APPELLANT - Pratiksha Easwar

Team code: [002]
2nd TNNLU-CCI NATIONAL MOOT COURT COMPETITION
BEFORE THE HONOURABLE SUPREME COURT OF KRATOS
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 007/2019

(ARISING OUT OF NCLAT ORDER NO. ____ OF 2019 AND ORDER NO._____ 2019)
Matter 1:
David and Co …..(Appellants)
versus
Premier, MoneyKart and Chapo ….(Respondents)
Matter 2:
Ganga and Origami …..(Appellants)
versus
Brahmaputra, Premier, Mahjong, MoneyKart and Chapo ….(Respondents)
Matter 3:
MTU …..(Appellants)
versus
Brahmaputra, Premier, Mahjong, MoneyKart, Chapo
And Union of Kratos ….(Respondents)
CONCERNING ANTI-COMPETITIVE AGREEMENTS, ABUSE OF DOMINANT POSITION

AND OTHER ISSUES WITH RELEVANCE TO THE E-COMMERCE COMPANIES IN
KRATOS
Memorandum On Behalf Of The Appellants Page |1

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TABLE OF CONTENTS
Title Page Number
TABLE OF ABBREVIATIONS 4
INDEX OF AUTHORITIES 5
Judicial decisions 5
Articles 6
Books 6
Online Resources 7
STATEMENT OF JURISDICTION 8
STATEMENT OF FACTS 9
STATEMENT OF ISSUES RAISED 11
SUMMARY OF ISSUES 12
ARGUMENTS ADVANCED 13
1. WHETHER MONEYKART, CHAPO AND PREMIER

ENTERED INTO TIE-IN AGREEMENT WITH PAYKING,
HEISENBERG AND FASTZAPP IN VIOLATION OF
SECTION 3 AND SECTION 4 OF THE KRATOTIAN
COMPETITION ACT? 13
1.1) Determination Of Relevant Market 13
1.2) Two Entities Can Be Considered Dominants In The Same Market 13
1.2.1) Purposive Interpretation Of The Act 13

1.2.2) Concept Of Collective Dominance 14
1.3) Abuse Of Dominant Position 15
1.4) EXCLUSIVE AGREEMENTS AMOUNTS TO ABUSE OF DOMINANCE 16

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2. WHETHER THERE EXISTS A CARTELIZATION
AGREEMENT AMONG BRAHMAPUTRA, MAHJONG,
PREMIER, CHAPO AND MONEYKART? 17
2.1) What is a cartel? 17
2.1.1) Ingredients of a cartel 17
2.1.2) Factors to prove agreement 18
2.2) How circumstantial evidence can be incorporated to
Prove an agreement 20
2.2.1) Exchange of Information 20
2.2.2) Price Parallelism as evidence 20
2.2.3) Appreciable Adverse Effect on Market 21
2.3) Other Countries’ approach to Algorithms 22
3. WHETHER THIS HON’BLE SUPREME COURT
SHOULD DIRECT THE GOVERNMENT TO FRAME
NEW REGULATIONS? 23
3.1) Behavioural provision of the EU Competition Rules 24
3.2) Application to Indian Competition Law 25
PRAYER 27
TABLE OF ABBREVIATIONS

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FULL FORM ABBREVIATION
AAEC Appreciable Adverse Effect on Competition
ACT Competition Act, 2002
CCI Competition Commission of India
DG Director General of Investigation
FTC Federal Trade Commission
MCA Ministry of Corporate Affairs
MRTP Monopoly and Restrictive Trade Practices

Act, 1969
OECD Organisation for Economic Cooperation and
Development
SSNIP Small but Significant and Non-transitory
Increase in Price
SC Supreme Court
TFEU Treaty on the Functioning of the European

Union
UK United Kingdom
USA United States of America
EU European Union
ECC European Competition Commission
MTU Madarasapattinam Traders Union

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INDEX OF AUTHORITIES
A) Judicial decisions
1. Arshiya Rail Infrastructure Ltd v Ministry of Railways Case No. 64 of 2010.

2. British Airways v Commission [2003] ECR 5917.
3. Case T-201/04 Microsoft Corpn. v Commission of the European Communities [2007]
ECR-II 3619.
4. Consumer Online Foundation v Tata Sky & Ors Case No. 2 of 2009.
5. Continental Can Company Inc v Commission of the European Communities [1973]
ECR 215.
6. Cooperatieve Vereniging Suiker Unie v Commission [1975] ECR 1663.
7. Hoffmann-La Roche & Co AG v Commission [1979] ECR 461.
8. Imperial Chemical Industries Ltd. v Commission (Dyestuffs) [1972] ECR 619.
9. In re: Phool Din &Ors [1952] AIR All 491.
10. Justickets Pvt Ltd v Big Tree Entertainment Pvt Ltd & Vista Entertainment Solutions
Ltd Case No. 08 of 2016.
11. M/s H.T. Media Limited v Super Cassettes Industries Ltd Case No. 40 of 2011.
12. M/s Maharashtra State Power Generation Company Ltd. v M/s Mahanadi Coalfields
Ltd Case No. 03/2012 (C.C.I).
13. MCX Stock Exchange Ltd. v NSE India Ltd Case No. 13/2009.
14. Microsoft Corp. v. Commission [2007] ECR-II 3601.
15. NV Nederlandsche Banden Industrie Michelin v Commission (1983) ECR 3461.
16. Nathu v State [1958] AIR All 467.
17. Neeraj Malhotra, Advocate v Deustche Post Bank Home Finance Limited & Ors Case
No. 5 of 2009.
18. Prasar Bharati v TAM Media Research Private Limited [2016] Comp LR 595 (CCI).
19. Punjab Land Development and Reclamation Corporation Ltd Chandigarh v Presiding
Officer Labour Court Chandigarh and Ors [1990] 3 SCC 682.
20. S Sher Singh v Raghu Pati Kapur and Anr [1968] AIR P&H 217.
21. Schott Glass India Pvt Ltd v M/s Kapoor Glass Pvt Ltd [2014] Comp LR 295 (CCI).
22. Shamsher Kataria v Honda Siel Cars India Ltd [2015] Comp LR 753 (CCI).
23. US v Visa Inc [2003] 2nd Cir 344 F 3d 229.
24. United Brands v. Commission [1978] ECR 207.

