Thursday, July 2, 2015

[aaykarbhavan] Judgments and Information [1 Attachment]




CCI rejects passenger's 'unreasonable conditions' complaint against IndiGo; Cites highly competitive landscape

CCI rejects air passenger's complaint against 'IndiGo', alleging imposition of arbitrary, unfair & unreasonable conditions on passengers, particularly with respect to 'flight delays/cancellations'; Defines  relevant market as "market of air transport services for passengers in India"; Observes that IndiGo's market share (31.8%) is highest among other airlines, and it appears to be leading player in terms of domestic passengers availing the airline services; However, holds it as not dominant  "since the Act provides that an enterprise is dominant if it can operate independently of competitive forces prevailing in the relevant market"; Observes that IndiGo's asset value size was lesser than Air India and Jet Airways, and "presence of other players in a significant way in the relevant market indicates that the consumers have option to avail service from other players in the relevant market"; Also notes that most of the flight tickets are either booked online or through agents, thus consumer can easily compare fare, timing & availability of seats across various airline companies, which helps passenger to take well informed decision and pick the best available option:CCI

StanChart not dominant in credit card facilities providing market, dismisses complaint

CCI rejects credit card holder's complaint against Standard Chartered Bank, alleging bank's abusive conduct by charging interest, penalty etc. on credit cards issued to him and to his wife; Defines relevant market as market for  "provision of credit card/loan facilities by banks in India"; Observes that many banks such as Citibank, American Express, IndusInd Bank, etc operate along with Standard Chartered Bank and offer similar services; Thus, holds that prima facie, bank does not appear to be dominant; Also notes that no material available on record to show that bank operates independently of the competitive forces prevailing in relevant market or that it can affect its competitors or consumers or relevant market in its favour :CCI

Dismisses complaint against real-estate developer for non-compliance of Consumer Forum's order, absent jurisdiction

CCI dismisses a flat buyer's complaint against Haryana based real estate developer, alleging non-compliance of District Consumer Forum's order; Holds that such issue does not fall within the jurisdiction of CCI; Observes that "The dispute raised by the Informant is basically a consumer related issue and does not come under the ambit of the Act" :CCI

No dominance when other builders with comparable projects present in same geographical-market

CCI rejects complaint against real estate developer ('opposite party') who had allotted a residential plot to informant at Alwar Express Highway, Bhiwadi; Informant alleged that opposite party demanded certain additional payments which were not mentioned in allotment letter, and it arbitrarily nominated an agency for maintenance of the project & fixed maintenance charges without informant' consent, thereby, abusing its dominant position; CCI delineates the relevant market as "provision of the services of development and sale of residential plot in Bhiwadi and its nearby areas"; Observes presence of large number of builders and developers having multiple projects in relevant market, such as Omaxe Limited, Shiv Sai Infrastructure Private Limited, Bharat Bhumi Buildtech, etc., thus, holds opposite party as not dominant; Observes that buyers have options to switch to other builders/ developers in the relevant geographic market :CCI

Rejects complaint against Gurgaon based real-estate developer, absent dominance

CCI dismisses a buyer's complaint against Gurgaon based real estate developer, alleging unfair, arbitrary terms in Buyer's agreement, loaded in favour of developer, thereby, abusing its dominance; Delineates relevant market as market for 'services for development and sale of residential units in Gurgaon'; Observes several other real estate developers such as DLF, Emaar MGF, Central Park, etc operating in relevant market and competing with each other; Holds that presence of such players with comparable projects in relevant market indicates that buyers have options to choose from other developers :CCI


Secretarial Standards effective from today; Tata Realty sues Unitech; Air Vistara's trademark row

Secretarial Standards effective from today; Tata Realty sues Unitech; Air Vistara's trademark row

 

Dear Patrons,
Just over 5 months ago, Taxsutra unveiled the newest addition to its stable of portals - lawstreetindia.com.
In this short period, LawStreetIndia (LSI) has become your able partner in the arena of Company law, Securities Law (SEBI/SAT), FEMA, IP laws & Competition Law.  With the  objective of bringing to you cutting edge, world class content in the area of Intellectual Property law, LSI has tied up with SpicyIP. Founded in 2005 by Prof. Shamnad Basheer (IP academic & Consultant), SpicyIP is a premier blog on IP, innovation law and policy.
LSI's IP Corner will now include select stories / blogs of SpicyIP that contain an incisive analysis of IP Law provisions on complex issues, innovation law and policy, short news-posts that attempt to bring readers the most pertinent IP news from India and around the world, etc.
LSI & Spicy IP team are excited to get you wall to wall coverage of everything to do with IP laws.
Best Regards
LSI Team


Restrains 239 entities from securities market; Observes money laundering, tax evasion during IPO

SEBI bars 239 entities from securities market for fraudulent & manipulative trading in 4 scrips ​(listed on BSE's SME platform) ​during their IPOs, which was done subsequent to increase in their share capital by preferential allotment despite poor​ financials during the relevant period; Observes that major portion of the IPO proceeds were used for refunding subscription monies to the entities of Funding Group (entities that funded the IPO) rather than for using the same for disclosed objects, holds that the return of IPO proceeds to financers of the allottees did not appear to be for any legally authorised purpose; Holds that after preferential allotment, getting their shares listed was done for generating fictitious long term capital gain (LTCG) so as to convert unaccounted income of preferential allottees and pre-IPO transferees into accounted one with no payment of taxes as LTCG is tax exempt under Income Tax Act, 1961; Further observes that a Trading Group traded in the four scrips by placing buy orders consistently and repeatedly, thereby creating demand for the supply of shares from preferential allottees / pre -IPO transferees and providing hugely profitable exit to them at an unrealistic price achieved through price manipulation; Thus, concludes that "such pre-IPO shares could be listed only by making an IPO and listing them alongwith shares issued in the IPOs which in this case were ostensibly made successful on account of financing by respective companies. The profit could be maximised on account of manipulative trading by connected entities primafacie acting in concert/ league"; D​irects a detailed investigation into the matter, and states that the matter may also be referred to other law enforcement agencies such as Income Tax Department, Enforcement Directorate and Financial Intelligence Unit for necessary action at their end as deemed appropriate:SEBI

The ruling was delivered by Shri. Rajeev Kumar Agarwal.

