The informant was not able to present any material to the Commission from which any entry barrier, let alone an unstoppable entry barrier, could be comprehended. Therefore, any contravention of sections 3 and 4 could not be found. This was held in the case of Anand Moudgil and Orbit Aviation Private Limited [ Case. No. 27 of 2021], before Hon’ble Chairperson Mr. Ashok Kumar Gupta, Members, Ms. Sangeeta Verma and Mr. Bhagwant Singh Bishnoi.
The brief facts of the dispute are as follows; the Informant was the owner of M/s Hermes International, which runs bus services between the IGI Airport in Delhi and various cities in Punjab. Quoting Clause 10 of the Agreement dated 02.02.2017, the OP filed a petition for grant of ad interim injunction restraining the Informant from conducting similar business of running buses between Punjab and Delhi and from competing with the said existing business of OP. The Trial Court in Ludhiana prohibited the Informant from engaging in a similar business. OP is not in the business of transporting passengers from Punjab to Delhi Airport; rather, its sister company, ICTC, is in this business. As a result, OP is not permitting the Informant to compete by operating buses alongside ICTC. The informant appealed the decision before the First Appellate Court of Additional District Judge, Ludhiana, but it was dismissed. Aggrieved and unsatisfied, the Informant is said to have filed an appeal with the Hon’ble High Court of Punjab and Haryana and filed a complaint with the Commission, insinuating that Clause (10) of the Agreement dated 02.02.2017 is anti-competitive and violates Sections 3 and 4 of the Act.
The Commission held that, “The Informant has not been able to place any material before the Commission wherefrom any entry barrier, much less any insurmountable entry barrier, can be deciphered. It is an admitted position on record that the Informant himself has re-entered into the same business without any difficulty. Admittedly, the Informant obtained the registrations and permissions from the STC twice within a short span of time. No other entry barrier has been pleaded much less established. As regards the purported non-compete clause, it is evident that it is the Informant only, who appears to have been restricted to enter the said market and this clause does not create entry barrier for any other person or enterprise to enter the similar business……in the absence of any foreclosure or entry barrier in the market due to the purported non-compete clause entered into by and between the Informant and the OP, as also considering the nature of the clause and the consideration paid therefor and the attendant litigations and observations made therein, the Informant has failed to make out any case of contravention of the provisions of Sections 3 or 4 of the Act against the OP.”
Judgement Reviewed by Vagisha Sagar
