continually reiterated its submissions set out
hereinabove.
12. A perusal of the various submissions made by Amazon

before the Hon’ble Commission on the one hand and the SIAC and
Indian Courts establishes that Amazon has made misleading
representations as to its intentions when it sought the permission
of the CCI. A chart setting out the various submissions before the
Hon’ble Commission and each of the Courts and arbitral tribunal
is annexed hereto as Annexure “8”.

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13. The contrast and contradiction in the stand of Amazon
before the Hon’ble Commission and the Emergency Arbitrator
(whose decision according to Amazon is an order of a Court) is
further perpetuated by Amazon’s attempts to exercise of control
over FRL on the basis that the agreements FCPL SSA, FCPL SHA
and FRL SHA have to be read together as a single integrated
transaction. The Delhi High Court on 21.12.2020 ruled that if the
agreements are read together, Amazon acquires control over FRL
and the transaction becomes illegal falling foul of FEMA FDI
Rules. This is the reason that Amazon represented to the Hon’ble
Commission that the FRL SHA was “independently” negotiated
and Amazon does not exercise any control or influence over FRL.
It is now evident that this representation was false.
14. As brought out above, Amazon has now taken a categorical

position in the proceedings before the Emergency Arbitrator and
the constitutional courts in India that its indirect rights over FRL
are strategic and material in nature. Such intent of Amazon to have
strategic and material influence over FRL was not disclosed to the
Hon’ble Commission in the notice filed under Section 6(2) of the
Competition Act. Rather, Amazon had represented before the
Hon’ble Commission that the said rights are only for the limited
purpose of investor protection. Had Amazon made the correct
representation to the Hon’ble Commission that it had strategic and
material interests over FRL and that the agreements have to be
read together (as against the representation that FRL SHA was
independent of the investment made by Amazon in FCPL), the
Hon’ble Commission would have perhaps not acted on the Notice
(filed as a Form I), and as a responsible regulator, would have
forwarded the reply and the copy of the agreements to DIPP and
Enforcement Directorate for necessary action.
15. In the proceedings before the Emergency Arbitrator and the

constitutional courts in India, Amazon has not claimed that its
rights under the agreements to restrain the transfer of the Retail
Assets of FRL are sought to be exercised to protect its investment
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in FCPL. Instead, it has made a brazen admission, in complete
disdain to the representations made before the Hon’ble
Commission, that its rights qua the Retail Assets of FRL are
strategic and material in nature. These representations before the
arbitrator and the constitutional courts bring out that Amazon
does not consider the sale of FRL’s assets to RRVL to result in any
diminution of the value of investment made into FCPL, a case
which could perhaps warrant exercise of Amazon’s rights for
investor protection. On the contrary, the rights were sought to be
exercised for strategic commercial reasons to foster the business
interest of Amazon, at the cost of exit of FRL and loss to the
shareholders of FRL and FCPL. In simple terms, Amazon is now
exercising rights to protect its business interest and not to protect
its investment as a shareholder as no such occasion has arisen. If
Amazon had intended to use the indirect rights over FRL to protect
or secure its market position/business in an anticompetitive
manner or otherwise, instead of such rights being used only for
protecting the value of its investment in FCPL, such intent is a
material fact which should have been disclosed to CCI. Such intent
/ basis of the FCPL transaction would have led to a different
understanding of the nature and scope of the proposed
combination and accordingly, would have had a material impact
on the competition assessment fundamentals.
16. If one knowingly portrays a strategic intent as a mere

investor protection rights whereas its real intention in entering
into an arrangement is to acquire control over another entity, it
constitutes a false representation and a suppression of material
facts.
17. Further, Amazon is seeking to perpetrate and enforce anti-

competitive conduct by seeking to restrain the Scheme on the basis
of these purported strategic rights. Amazon knows fully well that
(i) it cannot invest and acquire shares in FRL and take it out of
bankruptcy; (ii) Amazon wants FRL to go into bankruptcy to

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secure its strategic interest by curtailing the growth of entities
which Amazon considers to be its competitors.
18. A party seeking any approval of a combination must provide

a declaration vide Form I of the Combination Regulation that all
the information provided to the Hon’ble Commission is “true,
correct and complete to the best of its knowledge” and that it is
aware of the provisions of Sections 44 and 45 of the Competition
Act. Sections 44 and 45 of the Competition Act provide for strict
penalties for the making of any false statement or submission of
any false information. Amazon has provided such a declaration by
way of its Notice.”
19. This Hon’ble Commission has taken a consistent view that

any submission of false information to the Hon’ble Commission
would attract the penalties provided under Sections 44 and 45 of
the Competition Act. In Ultratech (Order dated 12.03.2018), the
Hon’ble Commission stated;
12.1``S. 44 SCN issued to UltraTech relates to omission to file
material information and making an incorrect statement in the
Notice. The parties to a combination are required to provide
complete and correct information on all the aspects asked for in
the designated form for filing of notice. The competition
assessment undertaken and consequent decision of the
Commission is primarily based on the information provided in the
notice. Once the Commission has passed an order, it has no
control on the subsequent consummation or non-consummation of
a transaction and may only be left with the option of revoking the
decision in the event it comes to know that the information was
either incomplete or incorrect ……” (Emphasis supplied)
and finally prayed for necessary action being taken against the
Àppellant’/Àmazon’ for the commission of offences under Section 44

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and 45 of the Competition Act, 2002, read with paragraph 16 of the Order
dated 28.11.2019 passed by the 1st Respondent/CCI in Combination
Registration C/2019/09/688, including the revocation of Àpproval’
granted to the `Combination’:
284. It is to be pointed out that the `1st Respondent/CCI’ in its meeting
dated 17.05.2021 had considered the `Letter / Communication’ of the `2nd
Respondent/FCPL’ dated 25.03.2021 and after taking note of some of the
contradictory statements made by the Àppellant’/Àmazon’ before the
`1st Respondent/CCI’ vis-à-vis Àrbitrator’ (Application for Emergency
Relief under the Àrbitration Rules’ of the `Singapore International
Arbitration Centre’ – Ànnexure 6’ to the Application), etc., came to the
prima facie view on 04.06.2021 at paragraphs 6.1 and 6.2 of its `Show
Cause Notice’ by making the following observations:
6.1`Àmazon had represented before the Commission that FRL

SHA was independent of the combination i.e., acquisition of 49%
shareholding in FCPL by Amazon. However, it has now been
brought to the notice of the Commission that Amazon has claimed
before the arbitrator that FRL SHA is an integrated part of the
combination. This factual aspect of the combination was not made
known to the Commission. Rather, the submissions before the
Commission presented a different factual scenario that the
combination does not include FRL SHA; and the acquisition of
49% shareholding in FCPL by Amazon and FRL SHA were
independent of each other. Amazon ought to have identified and
notified FRL SHA as a part of the combination, in terms of
Regulation 9(4) and Regulation 9(5) of the Combination
Page 242 of 310
Regulations. It is further apparent that the representations and
conduct of Amazon before the Commission amount to
misrepresentation, making false statement and suppression or/and
concealment of material facts in relation to the scope of the
combination for which approval of the Commission was sought
and taken.
6.2. Amazon has concealed its strategic interest over FRL, which
it now claims to be arising from the rights that were represented
as mere investor protection. Such interest and the purpose of the
combination (as has been claimed before the arbitrator) was not
disclosed to the Commission despite specific requirements in Form
I and the additional information sought from Amazon. Besides
non-disclosure, false and incorrect representations have also been
made in relation to the scope of the combination particularly the
FRL SHA and the purpose of the combination.”
285. The Àppellant’/Àmazon’ furnished its `Response’ on 28.07.2021
to the `Notice’ dated 04.06.2021 issued by the `1st Respondent/CCI’
[under Section 43A, 44 and 45 of the Competition Act, 2002 and
paragraph 16 of the Order dated 28.11.2019 (vide Combination
Registration No.C-2019/09/688 r/w. Regulation 48 of the Competition
Commission of India (General), Regulations 2009)], stating among other
things that the FCPL’s complaint seek to invoke the `Statutory Powers’
of the `1st Respondent/CCI’ and further that the said complaint is in a
negation to Section 42A of the Àrbitration and Conciliation Act, 1996’
(pertaining to confidentiality of the Àrbitration Proceedings’) and
Sections 24 and 25.2.7 of the Shareholders Agreement dated 22.08.2019

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(`FCPL SHA’) which enables the `parties’ to keep all information
relating to disputes confidential.
286. According to the Àppellant’/Àmazon’, the 2nd
Respondent/FCPL’s complaint discloses aspects of Àrbitration
Proceedings’, with a view to scuttle the Èmergency Arbitrator’s Order’.
287. Furthermore, the `FRL’ was never kept out of the radar of
consideration before the `1st Respondent/CCI’. It is the stand of the
Àppellant/Amazon’ that although the investment was made into the `2nd
Respondent/FCPL’, it was evident that the proceeds of investment were
to be utilised by `FCPL’ to pay the remaining consideration for the
`warrants’ issued by the `FRL’ to `FCPL’ (`warrant transactions’). As a
matter of fact, according to the Àppellant/Amazon’, it was disclosed in
the `Notification’ that the rights granted to the Ìnvestor’, in terms of
`FCPL SHA’ were derived from `FRL SHA’ to protect the ìnterest’ of
the Ìnvestor’. Apart from that, the èffective date’ as defined in the `FRL
SHA’ makes it clear that the `FRL SHA’ would come into effect only
after receipt of the `1st Respondent/CCI’s approval’.
288. It is represented on behalf of the Àppellant/Amazon’ that the
Àppellant’ in its `Response’ dated 28.07.2021 (to the `Show Cause

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Notice’ dated 04.06.2021) had stated that the `relevant market’ was
identified, among other things, based on the overlaps between the
business activities of the Ìnvestor Affiliates’ and `FRL’ and all the
information relevant for the `1st Respondent/CCI’s assessment of the
`Combination’, as per Section 20 (4) of the Competition Act, 2002, was
furnished.
289. The stand of the Àppellant/Amazon’ to its Response dated
28.07.2021 is that the interpretation of the true scope, purport and effect
of the three Agreements Viz. (a) `FCPL SSA’ (b) `FCPL SHA’ and (c)
`FRL SHA’ is a `question of law’ which cannot be the subject matter of
any alleged `misrepresentation’, `suppression’ and `concealment’.
290. Apart from the above, the `Response’ of the Àppellant/Amazon’
(to the Show Cause Notice dated 04.06.2021) in regard to the ìnternal
exchange of information’ (internal communications) is that the
`Commercial Arrangements’ with `Future Group’ is negotiated since
Jan’2018 and that the Àppellant’ had studied `multiple investment
structures’ and some of the documents / these emails related to the period
when the parties were still in discussions. Also that, the Àppellant’ had
made discloses about `BCA’s and importance of FRL’s Retail Assets.

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291. It is the version of the Àppellant/Amazon’ in its `Response’ that
all material particulars relating to the `Combination’ and which were
relevant for Àssessment’ by the `Commission’ were revealed in the
`Notice’ and in latest submissions dated 15.11.2019 Viz., (i) Information
rights over business activities of FRL; (ii) all commercial agreements
involving FRL were given effect to only after the approval of the
Respondent No.1; and (iii) the details required as per Form I relating to
relevant market and competition assessment, based on the business
activities of the parties and affiliates;
292. It is projected on the side of the Àppellant/Amazon’ in its
`Response’ that there were no incorrect statements given in the
`Notification’ and that `FRL SHA’ was fully divulged as forming the
background to Transaction III and therefore, it does not constitute a
`Combination’. Also that the `1st Respondent/CCI’ had noticed that the
presence of `FRL’ and the Àffiliates’ of the Àcquirer’ was not to
augment any competition concern.
293. In the instant case, although it is contended on behalf of the
Àppellant/Amazon’ that the ambit of combination was disclosed to the
`1st Respondent/CCI’ and that extensive disclosures were made in the
`Notification’ focussing on `FRL’ and its B2C, `Competitive

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Assessment’ presented in the `Notification’ was resting upon the
assumption of complete integration between the Appellant’s affiliates
and `FRL’ and its Àffiliates’, details of `rights’ accruing to the
Appellant’s Affiliates under `BCAs’ were furnished along with the
rationale behind these rights and justifications for the exclusivity
`covenants’ mentioned in the `BCAs’ were also provided, there is no two
opinion of the vital fact that the òbligation’ to file a `Notice’ for any
`Proposed Combination’ is binding in character, in the considered
opinion of this `Tribunal’.
294. Further, the `Combination’ notified was an investment into
`FCPL’ (2nd Respondent) by the Àppellant/Amazon’, bearing in mind
the likely growth aspect of the corporate gift cards / coupons business of
`2nd Respondent/FCPL’. It must be borne in mind that àn Approval’ is /
can be accorded only in respect of the `Combination’ for which àn
Approval’ is claimed and not otherwise, as opined by this `Tribunal’.
295. It cannot be brushed aside that if an individual had entered into or
intend to enter into any `Transaction’ being a `Combination’, within the
`purview of Section 5 of the Competition Act, 2002’, then that `person’
compulsorily enjoined to file a `Notice’ as per Section 6 (2) of the
Competition Act, 2002 coupled with the concerned `Combination