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25. XYZ v REC Power Distribution Co. Ltd Case No. 33 of 2014.
26. Re Tyre Manufacturers Case [1966] 2 ALL ER 849.
B) Articles
1. SVS Raghavan, ‘Report of High Level Committee on Competition Policy’, (2000) Vol I,
<https://theindiancompetitionlaw.files.wordpress.com/2013/02/report_of_high_level_commit
tee_on_competition_policy_law_svs_raghavan_committee.pdf > last accessed on 19 Feb
2019.
2. Avinash B Amarnath, ‘The Oligopoly Problem: Structural And Behavioural Solutions Under
Indian Competition Law’, (2013) Vol 55, Journal Of The Indian Law Institute
<http://14.139.60.114:8080/jspui/bitstream/123456789/12222/1/025_The%20oligopoly.pdfdf
> last accessed on 10 Feb 2019.
3. ‘Guidelines on the applicability of art. 101 to horizontal co-operation agreements’, [2009]

OFFICIAL JOURNAL OF THE EUROPEAN UNION, <http://eur-lex.europa.eu/legal-
content/EN/ALL/?uri=CELEX:52009XC0224(01)> last accessed on Feb 25 2019.
4. Robert Pitofsky, ‘New Definitions of Relevant Market and the Assault on Antitrust’, [1990]
Columbia Law Review Association.
5. Vijay Kumar Singh, ‘Competition Law And Policy In India: The Journey In A Decade’
[2011] NUJS Law Review, < http://nujslawreview.org/wp-content/uploads/2016/12/vijay-
kumar-singh.pdf > last accessed on 4th Feb 2019.
6. Vinod Dhall, ‘Report of the Working Group On Competition Policy’, <

http://planningcommission.nic.in/aboutus/committee/wrkgrp11/wg11_cpolicy.pdf > last
accessed on 13 Feb, 2019.
C) Books Referred
1. S M Dugar, ‘GUIDE TO COMPETITION LAW’ (5th edition, Lexis Nexis Butterworths

Wadhwa, Nagpur, 2016).

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2. Versha Vahini, ‘INDIAN COMPETITION LAW’, (Lexis Nexis 1st edition 2016).
3. T Ramappa, ‘Competition Law in India’, (Oxford University Press 2nd edition 2009).
D) Online Sources
1. www.manupatra.com
2. www.kluwercompetitionblog.com
3. www.scconline.com
4. www.jstor.org
5. www.ec.europa.eu
6. www.law.justia.com/cases
7. www.westlawindia.com
8. www.globalcompetitionreview.com

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STATEMENT OF JURISDICTION
I. The Appellant has approached this Hon’ble Supreme Court of Kratos under s 53T 1 of the
Competition Act, 2002 against the order passed by the NCLAT.
II. The Appellants have approached this Hon’ble Supreme Court of Kratos under s 53T of the
Competition Act, 2002 against the order passed by the NCLAT.
III. The Appellants have approached this Hon’ble Supreme Court of Kratos through the writ of
mandamus under art 32 of the Kratotian Constitution.
All of which is respectfully submitted
By:
Counsels for the Appellants
1
Appeal to Supreme Court 53T: The Central Government or any State Government or the Commission or
any statutory authority or any local authority or any enterprise or any person aggrieved by any decision or
order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of
communication of the decision or order of the Appellate Tribunal to them.

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STATEMENT OF FACTS
For the better understanding of the intricate facts of the circumstances leading to this appeal,
the facts are explained appeal-wise.
➢ GANGA AND ORIGAMI v PREMIER, MONEYKART, CHAPO, MAHJONG,

BRAHMAPUTRA
Kratos has 7 major e-commerce seller namely Ganga and Origami, Premier, Moneykart,
Chapo, Mahjong, Brahmaputra, Pursuant to the ‘digital kratos’ initiative, a new start up, named
as ‘Pablo’s Algorithm’ had devised a unique formula called as ‘Rutta’ to fix prices on the
number of hits for a product on their respective applications. Later out of the 7 sellers, only
Ganga and Origami renewed the contract of licensing Rutta, the other 5 sought for an advanced
version which was named as ‘Rutta 2.0’ by Pablo. This fixes the prices by comparing the price
band of its competitors and the 5 companies are solely responsible for the advanced algorithm
of Rutta 2.0. The market shares of Ganga and Origami declined which resulted in loss, both
the companies filed a complaint before the competition commission, the commission held that
‘meeting of minds’ is enough to conclude that there is a presence of cartel system, when the 5
sellers appealed against the order before the NCLAT, it stated that cartel cases cannot be
prosecuted in the absence of direct evidence, hence Ganga and Primer appealed before the
Hon’ble Supreme Court.
➢ MADRASAPATNAM TRADERS UNION Vs. PREMIER, MONEYKART, CHAPO,

MAHOJONG, BRAHMAPUTRA AND UNION OF KRATOS
The Madrasapatnam Traders Union filed a case before the Hon’ble High Court of
Madrasapatnam praying that the activities of e-commerce sellers have to be regulated. They
claimed that Rutta 2.0 was a devilish software which lowers the selling price so as to end other
competition in the market. They requested for their petition to be clubbed with that of Ganga
and Origami . The High Court of Madrasapatnam dismissed the case and the Madrasapatnam
Trade Union has filed a writ of mandamus before the Hon’ble Supreme Court.

