CCI- MIT WPU School of Law 2nd National Moot Court Competition 2022

Team Code: A- NMC11

CCI- MIT WPU SCHOOL OF LAW 2ND NATIONAL MOOT COURT COMPETITION 2022

BEFORE THE SUPREME COURT OF INDUSLAND

UNDER

SECTION 53(T) OF THE COMPETITION ACT, 2002

- IN THE MATTER OF-

JMD CONSTRUCTIONS LTD APPLICANT

VERSUS

SOLITAIRE OWNER’S ASSOSIATION RESPONDENT

Clubbed With

KSP CONSTRUCTIONS APPLICANT

VERSUS

KSP OWNER’S ASSOSIATION RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE APPLICANTS

Memorial for Applicant i|Page
 TABLE OF CONTENTS

ISSUE 1- WHETHER THE APPEAL IS MAINTAINABLE BEFORE THE HON'BLE

SUPREME COURT........................................................................................................................1

[1.1] THERE IS AN EXISTENCE OF STATUTORY PROVISION IN THE COMPETITION ACT,

2002..................................................................................................................................1

[1.2] ALTERNATIVE REMEDIES WERE EXHAUSTED BY THE APPLICANT AS THE

APPLICANTS FIRST APPEALED IN THE NCLAT AND THEN TO THE SUPREME COURT
UNDER SECTION 53T.........................................................................................................2

[1.3] APPLICABILITY OF PRINCIPLE OF NATURAL JUSTICE..............................................2

ISSUE 2 - WHETHER JMD IS OCCUPYING A DOMINANT POSITION IN THE ABOVE

RELEVANT MARKET?.................................................................................................................3

2.1 THE RELEVANT MARKET IN THE INSTANT CASE IS RESIDENTIAL

BUILDINGS IN NEW TUMBAI....................................................................................3

2.1.1 Relevant product market.........................................................................................3

2.1.2 Relevant geographical market.............................................................................4

2.2 JMD DID NOT ENJOY A DOMINANT POSITION IN THE RELEVANT MARKET............5

2.2.1 There cannot be two dominating player in the market........................................5

2.2.2 JMD has close competitor(s) in the relevant market...........................................6

2.3 ARGUENDO, JMD HAS NOT ABUSED ITS DOMINANT POSITION...............8

2.3.1 JMD did not imposed any unfair condition........................................................8

2.3.2 The conduct of JMD does not limit or restrict the provision of services............9

2.3.3 JMD was not involved in any practice that result in denial of market access....9

ISSUE 3 - THE AGREEMENT BETWEEN JMD AND KSP IS NOT ANTI-COMPETITIVE

AS PER SECTION 3 OF THE COMPETITION ACT, 2002.......................................................10
 3.1 THERE IS NO EXISTENCE OF AGREEMENT BETWEEN JMD AND KSP UNDER SECTION
2(B) OF THE COMPETITION ACT 10

3.2. THE PARALLEL CONDUCT OF JMD AND KSP IS NOT INDICATIVE OF ANY
COLLUSION 11

3.2.1 There was mere Price Parallelism between the companies 11

3.2.2 Absence of any strong Plus Factors 12

3.3 NO APPRECIABLE ADVERSE EFFECT ON COMPETITION IN INDIA AS UNDER SECTION

19(3) OF THE COMPETITION ACT 13

1.3.1 Negative Factors under section 19(3) of the Competition Act are not satisfied.
. 14

1.3.2 Positive Factors under section 19(3) of the Competition Act are satisfied. 15
 LIST OF ABBREVIATIONS

S. NO. ABBREVIATIONS EXPANSION

1. & And

2. ¶ Paragraph

3. § Section

5. AIR All India Reporter

6. Art Article

7. CCI Competition Commission of Indusland

8. Co Company

9. COMPAT Competition Appellate Tribunal

10. Corp Corporation

11. DG Director General

12. EC European Commission

13. Edn Edition

14. Ibid Ibidem

15. Inc Incorporation

16. Ltd Limited

17. No Number

18. OECD Organisation for Economic Co-operation and

Development
19. r/w Read with

20. SC Supreme Court

21. Vol Volume

 INDEX OF AUTHORITIES

STATUTES

S. NO. ACTS PAGES

1. The Competition Act, 2002, No. 12 of 2003, 1993 (Indusland) 2,3,Passim

2. Indusland Contract Act, 1872, Act No. 9 of 1872 (Indusland) 8

INDIAN CASES
 Atos Worldline v. Verifone India, 2015 Case No. 56/2012 (CCI).
10. 3

Belaire Owner’s Association v. DLF Limited (2011)

11. 4,5,
Case No.19/2010 (CCI).
Passim

Uber India Systems Pvt Ltd v. Competition Commission of India

12. 5
Civil Appeal No. 641/2017.
Mr. Pankaj Aggarwal & ors v. DLF Home Developers Limited
13. 5
Case
no. 55/ 2012 (CCI).
In Re: Financial Software and System v. M/s ACI Worldwide
14. 5
Solution Private Limited &ors O.S.A.Nos.280 to 283 of 2011.
CCI v. State of Mizoram CIVIL APPEAL NO. 10820-10822 OF
15. 5
2014 (SC).
Royal Energy Ltd v. IOCL and ors. 2012 Comp LR 563 (CCI).
16. 6

In re: Meru Travel Solutions Pvt Ltd v. Uber India Systems Pvt Ltd
17. 6
& Ors, Case No. 81/2015 (CCI).
N. Sanjeev Rao v. Andhra Pradesh Hire Purchase Association,
18. 6
Case
No. 49/2012 (CCI).
Consumer Online Foundation v Tata Sky Ltd & Ors. Case No. 2/
19. 6
2009 (CCI).
DLF Park Place Residents Welfare Association v. DLF Ltd.
20. 6
Haryana Urban Development Authority Department of Town and
Country Planning, 2011 Comp LR 490 (CCI).