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Regulations, 2011’. No wonder, an individual who had not notified a
`Combination’ as per the ingredients of the Section 6 (2) of the
Competition Act, 2002, cannot press into service the ingredients of
Section 6 (2-A) of the Act.
296. It is not out of place for this `Tribunal’ to make a significant
mention that the Àppellant/Amazon’ had mentioned at paragraph 44
(vide its `Response’ dated 15.11.2019 to RFI1 dated 09.10.2019 – Page
682 Vol.3 of Appellant’s Convenience Compilation), which is extracted
as under:
44.`Ìt is submitted that the Proposed Combination, in its entirety,

is envisaged within the SHA and the SSA, and that the SHA and the
SSA are the only transactional documents executed pursuant to the
Proposed Combination. The rights proposed to be acquired by the
investor in terms of the SHA have been provided in Table 3 of the
Notification.”
297. More importantly, in the filing of `Notice’ dated 23.09.2019 vide
Section 6 (2) of the Competition Act, 2002, in Form I under Part V
`Description of the Combination’, by the Àppellant/Amazon’, Serial No.
5.12 enjoins the Àcquirer’ to make known àny other Transaction(s)’
that is / are inter-connected in terms of Sub-Regulation (4) and / or (5) of
Regulation 9, Regulations, 2011, in the background `Combination’ being
notified and in short, the `Notice’ dated 23.09.2019 of the

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Àppellant/Amazon’ is very much silent in regard to the aspect of `FRL
SHA’ and `BCF’.
298. In this connection, the Àppellant/Amazon’ had mentioned
categorically (vide paragraph 65 of the `Notice’ dated 23.09.2019 – Vol.
I of Àppellant/Amazon’s Convenience Compilation) that `BCAs’ were
not part of the `Proposed Combination’ mentioning that these
Agreements were `neither inter-connected with’, nor `part of the
Proposed Combination’.
Fraud:
299. Section 17 of the Indian Contract Act, 1872, defines `Fraud’.
Indeed, the `Fraud’ vitiate the most solemn proceedings in any civilized
system of jurisprudence. A concealment of `material fact’ in entirety
amounts to `Fraud’, as per Section 17 of the Indian Contract Act, 1872.
In the decision of the Hon’ble Supreme Court in Shrisht Dhwan (Smt) v.
M/s. Shaw Brothers, reported in 1992 1 SCC at Page 534, wherein it is
observed and held that in `law’ `Fraud’ is an èlement’ which clouds the
reason that the person defrauded cannot form a rationale judgment of the
effect of `Transaction’ upon his interests.

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300. An underlying intent to constitute `Fraud’ is to deceive another
person and to induce him to enter the `contract’ and it must be by the
suggestion as a fact which is not true or by the active concealment of a
fact by one having knowledge or belief of the fact.
301. In `Fraud’, an act must be confined to the acts committed by a
person to a `contract’ with an intention to deceive another or his Àgent’
or to induce him to enter into a contract.
Misrepresentation:
302. Section 18 of the Indian Contract Act, 1872, defines
`Misrepresentation’ meaning and including;
(1) “the positive assertion, in a manner not warranted by the

information of the person making it, of that which is not true,
though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains
an advantage to the person committing it, or any one claiming
under him, by misleading another to his prejudice or to the
prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make
a mistake as to the substance of the thing which is the subject of
the agreement.”
303. It is to be pointed out that a circumstance of misrepresentation may
be material if it will influence the `decision’ / `judgment’ of a prudent
decision maker in accepting a proposal in the subject matter in issue.

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Difference between `Fraud’ and `Misrepresentation:
304. The pinnacle difference as regards `Fraud’ and
`Misrepresentation’ is that in one case, the `person’ making the
`suggestion’ does not believe it to be true and in the other, he believes it
to be true, though in both, it is a `Misstatement of Fact’ which misleads
the `promisor’.
Burden of Proof:
305. It is to be remembered that the ònus of proof’ of purported `Fraud’
or `Misrepresentation’ committed by a `deviant’ lies on the `person’ who
alleges the same, by placing some `prima facie material’ in support of the
same and that the `level of proof’ is at very high pedestal.
306. An innocent `Misrepresentation’ is a `Misstatement of Facts’ not
intended to `Deceive’. `Fraud’ is a `statement known to be false’ or `made
in ignorance as to its `truth’ or `falsehood’, but confidently so as to
`represent’ that the `Maker’ is certain when he is uncertain.
307. The plea of the `1st Respondent/CCI’ is that the
Àppellant/Amazon’ had not provided it with the email dated 24.05.2018,
the email dated 10.07.2018 and the email dated 19.07.2019 (Internal
one), which were interchanged between the Appellant/Amazon’s Key

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Managerial Persons which depicted the ambit and purpose of the
`Proposed Combination’.
308. In this regard, the said email dated 24.05.2018 runs to the effect:
``Project Taj – National Multi-category Copperfield-seller

Background: … Amazon’s India team likes Taj’s management
team, store footprint, private label capability and believe they are
one of the key players in the offline retail space to partner with
……… etc.”
309. Besides this, the Àppellant/Amazon’ had mentioned that it
engaged with Taj and discussed a `Business Commercial Framework’
(`BCF’) to build and accelerate ùltra-fast delivery’ across top – 20 Cities
in India leveraging FRL’s National Store footprint as a `Copperfield
seller’.
310. Added further, the Àppellant/Amazon’ in the email dated
24.05.2018, had mentioned that because `Taj’s Retail Entity’ is a listed
company, it could invest up to 9.99% of the company directly as `Foreign
Shareholders’. Also, the Àppellant/Amazon’ had proceeded to mention
in the aforesaid email dated 24.05.2018 that `because Taj’s Retail Entity’
is a listed company, it could invest up to 9.99% of the company directly
as `Foreign Shareholders’. To execute on the above Business
Commercial Framework (BCF) the founder of Taj believes a close

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alignment via a strategic investment with an online player is important
and it sought Àpproval to indicate its non-binding interest (Taj’s
Founder) to invest $400 to $500 MM for up to 9.99% stake in the
company.”
311. In addition to the above, the Àppellant/Amazon’ noted the
Investment Rationale as allowing it (Appellant);
(a) “expand coverage in top 4 Cities with improve the Merchant

Fee to 13.5% (+850 bps); build a two-hour-delivery service in next
20 cities; (c) exclusively carry their private label portfolio in
grocery and value-fashion; and (d) obtain option value to increase
our equity stake when laws change” and in abstract, against an
investment of $400 to 500 MM in Taj will result in discounted
cash flow value of BCF over 10 years of $702 MM (INR 45.6B).”
312. In the email dated 10.07.2018, under the Head - `Project Taj –
National Multi-category Copperfield-seller’ `situation update’, the
Àppellant/Amazon’ inter alia had mentioned that its `strategic
objectives’ which it wants to achieve through `Taj’ is;
(a) “Ability to become the single largest shareholder in India’s

largest offline retailer (TRL) when foreign direct investment (FDI)
opens up in this sector.
(b) Precluding / blocking competitive interest in TRL, and
preventing an IC from acquiring TRL.
(c) Together with the investment, Alpha will enter into a
commercial agreement to utilize TRL’s pan-india store

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infrastructure to bolster Alpha’s ultra-fast delivery program,
exclusively carry private label portfolio in grocery and value
fashion, and drive higher fees for Alpha.”
2.``What is our business rationale and BCF for Taj?

We believe that a two-hour delivery promise, for 15,000 SKUs
across top-20 cities will be a unique differentiating capability. It
will allow us to cover 85% of our Prime members and 63% of all
customers. To serve this customer base, we believe working
closely with a large Copperfield seller is important. We believe
that Taj is one of two key pan-India retailers worth pursuing (the
other being Brigade). Taj has a strong portfolio of private label
selection in grocery (450+SKUs, across packaged foods, home
and personal care) and value-fashion (27 brands with a median
ASP of $9.2 (INR 600) contributing to 80% of their GMS for
fashion). Against our investment of $400 to 600MM in TRL, we
estimate the discounted cash flow value of BCF over 10 years of
$702MM (INR 45.6B) please refer to Annexure // for investment
rationale and more details of the BCF.
When foreign investment laws are relaxed and higher stake of
acquisition of multi-brand retail assets is permitted beyond
today’s possibilities, we would have a foot-in-the-door to acquire
more in this strategic asset, should we so desire at the time. For
further details please refer to Annexure II – BCF Strategic Value.
Importantly, our investment in TRL will be liquid given that TRL
is publicly traded in the Indian stock market, and therefore, we
can recover our investment in case TRL fails to deliver.
3. What is the proposed transaction?

An overseas Amazon entity, registered as a ‘foreign portfolio
investor’ will acquire 9.99% (through a fresh issuance of shares)
of TRL. Simultaneous with the investment, Alpha India will enter
into a commercial agreement (BCF) with TRL, and Taj Consumer

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Limited (TCL), and Taj Lifestyle Fashion Limited (TLFL) in
relation to the matters listed in FAQ2.
Indian regulations prescribe the minimum price at which a listed
company may issue fresh equity to an investor (SEBI Floor Price),
and the same is based on the average weekly high and low of the
volume weighted average price of the shares for the last 6 months
or two weeks whichever is higher. Based on our current
calculations, the SEBI Floor Price for acquiring 9.99% in TRL will
be $459MM (INR 31.2B)2.
6. If we were to execute both Taj and Brigade, why is a Call

Option important in both situations?
Our ICs (BB, FK, Paytm Mall) are aggressive on grocery, general
merchandise and general electronics categories. Specifically in
grocery and fresh categories, we are lagging behind BB and FK is
also nipping at our heels. Walmart’s expertise in offline retail
will likely spur FK and Alibaba’s investment and technology will
continue to push BB ahead.
Given the above, we need to build deep strategic alignments with
offline grocery retailers to leverage their execution capabilities to
power our fresh and grocery offering. India has 6 offline retailers
(Taj, Brigade, Reliance Retail, D-Mart, Spencers and Nature’s
Basket). With a process of elimination on parameters of asset
quality, partner quality and availability, only two i.e., Taj and
Brigade remain. If we are able to close our investment in Brigade,
we would secure a high quality asset, however, it will lack the scale
and national footprint that Taj offers. Further, Brigade is our bet
to own a high quality grocery operation. Taj, on the other hand,
is an investment in a multi-category Copperfield seller with a
larger pan-India footprint. Getting a Call option in both assets
allows us to acquire and raise our bet, at our discretion, in the
player we feel best meets our objectives after having tested close
operational alignment with both in 3-7 years following investment,
when regulations permit.

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7. If we were to execute both Taj and Brigade, how would we
decide which Call Option to exercise then?
Keeping aside our tenets of Financial Discipline for the moment,
holding a Call Option in both assets keeps our options open and it
also serves as an incentive / deterrent to Brigade / Taj. If Brigade
executes flawlessly, we can exercise our Call Option (when legally
permissible) and make Brigade a spearhead of our 1P grocery
operations. If Brigade doesn’t execute to our bar, then we can
choose to pull back from further investments in Brigade and
double down on our investments in Taj, provided that it meets our
expectations. If Taj executes well both on BCF as well as an
independent retail asset, when regulations relax, we will have the
ability to increase our stake in India’s largest offline retailer and
keep our competition. If Taj doesn’t execute well, we can exit our
ownership in listed stock. Holding Call Options in both assets,
thus allows us to control our destiny in a thoughtful manner in the
future.
Annexure II – Strategic value accruing to Amazon as a result of
the Business Commercial Framework (BCF)
We started working with Taj, couple of years ago, as a Copperfield
seller in three cities (across 23 stores) to learn and develop the
ultrafast delivery model in India. In April-2018, we served about
2000 orders per day with an AOV of $12.3 (INR 802) and UPO of
9.3. We earn merchant fee of 5.4% and have a CPLF of ~$4.55 (-
INR 296) per order (55.5%). If we improve the order economics,
we believe Taj’s footprint of physical infrastructure can offer a
unique 2-hour-delivery service across multiple categories in top-
20 cities. Therefore, we constructed a BCF to estimate value
creation from this partnership across their retail assets and
private label capabilities.
1. Offer 2-hour-ready selection in top 4 cities with improved
economics: An average hypermarket store carries an in-
stock selection of about 15,000 SKUs – 8500 in softlines,
5500 in grocery and 2000 in general merchandising