RBI issues updated Master Circulars on foreign exchange, NBFCs & banking regulation

RBI issues updated Master Circulars on Foreign Exchange (Direct Investment by Residents in JV / WOS Abroad, ECBs & Trade Credits etc., Compounding of Offences, etc.), NBFCs (Regulatory Framework for Core Investment Cos., Opening of Branch / Subsidiary / JV / Representative office / Undertaking Investment Abroad by NBFCs, Prudential Norms, Acceptance of Public Deposits, Corporate Governance Directions,  Companies Auditor's Report Directions) & Banking Regulation (Bank Finance to NBFCs, Branch Licensing etc.); Master Circulars a one-point reference of instructions issued by RBI on a particular subject between July-June, automatically expire on June 30 next year.

Click here to read updated Master Circulars.
Click here to post your comment.

No competition issue involved in civic body's non-provision of potable-water to building

CCI rejects residents association's ('informant') complaint against real estate developer & Pune Municipal Corporation (opposite parties, 'Ops'), alleging no arrangement for the provision of water and sanitary requirements for the residents of the society, thereby abusing their dominant position; Holds that, "making no arrangements by OPs for the provision of water and sanitary requirements in the society does not appear to be abusive in terms of the provisions of section 4 of the Act."; Further rejects informant's plea that such conduct caused appreciable adverse effect on competition ('AAEC'), holds that such conduct did not create barriers to new entrants in the market, or foreclosed competition as required u/s 19(3) to cause AAEC; Rejects informant's reliance on DLF case, distinguishable on facts, observes that informant attempted to "build the case through the concept of "locked-in" customer in real estate residential projects, but did not provide any evidence/ material except placing reliance and drawing parallels with the DLF order"; Also observes that "the allegation raised by the Informant does not involve any competition issue in the instant case".:CCI

The order was given by Shri. Ashok Chawla (Chairperson),  Shri. S.L. Bunker, Shri. Sudhir Mital, Shri. U.C. Nahta and Shri. M.S. Sahoo (Members).
 
Advocate Abhishek Khare and Mr. Mahesh Bhange argued on behalf of the informant.

CCI probing cap on MF distributor fee; YouTube not liable on copyright: German Court

CCI probing cap on MF distributor fee; YouTube not liable on copyright: German Court  

 

Dismisses frivolous impleadment application of family member sans any locus over shares

CLB dismisses application filed for impleading applicant as party to the company petition, holds applicant as not an eligible person to be impleaded u/s 405 of Companies Act, 1956, terms the application as 'frivolous, vexatious, an abuse of process of law'; Observes that as contemplated by Sec. 405, applicant is neither shareholder nor director, not connected with affairs of respondent co., also observes no allegations against applicant in main company petition, accordingly terms the applicant as 'outsider' to the company petition; Rejects applicant's contention that shares of respondent company constituted joint family property, and applicant being family member ought to be impleaded as party; Observes that applicant's suit is pending before Civil Court for establishing her rights on property, thus, concludes that applicant has no locus over the shares as of now; Relies on SC ruling in Mumbai International Airport Pvt. Ltd. Vs Regency Convention Centre Hotels Pvt. Ltd., wherein the principle for impleadment of parties was interpreted as "a party may be impleaded in a proceeding only if the party is either necessary party or proper party and that the presence of the party will assist the court in arriving a just decision":Chennai CLB

 Order was passed by Kanthi Narahari, Judicial Member, CLB
 
 Advocate Chitra Narayan represented the applicant and Advocates PH Arvind Pandian, Thriyambak Kannan and Keethikiran represented the respondents

Dear Patrons,
On June 10, 2015, the Union Cabinet approved the promulgation of Ordinance to amend the Negotiable Instruments Act, 1881 for dealing with territorial jurisdiction for trying cases ​of cheque dishonour.
In this articleSubodh Dandawate (Company Secretary, Venkateshwara Hatcheries Pvt Ltd) explains the key contents of the Ordinance promulgated by the President of India as also analyses impact of the same.
The author opines that the Ordinance is similar to the Bill as the substantive principle for determination of the jurisdiction of the cases u/s 138 of the Act remain​s the same, except two distinct situations of payment of cheque that are covered under the Ordinance,  i.e.  (i) by submitting the same for collection through an account or (ii) payment of a cheque otherwise through an account, that is, when cheques are presented across the counter of any branch of drawee bank for payment.
The author concludes by referring to certain lacunas left to be considered, more particularly w.r.t. the modern cheque truncation system, cash management system provided to corporates by banks etc.
Click here to read Mr. Dandawate's article - "Promulgation of Negotiable Instrument Ordinance: A rare instance"
Best Regards
LSI Team


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Posted by: Dipak Shah <djshah1944@yahoo.com>


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