Appeal No. 41 Of 2016 And I.A. No. 93 Of 2016, (Under Section 53-B of the Competition Act, 2002 against orders dated 17.11.2015passed by the Competition Commission of India in Case No. 16 of 2015). Case: Ms. Geeta Kapoor Vs Competition Commission of India and Others. COMPAT (Competition Appellate Tribunal)
| Case Number | Appeal No. 41 Of 2016 And I.A. No. 93 Of 2016, (Under Section 53-B of the Competition Act, 2002 against orders dated 17.11.2015passed by the Competition Commission of India in Case No. 16 of 2015) |
| Counsel | For Appellant: Shri Ankur Kashyap and Ms. Anusha Ramesh, Advocates |
| Judges | Shri. G.S. Singhvi Chairman and Shri Rajeev Kher, Member and Ms. Anita Kapur, Member |
| Issue | Competition Act, 2002 - Section 26(2); Limitation Act, 1963 - Section 5 |
| Judgement Date | August 29, 2016 |
| Court | COMPAT (Competition Appellate Tribunal) |
Order:
1. This is an appeal for setting aside order dated 17.11.2015 passed by the Competition Commission of India (for short, ‘the Commission’) in Case No. 16 of 2015, whereby it declined to order an investigation into the allegation of abuse of dominant position by Respondent No. 2 and closed the matter under Section 26(2) of the Competition Act, 2002 (for short, ‘the Act’). The appellant has also filed an application for condonation of 165 days’ delay in filing the appeal.
2. Although, in the application for condonation of delay, the appellant has not mentioned the statutory provision under which the Tribunal can entertain an appeal filed after the expiry of 60 days stipulated in Section 53B(2) as the period of limitation for filing an appeal, the same can be treated as the one filed under proviso to Section 53B(2).
3. The appellant has tried to explain the delay by making the following assertions :
(i) That she received the impugned order on 21.11.2015 and immediately engaged the advocate who had handled the matter before the Commission.
(ii) That after several sittings with the concerned advocate between 21.11.2015 and 25.11.2015, she was advised to file an appeal.
(iii) That in spite of the repeated requests, the advocate could not file the appeal within the period of limitation i.e. 21.01.2016.
(iv) That from 18th to 25th January, 2016, she had to travel abroad with her husband for donating blood to her sister-in-law, who was suffering from leukaemia. Thereafter, due to demise of a close friend at Bangalore, she had to remain out of Delhi between 28th and 29th January, 2016.
(v) That on her return, the appellant persuaded the advocate to file the appeal but he did not do the needful and, therefore, she disengaged the services of the concerned advocate on 03.02.2016.
(vi) That she engaged another advocate and finalised the terms of engagement with the new advocate on 10.05.2016.
(vii) That she has to take care of her widowed mother aged 83 years, who is completely dependent on her.
4. The period prescribed for filing an appeal under Section 53B(1) is 60 days from the date on which a copy of the direction or decision or order made by the Commission is received by the appellant. In terms of proviso to Section 53B(2) of the Act, the Tribunal is empowered to entertain the appeal after the expiry of 60 days, if it is satisfied that there was sufficient cause for not filing the same within that period. The expression ‘sufficient cause’, which appears in proviso to Section 53B(2) also finds place in Section 5 of the Limitation Act, 1963 (hereinafter referred to as ‘the Limitation Act’). Though, Section 5 of the Limitation Act has been liberally interpreted in some judgments including the often cited judgement of the Supreme Court in Collector Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji and Ors. AIR 1987 SC 1353, while dealing with an application filed for condonation of delay in filing an appeal under Section 53B(1) of the Act, the Tribunal cannot be guided by the principles laid down in those cases because a special period of limitation has been prescribed under the Act for conducting investigation and also for filing appeals against the direction given or decision or order made by the Commission. The legislative intendment of prescribing a shorter period is in consonance with the object of expeditious disposal of the matters relating to prevention of practices having adverse effect on competition, promotion and sustenance of competition in markets, protection of interests of consumers and ensuring of freedom of trade carried on by other participants in markets in India. If the ratio of the judgments involving the interpretation of the term ‘sufficient cause’ appearing in Section 5 of the Limitation Act is applied for interpreting proviso to Section 53B(2) of the Act, then the whole purpose of prescribing a different period of limitation would frustrated.
5. We are also of the view that the cause shown by the appellant for delayed filing of the appeal is far from satisfactory and there is no valid ground or justification to overlook the long delay of more than five and a half months. The appellant’s meeting with the advocate between 21.11.2015 and 25.11.2015 may explain the delay of 5 days but she has not disclosed as to what steps were taken by her between 25.11.2015 and 18.01.2016 i.e. the day on which she is said to have gone abroad in connection with the treatment of her sister-in-law, for filing the appeal. As per the appellant’s assertion, she had disengaged the services of earlier advocate on 03.02.2016 and formalised the terms of engagement of new advocate on...
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