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(primarily home and kitchen). There are 104 stores in top 4
cities. In five years we can scale to 21K orders/day with an
AOV of $24 (INR1549) and GMS of $181MM (INR11B). In
this model we will bear only the last mile costs with increase
in SoA fee for grocery at 13.5% (+810bps over current
levels) and 32% for softlines. Therefore, we will improve
our order economics with an OP per order of ~$0.8
(-INR53) or (+2495bps vs. 2021 LRF). OP less infra will be
$1.3 (INR 84) (+2466 bps vs. 2021 LRF).
2. Build and expand 2-hour-delivery service in the next 16
cities : These cities are likely to grow faster than the top-4
cities and therefore will lead in retail consumption. Taj has
nearly 120 stores in these cities and carry an average
selection of 12,000 SKUs. We expect to expand the
Copperfield-service to these cities within three years and
scale to 31K orders per day with an AOV of $20.9 (INR
1,363) by year 5. The order economics will be similar to that
in top-4 cities.
3. Carry Taj’s private label selection across grocery and
softlines exclusively: We will leverage Taj’s private label
selection to substitute and accelerate the private label
selection in Pantry. Our 2020-LRP assumes private-label
penetration of 7.0% as proportion of Consumables GMS.
We believe we can expand private-label participation to
18% by year-3 (current penetration of Taj is at 30% in
FMCG and 60% in Staples). This will give incremental
margins of INR 28 per order in Pantry. Taj has capabilities
from design to manufacturing for fast and value-fashion
brands in apparels, shoes and luggage. Leveraging this
capability, we can improve the share of private labels to
overall Softlines business by 10% (+500 bps) in Year-5.
Secondly, we expect Taj’s fashion stores Fashion-Big-
Bazaar, Central and Brand Factory to list as a seller,
similar to Shopper Stop (we invested for a 5% stake in
India’s largest offline fashion department store to onboard
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200K+ ASINs across 300 fashion brands) and generate
additional 0.5MM order per month. We expect to improve
Softlines CP by 507bps by year- by a combination of
accelerated PL penetration, increased selection of Central
and Brand Factory and improvement in SOA fees.
4. Foot-in-the-door and a strategic option value: Laws in
India currently do not permit foreign investment in offline
retail companies engaged in both food and non-food retail.
This could change in the next 3-5 years, as government of
India, is slowly relaxing the laws. At that point, Taj will
likely still be the largest asset with pan-India footprint and
the possibility of greater control.”
313. In the internal email dated 19.07.2019 of Appellant/Amazon
Group on the subject `Request for Approval’ for `Project Taj Privileged
and Confidential it is mentioned;
“Hi…,
We are in the final stages of negotiating definitive investment
documents for an INR14B (~$204MM at current exchange rates)
investment to acquire a 49% stake in Future Coupons Limited
(“Future Coupons”). Future Coupons will hold ~8-10% of Future
Retail Limited, India’s second largest offline multi-category
retailer, and we are requesting your approval to sign the definitive
investment documents and close the transaction. Attached for your
review (and reprinted below) is a legal contract summary. Please
respond at your earliest convenience… have all reviewed and are
supportive of the investment. In addition, Legal, Tax and
Accounting have signed off.
Thank you.
Regards,
….

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Future Retail Limited Investment
July 18, 2019
Business summary
Founded in 1987, Future Retail Limited (“Future Retail”) is

India’s second largest offline multicategory retailer and is
headquartered in Mumbai. Future Retail is listed on Indian Stock
Exchanges and has a market capitalization of ~$3.4B. Future
Retail is the flagship company of the Future Group, a large Indian
offline retail conglomerate.
Future Retail has a pan-India presence, with a store network
spanning ~16MM square feet across ~1K branded stores (with a
variety of formats such as convenience stores, supermarkets,
hypermarkets, and department stores) and over 33K employees.
Future Retail’s 340 hypermarkets cover ~70% of Amazon India’s
customer base (within a drive of less than 2 hours). As of March
31, 2019, Future Retail generated ~$3B in revenues with an
EBITDA margin of 5%. Future Retail and its affiliates also have
a strong portfolio of private label selection in grocery (450+SKUs
across packaged foods, home and personal care) and value-
fashion (27 brands with a median average selling price of ~$9.40,
and contributing to 80% of Future Retail’s gross merchandize
sales for fashion).
Future Retail is currently listed as a 3P seller on Amazon.in.
Concurrent with the investment, we will enter into commercial
agreements with Future Retail and Certain other members of the
Future Group under which : (i) Future Retail will list the selection
available in its hypermarkets on Amazon.in at significantly
improved terms (representing an increase of 850 basis points).
This will enable Amazon India to expand coverage (across ~15K
SKUs) of our ultra-fast delivery service in the top four cities in
India and launch the ultra-fast delivery service in the next 20 cities
in India. Future Retail will not list its products on any other third
party online website: (ii) Amazon Pay will be the exclusive third
party wallet accepted in Future Retail’s stores and website: (iii)

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one of Future Retail’s affiliates, Future Consumer Limited, which
owns and produces the Future Group’s private label grocery and
general merchandise (such as cooking needs, storage needs, and
utensils) portfolio, will supply these products to our food retail
entity in India and our affiliated sellers on a B2B basis at
significantly improved margins, and will agree to not supply these
products to certain named competitors; and (iv) one of Future
Retail’s affiliates, Future Lifestyle Fashions Limited (FLFL), will
list brands owned by (or exclusively licensed to) FLFL in fashion
on Amazon.in and will not list these fashion products on any other
third party online websites.
Lastly, we have negotiated a call option over the shares held by
Future Retail’s promoters (who are also its largest shareholder),
leaving us well-positioned to become the single largest
shareholder of Future Retail (which could be very difficult through
market purchases alone), if Indian foreign investment laws change
in the future.”
314. A mere running of the eye of the contents of the email dated
19.07.2019, together with `Contract Summary’ (Approval request)
latently and patently alludes that the Àppellant/Amazon’ would enter
into `Commercial Agreements’ with `FRL’ to expand the coverage, while
also involving in `strategic’ discussions for `call option’ over shares held
by `FRL’s Promoters with a view to leave the Àppellant/Amazon’, `well
positioned to become the single largest shareholder of FRL’. In fact, the
number of Equity Shares of `FRL’ to be held by `FCPL’ `was calculated’
such that Àmazon’ can indirectly hold the same number of shares of
`FRL’ at a price per share representing a 25% premium on the minimum

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Regulatory Price’. Lastly, it was mentioned that 25% `premium is being
paid on account of the `strategic rights’ and `call option’ being provided
to Àmazon’.
315. At this juncture, this `Tribunal’ significantly refers to the
observation made by the `1st Respondent/CCI’ in the impugned order
dated 17.12.2021 that the aforesaid Appellant’s internal emails
correspondence were germane to comprehend the focus and objectives
of its `Combination’ which was to “secure its ability to become the single
largest shareholder of FRL when the foreign direct investment opens up
in the retail sector; preclude/block competitive interest in FRL and utilise
the Pan-India Store Infrastructure of FRL to bolster the ultra-fast
delivery program and exclusively carry private label portfolio in grocery
and value fashion; and drive fees”.
316. Not resting with the above, the `1st Respondent/CCI’ noticed that
Àcquisition of Shares’ in `FRL / FCPL’ by Àmazon’ (i.e., Appellant)
was envisaged as a `pre-requisite’ to enter into `Commercial
Agreements’ and further that `the purpose of the Combination was
investment in FRL and establishing a strategic alignment / partnership
between Amazon (Appellant) and Future Groups in the Indian retail
sector’.
Page 261 of 310
317. In pith and substance, the Àppellant/Amazon’ had provided the
presentation `Taj Coupons – Business Plan for five years’ which
incorrectly formulated the Appellant/Amazon’s elemental intent of the
`Combination’ as permitting it to enter the `Gift Voucher Business of
FCPL, etc.’, without any indication to `FRL’ and had not provided the
internal email correspondences as mentioned supra which is clearly an
unfavourable circumstance to and in favour of Àppellant/Amazon’ in
the earnest opinion of this `Tribunal’. Furthermore, the
Àppellant/Amazon’ had omitted to present the other documents
covering the actual purpose depicted in the internal emails, in any of the
materials furnished against Item 8.8 of Form I or Question 2.1 of the 1st
Respondent/CCI’s letter dated 24.10.2019 seeking additional
information in regard to the submissions made against Item 8.8
(presentation captioned `Taj Coupons – Business Plan for five years’ vide
Page 219 - Convenience Compilation of 1st Respondent/CCI (Vol. 1
(Part-II)). As such, on the part of the Àppellant/Amazon’ there is a
`Misstatement of Fact’/`Misrepresentation’ in not exhibiting the internal
emails which make known the real ambit and purpose of the notified
transactions, thereby misleading the `1st Respondent/CCI’ in approving
the `Proposed Transaction’ (through an Àpproval Order’ dated
28.11.2019), presented by the Àppellant/Amazon’, all the more, when

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the Àppellant/Amazon’ had not presented the `Business Transaction’, as
opined by this `Tribunal’.
318. Dealing with the àspect of Misrepresentation’ by the
Àppellant/Amazon’, in regard to the description of the Àpproval’
accorded by the `1st Respondent/CCI’, by virtue of its Òrder’ dated
28.11.2019, this `Tribunal’ pertinently points out that the
Àppellant/Amazon’ through its `Claim Statement’ dated 04.07.2021
before the Àrbitral Tribunal’ (pertaining to the Àrbitration
Proceedings’) had expressed that the `1st Respondent/CCI’ had approved
the `Proposed Combination’ after taking into account the
Àppellant/Amazon’ consistent stand that `FRL’, its `Retail Assets’ were
a material inducement for the ìnvestment’.
319. However, the Àppellant/Amazon’ before the Hon’ble High Court
of Delhi in its Àppeal’ had submitted that its `Notice’ exhibited that it
was (Àppellant/Amazon’), the ultimate beneficiary of the `rights’
granted to `FCPL’ under the `FRL SHA’ (vide Annexure 8 to 2nd
Respondent/FCPL’s complaint filed before the 1st Respondent/CCI, at
Page 1384 of Volume No.6 of Convenience Compilation of the
Àppellant/Amazon’).

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320. From the above, it is candidly clear that just opposite to the
`Factum of Approval’ of the `Proposed Transaction’, the
Àppellant/Amazon’ had made a `Misstatement / Misrepresentation’
before the aforesaid `Forums’ that the `Business Transaction’ was
notified to the `1st Respondent/CCI’ and approved by it.
321. In so far as the àspect of concealment of material facts /
particulars’ by the Àppellant/Amazon’, this `Tribunal’ aptly points out
that in response to Item 5.3 of Form I, in and by which, the
Àppellant/Amazon’ was required to reveal Èconomic and Strategic
purpose (including business objective and rationale for each of the parties
to the combination and the manner in which they are intended to be
achieved) of the Combination’ – the Appellant had spelt out that it had
“decided to invest in FCPL with a view to strengthen and augment the
business of FCPL (including the marketing and distribution of loyalty
cards, corporate gift cards and reward cards to corporate customers) and
unlock the value in the company.”
322. In short, the Àppellant/Amazon’ had averred that it has no direct
or indirect shareholding in `FRL’ but only some `rights’ which were
granted to it in regard to `FCPL’s investment’ in `FRL’ with a view to

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protect its investment in `FCPL’ (vide Àppellant’s Response’ to Item
5.3 of Form I, Page 29 of Appellant’s Convenience Compilation – I ).
323. Moreover, in the `Statutory Summary’ as per Regulation 13A of
the Combination Regulations (vide Page 191, Vol. I of Appellant’s
Appeal Paper Book), the Àppellant/Amazon’ had mentioned that it had
`decided to invest in FCL with a view to strengthen and augment FCL’s
business relating to marketing and distribution of corporate gift cards”.
324. The Àppellant/Amazon’ in response to `1st Respondent/CCI’
elucidation relating to an entry in Item 5.3 vis-à-vis Kishore Biyani’s
assertion that the Àppellant/Amazon’s investment in `FRL’ was
strategic to be the part of the `Retail Ecosystem’ as per `1 st
Respondent/CCI’s letter dated 09.10.2019, the Àppellant/Amazon’ had
emphasized that the gift card business of the 2nd Respondent/FCPL and
the interest of the Àppellant/Amazon’ to elongate its portfolio in the
payments scenario in India.
325. In regard to the pinpointed Query, as regards the ambit and aim of
the Appellant/Amazon’s rights under the `FRL SHA’ as per letter of the
1st Respondent/CCI dated 24.10.2019, the Àppellant/Amazon’ among
other things stated vide its Response dated 15.11.2019 that its

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considerations were (i) the unique business model of FCL; and (ii) to add
credibility to its (FCL’s) financial position, it has invested in, and
proposes to invest in FRL, which is a publicly traded company.”
326. In the instant case, this `Tribunal’ pertinently points out that quite
opposite to the internal communications/emails of the Appellant/Amazon
had not shown a possibility of the `Combination’ being pursued for
having a foot-in-door in the Indian retail sector, acquire strategic rights
over `FRL’, etc. To put it precisely, the Appellant/Amazon had projected
in `FRL’, `FCPL’ only a vehicle, for which, no intention was assigned.
As a matter of fact, the whole consideration of the `Combination’ was
made based on the footing of 25% premium to the Regulatory Price of
`FRL’ shares and indeed, premium was paid on account of `Strategic
Rights’ and `Call Option’ provided to the Àppellant/Amazon’.
327. Suffice it for this `Tribunal’ to make a relevant mention that the
Àppellant/Amazon’ had made only the limited disclosures in regard to
`FRL’ only in the realm of `FRL’s Equity Warrants’ held by the `2 nd
Respondent/FCPL’ and had not spelt out the real combination of the
Appellant/Amazon acquiring `strategic rights’ and interests over FRL as
well as executing `Commercial Contracts’ between it and the `FRL’. In

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reality, the `FRL’ was exhibited as factor from the angle of `financial
strength’ to the `2nd Respondent/FCPL’.
328. Proceeding further, the Appellant/Amazon had not mentioned that
`FRL SHA’ and `BCAs’ were part of the `Combination’ and that `FRL
SHA’ was executed to shower upon the Appellant/Amazon indirect
rights over `FRL’, which the Àppellant’ pondered strategic in the
letters/communications.
329. It cannot be gainsaid that when the 1st Respondent/CCI had raised
a question relating to the nature of rights and its interests over `FRL’, the
Àppellant/Amazon’ in its `Response’ dated 15.11.2019 had among other
things mentioned that these rights were obtained from the rights given to
`FCL’ as per terms of the `FRL SHA’, which was discussed by the
`Promoters’, `FRL and FRL (sic., FCPL) dehors of the investment by the
Investor in `FCL’ and with a view to unlock value for `FCL’ and this
candid, unequivocal and clear cut assertion / declaration unerringly point
out that `FRL SHA’ is a separate and independent one of the
`Combination’. Likewise, the Appellant/Amazon on the `Commercial
Agreements’ had stated that it was neither a part nor inter-related to the
`Combination’ though they were of one composite proposal Viz. `Project
Taj (Future all along).