M/s Royal Energy Ltd. v. M/s Indian Oil Corporation Ltd. Case no.
21. 6
1 of 28 (CCI).
M/s Bharat Petroleum Corporation Ltd. and M/s Hindustan
22. 6
Petroleum Corporation Ltd., 2012 Comp LR 563(CCI).
Jupiter Gaming Solutions Pvt Ltd v. Finance Secretary,
23. 8
Government
of Goa, CompLR 2012 (CCI).
 Matrimony.com v Google LLC and others Case No. 07 & 30/2012
24. 8
 (CCI).9
HT Me10dia Ltd v. Super Cassettes Ltd (2014), Case No. 40 of
25. 9
2011
Neeraj Malhotra v. Deustche Post Bank Home Financez Case No.
26. 10
5/2009 [CCI]
Bayer AG v. Commission, [2001] 4 CMLR 176
27. 10

Indian Sugar Mills Association (ISMA) v. Indian Jute Mills

28. 10,15
Association, [2014] CCI 90.
Jyoti Sawroop Arora v. The Competition Commission of India,
29. 10
(2016) DLT 396.
Tesco Stores Limited v. Office of Fair Trading, [2012] CAT 31
30. 11
[68].

FOREIGN CASES

ARTICLES & REPORTS

 S. NO ARTICLES & REPORTS PAGE

1. OECD ‘ROUNDTABLE ON SAFE HARBOURS LEGAL PRESUMPTIONS IN 10

COMPETITION LAW BY INDIA’ 2017
BOOKS
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indusland has jurisdiction to hear the instant matter in the case
of JMD &KSP Builders v. Solitaire’s Owner Association (SROA) & KSP Owner’s Association
(DOA) under Section 53T of the Competition Act, 2002.

Section 53T reads as:

The Central Government or any State Government or the Commission or any statutory
authority or any local authority or any enterprise or any person aggrieved by any decision or
order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days from
the date of communication of the decision of the order of the Appellate Tribunal o them:

Provided that the Supreme Court may, if it is satisfied that the applicant was prevented by
sufficient cause from filing the appeal within the said period, allow it to be filed after the expiry
of the said period of thirty days.
 STATEMENT OF FACTS

1. JMD is a company incorporated under the provisions of Indusland. It is one of the

leading players in the real-estate construction sector with a handful of other enterprises in
the arena. Its major area of activities include massive residential housing projects,
commercial/business parks, as well as infrastructural development.
2. Indus land is a developing country with metropolitan cities spread across its territories.
New Tumbai is one of such metropolitan cities in Indusland, also known as the
commercial capital of Indusland. Naturally, owing to sprawling business and
employment opportunities, New Tumbai witnessed immense international migration to it
creating an acute shortage of housing.
3. Bahisar is a revenue village located at the outskirts of New Tumbai. It is predominantly
an agriculture oriented land and has a relatively small population as compared to New
Tumbai.
4. JMD saw Bahisar as an emerging market to provide housing to the ever increasing
population in New Tumbai which was merely a half an hour train journey from Bahisar.
Hence, the migrants to New Tumbai would naturally see residential units at Bahisar as a
cheaper alternative as against expensive residential units in New Tumbai.
5. Hence , JMD acquired a vast area of land in area of Bahisar closed to New Tumbai.
About 02-03 other major real estate enterprise also saw the opportunity and acquired a
vast area of land in Bahisar but not as close to New Tumbai as JMD. KSP Builder was
also one of the major builders who acquired land in Bahisar, around 3 kms away from
JMD.
6. Eventually, JMD launched a housing complex ‘Solitaire’ which, as per initial plan
consisted of 368 flats in total 5 multi-storied residential buildings consisting 19 floors
each to be constructed in JMD city, near New Tumbai. The payment schedule was linked
to projected stage wise competition of the project with some amount to be paid at the
time of booking of the flat, 2 months after the booking date and remaining as per
scheduled stage-wise competition of the project. The Advertisements of the builder also
guaranteed additional facilities such as clubhouse , gymnasium, sports grounds,
clubhouse etc., and ensured completion of the buildings within 36 months from the
 launch of the project.
7. Interestingly, JMD chose to build the housing complex on a very small portion of land
compared to vast areas acquired by it. JMD withheld development and construction of the
remainder of the land and launched no projects thereon but focused exclusively on
Solitaire.
8. When the construction commenced, 5 buildings were constructed, however, each
building’s floor number increased from 19 to 29 leading to an increase in total number of
flats from 368 to 564. Additionally, the facilities ensured by the builders were
compressed due to shortage of area and the delivery of apartments were delayed to
owners by 2 years, even though the apartment owners made their payment well on time.
9. Meanwhile, KSP builders constructed 25 floors while the sanctioned plans were only till
17 floors. They also reduced their amenities. They also reduced the amenities which were
previously promised by KSP Builders. Earlier, they had promised that they would
provide clubhouse, sports arena, gymnasium, Ampi-Theatre but they did not provide it
10. JMD and KSP entered into a verbal agreement that they will reduce the amenities as the
construction cost has increased.
11. Solitaire Owner’s Association (SROA) had filed a complaint against the JMD
construction Ltd. with Competition Commission of India (CCI) accusing them of abuse
of dominant position by their use of contracts with the apartment owners. In addition to
that, they alleged that JMD and KSP builders have entered into an Anti- Competitive
Agreement.
12. The KSP Resident Owner’s Association (KROA) has also filed the case against the
KSP builders with similar issues. Therefore, the CCI has clubbed both the cases.
13. CCI analysed the information and held that it is a prima facie case of abuse of dominance
and Anti-Competitive Agreement and requested the Director General (DG) to conduct
further investigation. JMD immediately challenged the CCI’s jurisdiction but dropped the
matter subsequently. The DG conducted an in-depth investigation and discovered that the
conditions imposed by JMD and KSP did violate certain provisions of the Competition
Act.
14. CCI on the basis of DG’s in- depth investigation held that the Competition Act is
applicable to this dispute.
15. CCI ordered that JMD has abused its dominant position in the real estate market through
their unilateral powers to alter the provisions in the buyer’s agreement without giving any
 rights to the buyers. JMD’s discretion to change inter se areas or different uses such as
residential commercial etc., without informing the buyers and JMD’s sole discretion to
determine ownership rights.
16. CCI also held that the agreement between JMD and KSP Builders is anti- competitive as
they by mutual consent (informal) have limited the amenities as they have not provided
sports arena and gymnasium and increased the number of flats as well.
17. However, JMD appealed against this order before National Company Law Appellate
Tribunal (NCLAT). NCLAT has upheld the order passed by CCI. NCLAT further
imposed the penalty of INR 6,300 million on JMD which was 7% turnover of JMD and
penalty of 50 million on KSP which was 0.3% of the total turnover of KSP builder.
18. Aggrieved by the decision of NCLAT, JMD Construction Ltd and KSP constructions has
approached the Honourable Supreme Court.
 ISSUES RAISED