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➢ DAVID AND CO v PREMIER, MONEYKART, CHAPO.
In pursuance of cashless Kratos policy, Premier, MoneyKart, Chapo launched their respective
e-wallet applications, ‘FastZapp’, ‘PayKing’, ‘Heisenberg’, respectively. With the passage of
time, it was realized that there happens to be a failure of payment processing when a particular
e-wallet of the three e-commerce sellers are used to buy products of any other
e-commerce sellers. David and Co., a small e-wallet service provider filed a complaint before
the CCK, alleging that Premier, MoneyKart, Chapo are in a joint dominant position. The
Commission held that, the group of companies are indeed in a dominant position and abusing
the same by entering into a tie-up agreement and forcing the consumers to avail the services of
the e-wallet to buy the products. The three companies, appealed to the NCLAT, which
addressed their appeal, and overturned the CCK’s order. Hence David and Co are before the
Hon’ble Supreme Court, appealing against the order of the NCLAT.
The Hon’ble Supreme Court clubbed the three appeals and is set to hear the substantial and
procedural issues.
Memorandum On Behalf Of The Appellants P a g e | 10

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STATEMENT OF ISSUES RAISED
1) WHETHER MONEYKART, CHAPO AND PREMIER ENTERED INTO TIE-IN

AGREEMENT WITH PAYKING, HEISENBERG AND FASTZAPP IN VIOLATION
OF SECTION 3 AND SECTION 4 OF THE KRATOTIAN COMPETITION ACT?
2) WHETHER THERE EXISTS A CARTELIZATION AGREEMENT AMONG

BRAHMAPUTRA, MAHJONG, PREMIER, CHAPO AND MONEYKART?
3) WHETHER THIS HON’BLE SUPREME COURT SHOULD DIRECT THE

GOVERNMENT TO FRAME NEW REGULATIONS?

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SUMMARY OF ARGUMENTS RAISED
1) WHETHER MONEYKART, CHAPO AND PREMIER ENTERED INTO TIE-IN

AGREEMENT WITH PAYKING, HEISENBERG AND FASTZAPP IN VIOLATION OF
SECTION 3 AND SECTION 4 OF THE KRATOTIAN COMPETITION ACT?
The Appellants humbly submit that there can be more than one dominant undertaking or
enterprise in the same market under the Competition Act, 2002. The purpose of having defined
dominance and the abuse of dominance traces back to the very purpose of the Act. The Act
aims to establish a Commission to prevent practices having adverse effect on competition, to
promote and sustain competition in markets, to protect the interests of consumers and to ensure
freedom of trade carried on by other participants in markets. The legislature has recognized the
need for the existence of more than one dominant undertaking. There are evident dangers that
arise from rejecting the presence of more than one dominant undertaking in the market and
hence the respondents humbly submit their arguments before this bench. Thus, the companies
have entered into exclusive agreements and have abused their dominant positions.
2) WHETHER THERE EXISTS A CARTELIZATION AGREEMENT AMONG

BRAHMAPUTRA, PREMIER, MAHJONG, CHAPO AND MONEYKART?
The Appellants humbly submit that there is a cartelization agreement among the 5 e-commerce
companies. On careful analysis it can be clearly inferred that there is proper circumstantial
evidences in the form of price parallelism, indicative of a cartel. There are also traces of AAEC
in the market victimising the Appellants.

The Appellants humbly submit that this Hon’ble Supreme should direct the Government to
frame new regulations as there exists a duty coupled with obligation in respect of issuing a
positive mandamus, especially when the Act is silent on a particular subject. On careful
analysis it can be found that there has been legislative intent to follow EU interpretation of
law.

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ARGUMENTS ADVANCED
1) WHETHER THERE EXISTS AN ABUSE OF COLLECTIVE DOMINANCE?
The Appellants herein humbly submits that the three companies (Premier, Chapo and
Moneykart) have abused their dominant position. In the Competition Act, 2002, it is only the
abuse of a dominant position that is punishable under law. The companies have violated the
provisions2 of the Competition Act, 2002. In order to determine the abuse of dominant position
of an entity, the dominance of the entity must be established.
1.1) DETERMINATION OF RELEVANT MARKET
The Act defines dominance in terms of a position of strength enjoyed by an enterprise, in the
relevant market in India, which enables it to affect its competitors or consumers or the relevant
market in its favour. Relevant product market3 is defined in terms of substitutability.
Dominance is not considered bad per se, but its abuse is. Abuse is stated to occur when an
enterprise or a group of enterprises uses its dominant position in the relevant market in an
exclusionary or/ and an exploitative manner. The Act gives an exhaustive list of practices that
shall constitute abuse of dominant position and, therefore, are prohibited. Such practices shall
constitute abuse only when adopted by an enterprise enjoying dominant position in the relevant
market in India. Abuse of dominance is judged in terms of the specified types of acts committed
by a dominant enterprise. Such acts are prohibited under the law. Any abuse of the type
specified in the Act4 by a dominant firm shall stand prohibited.
1.2) TWO ENTITIES CAN BE CONSIDERED DOMINANTS IN THE SAME