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330. Because of the incorrect disclosures and there being an act of
commissions/omissions in the `Notice’, (like the `Commercial
Agreements’ were integral part of the `Combination’, Àrrangements’ in
relation to the Àppellant/Amazon’, `FRL’ for listing of the products of
`FRL’ in Amazon’s market place were stated as `neither inter-connected
with nor part of the `Proposed Combination’), in the submission dated
15.11.2019 of Àmazon’ (`The Appellant’), and persistently making
representations that `BCAs’ were independent of the `Combination’, etc.,
there was no room for the 1st Respondent/CCI to have any ìota of needle
of suspicion’ that the `Commercial Agreements/Arrangements’ were part
of the `Combination’ to establish a strategic alignment between the
parties in retail sector, in the subjective considered opinion of this
`Tribunal’. Therefore, the 1st Respondent/CCI had no opportunity to
evaluate the effects of actual real `Combination’. Hence, this `Tribunal’
comes to an inevitable and inescapable conclusion that the
Àppellant/Amazon had not fulfilled its obligation as per ingredients of
Section 6 (2) of the Competition Act, 2002, attracting imposition of
penalty under Section 43A of the Act, extending to 1% of the total
turnover or the Assets whichever is higher of such a `Combination’.

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331. As regards the plea taken on behalf of the Àppellant/Amazon’ that
the `1st Respondent/CCI’ has no power under the Competition Act, 2002,
to annul / revoke or to keep the Àpproval Order’ dated 28.11.2019 on
hold or in abeyance or issuing a direction to file Form II because of the
fact that the jurisdiction of 1st Respondent/CCI is governed and limited
by the Competition Act, 2002, and the Rules and Regulations made
thereunder, it is to be pointed out that a reading of Section 45 (2) of the
Competition Act, 2002, clearly points out that `without prejudice to the
provisions of sub-section 1 (45), the `Commission’ may also pass such
other order as it deems fit’, which, without any hesitation steers this
`Tribunal’ in holding that the 1st Respondent/CCI has an
incidental/ancillary/residual power to pass an Òrder’ of keeping the
Àpproval Order’ dated 28.11.2019 passed by the 1st Respondent/CCI in
abeyance / or to put it on hold, as opined by this `Tribunal’.
332. Besides this, when the object of the Competition Act, 2002, is to
prevent the practice of having an adverse effect on `Competition’, etc.,
the `1st Respondent/CCI’ by no stretch of imagination be deprived of the
power to displace an Àpproval Order’, in terms of Section 45 (2) of the
Act.

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333. It is to be remembered that when an Òrder of Approval dated
28.11.2019’ was obtained by the Àppellant/Amazon’ from the 1 st
Respondent/CCI based on misstatement of facts, misrepresentation/not
making a full and frank enough disclosures, (with an intent to gain unfair
advantage and deceive another), the suppression/concealment of material
facts (amounting to `Fraud’), as required under the Competition Act,
2002, Rules and Regulations, etc., then, in Law, an Àuthority’ vested
under the `Statute’/Àct’, has an inbuilt, an implied residual power to
annul, modify, vary or to keep the earlier order passed by it in abeyance
/ putting it on hold and there is no express fetter in this regard, in the
considered opinion of this `Tribunal’.
334. The very fact that the Àppellant/Amazon’ had not made known /
notified the `Proposed Combination’ as a `whole’ and in an omnibus
manner, the period of limitation of one year, as mentioned in Section 20
(1) of the Competition Act, 2002, is inapplicable, in lieu of Àbsence of
Notification’ and there being no Approval’.
335. It is to be made mention of by this `Tribunal’ that a `Fuller’,
`Comprehensive’ and an Ìndepth Appraisal’ in respect of the
`Combination’s ÀAEC’ can be made / performed only when the

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Àppellant/Amazon’ submits `Form II’ with all relevant, true, precise and
full particulars / information / documents which exhibit the aim and
purpose of the `Proposed Combinations’. In fact, the
Àppellant/Amazon’, in stricto senso, especially to a limited extent,
cannot be an Àffected/Aggrieved Person’ of the ìmpugned order’ dated
17.12.2021, because of the fact that the Àpproval Order’ dated
28.11.2019 passed by the 1st Respondent/CCI to and in favour of the
Àppellant’ was directed to be `kept on Hold’ while granting the
Àppellant/Amazon’ to give `Notice’ in Form II within a period of 60
days from the receipt of this Òrder’.
336. Coming to the aspect of the plea taken on behalf of the
Àppellant/Amazon’ that the ìmpugned order’ dated 17.12.2021, passed
by the `1st Respondent/CCI’ is `Bad in Law’, besides being an untenable
one, in the absence of a Judicial Member, especially the `Show Cause
Notice Proceedings’ dated 04.06.2021 against the Àppellant/Amazon’
revolves around complex, legal, mixed question of legal issues pertaining
to the purported non-disclosure of relevant information of the
`Combination’, etc., this `Tribunal’ points out that it is for the
`Legislature’, in their `domain and collective wisdom’ to determine about
the aspect of presence of a `Judicial Member’ or otherwise in the `1 st

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Respondent/CCI’, apart from other `Members’, by prescribing the
`qualifications’ / èligibility criteria’.
337. It is pointed out that in Special Leave Petition filed by the Ùnion
of India’ and the `1st Respondent/CCI’ against the Òrder’ dated
10.04.2019 in W.P.(C) 11467/2018, CM APPL. 44376-44378/2018,
passed by the `Hon’ble High Court of Delhi’ in the matter of `Mahindra
Electric Mobility Ltd. & Anr. V Competition Commission of India and
Anr.’, the matter is pending as on date, before the Hon’ble Supreme Court
of India.
338. In fact, as per ingredients of Section 15 of the Competition Act,
2002, `no proceedings of the `Competition Commission of India’ will be
invalid, by reason of any `vacancy’ or any `defect’ in its `Constitution’
or any `defect’ in the àppointment of a Person acting as a `Chairperson’
or as a `Member’ or any irregularity in the procedure of the
`Commission’ not affecting the `merits’ of the case’. In any event, the
ìmpugned order’ dated 17.12.2021 passed by the `1 st Respondent/CCI’
in the absence of a `Judicial Member’ is not a fatal one.
339. To be noted, that Section 43A of the Competition Act, 2002, deals
with the ìmposition of penalty’ and as per this Section, the penalty is

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leviable for non-furnishing of information on `Combinations’ even if the
`Combination’ has no Àppreciable Adverse Effect on Competition’.
There is no requirement of `Guilty Mind’ (Mens Rea) or intentional /
deliberate Breach, as an element for the levy of penalty, as opined by this
`Tribunal’. The `1st Respondent/CCI’ can impose a maximum penalty of
1% of the total turnover or the assets, whichever is higher, of such a
`Combination’. There is no two opinion of a pivotal fact that the levy of
penalty, as per Section 43A of the Competition Act, 2002, is on account
of violation of a `Civil Obligation’, although the proceedings are
admittedly neither `criminal’ nor `quasi-criminal’ in nature.
340. It must be borne in mind that the words `without reasonable cause’
are not found in Section 43A of the Competition Act, 2002, as opined by
this `Tribunal. However, the concept of failure `without reasonable
cause’ is incorporated for the levy of fine as per Section 42 (2) of the
Competition Act, 2002. Once it is established that there was a failure to
notify the `Proposed Combination’, as required under Section 6 (2) of the
Competition Act, 2002, the `penalty’ has to follow.
341. Admittedly, the `Parties’ to the `Combination’ cannot deny an
opportunity to the `1st Respondent/CCI’, to evaluate the likely effects of

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the `Proposed Combination’ on `Competition’ and regulate them
appropriately.
342. Section 44 of the Competition Act, 2002, pertains to the levy of
penalty for making false statements or omission to furnish material
information by any person, being party to the `Combination’ and such
penalty, shall not be less than rupees fifty lakhs, but it may extend up to
rupees one crore, as may be determined by the `Commission’.
343. Section 45 (1) of the Competition Act, 2002, provides for `penalty
for offences pertaining to furnishing of information’, which may extend
to rupees one crore, to be determined by the `Commission’ (`1st
Respondent’).
Exercise of Discretion:
344. An Àuthority’ who imposes a penalty performs a `Duty’. He must
marshal all his faculties at his command in performing his duty. An
èxercise of discretion’ must be done according to the rules of `reason’
and justice. Undoubtedly, the `Discretionary Power’ is to be reasonably
and fairly exercised in a `judicious’ and `sound’ manner. The `Discretion’
to be exercised by an Àuthority’ is not to be a `vague’, `whimsical’,
`fanciful’, àrbitrary’ and `capricious’ one. In short, the discretion to be

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exercised by an Àuthority’, must be a legal and a regular one based on
`reason’ and the same shall not suffer from any `Bias’ in the earnest
opinion of this `Tribunal’.
345. Be that as it may, this `Tribunal’ in the light of `qualitative’,
`detailed’ and `quantitative’ discussions, taking into account of the
divergent contentions advanced on either side, and considering the
attendant facts and circumstances of the present case, in an holistic and
conspectus fashion that the Àppellant/Amazon’ had not made full,
whole, fair, forthright and frank disclosure of relevant materials and had
furnished only limited details / disclosures, pertaining to its àcquiring
strategic rights and interests’ over `FRL’, and executing `Commercial
Contracts’ among itself and `FRL’ concerning the ambit and purpose of
`Combination’ in `Form I’, and omitted to state material facts/furnish
material information(s) knowing to be material one, thereby leading to
`Misstatement of Facts’/`Misrepresentations’, comes to a resultant
conclusion that the Àppellant/Amazon’ because of the violations
committed by it, had intentionally not made known the `real ambit and
purpose’ of the `Combination’, as observed by the `1st Respondent/CCI’
in the ìmpugned order’ dated 17.12.2021 (vide Ref No. C-
2019/09/688/7099) and in this regard, this Àppellate Tribunal’ is in

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complete agreement with the view arrived at by the `1 st
Respondent/Competition Commission of India’. However, the
imposition of maximum penalty of Rs.1 Crore each, as per the ìmpugned
order’ dated 17.12.2021, passed by the `1st Respondent/CCI’, as per
Section 44 and 45 of the Competition Act, 2002, is slightly on the higher
side / excessive one, as opined by this `Tribunal’. As such, this Àppellate
Tribunal’, based on the relevant facts and circumstances of the case, Viz.,
availability of competitions in the market, financial health of the industry,
etc., which float on the surface and also, in the teeth of the `1st
Respondent/CCI’ in the impugned order dated 17.12.2021 had provided
an opportunity to the Àppellant/Amazon’ to file a fresh `Notice’ in Form
II, etc., to prevent an àberration of justice’, in `furtherance of justice’,
exercising its prudence and as a mitigating factor, imposes a penalty of
Rs.50 Lakhs (Rupees Fifty Lakhs) each, as per Section 44 and 45 of the
Competition Act, 2002, and the said sum, is directed by this `Tribunal’
to be paid by the Àppellant/Amazon’, within 45 days from today (the
date of passing of this `Judgment’).
346. As regards the non-furnishing of information Viz., the
Appellant/Amazon’s omission/lapse/failure to notify the `Combination’
as per the obligation required under the ingredients of Section 6 (2) of the

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Competition Act, 2002, this `Tribunal’ holds the Àppellant/Amazon’ for
its failure to provide the relevant information on the `Combinations’
being responsible and accountable in not giving `Notice’ as required and
in this regard, this `Tribunal’, to secure the ènds of justice’ is not
displacing the imposition of penalty of INR Rs.200 Crore levied upon the
Àppellant/Amazon’ by the `1st Respondent/CCI’ in the ìmpugned
order’ dated 17.12.2021, since the same is a fair and sensible one, as per
Section 43A of the Competition Act, 2002. As such, this `Tribunal’
directs the Àppellant/Amazon’ to pay the sum of Rs.200 Crore within
45 days from today, (the date of passing of this `Judgment’). Also, this
`Tribunal’ directs the Àppellant/Amazon’ to give notice to the `1st
Respondent/CCI’ in `Form II’ within 45 days from today (the date of
passing of this `Judgment’) and till the disposal of such notice, by the `1st
Respondent/CCI’, the Àpproval’ granted on 28.11.2019 (vide
Combination Registration No.C-2019/09/688), shall be `kept on hold’.
Disposition (Competition Appeal (AT) No. 01 of 2022):
347. In fine, with the above observations and directions, the instant
Competition Appeal (AT) No.01 of 2022 stands disposed of. No costs.
IA Nos. 122 & 123 of 2022 in Competition Appeal (AT) No. 01 of 2022
are closed.