ISSUE 1- WHETHER THE APPEAL IS MAINTAINABLE BEFORE THE HON’BLE SUPREME

COURT?

ISSUE 2- WHETHER JMD IS OCCUPYING A DOMINANT POSITION IN THE

RELEVANT
MARKET?

ISSUE 3- WHETHER THE AGREEMENT BETWEEN JMD AND KSP IS

ANTI- COMPETITIVE AS PER SECTION 3 OF THE COMPETITION ACT,
2002?
 SUMMARY OF ARGUMENTS

ISSUE 1- WHETHER JMD IS OCCUPYING A DOMINANT POSITION IN THE RELEVANT MARKET?

The Appeal is maintainable before the hon'ble Supreme Court because there is an existence of
statutory provision in the competition Act, 2002, and alternative remedies were exhausted by the
Applicant as the Applicants first appealed before the NCLAT and then to the Supreme Court
under section 53T. There is also no applicability of principle of natural justice.

ISSUE 2- WHETHER JMD IS ENJOYING A DOMINANT POSITION IN THE RELEVANT MARKET?

The Counsel most respectfully submits before this Hon’ble SC that JMD does not enjoy a
dominant position in the relevant market and has not violated provisions of §4 of the
Competition Act. The contentions are dealt in three folded manner. Firstly, the relevant market
identified by DG is incorrect and that it is “residential buildings in New Tumbai” in the instant
case. Secondly, JMD does not enjoy a dominant position as there exist close competitors in the
market including KSP in the same vicinity. Also, there cannot be two dominant player or
collective dominance in the same market. Lastly, Arguendo, JMD has not abused its dominant
position.

ISSUE 3- WHETHER THE AGREEMENT BETWEEN JMD AND KSP IS ANTI- COMPETITIVE AS
PER SECTION 3 OF THE COMPETITION ACT, 2002?

The actions of the Real Estate Companies have not violated Section 3(3) of the Competition Act,
2002 because there is no existence of agreement between JMD and KSP under section 2(b) of
the competition act. The parallel conduct of JMD and KSP is not indicative of any collusion
because there was mere price parallelism between the companies and there is Absence of any
strong Plus Factors. The following Plus Factors are elaborated- No evidence of regular
communication and Oligopolistic Market Structure. No Appreciable adverse effect on
Competition in India as under section 19(3) of the Competition Act as negative factors under
section 19(3) of the Competition Act are not satisfied and positive factors under section 19(3) of
the Competition Act are satisfied.
ARGUMENTS ADVANCED
ISSUE 2 - WHETHER JMD IS OCCUPYING A DOMINANT POSITION IN THE ABOVE
RELEVANT MARKET?

The Counsels most respectfully submits before this Hon’ble SC that the PLA does not
enjoy a dominant position in the relevant market and has not violated provisions of §4 of the
Competition Act. The contentions laid herein are three folded: [2.1] the relevant market in the
instant case is residential buildings in New Tumbai [2.2] JMD did not enjoy a dominant position
in the relevant market [2.3] Arguendo, JMD has not abused its dominant position.

THE RELEVANT MARKET IN THE INSTANT CASE IS RESIDENTIAL BUILDINGS

IN NEW TUMBAI.

The Counsel for the Appellant respectfully submits that the determination of the relevant market is a
crucial aspect of analyzing a case under §4 of the Act.⁸ Defining the relevant market is essential for assessing
dominance and examining the alleged abusive conduct. ⁹ It assists in identifying the competitive constraints
faced by enterprises and provides key insights into market power and market share, both of which are
fundamental in evaluating dominance.¹⁰ Accordingly, due consideration must be given to (2.1.1) the relevant
product market and (2.2.2) the relevant geographical market.