MARKET
2
Section 4 (2) (ii) of the Competition Act, 2002
3
Section 19 (4) of the Competition Act, 2002
4
Section 4 (2) (a) to Section 4 (2) (e), Competition Act, 2002

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It is humbly submitted before the hon’ble court that the three Companies are severally
dominant in the relevant market. Dominance of more than one enterprise in the same relevant
market has been assessed in past.5 It is submitted that the three entities can be considered
dominant in the same market and that they have abused their individual dominant positions by
entering into exclusionary agreements.
1.2.1) PURPOSIVE INTERPRERTATION OF THE ACT
A bare perusal of § 4(1) of the Act throws light on the concept of ‘collective dominance’ where
it states that “No enterprise or group shall abuse its dominant position. Emphasis is added on
the words “no enterprise” which do not anywhere explicitly establish that there must be only
one dominant undertaking in the market. It is reasonable to infer that it proscribes any number
of enterprises from abusing its dominance. Hence, there is no restriction on existence of more
than one dominant enterprise in the market.
The Section aims to ensure that no enterprise abuses its dominant position by any means as
prescribed within the provision itself, however, there is no inkling of any bracket on the number
of dominant entities that may exist in the same relevant market. The CCI has also discussed
the possibility of existence of more than one entity acquiring a position of dominance in the
market when it held that ‘the concept of dominance does centre on the fact of considerable
market power that can be exercised only by a single enterprise or a small set of market
players.6’
To substantiate further, § 13(2) of The General Clauses Act, 1897 states that in all Act and
Regulations, that unless the context specifies ‘singular shall include the plural and vice versa.’
The provision expressly states that any words in the act in singular will be understood and
construed to include the plural which in the simplest words means and re-affirms the claim that
-under § 4, the term ‘enterprise’ shall also include ‘enterprises’. In various cases, the singular
5
U S v Visa Inc [2003] 2nd Cir 344 F.3d 229, 239 [hereinafter “Visa”].
6
Consumer Online Foundation v Tata Sky & Ors Case No. 2 of 2009.

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terms such as person7, state8 and association9 have been held to include their plural meanings
as well.
1.2.2) THE CONCEPT OF COLLECTIVE DOMINANCE
It is humbly submitted that the arguments mentioned above successfully establishes that § 4 of
the Act embraces a situation wherein more than one undertaking can be dominant in one single
market. In addition to it, it is submitted that Article 102 of Treaty on the Functioning of the
European Union (TFEU)10 encompasses abuse of dominant position by ‘one or more
undertaking’. The provision recognizes a situation of abuse of dominance by more than one
undertaking under the term ‘collective dominance’.11
Therefore, it is reasonably inferred that the concept of ‘collective dominance’ includes

dominance of legally independent entities by the way of tacit coordination and governs the
behaviour of firms which might be individually dominant in the same market. Consequently,
it can reasonably be stated that under § 4 of the Act, more than one dominant undertaking can
exist in the same relevant market and hence the Competition Act, 2002 recognizes the said
concept.
1.3) THE ABUSE OF DOMINANT POSITION
7
Nathu v State [1958] AIR All 467.
8
S Sher Singh v Raghu Pati Kapur and Anr [1968] A I R P&H 217 (India).
9
Re Phool Din &Ors [1952] A I R All 491.
10
Treaty for Functioning of European Union, art 102.
11
'Guidance On The Commission's Enforcement Priorities In Applying Article 82 Of The EC Treaty To
Abusive Exclusionary Conduct By Dominant Undertakings’, (2009), Official Journal Of The European Union,
Communication From The Commission <http://eur-lex.europa.eu/legal-
content/EN/ALL/?uri=CELEX:52009XC0224(01)> last accessed on 18th Feb 2019.

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To ascertain that the companies have the ability to operate independently of the competitive forces
prevailing in the relevant market,12 the factors under §. 19 (4) should be considered.13 These factors
include
➢ market share14 of the enterprise,

➢ size and resources of the enterprise,
➢ size and importance of the competitors,
➢ the companies’ commercial advantages over its competitors,
➢ dependence of consumers, and
➢ market structure and size of market.
i. Market share of Premier, Chapo and Moneykart –

Market share indicates the dominance of an enterprise in a relevant market. 15 According to §.
19 (4) (a) of the Act,16 the commission shall consider market share of the enterprise to
determine existence of dominance.17 Even if market share cannot be the sole factor for
determination of dominance, it however, is a persuasive18 and highly significant factor for the
courts to consider.19 Holding a significant amount of share in the market indicates a dominant
position.20 The Eurpoean Commission found British Airways in a position of dominance with
a market share of 39.7%.21
ii. Size and resources of the enterprises

