9911796707
TMI Blog2022 (9) TMI 1613X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mr. I/b. Saikrishna & Associates for the Petitioner Dr. Birendra Saraf, Senior Advocate, Mr. Pradeep Bakhru, Mr.Avinash Amarnath, Mr. Vishnu Suresh, Mr. Nikhil Gupta, I/b. Wadia Ghandy & Co. for Respondent No.2 APPEARANCE IN WRIT PETITION NO. 3860/2022 Mr. Mustafa Doctor, Senior Advocate with Mr. Kunal Dwarkadas, Ms. Nafisa Khandeparkar, Ms.Ambareen Mujawar, Mr. Varun Thakur, Mr. Akshay Agarwal, Mr. Ranjeet Singh, Mr. Thomas George I/b. AZB & Partners for the Petitioner Mr. Navroz Seervai, Senior Advocate, Mr. Pradeep Bakhru, Mr. Avinash Amarnath, Mr. Nikhil Gupta, Mr. Vishnu Suresh I/b. Wadia Ghandy & Co. for Respondent No.2. APPEARANCE IN WRIT PETITION NO. 3755/2022 Mr. Mustafa Doctor, Senior Advocate with Mr. Kunal Dwarkadas, Ms. Nafisa Khandeparkar, Ms. Ambareen Mujawar, Mr. Varun Thakur, Mr. Ankit Agarwal, Ms. Sneha Jain, Ms. Swikriti Singhania, Mr. Ranjeet Singh Sidhu I/b. AZB & Partners for the Petitioner Dr. Birendra Saraf, Senior Advocate, Mr. Pradeep Bakhru, Mr. Avinash Amarnath, Mr. Vishnu Suresh, Mr. Nikhil Gupta, I/b. Wadia Ghandy & Co. for Respondent No.2 Mr. Somasekhar Sundaresan a/w. Mr. Shubhabrata Chakraborti a/w. Mr. Manu Chaturvedi, Mr. Abhishek Banerjee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .35 lakh in September 2021. The alleged discriminatory conduct of price discrimination between different MSOs of SIPL resulted into significant loss in the consumer base of ADNPL and as such, is the violation of the provision of Section 4(2)(a)(ii) of the Act, 2002 as also in contravention of the provision of Section 4(2)(c) of the Act 2002 due to discriminatory pricing and denial of market access respectively. 4 On the basis of the same, the Commission directed the Director General (DG) to cause an investigation to be made into the matter and submit an investigation report within a period of 60 days from the date of receipt of the order. The Commission, purportedly exercised its powers under Section 26(1) of the Act 2002. 5 The aforesaid order passed by the Commission resorting to Section 26(1) the Act 2002 is assailed by the Petitioners in the present Writ Petitions. 6 The Respondents raised preliminary objection of territorial jurisdiction. We have heard the learned Senior Advocates and the learned Advocates for the respective parties on the issue of territorial jurisdiction of this Court to entertain the Writ Petitions. 7 Mr. Somshekharan, the learned Advocate for Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of National Textile Corporation Ltd. & Ors. Vs. Haribox Swalram & Ors. (2004) 9 SCC 786 to submit that the Apex Court has held that the location of the Petitioners' office or place of business or the fact that it received notice at its office do not confer jurisdiction upon the High Court. The learned Counsel further submits that the situs of the Petitioners' office in Mumbai can never be the basis to invoke the territorial jurisdiction of this Court over the matter relating to abuse in the territory of the State of Kerala. Even a challenge to the constitutional validity of a Central Act would not be maintainable in New Delhi, merely because the seat of Union of India is in New Delhi or because of the legislation being Central Act. To substantiate the said contention, the learned Advocate relied on the judgment of the Apex Court in the case of Kusum Ingots & Alloys Vs. Union of India (2004) 6 SCC 254. The contention of the Petitioners that because payments were received by the Petitioners in the bank account situated in Maharashtra is also not relevant, as the present proceedings are not about monetary claim for breach of the advertising agreement. Even if the Petitioners receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect matter of the complaint were in fact negotiated and sanctioned by the Petitioners' office located within the State of Maharashtra. The payments under the said agreements were received by the Petitioners in bank accounts located in the State of Maharashtra. The Petitioner SIPL is owner of television network with an extensive portfolio of 70 channels in about 8 languages including substantial operations in Maharashtra. Therefore, the effect of the impugned order will be felt by the Petitioners all over India including entire State of Maharashtra. The Petitioners also have their registered office located in Mumbai. A part of cause of action has arisen within the State of Maharashtra. The tenor of facts which constitute the Petitioners' cause of action has arisen in State of Maharashtra within the territorial jurisdiction of this Court. As such, the present Writ Petitions are maintainable under Article 226 (2) of the Constitution. 12 It is submitted that even if seat of the Authority is outside Maharashtra, the effect and consequences of the decision is felt within the territorial limits of this Court, this Court would possess the jurisdiction. Reliance is placed on the judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apex court, in the case of Kunjan Nair Sivaraman Nair Vs. Narayanan Nair (2004) 3 SCC 277 observed as under: "16. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider senses, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action". 17. In Halsbury's Laws of England (4th Edn.) it has been stated as follows : "Cause of action" has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioners may possess a right of action to institute the proceedings. To file a proceeding before a particular Court at least fraction of cause of action ought to have arisen within the precincts of that Court. 21 The issue of territorial jurisdiction in entertaining the Writ Petition revolves around Article 226(2) of the Constitution. It would be appropriate to refer to 226(2) of the Constitution. The same reads thus: 226. Power of High Courts to issue certain writs: (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." 22 The phraseology "cause of action" is broadly construed as bundle of facts necessary for the party to prove before he can succeed. The apex court in the case of Kusum Ingots (supra) observed thus: "9. Although in view of Section 141 of the Code of Civil Procedure the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Kerala. As such, even if it is assumed, as contended by the learned Senior Advocate for the Petitioner, that the agreements were sanctioned and negotiated in the State of Maharashtra, it will not be sufficient to give rise to the cause of action, in view of the facts of the present case. The present dispute between the parties is about the acts of commission and omission in the State of Kerala. The complaint filed by the Respondent / complainant before the CCI is that SIPL was providing a bouquet of channels to the competitors of the complainant at a lesser price resulting into denial of market access and also amounting to unfair discriminating pricing within the State of Kerala. The geographic territory was limited to the State of Kerala. The complainant's business was affected in the State of Kerala. The agreement between the complainant and the present Petitioners was for the geographical area of the State of Kerala. Perusal of the entire complaint filed before the CCI, it is abundantly clear that the infringement alleged is in respect of business activity within the geographical area of State of Kerala. Even if any orders are passed, no part of business activity in Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has been ordered in respect of the agreements entered into by the present Petitioner with others having its area of operation in the State of Kerala. Hence, if at all, the further orders would have effect, it would be for the area of operation in the State of Kerala. The entire investigation to be conducted is with regard to the agreements entered into by the parties for its operation in the geographical area of Kerala. The complainant in its complaint before the CCI has never alleged that the Petitioners herein have committed anti competitive act with the parties in the State of Maharashtra. The allegations are restricted to the State of Kerala. The scope of complaint of the Respondent / Complainant before the CCI does not include the contracts or the anti competitive acts with any party within the State of Maharashtra. In view of that it cannot be said that the effect and consequences of the impugned order would be felt in the State of Maharashtra. The apex court, in the case of Adani Exports Ltd. (Supra) has observed as under: "17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