2.1.1 Relevant product market.

The relevant product market encompasses all goods and services that are considered interchangeable¹¹ or
substitutable¹² by consumers due to the characteristics

8
In Re: Mr. Umar Javeed and Ors v. Google LLC and anr Case No. 39/2018 (CCI).
9
Shri M Mittal v. M/s Paliwal Developers Ltd, Case No. 112/2015 (CCI), See also, In Re: Fast Track Call Cab Pvt
Ltd and anr v. ANI Technologies Pvt Ltd Case No. 6 & 74/2015 (CCI).
10
ABIR ROY & JAYANT KUMAR COMPETITION LAW IN INDIA (2ND EDN EASTERN LAW HOUSE) PAGE 160.
11
Case C-6/72, Continental Can Company Inc. v. Comm’n of the European Communities, (1973) E.C.R. 215 (EU)
[hereinafter Continental Can].
12
Arshiya Rail Infrastructure Ltd v. Ministry of Railways, 2012 Case No. 64/2010 (CCI) [hereinafter Arshiya Rail]
of the product or service¹³ and their intended use¹⁴. The identification of the relevant product market is based
on the specific facts of each case¹⁵. Furthermore, in determining the relevant product market, due consideration
must be given to multiple factors, including end-use, consumer preferences, and other economic
realities¹⁶.

In the present case, the Counsel respectfully submits that the relevant product market, in light of the
aforementioned criteria, is "residential buildings." The intended use of all residential buildings is to provide
living space to consumers. Additionally, consumer preference is largely influenced by factors such as the
location of their workplace, educational institutions, or livelihood opportunities. Consumers have the
ability to substitute their choice of residential buildings based on proximity and convenience to these essential
locations.

In New Tumbai, the availability of multiple residential buildings, including those situated in its outskirts,
such as Bahisar, reinforces the argument that consumers have several options when selecting a residential
building. Thus, the market for residential buildings in New Tumbai, including Bahisar, constitutes the
relevant product market in the present case.

The geographical scope of the real estate market is primarily determined by its location¹⁷. As per §2(s) of the
Act, the conditions of competition for services provided by competitors must be "distinctly homogeneous"
from those prevailing in neighboring areas¹⁸. In addition, several other factors, including local specific
requirements, consumer preferences, and transportation costs, must also be taken into account when
defining the relevant geographical market¹⁹

13
Atos Worldline v. Verifone India, 2015 Case No. 56/2012 (CCI).
14
The Competition Act, supra note 4, §2(t); See also, Competition Commission of India v. Co-ordination
Committee of Artistes and Technicians of West Bengal Film and Television and Ors, (2017) 5 SCC 17.
15
Aberdeen Journals Ltd v. Director General of Fair Trading, (No.1) 2003 CAT 11 (EU).
16
The Competition Act, supra note 4, § 19 (7).
17
Belaire Owner’s Association v. DLF Limited (2011) SCC OnLine CCI 89 (India).
18
The Competition Act, supra note 4, § 2 (s).
19
The Competition Act, supra note 4, § 19 (6).
2.1.1 Relevant geographical market.

Furthermore, it is respectfully submitted that the relevant market must be determined based on the specific
facts of each case²⁰. The assessment of geographical boundaries should be guided by economic and
competitive realities, ensuring that the delineation accurately reflects the competitive constraints faced by
market participants.

In the present case, the relevant geographical market is New Tumbai, as the conditions of competition for
residential buildings within this area are homogeneous. The geographical market identified by the DG,
i.e., Bahisar, is incorrect²¹. Bahisar is merely an extension of New Tumbai, predominantly consisting of a
population whose livelihood is based in the main city²², as it remains largely agricultural land.

Furthermore, the development of residential apartments in the outskirts of New Tumbai was solely a
response to the acute housing shortage²³ caused by the city's growing population. The construction of such
residential units in Bahisar does not create a distinct relevant market, as these developments are an extension
of New Tumbai’s real estate market rather than an independent competitive zone.

Moreover, it is respectfully submitted that narrowing down the relevant market would be unjust and
detrimental to fair competition²⁴. A restrictive definition would fail to acknowledge the interconnected
nature of the housing market in New Tumbai and its outskirts, thereby misrepresenting the competitive
landscape.

20
Aberdeen Journals v The Office of Fair Trading [2003] CAT 11.
21
Clarification point 4.
22
Moot proposition ¶ 3.
23
Moot proposition ¶2 & 4.
24
Belaire v. DLF, supra note 17.

2.1 JMD DID NOT ENJOY A DOMINANT POSITION IN THE RELEVANT MARKET

A dominant position refers to an enterprise’s ability to operate independently of market forces²⁵ or

influence competitors and consumers in its favor²⁶, which must be assessed under Section 19(4) of the
Competition Act, 2002²⁷. The Counsel for the Appellant submits that (2.1.1) a market cannot have two
dominant players, as dominance requires exclusive market power. Moreover, (2.1.2) JMD has strong
competitors in the relevant market, limiting its ability to act independently and negating the claim that it
occupies a dominant position. Additionally, (2.1.3) JMD’s unilateral alteration of project plans and
compression of amenities does not constitute abuse of dominance, as these actions do not eliminate
competition or restrict market access.

2.1.1 There Cannot Be Two Dominant Players in the Market

The Counsel submits that the Director General’s (DG) finding that both JMD and KSP abused their
dominant positions is flawed and legally unsound²⁸. As per Explanation (a) to Section 4(2) of the
Competition Act, 2002, a dominant position is characterized by an enterprise’s ability to:

(a) Operate independently of competitive forces in the market, or

(b) Influence competitors, consumers, or the market in its favor.