According to §. 19 (4) (b) of the Act, the commission may consider enterprise dominant in
terms of large size and resources.22
12
S M Dugar, ‘Guide To Competition Law’ (5th edition, LexisNexis, 2015).
13
D P Mittal, ‘Competition Law And Practice: A Comprehensive Section Wise Commentary On Law Relating
To The Competition Act’ (3rd edition, Taxmann, 2011).
14
Robert Pitofsky, ‘New Definitions of Relevant Market and the Assault on Antitrust’,1990, Colum L Rev
<http://www.jstor.org/stable/1122768> last accessed on 6th Feb 2019.
15
United Brands v Commission (1978) E C R 207, para 3 [hereinafter “United Brands”].
16
S V S Raghavan, ‘Committee Report on High Level Committee on Competition Policy & Law’ (2007)
<http://www.competitioncommission.gov.in/Act/Report_of_High_Level_Committee_on_Competition_Policy_
Law_SVS_Raghavan_Committee29102007.pdf> last accessed on 2nd Feb 2019.
17
The Competition Act 2002, s 19.
18
Neeraj Malhotra, Advocate v Deustche Post Bank Home Finance Limited & Ors (2011) 106 S C L 108 (C C
I), para 19.2.
19
Hoffmann-La Roche & Co. AG v Commission [1979] E C R 461, para 5.
20
Arshiya Rail Infrastructure Ltd. v Ministry of Railway, [2013] 112 C L A 297 (C C I), para 28 [hereinafter
“Arshiya Rail”].
21
British Airways v Commission [2003] E C R 5917, para 175.
22
Schott Glass India Pvt. Ltd. v M/s Kapoor Glass Pvt. Ltd [2014] Comp L R 295 (Comp A T) para 22;
Continental Can Company Inc. v Commission of the European Communities [1973] E C R 215, para 21; Prasar
Bharati v TAM Media Research Private Limited [2016] Comp L R 595 (C C I), para 7.9.

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iii. Size and importance of the competitors

In accordance with, §. 19 (4) (c) the commission may consider size and importance of the
competitors to ascertain an enterprise’s dominant position.23 With their respective high market
shares, it is clearly evident that no other enterprise substantially threats the three companies in
terms of competition.
iv. Commercial advantage over its competitors

Commercial advantage of an enterprise over its competitors is another criteria for
ascertainment of dominant position under §. 19(4) (d).24
v. Dependence of consumers on the companies

Where any enterprise has acquired huge market share of a product and the substitutability of
goods is absent, the chances of an enterprise to exercise its dominance increases.25
vi. Market structure and size of the market

The principle of dominant position has direct proximity to market power which allows it to act
independently of its competitive constraints.26 Such independence enables enterprise holding
dominant position to operate independently,27 in its favour to the economic disadvantage of its
competitors.28 The courts have also observed that a dominant enterprise has a special
responsibility to ensure that its conduct does not impair the effective competition in the
market.29
1.4) EXCLUSIVE AGREEMENTS AMOUNTS TO ABUSE OF DOMINANCE
It is the humble submission of the counsels for the Appellants that the three companies have
contravened §3(4) of the Act by entering into exclusive tie-in-arrangements which resulted in
having appreciable adverse effect on competition in the market. The competition act30 and the
23
Maher M. Dabbah, ‘EC And UK Competition Law: Commentary, Cases And Materials’ (1st edition,
Cambridge, 2004).
24
Giorgio Monti, ‘E.C. Competition Law’ (1st Edition, Cambridge ,2007).
25
M/s Maharashtra State Power Generation Company Ltd. v M/s Mahanadi Coalfields Ltd Case No. 03/2012
(C C I), para 78.
26
OECD, ‘Guidelines on the Role of Competition Policy in Regulatory Reform’ (2002).
27
Emanuela Arezzo, ‘Intellectual Property Rights at the Crossroad between Monopolization and Abuse of
Dominant Position: American and European Approaches Compared’, 2005, J. Marshall J. Computer & Info.
28
Shamsher Kataria v Honda Siel Cars India Ltd, (2015) Comp L R 753 (C C I), para 20.
29
N.V. Nederlandsche Banden Industrie Michelin v Commission [1983] E C R 3461.
30
The Competition Act 2002, s 4(2).

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commission has considered exclusionary conduct/abuse31 as abuse of dominant position.32

Engaging in exclusionary agreements and denial of the market access 33 have been held to be
exclusionary abuse by the commission.34
In the instant case the vertical integration bundling of ancillary product with the main services pose
serious threat to the players in the ancillary or downstream market. In the Microsoft Corp v.
Commission35where the tying of the Windows operating system with Windows Media Player
by Microsoft was held to be abusive under A.102 (d) and deemed it an act of ‘coercion’. Even
though the coerced product was supplied without charge to consumers and consumers were not
free to use Windows Media Player as they were reluctant from using substitutive products.36
Therefore, it is humbly submitted before this Hon’ble Court that Premier, Chapo and
Moneykart by making exclusive arrangements and entering into tie-in arrangements have
violated §3(4) of the Act.
Thus, from the above stated contentions, it is the humble submission of the appellants that there
can exist more than one dominant entity in the same market and that the three companies have
abused their dominant position by entering into Exclusive Agreements.
2) WHETHER THERE EXISTS A CARETELIZATION AGREEMENT AMONG

PREMIER, MONEYKART, MAHJONG, CHAPO AND BRAHMAPUTRA?
2.1) WHAT IS A CARTEL?
As per Competition Act, 2002: “Cartel includes an association of producers, sellers,

distributors, traders or service providers who, by agreement amongst themselves, limit, control
or attempt to control the production, distribution, sale or price of, trade in goods or provision
of services”37.
31
MCX Stock Exchange Ltd. v NSE India Ltd. Case No 13 of 2009], para 11.5.
32
M/s H.T. Media Limited v Super Cassettes Industries Ltd. Case No 40 of 2011, para 174.
33
Justickets Pvt. Ltd. v Big Tree Entertainment Pvt. Ltd. & Vista Entertainment Solutions Ltd. Case No 08 of
2016, para 69.
34
XYZ v REC Power Distribution Co. Ltd. Case No. 33 of 2014, para 19 & 21.
35
Microsoft Corp. v Commission [2007] E C R II-3601, 961, [hereinafter, Microsoft].
36
ibid [961]-[62].
37
The competition Act 2002, s 2(c).