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Background:
348. The Appellant has focussed the present `Competition Appeal’
(AT) No. 02 of 2022, as an Àffected Person’, assailing the Òrder’ dated
28.11.2019, passed by the `1st Respondent/Competition Commission of
India’ in Ref No. M-2019/09/688 (ìmpugned order’) among other
things, in view of the findings of the `1st Respondent/CCI’ in its Òrder’
dated 17.12.2021, wherein the `1st Respondent/CCI’ had categorically
held that the `2nd Respondent Viz., Amazon.com NV Investments
Holdings had by deliberate design made false statement and suppressed
and misrepresented material information(s) to the `1st Respondent/CCI’
and sought an Àpproval’ of the `proposed combination’ as notified in its
`Form I’ and culminating in the ìmpugned order’.
349. The `1st Respondent/Competition Commission of India’, while
passing the ìmpugned order’ dated 28.11.2019 (under Section 31 (1) of
the Competition Act,2002) (in respect of `Notice’ under Section 6 (2) of
the Competition Act, 2002, filed by Amazon.com NV Investment
Holdings LLC) at paragraph nos. 6 to 16, had observed the following:
6. “ACI, the ultimate parent entity of the Amazon group,

through its Indian and overseas subsidiaries (“Acquirer

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Affiliates”), has business operations in India, which inter alia,
relates to the retail sector, digital payments, payments processing
and cloud computing. In this regard, it is noted that ACI has inter
alia, investment in the following Indian enterprises:
(a) Amazon Seller Services Private Limited
(“ASSPL”/“Marketplace Affiliate”)
(b) Amazon Retail India Private Limited (“ARIPL”)
(c) Amazon Pay (India) Private Limited (“APIPL”)
(d) Amazon Wholesale (India) Private Limited (“AWIPL”)
(e) Amazon Transport Services Private Limited (“ATSPL”)
7. Further, it is noted that: (a) Marketplace Affiliate operates

Amazon India Marketplace which offers ecommerce platform to
third party sellers. It partners with various sellers and facilitates
the sale of a variety of products offered by these sellers to
endconsumers online; (b) ARIPL undertakes retail of food
products manufactured and produced in India through the Amazon
India Marketplace; (c) APIPL is engaged in the business of
providing digital payment services to the customers on the Amazon
India Marketplace, (d) AWIPL offers products in various
categories such as health care, baby care, office supplies, food and
beverage, medical supplies, home essentials, etc. to customers on
a wholesale basis and (e) ATSPL provides services relating to the
shipping of goods from sellers who list their products on the
Amazon India Marketplace and under the Prime Now Programme.
Additionally, the Acquirer has stated that it has certain non-
controlling minority investments in entities (“Acquirer Portfolio
Companies”) engaged in business activities in India.
8. The Commission noted that FCRPL, FCL and FRL belong to the
Future group of companies. Prior to the Proposed Combination,
FCL is a wholly owned subsidiary of FCRPL and is now
principally engaged in marketing and distribution of corporate gift

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cards, loyalty cards and reward cards to corporate customers.
Until FY19 i.e. 31st March, 2019, FCL was only engaged in the
business-to-business wholesale trading of fabrics. It does not have
any direct or indirect subsidiaries in India. It has been stated that
so far (in Q1 of FY20), FCL only procured the gift cards and
vouchers of Future group companies (such as FRL) and sold the
same to its customers (such as Paytm).
9. FCRPL, an entity incorporated in India, is engaged in business
of management consultancy services and trading in goods and
services. FCRPL also has investments in various Future group of
companies. FCL and FCRPL are owned and controlled by the
promoter group led by Mr. Kishore Biyani (“Promoter Group”).
10. FRL, an entity listed on National Stock Exchange of India and

BSE, is flagship retail entity of the Promoter Group with FCRPL
being one of the promoters and the single largest shareholder in
FRL. FRL (including its subsidiaries) is active in the Indian retail
market and currently operates multiple retail formats in
hypermarkets, supermarkets and convenience stores under
different brand names, including: Big Bazaar / Big Bazaar GenNxt
/ Hypercity (variety departmental chain); FBB (Fashion @ Big
Bazaar); Foodhall (premium lifestyle food destination); Easyday
(super market chain); Heritage Fresh (super market chain);
Nilgiris (super market chain); WHSmith (books, stationery and
traveller focused specialty retail chain); eZone (high end
consumer electronics specialty store); and 7-Eleven.
Competition Assessment:
11. With respect to the presence of Amazon Group and FCL in
coupons / gift cards activities, the Commission, based on the
submissions, noted that Amazon co-branded gift cards are issued
by an independent third party, Qwikcilver Solutions Private
Limited (“Qwikcilver”) and neither ACI nor any other Acquirer
Affiliate hold any shares in Qwikcilver. Further, it is stated that

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neither APIPL nor any other Acquirer Affiliate is engaged in the
business of issuing/distributing gift cards in India.
12. It is noted that the wholesale (B2B) and retail (B2C) activities
of Acquirer or Acquirer Affiliates have horizontal overlap(s)
and/or vertical relationship(s) with business activities of FRL
(including its direct and / or indirect subsidiaries).
13. With respect to the presence of Future Group and certain
Acquirer Affiliates in the business of B2C retail, the Commission
carried out the assessment at overall India retail market level,
separately for organised segment, and within organised segment
separately for other narrower segments. The Commission
observed that the presence of FRL and Acquirer Affiliates in
overall B2C retail or in any narrower segment stated above is not
such as to raise any competition concern. Therefore, the Proposed
Combination is not likely to raise any competition concern and the
exact relevant market definition is being left open. Combination
14. With regard to potential as well as existing vertical
relationship(s) in B2B sales, Amazon branded devices, digital
payment and online marketplace/online intermediation services, it
observed that:
(a) AWIPL is a marginal player in B2B sales and does not make
any B2B sales to the FCRPL Group entities. AWIPL is merely a
wholesale reseller of branded products that are widely available
through various other wholesale formats and any potential
vertical relationship may not raise foreclosure concern.
(b) Currently ASSPL does not directly supply the Amazon branded
devices to Future Group entities for retailing and in the presence
of various other sellers of Amazon branded devices and other
competing products in the market, any potential vertical
relationship between ASSPL and Future Group entities may not
raise any competition concern.
(c) There is no existing direct commercial agreement between
ATSPL and FCRPL Group entities for provision of services

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relating to the shipping of goods from sellers listed on Amazon
India Marketplace. It has been stated that there aren’t any existing
or potential direct business arrangement between ATSPL and
FCRPL Group entities and multiple shipping and logistics service
providers are present in India.
(d) Both APIPL and FCL have marginal presence in the overall
payments market in India and currently APIPL has no existing
business arrangement with FCL. It is also observed that in digital
payments services, PayTM Payments Bank Limited is the biggest
player in the m-wallet services and there are other players such as
Google Pay and PhonePe providing similar services.
(e) The sales made by Future group entities including FRL through
third party online marketplaces (including Amazon India
Marketplace) are insignificant.
15. Considering the facts on record, details provided in the notice

given under sub-section (2) of Section 6 of the Act and assessment
of the proposed combination on the basis of factors stated in sub-
section (4) of Section 20 of the Act, the Commission is of the
opinion that the proposed combination is not likely to have an
appreciable adverse effect on competition in India and therefore,
the Commission, hereby, approves the same under sub-section (1)
of Section 31 of the Act.
16. This order shall stand revoked if, at any time, the information
provided by the Acquirer is found to be incorrect. This approval
should not be construed as immunity in any manner from
subsequent proceedings before the Commission for violations of
other provisions of the Act.”

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Appellant’s Contentions (All India Consumer Product Distributors
Federation):
350. The Learned Counsel for the Appellant (All India Consumer
Product Distributors Federation - `ÀICPDF”) submits that the
proceedings before the 1st Respondent / CCI and this Àppellate
Tribunal’ under the Competition Act, 2002, are proceedings in `rem’ and
that the Members of the ÀICPDF’ and ÀICPDF’ are gravely affected
by the entry of Multinational Companies, Viz., Àmazon’, `Flipkart’ and
`Walmart’, etc., who violate the Ìndian Law’ that was entry of `Foreign
Direct Investment’ in `Multi Brand Retail Trade’ (`MBRT’).
351. The Learned Counsel for the Appellant submits that ÀICPDF’ is
a `person aggrieved’ by the ìmpugned order’ dated 28.11.2019 passed
by the 1st Respondent/CCI as per decision of the Hon’ble Supreme Court
in Samir Aggarwal v. Competition Commission of India, reported in
2021 3 SCC at Page 136 (Spl. pgs : 154 to 159), wherein at paragraphs
16 to 23, it is observed as under:
16. “Section 45 of the Act is a deterrent against persons who

provide information to the CCI, mala fide or recklessly, inasmuch
as false statements and omissions of material facts are punishable
with a penalty which may extend to the hefty amount of rupees one
crore, with the CCI being empowered to pass other such orders as
it deems fit. This, and the judicious use of heavy costs being
imposed when the information supplied is either frivolous or mala

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fide, can keep in check what is described as the growing tendency
of persons being “set up” by rivals in the trade.
17. The 2009 Regulations also point in the same direction

inasmuch as regulation 10, which has been set out hereinabove,
does not require the informant to state how he is personally
aggrieved by the contravention of the Act, but only requires a
statement of facts and details of the alleged contravention to be set
out in the information filed. Also, regulation 25 shows that public
interest must be foremost in the consideration of the CCI when an
application is made to it in writing that a person or enterprise has
substantial interest in the outcome of the proceedings, and such
person may therefore be allowed to take part in the proceedings.
What is also extremely important is regulation 35, by which the
CCI must maintain confidentiality of the identity of an informant
on a request made to it in writing, so that such informant be free
from harassment by persons involved in contravening the Act.
18. This being the case, it is difficult to agree with the impugned
judgment of the NCLAT in its narrow construction of section 19 of
the Act, which therefore stands set aside.
19. With the question of the Informant’s locus standi out of the
way, one more important aspect needs to be decided, and that is
the submission of Shri Rao, that in any case, a person like the
Informant cannot be said to be a “person aggrieved” for the
purpose of sections 53B and 53T of the Act. Shri Rao relies heavily
upon Adi Pherozshah Gandhi (supra), in which section 37 of the
Advocates Act, 1961 came up for consideration, which spoke of the
right of appeal of “any person aggrieved” by an order of the
disciplinary committee of a State Bar Council. It was held that
since the Advocate General could not be said to be a person
aggrieved by an order made by the disciplinary committee of the
State Bar Council against a particular advocate, he would have no
locus standi to appeal to the Bar Council of India. In so saying,
the Court held:
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“11. From these cases it is apparent that any person who
feels disappointed with the result of the case is not a “person
aggrieved”. He must be disappointed of a benefit which he
would have received if the order had gone the other way.
The order must cause him a legal grievance by wrongfully
depriving him of something. It is no doubt a legal grievance
and not a grievance about material matters but his legal
grievance must be a tendency to injure him. That the order
is wrong or that it acquits some one who he thinks ought to
be convicted does not by itself give rise to a legal
grievance.”
20. It must immediately be pointed out that this provision of the