25
Uber India Systems Pvt Ltd v. Competition Commission of India Civil Appeal No. 641/2017 ; See also, In Re: Mr. Pankaj Aggarwal
& ors v. DLF Home Developers Limited Case no. 55/ 2012 (CCI), In Re: Financial Software and System v. M/s ACI Worldwide
Solution Private Limited &ors O.S.A.Nos.280 to 283 of 2011, Case C-85/76, Hoffman-La Roche v. Comm’n, 1979 E.C.R. 461 (EU)
[hereinafter Hoffman]; Case C-322/81, NV Nederlandsche Banden-Industrie Michelin v. Comm’n, 1983 E.C.R. 3461 (EU).
26
The Competition Act, supra note 4, § 4 (2).
27
D.P. MITTAL, COMPETITION LAW AND PRACTICE: A COMPREHENSIVE SECTION WISE COMMENTARY
ON LAW RELATING TO THE COMPETITION ACT (3d ed. Taxmann 2011); See also CCI v. State of Mizoram CIVIL
APPEAL NO. 10820-10822 OF 2014 (SC).
28
Clarification point 2.
The statutory wording of “an enterprise” in Section 4 refers to a single entity²⁹. There is no provision under
**Section 2(h)**³⁰ or Section 4 that recognizes the concept of joint or collective dominance by multiple
independent entities. Since both JMD and KSP are competing real estate developers, the claim that both
hold a dominant position in the same market contradicts the definition and legal framework of dominance
under the Act.

Furthermore, the presence of other major competitors in the New Tumbai and Bahisar residential market
prevents JMD from exercising exclusive control over pricing, supply, or market conditions. The existence of
competing developers limits JMD’s ability to act independently of competitive pressures, thereby negating
the claim of dominance.

Courts have consistently held that there cannot be more than one dominant enterprise in the same market.
Adjudicating bodies, including the CCI, have repeatedly rejected the concept of joint dominance³¹. The only
permissible interpretation of plurality under §4 is when dominant firms are legally or structurally linked³². In
Royal Energy v. IOCL, BPCL, and HPCL, the CCI explicitly ruled that collective dominance is not
recognized under §4 of the Act³³. Therefore, it is evident that a market cannot have two dominant entities.

2.1.2 JMD has close competitor(s) in the relevant market.

29
ARIJIIT PASAYAT KUMAR, SM DUGAR GUIDE TO COMPETTITION LAW, 400-433 (LEXIS NEXIS 6 TH EDITION 2016).
30
The Competition Act, supra note 4, § 2 (h).
31
Royal Energy Ltd v. IOCL and others, 2012 Comp LR 563 (CCI); N. Sanjeev Rao v. Andhra Pradesh Hire Purchase
Association Case No. 49/2012, (CCI); Consumer Online Foundation v Tata Sky Ltd & Ors., Case No. 2/ 2009 (CCI).
32
DLF Park Place Residents Welfare Association v. DLF Ltd. Haryana Urban Development Authority Department of Town
and Country Planning, 2011 Comp LR 490 (CCI).
33
M/s Royal Energy Ltd. v. M/s Indian Oil Corporation Ltd. Case no. 1 of 28 (CCI), M/s Bharat Petroleum Corporation Ltd.
and M/s Hindustan Petroleum Corporation Ltd., 2012 Comp LR 563(CCI).
34
The Competition Act, supra note 4, §19 (4) (a).
35
Supra note 12.
36
United Brands Co & United Brands Continental BV v Commission of European Communities 1978 ECR 207.
37
Clarification point 2.
38
Clarification point 3.
39
In Re: Meru Travel Solutions Pvt. Ltd. (Meru) v. Uber India Systems Pvt. Ltd. and ors., Case No. 96 of 2015 [CCI].
40
Fast Track Call Cab Pvt. Ltd. & Anr. v. ANI Technologies Pvt. Ltd. Case No. 6 & 74 of 2015 (CCI).
41
Belaire v. DLF , supra note 17; See also Ibid.
42
The Competition Act, supra note 4, § 19 (4) (b)& (c).
43
Moot proposition ¶ 1.
KSP remains a close competitor, offering similar amenities such as a clubhouse, sports arena, and
gymnasium. Moreover, two to three other major real estate enterprises have acquired significant land in
Bahisar, reinforcing that no single entity holds a dominant position in the relevant market.

With reference to §19(4)(f), the Counsel submits that consumers are not dependent on any single enterprise
when purchasing residential property. In a metropolitan city like New Tumbai, multiple alternative housing
options are available, allowing consumers to choose freely. Given this availability of choices, no enterprise can
claim exclusive consumer reliance. Even within JMD’s close proximity, KSP has developed residential
buildings in Bahisar, further demonstrating the absence of consumer dependence on JMD.

Lastly, with reference to §19(4)(h), the Counsel submits that multiple real estate developers operate across
New Tumbai, including Bahisar⁴⁴, creating intense competition⁴⁵. Given the presence of these players,
existing developers, including JMD, must compete actively. Therefore, it cannot be concluded that JMD
creates any impediment for new entrants in the market. The counsel thereby concludes that that JMD did not
enjoy a dominant position as there existed close competitors in the relevant market.

2.1 ARGUENDO, JMD HAS NOT ABUSED ITS DOMINANT POSITION.

The CCI permits an enterprise to hold a dominant position⁴⁶ but prohibits its abuse⁴⁷. JMD could only
infringe §4 of the Act if it held a dominant position, which, as established, it does not. Consequently, there is
no question of imposing discriminatory conditions or denial of services. Arguendo, even if dominance were
assumed, JMD has not abused its position because [i] it did not impose unfair conditions, [ii] its conduct did
not restrict the provision of services, and [iii] it was not involved in any practice leading to market access
denial.

44
Ibid.
45
Belaire v. DLF, supra note 17, ¶ 5.29.
46
Jupiter Gaming Solutions Pvt Ltd v. Finance Secretary, Government of Goa, CompLR 2012 (CCI) [hereinafter Jupiter
Gaming].
47
Case T-360/09, E ON Ruhrgas and E ON v. Comm’n, [2012] ECLI:EU:T:2014:160 (EU).
 2.1.1 JMD did not impose any unfair condition.