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2.1.1) INGREDIENTS OF A CARTEL

(a) Agreement
‘Agreement’ is defined38 as including “any arrangement or understanding or action in concert-
Whether or not such agreement is formal, in writing or intended to be enforceable by legal
proceedings”. Without taking too technical a view, one can notice at first glance itself that a
very wide and expansive definition of agreement is envisaged under the Act.
Agreement includes any arrangement or understanding or action in concert. Agreement need
not be formal or reduced to writing. Agreement need not be enforceable. The term agreement
essentially involves express or overt meeting of minds and acceptance of restrictions. The
Competition Commission of India held39 that while appreciating the definition of an agreement
for the consideration of a cartel (being the most vitiating form of collusion) formation-
“For an agreement to exist there has to be an act in the nature of an arrangement, understanding
or action in concert including existence of an identifiable practice or decision taken by an
association of enterprises or persons. ......The word “agreement” for the purposes of the Act
has wide connotations as defined under Section 2 (b). However, it is imperative that existence
of such an “agreement” is unequivocally established. The European Court of Justice has clearly
laid down this principle with respect to infringements of Article 81 (1) of the EC Treaty in
various cases”
It is the contention of the appellants that there has been implicit agreement between the five
colluding companies, while upgrading to a better version of the existing algorithm.
2.1.2) FACTORS TO PROVE AN AGREEMENT

(a) Arrangement
To prove there has been an agreement among five companies, analysing the factors required
for arrangement.
Arrangement ‘suggests a common course of conduct or behaviour involving some sort of
communication or exchange of views between the parties, each of whom is led to expect that
the other or others will act in a certain way’.
In Re. Mileage conference group of the tyre manufacturers conference Ltd.40, it was observed
that “Where all that has happened is that a number of people separately and individually have
38
Ibid, s 2(b).
39
Neeraj Malhotra v Deustche Post Bank Home Finance Limited (Deustche Bank) Case No. 5 of 2009.
40
[1966] L R 6 R P.

Team code: [002]
decided to try to operate a scheme which involves mutuality, it may well be at that stage where
there is no arrangement. But when, thereafter it became clear to each of them by the acts of all
of them that all had decided to operate the scheme and were in fact operating it and in fact the
essence of its operation and the only basis on which it can operate rested in the acceptance of
mutual obligations by all the participants towards each other, the scheme thereupon becomes
an arrangement”.
Arrangement also includes mutual representation by conduct41. In the present scenario:
(a) Pablo’s advanced algorithm was made those five companies’ sole responsibility.
(b) Unlike Rutta, this advanced version analysis the price of its competitors which leads to real
time price automation.
(c) It was noted that at any given point of time, the prices quoted by these two companies
would be substantially more than the prices fixed by other five companies.
Taking into consideration, the view taken by the courts, s 3(1) of the Competition Act prohibits
any agreement which “causes or is likely to cause an appreciable adverse effect on competition
within India”. Section 3(3) then goes on to state that horizontal agreements among competitors,
decisions or practices of associations of enterprises which fix prices, limit output, share markets
or rig bids will be presumed to have an appreciable adverse effect on competition (AAEC)”.
In Re: Suo motu case (LPG Cylinder case)42 against LPG cylinder manufacturers the CCI laid
down that in order to prove an ‘agreement’ through circumstantial evidence, the evidence must
tend to “exclude the possibility of independent action”. This statement of the evidentiary
standard for proving an ‘agreement’ through circumstantial evidence has been borrowed from
the US Supreme Court judgment in Matsushita43.
Builders’ Association of India v Cement Manufacturers’ Association44, the CCI fined certain
cement manufacturers for price fixing and other cartel activities. After noting that
circumstantial evidence can be indicative of an ‘agreement’ under section 3, the CCI found that
the parallelism in prices and dispatch along with communications among the parties through
an association i.e, the Cement Manufacturer’s Association(CMA) which also collected
41
Re tyre manufacturers [1966] 2 ALL ER 849.
42
Suo Moto Case No. 03 of 2011.
43
Zenith Radio Corp. et al. v Matsushita Electric Industrial Corp., Ltd. [1983] 723 F.2d 238.
44
Case No. 29 of 2010, hereinafter referred to as “Cement Cartel Case”.

Team code: [002]
information on retail prices and the oligopolistic structure of the market was enough
circumstantial evidence to infer an agreement to fix prices.
Tacit coordination occurs when firms “restrain trade by intentionally imitating their
competitors’ actions with reasonably high expectations of a responsive imitation that will
lessen the rigors of competition”. Thus under a situation of tacit coordination firms are able to
achieve the same level of supra-competitive profits as a cartel or price fixing arrangement
without entering into an agreement or any sort of communication normally proscribed by
competition law by merely observing each other’s reactions and mimicking their behavior.
2.2) HOW CIRCUMSTANTIAL EVIDENCE CAN BE INCORPORATED TO PROVE