Advocates Act, 1961 is in the context of a particular advocate
being penalized for professional or other misconduct, which
concerned itself with an action in personam, unlike the present
case, which is concerned with an action in rem. In this context, it
is useful to refer to the judgment in A. Subash Babu v. State of A.P.,
(2011) 7 SCC 616, in which the expression “person aggrieved” in
section 198(1)(c) of the Code of Criminal Procedure, 1973, when
it came to an offence punishable under section 494 of the Indian
Penal Code, 1860 (being the offence of bigamy), was under
consideration. It was held that a “person aggrieved” need not only
be the first wife, but can also include a second “wife” who may
complain of the same. In so saying, the Court held: (SCC pp. 628-
29 Para 25)
“25. Even otherwise, as explained earlier, the second wife

suffers several legal wrongs and/or legal injuries when the
second marriage is treated as a nullity by the husband
arbitrarily, without recourse to the court or where a
declaration sought is granted by a competent court. The
expression “aggrieved person” denotes an elastic and an
elusive concept. It cannot be confined within the bounds of
a rigid, exact and comprehensive definition. Its scope and
meaning depends on diverse, variable factors such as the

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content and intent of the statute of which the contravention
is alleged, the specific circumstances of the case, the nature
and extent of complainant's interest and the nature and the
extent of the prejudice or injury suffered by the complainant.
Section 494 does not restrict the right of filing complaint to
the first wife and there is no reason to read the said section
in a restricted manner as is suggested by the learned
counsel for the appellant. Section 494 does not say that the
complaint for commission of offence under the said section
can be filed only by the wife living and not by the woman
with whom the subsequent marriage takes place during the
lifetime of the wife living and which marriage is void by
reason of its taking place during the life of such wife. The
complaint can also be filed by the person with whom the
second marriage takes place which is void by reason of its
taking place during the life of the first wife.” (page 628)
21. Clearly, therefore, given the context of the Act in which the
CCI and the NCLAT deal with practices which have an adverse
effect on competition in derogation of the interest of consumers, it
is clear that the Act vests powers in the CCI and enables it to act
in rem, in public interest. This would make it clear that a “person
aggrieved” must, in the context of the Act, be understood widely
and not be constructed narrowly, as was done in Adi Pherozshah
Gandhi (supra). Further, it is not without significance that the
expressions used in sections 53B and 53T of the Act are “any
person”, thereby signifying that all persons who bring to the CCI
information of practices that are contrary to the provisions of the
Act, could be said to be aggrieved by an adverse order of the CCI
in case it refuses to act upon the information supplied. By way of
contrast, section 53N(3) speaks of making payment to an applicant
as compensation for the loss or damage caused to the applicant as
a result of any contravention of the provisions of Chapter II of the
Act, having been committed by an enterprise. By this sub-section,
clearly, therefore, “any person” who makes an application for
compensation, under sub-section (1) of section 53N of the Act,
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would refer only to persons who have suffered loss or damage,
thereby, qualifying the expression “any person” as being a person
who has suffered loss or damage. Thus, the preliminary objections
against the Informant/Appellant filing Information before the CCI
and filing an appeal before the NCLAT are rejected.
22. An instructive judgment of this Court reported as Competition

Commission of India v. Steel Authority of India, (2010) 10 SCC
744 dealt with the provisions of the Act in some detail and held:
(SCC pp. 768, 788-89 & 794, paras 37-38, 101-06 & 125-26).
“37. As already noticed, in exercise of its powers, the

Commission is expected to form its opinion as to the
existence of a prima facie case for contravention of certain
provisions of the Act and then pass a direction to the
Director General to cause an investigation into the matter.
These proceedings are initiated by the intimation or
reference received by the Commission in any of the manners
specified under Section 19 of the Act. At the very threshold,
the Commission is to exercise its powers in passing the
direction for investigation; or where it finds that there exists
no prima facie case justifying passing of such a direction to
the Director General, it can close the matter and/or pass
such orders as it may deem fit and proper. In other words,
the order passed by the Commission under Section 26(2) is
a final order as it puts an end to the proceedings initiated
upon receiving the information in one of the specified
modes. This order has been specifically made appealable
under Section 53-A of the Act.
38. In contradistinction, the direction under Section 26(1)
after formation of a prima facie opinion is a direction
simpliciter to cause an investigation into the matter.
Issuance of such a direction, at the face of it, is an
administrative direction to one of its own wings
departmentally and is without entering upon any
adjudicatory process. It does not effectively determine any

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right or obligation of the parties to the lis. Closure of the
case causes determination of rights and affects a party i.e.
the informant; resultantly, the said party has a right to
appeal against such closure of case under Section 26(2) of
the Act. On the other hand, mere direction for investigation
to one of the wings of the Commission is akin to a
departmental proceeding which does not entail civil
consequences for any person, particularly, in light of the
strict confidentiality that is expected to be maintained by the
Commission in terms of Section 57 of the Act and Regulation
35 of the Regulations.”
101. The right to prefer an appeal is available to the Central

Government, the State Government or a local authority or
enterprise or any person aggrieved by any direction,
decision or order referred to in clause (a) of Section 53-A
[ought to be printed as 53-A(1)(a)]. The appeal is to be filed
within the period specified and Section 53-B(3) further
requires that the Tribunal, after giving the parties to appeal
an opportunity of being heard, to pass such orders, as it
thinks fit, and send a copy of such order to the Commission
and the parties to the appeal.
102. Section 53-S contemplates that before the Tribunal a

person may either appear “in person” or authorise one or
more chartered accountants or company secretaries, cost
accountants or legal practitioners or any of its officers to
present its case before the Tribunal. However, the
Commission's right to legal representation in any appeal
before the Tribunal has been specifically mentioned under
Section 53-S(3). It provides that the Commission may
authorise one or more of chartered accountants or company
secretaries or cost accountants or legal practitioners or any
of its officers to act as presenting officers before the
Tribunal. Section 53-T grants a right in specific terms to the
Commission to prefer an appeal before the Supreme Court
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within 60 days from the date of communication of the
decision or order of the Tribunal to them.
103. The expression “any person” appearing in Section 53-

B has to be construed liberally as the provision first
mentions specific government bodies then local authorities
and enterprises, which term, in any case, is of generic
nature and then lastly mentions “any person”. Obviously, it
is intended that expanded meaning be given to the term
“persons” i.e. persons or bodies who are entitled to appeal.
The right of hearing is also available to the parties to
appeal.
104. The above stated provisions clearly indicate that the

Commission, a body corporate, is expected to be party in the
proceedings before the Tribunal as it has a legal right of
representation. Absence of the Commission before the
Tribunal will deprive it of presenting its views in the
proceedings. Thus, it may not be able to effectively exercise
its right to appeal in terms of Section 53 of the Act.
105. Furthermore, Regulations 14(4) and 51 support the

view that the Commission can be a necessary or a proper
party in the proceedings before the Tribunal. The
Commission, in terms of Section 19 read with Section 26 of
the Act, is entitled to commence proceedings suo motu and
adopt its own procedure for completion of such
proceedings. Thus, the principle of fairness would demand
that such party should be heard by the Tribunal before any
orders adverse to it are passed in such cases. The Tribunal
has taken this view and we have no hesitation in accepting
that in cases where proceedings initiated suo motu by the
Commission, the Commission is a necessary party.
106. However, we are also of the view that in other cases

the Commission would be a proper party. It would not only

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help in expeditious disposal, but the Commission, as an
expert body, in any case, is entitled to participate in its
proceedings in terms of Regulation 51. Thus, the assistance
rendered by the Commission to the Tribunal could be useful
in complete and effective adjudication of the issue before
it.” (page 788)
125. We have already noticed that the principal objects of

the Act, in terms of its Preamble and the Statement of
Objects and Reasons, are to eliminate practices having
adverse effect on the competition, to promote and sustain
competition in the market, to protect the interest of the
consumers and ensure freedom of trade carried on by the
participants in the market, in view of the economic
developments in the country. In other words, the Act
requires not only protection of free trade but also protection
of consumer interest. The delay in disposal of cases, as well
as undue continuation of interim restraint orders, can
adversely and prejudicially affect the free economy of the
country. Efforts to liberalise the Indian economy to bring it
on a par with the best of the economies in this era of
globalisation would be jeopardised if time-bound schedule
and, in any case, expeditious disposal by the Commission is
not adhered to. The scheme of various provisions of the Act
which we have already referred to including Sections 26,
29, 30, 31, 53-B(5) and 53-T and Regulations 12, 15, 16, 22,
32, 48 and 31 clearly show the legislative intent to ensure
timebound disposal of such matters.
126. The Commission performs various functions including

regulatory, inquisitorial and adjudicatory. The powers
conferred by the legislature upon the Commission under
Sections 27(d) and 31(3) are of wide magnitude and of
serious ramifications. The Commission has the jurisdiction
even to direct that an agreement entered into between the
parties shall stand modified to the extent and in the manner,

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as may be specified. Similarly, where it is of the opinion that
the combination has, or is likely to have, an appreciable
adverse effect on competition but such adverse effect can be
eliminated by suitable modification to such combination, the
Commission is empowered to direct such modification.”
(page 794)
23. Obviously, when the CCI performs inquisitorial, as opposed to

adjudicatory functions, the doors of approaching the CCI and the
appellate authority, i.e., the NCLAT, must be kept wide open in
public interest, so as to subserve the high public purpose of the
Act.”
and as such, the Learned Counsel for the Appellant contends that the
Àppellant’ is a `Necessary and Proper Party’ to the instant Àppeal’.
352. The Learned Counsel for the Appellant submits that `Fraud vitiates
all acts, judicial and ecclesiastical’. According to the Àppellant’, àll acts
and orders/permissions’, obtained by `Fraud’ are `nullity’ and has `no
legs to stand` in the èye of law’.
353. According to the Learned Counsel for the Appellant, the language
of the ìmpugned order’ dated 28.11.2019 of the `1st Respondent/CCI’ in
(Combination Registration No. C-2019/09/688) employed at paragraph
16 i.e., `shall stand revoked’, if the information is found to be ìncorrect’
is not a `discretionary one’, but a `mandatory one’. Therefore, in lieu of
the findings of `false statements’, `suppression’ and `misrepresentations’

Page 291 of 310
in the `1st Respondent/CCI’ Order and the requirements of the ingredients
of Section 43A, 44 and 45 of the Competition Act, 2002, having been
fulfilled, the ìmpugned order’ dated 28.11.2019 is to be revoked and set
aside by this `Tribunal’ in the interest of justice.
Appellant’s Case Law:
354. The Learned Counsel for the Appellant relies on the decision of
the Hon’ble Supreme Court in A.V. Papayya Sastry v. Govt. of A.P.,
(2007) 4 SCC, Page 221 (vide paragraphs 21 to 23), inter alia to the effect
that `Fraud avoids all Judicial acts, ecclesiastical or temporal and that a
`Judgement’, `Decree’ or Òrder’ obtained by playing `Fraud’ on the
`Court’, `Tribunal’ or Àuthority’ is a `nullity’ and `non est’ in the èye
of law’ and moreover, `No Judgement of a Court’, `No Order of a
Minister’, can be allowed to stand, if it has been obtained by `Fraud’, as
per decision in Lazarus Estates Ltd. v. Beasley 1956 1QB 702.
Pleas of 2nd Respondent/Amazon.com NV Investment Holdings LLC
in Comptn App (AT) Nos. 2 and 3 of 2022):
355. It is the submission of the Learned Counsel for the 2nd Respondent
states that the Àppellants’ (in Comptn. App (AT) Nos. 2 and 3 of 2022)
have no locus standi to intervene in the confidential proceedings (Viz.