A plain reading of §4(2)(a)(i) of the Act establishes that a violation occurs only when an unfair or
discriminatory condition is imposed in the purchase or sale of goods or services⁴⁸. Arguendo, it is humbly
submitted before this Hon’ble Supreme Court that JMD has not imposed any such unfair or
discriminatory conditions in the sale of goods or services as required under §4(2)(a) of the Act.

2.1.1.1 Buyers had given consent for the changes made by builders.

It is contended that a contract is valid and legally binding only when consent is given⁴⁹, which occurs when
both parties mutually agree to form a contract⁵⁰. The Counsel respectfully submits before this Hon’ble
Supreme Court that the parties willingly consented to the terms of the apartment buyers' agreement⁵¹. The
CCI's finding that JMD had unilateral power to alter the agreement⁵² suggests that such clauses were
explicitly included in the contract. However, as buyers agreed to these terms and provided their due
consent, the agreement remains legally enforceable.

The conduct of JMD does not limit or restrict the provision of services.

Under Competition Law, "service" is broadly defined to include any description of service, including those
related to industrial or commercial matters such as real estate⁵³. Any act of limiting or restricting the
provision of services by an enterprise constitutes abuse of dominant position⁵⁴.

48
Matrimony.com v Google LLC and others Case No. 07 & 30/2012 (CCI).
49
Indusland Contract Act, 1872, § 10.
50
F. LUNENBURG, THE LAW OF CONTRACTS: WHAT CONSTITUTES A CONTRACT?, VOLUME 5, NUMBER 1, 2011.
51
Moot proposition, ¶ 8.
52
Moot proposition , ¶ 15.
53
The Competition Act, supra note 4, § 2(u).
54
Ibid, §19 (4) (b).
It is contended that JMD is not dominant in the relevant market and therefore cannot be held in
contravention of §4(2)(b) of the Act. Arguendo, JMD did not limit or restrict the provision of services. With
high demand, property prices naturally increase⁵⁵, and JMD expanded the number of flats from 368 to
564 to accommodate the growing population⁵⁶. Furthermore, builder-buyer agreements typically contain
escalation clauses permitting price increases. However, rather than invoking such a clause to offset rising
construction costs, JMD, in accordance with the doctrine of good faith⁵⁷, temporarily adjusted amenities to
align with market demands.

2.1.1 JMD was not involved in any practice that result in

denial of market access.

It is contended that ‘denial of market access’ under §4(2)(c) refers to actions by a dominant enterprise that
lead to market foreclosure, either for competitors in the same market or in upstream/downstream markets,
through exclusionary or exploitative practices. The distinction between exploitative and exclusionary
conduct, or their simultaneous occurrence, was observed in HT Media Ltd. v. Super Cassettes Ltd.⁵⁸

JMD’s modifications to project plans and reduction in amenities were not driven
by an intent to harm competition but rather to adapt to financial, regulatory, and
logistical constraints.
In INSA v. ONGC, the CCI held that unilateral termination clauses do not
constitute abuse of dominance if exercised in good faith and due to changing
market conditions. Similarly, JMD’s actions were dictated by external pressures,
including municipal approvals and construction feasibility, and do not amount to an anti-
competitive strategy.
If every contractual modification (such as reducing amenities or changing project
plans) was presumed to be anti-competitive, then even legitimate business
decisions would be penalized. If CCI treats contract modifications as automatically
illegal under competition law, then it oversteps its authority and turns every
contractual dispute into an antitrust case. This means mere inclusion of a clause
(like JMD’s modifications) could be treated as an abuse of dominance, even if no
actual market harm occurs.

In light of the facts of the present case, JMD’s conduct cannot be considered exclusive or exclusionary. It is
averred that JMD neither imposed an unfair selling price that would harm its competitors nor engaged in
practices leading to denial of market access. The presence of other real estate enterprises acquiring land
in Bahisar⁵⁹ confirms that market access remains open, with new players continuing to enter the market.
Thus, there is no impediment for new entrants by JMD, and the conditions prescribed under §4(2)(c) of the
Act are not satisfied.

55
EDWARD GLAESER AND JOSEPH GYOURKO, THE ECONOMIC IMPLICATIONS OF HOUSING SUPPLY, JOURNAL OF
ECONOMIC PERSPECTIVES—VOLUME 32, NUMBER 1—WINTER 2018.
56
Moot proposition ¶ 8.
57
RAPHAEL HUI, THE DOCTRINE OF GOOD FAITH IN CONTRACT: GREATER ACKNOWLEDGMENT IN HONG KONG: A
COMPETIVE STUDY, 5 CITY U. H.K. L. REV. 85 (2014-2015).
58
HT Media Ltd v. Super Cassettes Ltd (2014), Case No. 40 of 2011.
59
Moot preposition ¶ 5.

ISSUE 3 - THE AGREEMENT BETWEEN JMD AND KSP IS NOT ANTI- COMPETITIVE AS
PER SECTION 3 OF THE COMPETITION ACT, 2002.

The Counsel for the Applicant humbly submits before the Hon’ble Supreme Court of Indusland that the
actions of the Real Estate Companies do not violate §3(3) read with §3(1) of the Competition Act, 2002.
Firstly, no agreement exists between JMD and KSP under §2(b) of the Act [3.1]. Secondly, the parallel
conduct of JMD and KSP does not indicate collusion [3.2], as there was mere price parallelism [3.2.1] and
an absence of strong plus factors [3.2.2]. Thirdly, no appreciable adverse effect on competition exists as per
§19(3) of the Act [3.3].