AN AGREEMENT
2.2.1) Exchange Of Information As An Evidence
Facilitating practices like the exchange of information among competitors have come up in a
few cases and the CCI seems to regard such practices as ‘circumstantial evidence’ of an
‘agreement’ under section 3. In the Cement Cartel case, one of the factors indicating the
existence of an ‘agreement’ was the communications among the parties through the Cement
Manufacturers Association, which also collected information on retail prices. In the LPG
Cylinder case as well, a meeting of the bidders to discuss pre-bid issues was held to be a factor
indicating the existence of an ‘agreement’ among the parties. In the Tyres case45, it was
recognised that “rational” conscious parallelism may arise solely from economic necessity in
many instances. The CCI observed: “among set of circumstantial evidences, evidences of
communication among the participants to an anti-competitive agreement may give an important
clue for establishing any contravention.”
In re Delhi Automobiles Private Ltd46 it was observed that the joint advertisements by dealers
offering uniform sale price of certain brand of cars was an arrangement or understanding
though there was no formal agreement. In Re Coates of India Ltd.47 the commission held that
45
MRTP Case RTPE No. 20 of 2008
46
[1976] 46 Comp Cas 610.
47
RTP Enquiry No. 7/1975

Team code: [002]
the grant of discount by the printing ink manufacturers to their distributors and dealer on
reaching a target of purchase amounted to acting concert and was an arrangement covered by
the term. Agreement as defined in the Act.
Hence it can be inferred from the facts of the present case that there has been an implicit
agreement which is anti-competitive in nature.
2.2.2) PRICE PARALLELISM AS AN EVIDENCE
First, algorithmic tacit collusion would likely arise in concentrated markets involving
homogenous products where the algorithms can monitor to a sufficient degree the pricing and
other keys terms of sale. Conscious parallelism would be facilitated and stabilized by the shift
of many industries to online pricing, as sellers can more easily monitor competitors’ pricing,
key terms of sale and any deviations from current equilibrium. In such an environment,
algorithmic pricing provides a stable, predictable tool, which can execute credible and effective
retaliation. Software may be used to report and take independent action when faced with price
deviation, be it from the supra- competitive or recommended retail price48. In re: Glass
Manufacturers of India49 the CCI noted while dismissing allegations of cartelization against
glass manufacturers that mere price parallelism “cannot be said to be an evidence of existence
of any cartel agreement” and “in order to determine the existence of a cartel, price parallelism
must be supported by an evidence of an agreement or collusion or action in concert.” The CCI
found that in this case, the price parallelism was justified by the cost structures and the absence
of barriers to entry made collusion unlikely.
Ghai Enterprises Pvt Ltd v kwality Ice Creams50, MRTPC finally linked price parallelism with
tacit agreement. The two leading manufacturers of ice cream had a market share of about 80%
and MRTPC observed that identity of prices of a large number of varieties of ice cream was
not coincidental but a mutually planned scheme. It was also noted that the two respondents
have interconnection. Not only price increase but introduction of other incentives like discount
schemes, new flavors were following one another. The Commission concluded that
preponderance of probabilities in the case leads to an inference of concerted effort and passed
cease and desist order accordingly.
48
A Ezrachi & M E Stucke, ‘English algorithmic Collusion: Problems and Counter-Measures’.
49
MRTP Case No. 161/2008
50
RTPE 18 of 1983

Team code: [002]
After the advent of Rutta 2.0 the five companies have constantly lowered the price (refer
appendix for graph), it is also pertinent to note that the prices put forth by the algorithm is
constantly the same.
2.2.3) APPRECIABLE EFFECTS ON THE MARKET
Section 3 of the Competition Act states that any agreement which causes or is likely to cause
an appreciable adverse effect (AAE) on competition in India is deemed anti-competitive.
Section 3 (1) of the Competition Act prohibits any agreement with respect to “production,
supply, distribution, storage, and acquisition or control of goods or services which causes or is
likely to cause an appreciable adverse effect on competition within India”. Although the
Competition Act does not define AAEC and nor is there any thumb rule to determine when an
agreement causes or is likely to cause AAEC, Section 19 (3) of the Act specifies certain factors
for determining AAEC under Section 3:
i. creation of barriers to new entrants in the market;
ii. driving existing competitors out of the market;
iii. foreclosure of competition by hindering entry into the market;
iv. accrual of benefits to consumers;
v. improvements in production or distribution of goods or provision of services; promotion of
technical, scientific and economic development by means of production or distribution of
goods or provision of services.
After the financial year 2016-2017, the market shares of companies involved in e – commerce
industry had drastically changed, whereby the total share of Ganga and Origami put together
had collectively reduced to 6.23% from 16.5% . It is also to be noted that these companies had
also reported a net loss of Rs. 85 Crores and Rs. 73 Crores respectively. Analysing this it can
be inferred that there has been AAEC.
2.3) OTHER COUNTRIES’ APRROACH TO ALGORITHM
Several policymakers over the past two years have acknowledged algorithmic collusion as a
possible antitrust concern. In its 2016 Preliminary Report on the E-commerce Sector Inquiry,
the European Commission noted the rise in use of monitoring algorithms: “About half of the
retailers track online prices of competitors. In addition to easily accessible online searches and

Team code: [002]
price comparison tools, both retailers and manufacturers report about the use of specific price
monitoring software, often referred to as "spiders", created either by third party software
specialists or by the companies themselves. This software crawls the internet and gathers large
amounts of price related information. 67% of those retailers that track online prices use (also)
automatic software programmes for that purpose. Larger companies have a tendency to track
online prices of competing retailers more than smaller ones... some software allows companies
to monitor several hundred online shops extremely rapidly, if not in real time... Alert
functionalities in price monitoring software allow companies to get alerted as soon as a
retailer's price is not in line with a predefined price”51.
Hence it is the contention of the petitioner that there has been a formation of anti-competitive
agreement which has resulted in a cartel formation.