Page 292 of 310
Show Cause Notice proceedings issued by the `1st Respondent/CCI’) or
to prefer Àppeals’ before this `Tribunal’ because of the fact that they are
strangers to the proceedings before the `1st Respondent/CCI’, since they
are not relevant `Stakeholder’ in `Combination’ between the
Àppellant/Amazon’ and the 2nd Respondent/FCPL. That apart, they are
not `Parties’ to the `Combination’ between the Àppellant/Amazon’ and
the `2nd Respondent/FCPL’ as per Section 5 of the Competition Act,
2002, which defines a `Combination’ read with Regulation 2 (1) (f) of
the Combination Regulations, which defines a `Party’ to the
`Combination’.
356. The Learned Counsel for the `2nd Respondent/Amazon’ refers to
Section 29 of the Competition Act, 2002, which enumerates the
conditions when the `1st Respondent/CCI’ may allow third parties to
participate in the `Combination’ proceedings.
357. Section 29 (2) of the Competition Act, 2002, specifies that the
Commission may invite any third party which is affected or is likely to
be affected by the said `Combination’, only when the `1 st
Respondent/CCI’ after considering the Response of the Parties to the
Combination has formed the prima facie opinion that the `Proposed
Combination’ is likely to cause ÀAEC’ and that, till date, no such `prima

Page 293 of 310
facie opinion’ has been formed by the `Commission’. As such, it is the
stand of the `2nd Respondent/Amazon’ that till a prima facie opinion is
formed and a `Notice’ is issued under the Section 29 of the Competition
Act, 2002, the proceedings pertaining to the review of a notified
Combination are in personam.
358. The Learned Counsel for the `2nd Respondent/Amazon’ points out
that the `Show Cause Notice’ dated 04.06.2021 was issued by the `1 st
Respondent/CCI’ only to the Appellant/Amazon (in Comptn App (AT)
No. 1 of 2022) as per Section 43A, 44 and 45 of the Competition Act,
2002 and not under Section 29 of the Act. In fact, all the proceedings
undertaken qua, the penal provisions are in personam proceedings against
the Àppellant/Amazon’ and rightly, the `Show Cause Notice’ had not
mentioned the `Confederation of All India Traders’.
359. According to Learned Counsel for the `2nd Respondent/Amazon’,
the `1st Respondent/CCI’ had not considered the
Àppellant/Confederation of All India Traders’ (Comptn. App (AT) No.
3 of 2022) to be a `Stakeholder’ in the `Show Cause Proceedings’ before
the Òrder’ dated 19.11.2021. In fact, the Hon’ble High Court of Delhi
without delving into the merits of the matter had directed the `1 st
Respondent/CCI’ to consider the `Show Cause Notice’ aspect within two

Page 294 of 310
weeks, after considering all objections raised by the Àppellant’ and to
pass an order, after hearing all the `Stakeholders’. In fact, the Hon’ble
High Court of Delhi’s order, according to the Appellant had not directed
CAIT (Appellant in Comptn. App (AT) No. 3 of 2022) to be heard but
only directed the Commission to hear all the `Stakeholders’. However,
the `1st Respondent/CCI’ had allowed a third person / `CAIT’ to take part
in the hearing in the `Show Cause Notice Proceedings’ against the
Àppellant/Amazon’.
360. The version of the Learned Counsel for the 2 nd
Respondent/Amazon is that in the detailed oral hearing on 22.09.2021
when the `1st Respondent/CCI had heard the Àppellant’ in a detailed oral
hearing, `CAIT’ was not part of the proceedings. In fact, on 15.11.2021,
the Commission had directed the `FCPL’ and the Àppellant’ to file their
pleading Viz. Reply and Rejoinder and the hearing was slated on
04.01.2022. Indeed, CAIT’s letter dated 08.11.2021 was not part of the
`Commission’s record as on 23.11.2021, when an inspection of
Commission’s record pertaining to the `Show Cause Proceedings’ was
conducted by the Àppellant’. In reality, the `Show Cause Notice’ was
not issued pursuant to any information provided by the Àppellant/CAIT’
(in Comptn. App (AT) No. 3 of 2022).

Page 295 of 310
361. The Learned Counsel for the `2nd Respondent/Amazon’
vehemently takes a plea that both the Appellants in Comptn. App (AT)
Nos. 2 and 3 of 2022, have àbused the process of law’ by filing these
two Appeals and they have no `Locus’ to assail the ìmpugned order’
dated 28.11.2019, passed by the `1st Respondent/CCI’ under Section 53B
of the Competition Act, 2002.
362. Further, the aforesaid `Two Appellants’ are not affected by the
`Combination’ or the Àpproval Order’ being `kept on hold’. Besides
this, this Àppellate Tribunal’ is not empowered to assess as to whether
there was ÀAEC’ or otherwise. Neither the `1st Respondent/CCI’ nor the
aforesaid Àppellants’ have been able to exhibit that the notified
transactions caused any ÀAEC’ in the Indian market, even after two
years of consummation.
363. The Learned Counsel for the `2nd Respondent/Amazon’ points out
that the Àppellant/AICPDF’ (in Comptn. App (AT) No.2 of 2022) is
acting as `Proxy Litigant’ for `Future Group’ and Àppellant/CAIT’ (in
Comptn. App (AT) No. 3 of 2022. As a matter of fact, both the
Àppellants’ in the aforesaid two Appeals should have preferred an
`Petition’ for ìmpleadment’ before the Commission showing tangible
interest in the outcome of `Show Cause Proceedings’ against the

Page 296 of 310
Àppellant’ and only then, the `Commission’ was under an obligation to
pass an order of ìmpleadment of CAIT’, as a necessary party, in public
interests, in the outcome of `SCN’ proceedings.
364. The Learned Counsel for the `2nd Respondent/Amazon’ contends
that Àmazon’ (Appellant in Comptn. App (AT) No. 1 of 2022 has not
committed any fraud upon the `1st Respondent/CCI’ in obtaining an
Àpproval’ for its investment in `Future Group’ and that it had disclosed
all material particulars pertaining to its investment in `Future Group’.
Equally, there was no misrepresentation from the Àppellant/Amazon’s
`Response to Query 6.7 of Form I’, wherein the Àmazon/Appellant’ had
stated that `the `Proposed Combination’ pertains to overall retail market
in India, etc.’
2nd Respondent/Amazon’s Decisions:
365. On behalf of the 2nd Respondent/Amazon, the Learned Counsel for
the 2nd Respondent/Amazon refers to the decision of the Hon’ble
Supreme Court of India in Bhaurao Dagdu Paralkar V State of
Maharashtra and Others (2005) 7 SCC 605, wherein it is observed that
non-disclosure of information that was not required to be disclosed, will
not amount to `Fraud’.

Page 297 of 310
366. It is represented on the side of the 2nd Respondent/Amazon that the
bundle of rights flowing from `FCPL SHA’ and `FRL’ was fully
disclosed in the main Notification Form as well as in the subsequent
responses. Therefore, there is no àspect of any suppression or
concealment of the alleged rights granted to the Amazon, by virtue of its
investment in `2nd Respondent/FCPL’. Added further, there was no
concealment of control related rights, to avoid notifying the real
transaction. There was full disclosure relating to `FRL’, `FRL SHA’ and
`BCAs’ notwithstanding the fact that `BCAs’ were not related to the
`notified combination’.
367. The Learned Counsel for the `2nd Respondent/Amazon’ brings to
the notice of this `Tribunal’ the Àppellant/Amazon’ investment in `2nd
Respondent/FCPL’ was under ÌOCC Structure’. In fact, the rights
accruing to the Appellant/Amazon under `FCPL SHA’ was not to be read
without reference to `FRL SHA’, since several of these rights contained
express reference to `FRL SHA’. Furthermore, nowhere in the
`Notification’, the Àppellant/Amazon’ had urge the `1 st
Respondent/CCI’ not to examine the `BCAs’. In short, it is the
submission of the Learned Counsel for the 2nd Respondent/Amazon the
allegation of `Fraud’ levelled against it is without any basis.

Page 298 of 310
Discussions:
368. It is to be pointed out that àn Informant’ need not be an àffected
party’ to prefer a case before the `1st Respondent/Commission’. An
Ìnformant’ need not necessarily be àn Aggrieved / Affected Party’ to
file a case before the `1st Respondent/Commission’. In fact, there is
nothing in the Section 18 and 19 read with Section 26 (1) of the
Competition Act, 2002, from which, one can come to a conclusion that
the `1st Respondent/Commission’ has power to deny the `Reliefs’ sought
for, in respect of an Ìnvestigation’ into an Àllegation’ pertaining to
Section 3 and 4 of the Competition Act, 2002, on the basis that the
Ìnformant’ has `no personal interest’ in the matter, or he appears to be
acting at the instance of someone else.
369. To put it succinctly, the Competition Act, 2002, does not prescribe
àny qualification’ for a `person’, who desires to file an ìnformation’
under Section 19 (1) (a) of the Competition Act, 2002.
370. Considering the fact that the Hon’ble High Court of Delhi in
W.P.(C) 12889/21 (Confederation of All India Traders V Union of India
and Another) filed by the Confederation of All India Traders (Appellant
in Comptn. App (AT) No. 3 of 2002) had passed an Òrder’ dated
16.11.2021 in directing the `1st Respondent/CCI’ to determine the issue

Page 299 of 310
raised in the `1st Respondent/CCI’s `Show Cause Notice’ dated
04.06.2021 within a period of two weeks’ from today, and the said
decision to be taken after giving an opportunity of hearing to the
`Stakeholders’, this `Tribunal’ unhesitatingly holds that the Àppellants’
in Comptn. Appeal (AT) Nos. 2 and 3 of 2022 (ÀICPDF’ and `CAIT’)
do have the `Locus’ to prefer these `Two Appeals’ and as such, the said
Àppeals’ are `maintainable in Law’ and answered accordingly.
371. Although, the Àppellant’ (ÀICPDF’) in Comptn. App (AT) No.
02 of 2022, has prayed for setting aside the Àpproval Order’ dated
28.11.2019 to the limited extent stating that the `1st Respondent/CCI’
cannot examine a `Transaction’ which is an ìllegality’ and further that
the `1st Respondent/CCI’ cannot approve a `Transaction’ which is in
`negation to law’ and as such, the `Commission’ should have revoked the
Àpproval Order’ dated 28.11.2019, all the more, when there was no
valid `Notice’ at all, in the èye of law’, there was blatant suppression
and misrepresentation and moreover, in the absence of a valid `Notice’,
the Appellant/Amazon’s `Proposed Combination’ could not at all take
effect or exist, in the èye of law’ and is `void ab initio’ and that apart,
the `1st Respondent/CCI’ should not have `kept on hold’ the Àpproval
Order’ dated 28.11.2019, etc., it is pertinently pointed out by this

Page 300 of 310
`Tribunal’ that the `1st Respondent/CCI’ (as a `Statutory Regulator’),
keeping in tune with the objectives of `Competition Law’ in our Country,
to reach the highest sustainable level of economic growth,
entrepreneurship, to promote sustainable and economic development,
support good governance, etc., has wide powers to keep the Àpproval’
granted by it òn Hold’ / Àbeyance’, etc., as per Section 45 (2) of the
Competition Act, 2002, when the `Commission’, earlier, came to a
conclusion that Section 44 of the Competition Act, 2002, was breached
vis-à-vis `Combination Approval’ by the Àppellant/Amazon’. Suffice it
for this `Tribunal’, to point out that the `Power given to the `1st
Respondent/CCI’ to even annul an Àpproval Order’, takes within its
purview to `keep on hold, the Àpproval Order’ dated 28.11.2019 in
Àbeyance’, when it provided an opportunity to the Àppellant/Amazon’
to present `Form II’ afresh. Looking at from any angle, the Comptn. App
(AT) No. 02 of 2022 sans merits.
Conclusion (Competition Appeal (AT) No. 02 of 2022):
372. In the result, the Competition Appeal (AT) No. 02 of 2022 is
dismissed. No costs. IA Nos. 127, 128 and 129 of 2022 in Competition
Appeal (AT) No. 02 of 2022 are closed.

Page 301 of 310
373. The Appellant has projected the present `Competition Appeal’ (AT
No. 03 of 2022, questioning the Òrder’ dated 17.12.2021, passed by the
`1st Respondent/Competition Commission of India’ in Ref No. M-
2019/09/688 (ìmpugned order’) to the limited extent of findings
rendered in paragraph 80 of the said order, wherein the `1 st
Respondent/CCI’, although had categorically held that the `2nd
Respondent/Amazon.com NV Investments Holdings LLC had by
deliberate design made `false statement’ and `suppressed’ and
`misrepresented’ material information to the `1st Respondent/CCI’, failed
to revoke the Àpproval’ and only directed that the Àpproval Order’
dated 28.11.2019, be kept in abeyance.
374. The `1st Respondent/Competition Commission of India’, while
passing the ìmpugned order’ dated 17.12.2021 (in respect of
proceedings) against the `2nd Respondent/Amazon.com NV Investment
Holdings LLC (Appellant in Competition App (AT) No. 01 of 2022)
(under Sections 43A, 44 and 45 of the Competition Act, 2002), at
paragraph nos. 74 to 84, had observed the following:
74. “Seen in the scheme of the Act and the underlying spirit, the
notice given under Section 6(2) of the Act is not a document of

Page 302 of 310
complex defence with legal arguments submitted in an adversarial
litigation, but an application for approval containing relevant
facts and particulars regarding the proposed combination that are
true, correct and complete to the best of knowledge and belief of
the notifying party. The facts, particulars and documents required
to be furnished under Form I, including the purpose of the
combination (item 5.3), inter-connected transactions (item 5.1.2)
and documents considered by boards of the parties or key
managerial personnel (Item 8.8), are essential to have a full, clear
and complete picture of the notified combination. The requirement
to disclose these material facts and particulars is paramount as
they enable the Commission to appreciate the commercial and
economic contours of the combination and decide appropriate
framework for assessment in the matter. If a party
conceals/suppresses and/or misrepresents to the Commission the
scope and purpose of the Combination and obtains approval, the
same would effectively amount to approval/consent having been
obtained by way of fraud. Such breach of trust of the Commission,
established under the Act for the benevolent purpose of promoting
and sustaining competition in markets in India, manifests a
deliberate disregard to the trust based regulatory mechanism
provided under the Act.
75. A holistic appreciation of the Notice and material brought on
record reveals that there has been a wilful and deliberate design
threaded across the Notice and subsequent submissions dated 15th
November, 2019 of Amazon, to suggest that the Combination
consists of only Transaction I, Transaction II and Transaction III;
and that FCPL SSA and FCPL SHA are the only two agreements
entered into between the parties in relation to the Combination.
The manner and extent of assertions regarding FRL SHA is that
the same was a pre-existing arrangement amongst the
shareholders of FRL, executed pursuant to the Warrants
Transaction, and it was negotiated independent of Transaction III
i.e., acquisition of 49% stake in FCPL by Amazon. The inter-
connection between FRL SHA and the Combination was