3.1 THERE IS NO EXISTENCE OF AGREEMENT BETWEEN JMD AND KSP UNDER SECTION 2(B)
OF THE COMPETITION ACT.

It is humbly contended before this Hon’ble Court that for a case involving the violation of §3(3) of the
Competition Act, the existence of an agreement is essential⁶⁰, and any anti-competitive agreement must be
unequivocally established⁶¹. There must be conclusive evidence of a meeting of minds⁶², as mere similarity
in conduct does not imply an agreement⁶³. An agreement cannot be inferred or assumed through
eliminative reasoning but must be supported by indisputable evidence⁶⁴. Furthermore, establishing joint
mens rea of non-competition is crucial and must be substantiated with clear reasoning and pertinent
evidence⁶⁵.

60
OECD ‘ROUNDTABLE ON SAFE HARBOURS LEGAL PRESUMPTIONS IN COMPETITION LAW BY INDIA’ 2017 P.13.
61
Neeraj Malhotra v. Deustche Post Bank Home Financez Case No. 5/2009 [CCI].
62
In Re: Sugar Mills, [2011] Case No. 1 of 2010; Bayer AG v. Commission, [2001] 4 CMLR 176; Indian Sugar Mills
Association (ISMA) v. Indian Jute Mills Association, [2014] CCI 90.
63
Jyoti Sawroop Arora v. The Competition Commission of India, (2016) DLT 396.
64
Ibid.
65
Ibid.

The existence of concerted action can only be determined by assessing the evidence in its entirety,
considering the specific characteristics of the market⁶⁶. In the absence of any evidence proving an
understanding between the parties, no violation of §3 of the Act can be established⁶⁷.

In the present case, the alleged verbal agreement between JMD and KSP was not conclusively proven
beyond doubt⁶⁸.

The immense international migration has led to a severe housing shortage⁶⁹, prompting both companies to
adopt similar measures to meet demand. However, no evidence suggests any communication between
JMD and KSP to form an anti-competitive agreement in Bahisar. Moreover, there is no unequivocal proof
of an agreement in the present matter.

3.2. THE PARALLEL CONDUCT OF JMD AND KSP IS NOT INDICATIVE OF ANY COLLUSION.

3.2.1 There was mere Price Parallelism between the companies

It is contended that mere price parallelism does not indicate collusion, as it is a natural outcome of market
interdependence⁷⁰. Additionally, similarities in pricing or other features resulting from unilateral decision-
making cannot be considered proof of an anti-competitive agreement unless supported by substantially
compelling reasons⁷¹.

Moreover, price parallelism alone does not indicate a violation of §3(3) of the Act⁷². In an oligopolistic
market with homogeneous goods, parallel pricing behavior does not automatically amount to a concerted
practice under §3(3)⁷³. Such conduct, even when occurring within a close timeframe⁷⁴, is insufficient to
establish a price-fixing conspiracy⁷⁵.

66
Tesco Stores Limited v. Office of Fair Trading, [2012] CAT 31 [68].
67
In Re: Alleged cartelization by steel producers (Case No. 9/2008) CCI.
68
Clarification point 5.
69
Moot proposition ¶ 2.
70
In Re: Express Industry Council of India v. Jet Airways (India) Ltd. & Ors. (Case No. 30/2013) CCI [51].
71
Ibid.
72
In Re: Domestic Air Lines, Misc. No. 15-1404 [2018] (CKK) (D.D.C.).
73
All India Tyre Dealers’ Federation v. Tyre Manufacturers, RTPE no. 20/ 2008 (CCI).
74
Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation, 509 U.S. 209 (1993).
75
In Re: Domestic Air lines, supra note 13; Pevely Diary Co. v. U.S., CA-8 (1949); In Re: Chloride India Ltd., RTP Enquiry
No. 46/1977.

JMD and KSP are the leading players in the market, holding significant market influence; however, the
presence of other competitors indicates that the market is not entirely monopolized.7⁶. This clearly indicates an
oligopolistic market structure with high demand for residential units due to immigration. In response,
JMD and KSP independently increased the number of flats in their respective projects to meet the rising
demand, aiming to balance supply in the market.

Moreover, both JMD and KSP offer similar facilities, including a club, gymnasium, and sports arena⁷⁷, and
operate in the same location, leading to comparable housing prices⁷⁸. Given that they function in an
oligopolistic market with homogeneous offerings, it is natural for them to adopt a similar approach to meet
market demand. However, this does not amount to a concerted practice in violation of §3(3) of the
Competition Act.

Therefore, it is submitted that mere parallel behaviour in a concentrated market with identical products is
not indicative of a collusive agreement unless supported by strong plus factors.
 3.2.1 Absence of any strong Plus Factors

Price parallelism is not inherently anti-competitive unless accompanied by plus factors⁷⁹ that indicate an
agreement to fix sale prices⁸⁰. In the absence of such plus factors, price parallelism remains legitimate
market behavior⁸¹.

3.2.1.1 No evidence of regular communication – To establish conspiracy among

competitors, evidence of communication between the alleged parties is crucial⁸². It must be
demonstrated that information was exchanged with the intent to facilitate a common scheme of illegal
conduct⁸³. However, in the present case, no conclusive evidence—direct or circumstantial—
substantiates any communication between JMD and KSP. Therefore, no concerted collusion can be
inferred.

