TMI Blog2023 (5) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... n thoroughly discussed in Para 77 to 92 of the impugned order with which we are totally satisfied that the company as well as Manish Jodhavat was somehow or the other were involved and, therefore, the conclusion drawn by the Commission cannot be faulted. There are no merit in the present appeal and the same is hereby dismissed. - Competition App. (AT) No. 21 of 2022 Competition App. (AT) No. 65 of 2022 - - - Dated:- 23-5-2023 - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) And [ Naresh Salecha ] Member ( Technical ) For the Appellants : Ms. Shagufa Salim , Advocate For the Respondent : Mr. Robin Ratnakar David , Mr. Febin M. Varghese , Advocates for CCI Mr. Davander Prasad , Dy. Director - CCI Mr. G. R. Bhatia , Mr. Manav Gupta , Mr. Arjun Nihal Singh , Advocates for R - 5 . ORDER Per : Justice Rakesh Kumar Jain ( Oral ) This appeal is directed against the order dated 03.02.2022 passed by the Competition Commission of India (hereinafter referred as to The Commission ) in the matter Suo Motu Case No. 02 of 2020 in Re: Alleged anti-competitive conduct by various bidders in supply and installation of signages at specified locations of State Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P-7 or Mr. Manish Jodhavat. 79. In this regard, it is noted that Mr. Naresh Kumar Dasari of OP-6 has categorially emphasized the role of Mr. Manish Jodhavat of OP-7 in providing inputs for arriving at rigged pricing. Though Mr. Jodhavat is not a recipient of the e-mails dated 02.06.2018 and 04.06.2018, his name appears in both the e-mails. Mr. Dasari has written in his email dated 02.06.2018 that the pricing logic might change based upon inputs from Mr. Manish Jodhavat. 80. The role of Mr. Manish Jodhavat is also gauged from the e-mail dated 04.06.2018, reproduced supra, wherein, based on the inputs (amongst other things) received from Mr. Jodhavat, Mr. Dasari revised the workings and the process sequence. Mr. Dasari, in his deposition, has also stated that OP-4 offered a certain discount on its product, which was communicated by Mr. Manish Jodhavat to Mr. R. G. Venkatesh of OP-1 who, in turn, communicated the same to Mr. Dasari. This indicates the importance of inputs provided by Mr. Manish Jodhavat in deciding the final bid sequences and bid figures. The said inputs also made Mr. Naresh Kumar Dasari re-categorize the circles and decide upon a revised cut-off price f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be given in your pricing format. (Emphasis added) 85. Though OP-7 has averred that it was not concerned with the bidding process of supply and installation of signages at specified locations of SBI as alleged, and it never participated in the bidding process, it is noted from the documents submitted by SBIIMS that OP-7 submitted its application in response to the EOI published by SBIIMS in February 2018 as well as the EOI published by SBI in December 2017, seeking pre-qualification as a signage solution provider for installation of signages at branches/ATMs/offices of SBI. The same has not been disputed by OP-7 before the Commission. 86. When Mr. Manish Jodhavat was asked why OP-7 submitted technical bid in SBIIMS EOI of February 2018, he replied as under: We took a chance that we could have succeeded if SBIIMS had taken our total work orders together, though we did not fulfil the individual work criteria. We fill lot of tenders and take our chance. Sometimes we get selected and sometimes not. Mr. Manish Jodhavat, in his deposition, also stated that: We have worked with Avery Dennison as a distributor since 2016 and we also convert some project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to SBIIMS, i.e., as a converter, which was not its core business activity. The DG has also noted that OP-4 had already decided to sub-contract the work awarded under the Impugned Tender to its converters and its sole intention of participation was to get firsthand information regarding the said tender and bidding by the converters. Based on the same as well as evidence as discussed above, it appears that OP-4 played a crucial role in the organizing and facilitating collusion between the OPs. 5. It is pertinent to mention here that similar to the present Appellant, Op No.6 (Macromedia Digital Imaging Pvt. Ltd.) filed Competition Appeal (AT) No. 26 of 2022 titled as Macromedia Digital Imaging Pvt. Ltd. Vs. Competition Commission of India and its Director Mr. Naresh Kumar Dasari had also filed Competition Appeal (AT) No. 24 of 2022 titled as Mr. Naresh Kumar Dasari Vs. CCI against the same impugned order. Both the aforesaid appeals have been dismissed by this Tribunal vide its order dated 27.07.2022 which has been produced before us during the course of hearing. 6. Counsel for Appellant has vehemently argued that the Appellant (Company) was not involved in the bidding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haustive, is a wide one. Such understanding may be tacit, and the definition under Section 2(b) of the Act covers even those situations where the parties act on the basis of a nod or a wink. There is rarely direct evidence of action in concert, and in such situations, the Commission has to determine whether those involved in such dealings had some form of understanding and were acting in co-operation with each other. In light of the definition of the term agreement , the Commission has to assess the evidence on the basis of preponderance of probabilities. 9. We have heard counsel for the parties and after perusal of record, are of the considered opinion that there is no force in the argument of counsel for the Appellant insofar as she has submitted that two emails dated 02.06.2018 and 04.06.2018 cannot be relied upon against the company as well as the Director because the said emails are coming from the other party and neither the company nor the Director has copied the email or part of the email. This argument cannot be accepted because at that time, there was not a whisper that ultimately this matter is going to be taken in its Suo Motu jurisdiction by the Commission for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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