Page 303 of 310
suppressed. Similarly, the BCAs, although disclosed, were claimed
as neither inter-connected with, nor a part of the Combination.
However, the Internal Correspondence brings out that BCAs and
acquisition of strategic rights over FRL, through the acquisition of
shares in FCPL, had been considered together as parts of one
composite package, viz., ‘Project Taj [Future Group] – Investment
in National Multi-category Copperfield Seller’. FCPL was merely
a vehicle for Amazon to acquire interest over FRL, and such
interest was considered necessary to implement strategic
alignments between the business activities of Future and Amazon
groups in India.
76. The learned counsel appearing for Amazon argued that it had
disclosed FRL as a material entity, the object of attention and that
its businesses were essential consideration for Amazon to pursue
the Combination. This does not meet the requirement of
notification in Form I read with Regulation 5(2) of the
Combination Regulations and Section 6(2) of the Act. It is true that
Amazon had disclosed several materials relating to the
overlapping business activities of the parties to the Combination,
FRL and other affiliates. However, such disclosures relating to the
overlapping activities of Amazon group and FRL were claimed to
be by way of abundant caution as FCPL held warrants issued by
FRL38 (. Amazon has not provided any details in the context of the
actual combination, including FRL SHA and BCAs, being pursued
for strategic alignments between the business activities of Amazon
group and FRL / its affiliates. In the letter dated 24th October,
2019 of the Commission, the following specific query was posed to
Amazon: ‘2.9 According to the notice, in certain overlapping
segments of the areas of the operations of the parties, the combined
market shares are exceeding the thresholds given in regulation 5
(3) of the Combination regulations, you are required to provide
justification for filing the notice in Form I’. In response, Amazon
had inter alia submitted that:

Page 304 of 310
The Investor’s has no shareholding in FRL, and does not exercise
any control or influence on it, therefore the Proposed Combination
should not be subjected to Form II filing requirement…In the
present case, with a view to assist the Hon’ble Commission and
out of abundant caution, the overlap in the retail market has been
identified, pursuant to the FRL Warrants held by FCL…”
[Emphasis Supplied]
These claims were made by completely masking the fact that FRL
SHA and BCAs are inter-connected parts of the Combination,
contemplated to establish strategic alignments between the
business activities of FRL and Amazon Group. This is a critical
factor for determining the need for filing Form II in the matter.
However, consistent with the design across the Notice and
subsequent submissions of Amazon, the said details were
suppressed in response to the said query 2.9.
77. The Commission notes that the details of overlap between FRL
and Amazon Group, provided in the Notice, and subsequent
submissions of Amazon as well as the competition assessment
conducted in the Approval Order are in the context of FCPL
holding warrants in FRL. However, the said assessment is
definitely not from the perspective of strategic alignments between
FRL and Amazon Group. This is obvious from the Approval Order
as it does not make any reference to FRL SHA or the BCAs. The
Commission observes that the effect of commercial contracts
entered into between FRL and Amazon Group entities, in their
normal course of business, would be considerably different from
parties contemplating strategic alignments between their business
through strategic investments. The regulatory process of
notification by the parties that would follow an admission of the
commercial contracts being part of the combination and also the
purpose of the strategic acquisition of shares and rights would
entail consequential presentation of facts, representations,
clarifications and undertakings, if any, which would not be present
when such contracts are independent of the combination. The
Page 305 of 310
nature of inquiry by the Commission in these cases would also be
necessarily with due regard to the acquisition and contracts being
part of one single understanding to establish a strategic
partnership. This regulatory process, in itself, makes the notifying
party to furnish true, correct and complete information regarding
the actual combination pursued by the parties and thus, meet the
requirements of the Act and the Regulations framed thereunder.
Concurrently, such process would enable the Commission to
appreciate the combination in its actual sense, and accordingly,
discharge its functions in terms of the Act. If one were to argue
otherwise, it would be sufficient that the notice filed with the
Commission merely describes the name of the parties and their
business activities and there would be no need to give any other
detail as required in Form I or Form II, including the scope of
arrangements, their purposes and context of the combination. This
is ex facie contrary to the scheme and intendment of the Act and
Combination Regulations.
78. The above discussed omissions, false statements and

misrepresentations have the effect of influencing the line of inquiry
in assessing the Combination. Irrespective of what would have
been the outcome of a notice with true, correct and complete
disclosures, the misleading submissions, false statements,
omission and suppression of material particulars, facts and
documents discussed above, have denied and disabled the
Commission an opportunity to assess the effects of the actual
Combination, with specific focus to the actual intended objectives.
Condonation of such lapses would effectively mean that a notifying
party could disclose its legal contracts in a distorted and elongated
manner of its convenience and engage in suppressions and
misrepresentations of the actual scope and purpose of the
Combination. This makes all details sought in Form I and purpose
of regulation of combination under the Act, otiose, besides
stultifying the very legislative intent for merger review process.

Page 306 of 310
79. In sum, Amazon ought to have notified the combination, inter
alia, consisting of the following inter-connected steps: (a)
Transaction I; (b) Transaction II; (c) Transaction III; (d) FRL
SHA for the purpose of acquisition of strategic rights over FRL
through FCPL SHA; and (e) commercial agreements between
Amazon and Future groups, for the purpose of establishing
strategic alignment and partnership between Amazon Group and
FRL as well as have a ‘foot-in-the-door’ in the India retail sector.
Amazon failed to notify FRL SHA and the commercial
arrangements, as parts of the combination between the parties,
and supressed the actual purpose and particulars of the
combination, as discussed above, in contravention of the
obligation contained in subsection (2) of Section 6 of the Act read
with Regulation 5 and sub-regulations (4) and (5) of Regulation 9
of the Combination Regulations.
80. Given that the Combination is between players who are known
in the online marketplace and offline retailing and they have
contemplated strategic alignment between their businesses, the
Commission considers it necessary to examine the combination
afresh based on a notice to be given in Form II with true, correct
and complete information, as required therein. Accordingly, in
exercise of the powers conferred under sub-section (2) of Section
45 of the Act, the Commission hereby directs Amazon to give notice
in Form II within a period of 60 days from the receipt of this order,
and, till disposal of such notice, the approval granted vide Order
dated 28th November, 2019, in Combination Registration No. C-
2019/09/688, shall remain in abeyance.
81. In terms of Section 43A of the Act, if any person or enterprise

fails to give notice under sub-section (2) of Section 6 of the Act,
the Commission shall impose on such person or enterprise a
penalty which may extend to one percent of the total turnover or
the assets, whichever is higher, of such a combination. In case of
a contravention under Sections 44 and 45 of the Act, each of the
said provision renders the contravening person liable, inter alia,
Page 307 of 310
to a penalty, as provided therein. Though the penalty under
Sections 43A, 44 and 45 of the Act can be to the extent mentioned
therein, the Commission has sufficient discretion to consider the
conduct of the parties and the circumstances of the case to arrive
at an appropriate amount of penalty.
82. In the instant case, all the contraventions discussed above arise
from a deliberate design on the part of Amazon to suppress the
actual scope and purpose of the Combination, and the Commission
finds no mitigating factor. Resultantly, the Commission considers
it appropriate to levy the maximum penalty of INR One Crore each
under the provisions of Section 44 and Section 45 of Act.
Accordingly, Amazon is directed to pay a penalty of INR Two
Crore.
83. As regards failure to notify combination in terms of the

obligation cast under Section 6(2) of the Act, Section 43A of the
Act enables the Commission to impose a penalty, which may
extend to one percent of the total turnover or the assets, whichever
is higher, of such a combination. Accordingly, for the above
mentioned reasons, the Commission hereby imposes a penalty of
INR Two Hundred Crore upon Amazon.
84. Amazon is directed to pay monetary penalty as imposed vide

paras 82 and 83 above, within a period of 60 days from the receipt
of this order.”
375. In the instant Àppeal’ (Comptn. App (AT) No. 03 of 2022

notwithstanding the fact that the Àppellant/CAIT’ has prayed for setting
the ìmpugned order’ dated 17.12.2021 passed by the `1 st
Respondent/CCI’ (to a limited extent), to set aside the Àpproval Order’
dated 28.11.2019, passed by the `1st Respondent/CCI’ in `Notice’ dated
23.09.2019 (Registration No.C-2019/09/688) filed by the

Page 308 of 310
Àppellant/Amazon’, among other grounds that a `Party’ cannot get away
from the consequences of `suppression’, `false statements’ and
`misrepresentations’, and that the direction of the `1st Respondent/CCI’
in permitting a `Notification’ is in effect, condoning the serious offences
of the Àppellant/Amazon’, etc.
376. This `Tribunal’ taking note of the fact that the `1 st

Respondent/CCI’ has wide powers (including the residuary powers) as
per Section 45 (2) of the Competition Act, 2002, besides, the ìnherent
implied powers’ as a `Statutory Regulator’, to satisfy the aim and
objective of the Competition Act, 2002, is of the cock sure opinion that
the power of the `1st Respondent/CCI’ to grant an Àpproval’ includes
the power to keep its Òrder’ in Àbeyance’, when the
Àppellant/Amazon’ had breached vis-à-vis `Combination Approval’
and as such, even though the Àppellant’ as a `Stakeholder’ / Àggrieved’
has filed the instant Comptn. App (AT) No. 03 of 2002, the same being
maintainable, is not entitled to the `Reliefs’ prayed for in the subject
matter in issue, in the present Àppeal’. Consequently, the Comptn. App
(AT) No. 03 of 2022 is devoid of merits.
Result (Competition App (AT) No. 03 of 2022):
377. In fine, the Competition Appeal (AT) No. 03 of 2022 is dismissed.
No costs. IA Nos. 140, 141 and 142 of 2022 in Competition Appeal (AT)
No. 03 of 2022 are closed.

Page 309 of 310
The Òffice of the Registry’ is directed to send copy of this
`Judgment’ to the `Parties’ in Comptn. App (AT) No. 1, Comptn. App
(AT) No. 2 and Comptn. App (AT) No. 3 of 2022, accordingly.
[Justice M. Venugopal]
Member (Judicial)
[Dr. Ashok Kumar Mishra]

Member (Technical)
13/06/2022
SR/GC

Page 310 of 310

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL

PRINCIPAL BENCH, NEW DELHI

Competition Appeal (AT) No. 01 of 2022

For Respondent-1 : ASG Mr. N. Venkataraman with Mr. Manu

For Respondent-2 : Mr. Mukul Rohatgi and Mr. Harish Salve,

For Respondent-3 : Mr. Krishnan Venugopal and Mr. Saurabh

Competition Appeal (AT) No. 01 of 2022

Competition Appeal (AT) No. 01 of 2022

Competition Appeal (AT) No. 03 of 2022

1. Competition Commission of India

2. Amazon.com NV Investment Holdings LLC

3. Future Coupons Private Limited

For Appellant : Mr. Krishnan Venugopal and Mr. Saurabh

Competition Appeal (AT) No. 01 of 2022

For Respondent-2 : Mr. Gopal Subramanium, Mr. Arun Kathpalia

For Respondent-3 : Mr. Mukul Rohatgi and Mr. Harish Salve,

Justice M. Venugopal, Member (Judicial) :

Competition Appeal (AT) No. 01 of 2022

The Appellant/Amazon.com NV Investment Holdings LLC has

preferred the instant Competition Appeal (AT) No. 01 of 2022 as an

`Aggrieved Person’ (under Section 53 (B) of the Competition Act, 2002)

on being dissatisfied with the `impugned order’ dated 17.12.2021 (vide

Ref No.C-2019/09/688/7099), passed by the `1st

Respondent/Competition Commission of India (CCI)’ in proceedings

under Sections 43A, 44 and 45 of the Competition Act, relating to certain

findings of the `1st Respondent/CCI’ and the consequential directions

`Approval’ accorded to the Combination Registration No. 688 was kept

in abeyance till disposal of the `Notice’ under Form I with a direction to

the `Appellant’ to refile `for Approval’ in Form II.

2. Earlier, the `1st Respondent/Competition Commission of India’

2019/09/688/7099) against the `Appellant’ (Amazon.com NV

Investment Holdings LLC under Sections 43A, 44 and 45 of the

Competition Act, 2002), among other things at Paragraph Nos. 33 to 40,

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Competition Appeal (AT) No. 01 of 2022

We are looking to secure the following business objectives through

2. What is our business rationale and BCF for Taj?

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7. If we were to execute both Taj and Brigade, how would we

Annexure II - Strategic value accruing to Amazon as a result of the

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and `Amazon’ was directed to pay the `monetary penalty’ as imposed

Appellant’s Submissions in Competition Appeal (AT) No. 1 of 2022:

3. The Learned Counsel for the `Appellant/Amazon’ submits that the