76
Clarification point 3.
77
Moot proposition ¶ 6.
78
Moot proposition ¶ 5.
79
In Re: Alleged Cartelization by Steel Producers, [2014] CCI 3.
80
Builders Association of India v. Cement Manufacturers’ Association, Case no. 29/ 2010 (CCI); All India Tyre Dealers’
Federation v. Tyre Manufacturers, Case No. 20/ 2008 (CCI).
81
D.K. Shrivastava v. Daulat Ram Engg & Services P. Ltd. and Ors., 2017 SCC OnLine CCI 65; In Re Flat Glass, 386 F3d
(2004), 360; Theatre Enterprises Inc. v. ¶mount Film Distribution Corporation, [1954] 346 US 537; Bell
Atlantic Corporation v. Twombly, [2007] 550 US 544.
82
Film and Television Producers Guild of India v. Multiplex Association of India (MAI), Mumbai, 2013 SCC OnLine CCI
89.
83
Ibid.

3.2.1.1 Oligopolistic Market Structure- In an oligopolistic market structure, a few firms operate, with none
having the ability to prevent others from exerting significant influence. The concentration ratio is
used to measure the market share of the largest firms⁸⁴.

Furthermore, an oligopolistic market involves standardized goods with similar costs⁸⁵. As a result, it is
legitimate for companies to set identical prices, considering their price interdependence⁸⁶, which is a
distinct characteristic of such a market.

In the present case, real estate construction operates within an oligopolistic market, characterized by a few
dominant players and high market concentration. Although similar pricing exists, it is not the result of any
conspiracy but rather a consequence of the market structure. Given the concentration, identical costs, and
standardized products, price parallelism emerges as the only viable economic strategy for real estate
companies to independently adopt.
 3.3 NO APPRECIABLE ADVERSE EFFECT ON COMPETITION IN INDIA AS UNDER SECTION 19(3)
OF THE COMPETITION ACT.

To establish a contravention under §3 of the Competition Act, it is essential to prove that the alleged anti-
competitive agreement resulted in an AAEC in Indusland⁸⁷. The presumption of AAEC arises only upon
establishing a price-fixing agreement; however, this presumption is rebuttable⁸⁸. Furthermore, the phrase
"shall presume" in §3(3) of the Act signifies a legal presumption, not conclusive evidence, and merely
indicates on whom the burden of proof lies⁸⁹.

84
INVESTOPEDIA, https://www.investopedia.com/terms/o/oligopoly.asp (last visited April 24, 2022).

85
Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation, 509 U.S. 209 (1993); United States v. Natl. Malleable &
Steeling Co., DC Ohio 1957.
86
W. KIP VISCUSI, JOSEPH E. HARRINGTON JR., & JOHN M. VERNON, ECONOMICS OF REGULATION AND
ANTITRUST, (6th ed. 2005); ABIR ROY, COMPETITION LAW IN INDIA: A PRACTICAL GUIDE 104
(Kluwer Law International, 5th ed. 2016).
87
The Competition Act, supra note 4, § 3(1)(2002).
88
India Sugar Mills Association v. Indian Jute Mills Association, 2014 CompLR 225 (CCI).
89
Sodhi Transport Co. v. State of U.P., AIR 1986 SC 1099.
Various judicial pronouncements have clarified that such a presumption only establishes a prima facie case in favor
of the party it supports, without constituting conclusive proof⁹⁰.

In the present case, no appreciable adverse effect on competition (AAEC) exists, as the positive factors
under §19(3) are satisfied, while the negative factors remain unfulfilled.

Further elaborating,

1.3.1 Negative Factors under section 19(3) of the Competition Act are not satisfied.

In the present case, the real estate market operates as an oligopoly, where natural entry barriers contribute
to its structure. These barriers arise due to market forces or demand-driven factors, such as high entry costs,
extensive legal procedures, and licensing requirements. Bahisar, an emerging housing market for New
Tumbai’s growing population⁹¹, is located just half an hour by train from New Tumbai⁹². The substantial
costs of entry and operational complexities create natural barriers, but these are market-driven and not
imposed by real estate enterprises.

1.3.1 Positive Factors under section 19(3) of the Competition Act are satisfied.

The Real Estate Companies have acted in a rational economic manner, adjusting their policies to meet high
market demand through spontaneous coordination. Their conduct does not indicate an intent to eliminate
competition but rather reflects market-driven practices influenced by economic pressures.

90
Ibid.
91
Moot proposition ¶ 4.
92
Ibid.
93
Automobiles Dealers Association, Hathras, U.P. v. Global Automobiles Limited and Pooja Expo Pvt. Ltd., 2012 CompLR
827 (CCI).

The real estate construction companies have actively taken measures to enhance benefits for flat owners by
increasing housing production within a stipulated timeframe. Their efforts have also contributed to
improving production, distribution, and service provision. While certain amenities were reduced, this was
done to expand housing availability, ensuring a larger number of people could benefit. Thus, JMD and
KSP have improved production while prioritizing the welfare of flat owners.

Thus, the presumption of AAEC in the present case is incorrect. The Counsel respectfully submits that the
presumption under §3(3) of the Act arises only if an agreement falls under clauses (a) to (d) of §3(3)⁹⁴.
However, none of these clauses are applicable in the instant matter. Conclusively, it is submitted that the
Real Estate Companies have not contravened §3(3) of the Competition Act.
94
Indian Sugar Mills Association v. Indian Jute Mills Association 2014 CompLR 225 (CCI).

PRAYER

Wherefore, in the light of the issues raised, arguments on merits, evidences supplied and authorities
relied on, it is humbly prayed that:

I. The Appeal is maintainable before the Hon’ble Supreme Court.

II. JMD does not occupy a dominant position in the relevant market.
III. Agreement between JMD and KSP is not Anti-Competitive as per section 3 of The
Competition Act, 2002.
And pass any such order which this Hon’ble SC may deem fit in the interest of equity, justice
and good conscience.
All of which is most humbly submitted.

(Counsels for the Appellant)