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TMI Blog2022 (8) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded that no case of contravention of the provisions of Section 3 or Section 4 of Act was made out and accordingly it was ordered to be closed forthwith. 2. Short fact of the case is that the Appellant on 06.05.2017 issued a work order to Respondent No.1 through purchase order No.4500015629 amounting to Rs.66,31,363/- for installation and commission of home automation solution. The Informant had arrayed M/s Electek Solutions Pvt Ltd as OP No.1, Miantic AV Distribution Pvt Ltd, OP No.2, M/s RTI India Pvt Ltd, OP No.3 and one Remote Technologies Incorporate, Minnesota in USA as Opposite Party No.4. The Appellant as Informant in its application filed under Section 19(1)(a) of the Act had alleged contravention of provisions under Section 3 and 4 of the Act against aforesaid opposite parties. . It was alleged in the information application that even after receipt of the payment as per work order, installation, programming and commissioning of the project was not done within the stipulated time. Instead OP No.1 started demanding that the Informant should purchase additional equipment, otherwise OP No.1 would not be able to install or commission the project. It is noticed from the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." Such allegations made by the Informant alleging abuse of dominance by all the OPs, do not warrant any examination as the present scheme of Section 4 of the Act does not envisage or provide for joint or collective dominance." 5. Learned Counsel for the Appellant submits abuse of the dominant position has been well defined and explained in Explanation No.(c) of Section 4(2) of the Competition Act. He has also tried to persuade the Tribunal that Explanation of 'Group' incorporated in Explanation to Section 4(2)(c) has further been clarified in Explanation (b) to Section 5 of the Act. Both the provisions are reproduced hereinbelow: "4. Abuse of dominant position- Explanation-For the purposes of this section, the expression- (c) "group" shall have the same meaning as assigned to it in Clause (b) of the Explanation to Section 5. 5. Combination Explanation-for the purposes of this Section- (b) "group" means two or more enterprises which, directly or indirectly, are in a position to- (i) exercise twenty-six per cent, or more of the voting rights in the other enterprises; or (ii) appoint more than fifty per cent, of the members of the board of directors in the other ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order, it appears that the dispute was either Consumer dispute or Commercial dispute which was not at all required to be raised before the CCI under the Competition Act. According to learned counsel for Respondent No.1 the order impugned does not warrant any interference and the Appeal is liable to be rejected outrightly imposing exemplary cost. 8. Though the Appellant has filed the present appeal assailing the order passed by the CCI the very basis for passing of the impugned order i.e. information application, is not available on record. In absence of information petition it would be difficult for this Tribunal to examine true facts. The facts disclosed in the Memo of Appeal or even in the reply filed by the Respondent may not form. All materials can be the basis for faulting the impugned order. In such situation it is necessary to examine the order impugned. Accordingly it would be appropriate to reproduce the order impugned passed dated 20.04.2019 by the CCI as follows:- "Order under Section 26 (2) of the Competition Act, 2002 1. The present information has been filed under Section 19 (1) (a) of the Competition Act, 2002 (hereinafter, "the Act") by Sun Electronics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver is later; and 15% payment after 7 working days but before 15 working days from handover of project to the Informant or receiving of final bill received at Head Office, whichever is later. It is further stated that despite making payments of Rs.51,08,185/- (Rupees Fifty One Lac Eight Thousand One Hundred and Eighty Five Only) by 28.06.2017 as per the work order, the installation, programming and commissioning of the project was not done by OP-1 within the stipulated time frame. 6. It is alleged that OP-1 rather started demanding that the Informant should purchase additional equipment i.e. AV (Audio-Visual) equipment stating that OP-1 would not be able to install or commission the project without this item. The Informant replied to such demand of OP-1 through an e-mail stating that the initial PO was inclusive of programming including installation and commissioning of complete RTI Home Solutions, and the work may be completed as per the same. However, OP-1 did not agree to the same. 7. Finding it difficult to convince OP-1, the Informant approached OP-2 who was the sole distributor and authorised dealer of OP-3 and OP-4's products in India as well as the supplier of OP-1. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Informant against OP-1 is that OP-1 has not abided by its obligation as per the work order dated 06.05.2017; has sought additional sum of Rs.10 Lac from the Informant for completing the assigned work; has insisted that the Informant should buy additional AV equipment, appoint a MEP consultant and has withheld the XP8S license key from the Informant. The Informant's case against OP-2 (dealer and distributor) as well as OP-3 and OP-4 is that though they are the manufacturers of RTI Home Solutions and suppliers of OP-1, they have not taken any action against OP-1 despite repeated complaints by the Informant. On the contrary, OP-2 has asked the Informant to obtain an NOC from OP-1 for assigning the said work relating to RTI Home Solutions to some other vendor. Thus, the Informant has alleged violation of the provisions of Section 3 and Section 4 of the Act by the OPs. 14. In order to gather the true nature of the issues between the parties, it may be useful to refer to some of the correspondences that were exchanged between the Informant and the OPs which have been annexed by the Informant to the Information. 15. The Informant vide letter dated 23.08.2018 had sent a commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the individual conduct of the parties does not appear to contravene the provisions of Section 4 of the Act. 20. In this regard, based on the facts and circumstances of the case, Commission is of the view that the relevant product market appears to be 'the market for supply and installation of smart home solutions' as this product cannot be substituted with the traditional market of designing the interiors of a residential unit. This product is unique in many aspects viz., it provides online security features, enables maintaining/ controlling the temperature of the residence from a remote location with the help of a mobile application etc. This product is totally different and can be distinguished easily based on its unique features, characteristics, comforts and services. 21. With respect to the relevant geographic market, the Commission is of the view that Smart Home Solutions can be bought from anywhere in India as there are many suppliers of the same providing a variety of services on customized basis. As such, it appears that the relevant geographic market would be 'India'. 22. Accordingly, the Commission is of the view that the relevant market in the instant matter appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to be an integrator and supplier of RTI Home Automation Solution in the State of Maharashtra, OP-2 is the dealer and distributor of such products across India. Similarly, OP-3 and OP-4 are companies engaged in the business of providing RTI Home Solutions and Automation products in India and abroad respectively. 27. In this factual scenario, it is evident that the Informant (who issued a work order to OP-1 vide Purchase Order dated 06.05.2017 for availing complete RTI Home Automation Solutions), is not part of the production chain of RTI Home Automation Solutions. Moreover, from the Information, it appears that the said work order was placed to provide RTI Home Automation Solutions for the residence of one of the Directors of the Informant company. 28. In view of the above discussion, the Commission is of the view that no case of contravention of the provisions of Section 3 or Section 4 of the Act has been made out and the matter is accordingly ordered to be closed forthwith under the provisions of Section 26 (2) of the Act. 2 29. The Secretary is directed to communicate to Informant accordingly." 9. On perusal of the facts noticed by the CCI in its impugned order, prima ..... X X X X Extracts X X X X X X X X Extracts X X X X
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