The Counsel for the Appellants humbly submits that this Hon’ble Supreme Court must direct
the Government to frame new regulations as this is a dire need in the instant case. There is thus
no doubt that the Courts in India have the power to issue a writ of mandamus or to give
necessary directions where the government has failed to exercise power conferred upon it by a
statute or a rule or a policy decision of the government52. The court also explored the need to
issue a positive mandamus where a power was coupled with a duty53. It is equally settled that
in case when the Act or Rules are silent on a particular subject and the Authority implementing
the same has constitutional or statutory power to implement it, the Court can necessarily issue
directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted.
If a field meant for legislature and executive is left unoccupied detrimental to the public
interest, this Court would have ample jurisdiction under Article 32 read with Article 141 and
51
Brussels, 2016 <http://ec.europa.eu/competition/antitrust/sector_inquiry_preliminary_report_en.pdf> Last
accessed on 6th Feb 2019, paras 550-551.
52
Comptroller and Auditor General of India v K S. Jagannathan [1986] 2 S C R 17.
53
Ibid, para 51.

Team code: [002]
142 of the Constitution to issue necessary directions to the Government to sub-serve public
interest.
The objective of the Indian competition law as stated in the Preamble of the Act - “[A]n Act to
provide, keeping in view of the economic development of the country,” thereby implying that
competition is not the final destination by itself, but is rather a means to achieve economic
goals. This, along with the mandate laid out for the CCI in the Preamble –
(a) to prevent practices having adverse effect on competition,
(b) to promote and sustain competition in markets,
(c) to protect the interests of consumers, and
(d) to ensure freedom of trade carried on by other participants in markets –
Together imply that consumer welfare should be the focus of antitrust enforcement in India,
with economic development as the standard for consumer welfare, yet many harmful
facilitating practices fall outside the net of the Indian Competition Law. This is weakening the
Act’s armoury against AAEC and oligopolistically structured markets. Indian Competition
Law finds it’s origin from the EU Laws and jurisprudence.
Section 3(3) is thus the Indian equivalent of ‘object’ restrictions under article 101 in the EU.
The Raghavan Committee, which was responsible for the policy behind the Act, is silent on
the problem of tacit coordination54. However, what the report makes absolutely clear55 is that
the term ‘agreement’ “should also apply to what in the UK law are known as concerted
practices”. The report goes on to state that while the distinction between “agreements” and
“concerted practices” is often imprecise “concerted practices” consist of “informal cooperation
without a formal agreement”. Further, it also clearly specified that the term ‘agreement’ was to
cover what are known in the UK and EU as ‘concerted practices’. Facilitating practices like
exchange of information etc. if correctly identified and checked can go a long way in preventing
situations of tacit coordination.
54
Report of High Level Committee on Competition Policy, 2000 Vol I, <http://ebookbrowse.com/ report-of-
high-level-committee-on-competition-policy-law-svs-raghavan-committee29102007-pdf-d115899518> last
accessed on 6th Feb 2019.
55
Ibid , para 4.3.2.

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3.1) BEHAVIOURAL PROVISIONS OF THE EU COMPETITION RULES
The application of article 101 to tacit coordination in the EU has primarily centred on the
interpretation of the term ‘concerted practice’. The Court of Justice (CJ) has defined a
concerted practice as “a form of coordination between undertakings which, without having
reached the stage where an agreement properly so-called has been concluded, knowingly
substitutes practical cooperation between them for the risks of competition”56. Any ‘direct or
indirect’ contact that influences the market conduct of competitors including disclosing one’s
own course of conduct will be covered as a ‘concerted practice’57. Further even though
competition law tends to be much more flexible than other fields of law due to its basis in
economics there must be at least a basic degree of certainty and clarity to the meaning of terms
so that firms can know what they are prohibited from doing. The stress on ‘communication’
provides that certainty to the meaning of a ‘concerted practice’. Published guidelines on the
applicability of article 101 to horizontal co-operation agreement58 where it clarifies that
exchange of information between competitors can constitute a concerted practice when it
reduces ‘strategic uncertainty’ in the market thereby facilitating collusion 59. It further goes on
to state that exchange of future information on prices or output or in pursuance of a hardcore
cartel will be considered to infringe article 101 by ‘object’60. All information exchange can be
justified if the parties are able to show efficiency gains under article 101(3)61.
3.2) APPLICATION TO INDIAN COMPETITION LAW
As can be seen from the above discussion, facilitating practices can be caught as concerted
practices under article 101. It makes sense to catch facilitating practices, as there is some
identifiable ‘conduct’ or ‘effort’ by parties towards coordination which can be proscribed by
56
ICI v Commission [1972] E C R 619, paras [64]-[65].
57
Cooperatieve Vereniging Suiker Unie v Commission [1975] E C R 1663.
58
[2011] OJ C 11/1.
59
Ibid, para 61.
60
Ibid, para [72]-[74].
61
Ibid, paras [95]-[110].

Team code: [002]
law. For example, in the Sugar Mills case62 discussed above, the meeting and discussion of
prices should have itself been condemned under section 3(3) if such discussions were about
future prices as such discussions reduce strategic uncertainty among firms. This would also be
in line with the legislative intent that concerted practices falling short of a proper agreement
(or meeting of minds) should also be covered under section 3.
Thus, it is suggested that the term ‘agreement’ used in section 3 be extended to practices and
direct/indirect contact that “substitute practical cooperation for the risks of competition” 63 or
reduce “strategic uncertainty”64 in the market even if they fall short o f a proper ‘agreement’
(or ‘meeting of the minds’). Thus, one prong of the strategy to tackle tacit coordination must
be a strict approach to practices that facilitate tacit coordination by bringing them under section
3 as concerted practices. As already discussed above in the context of the EU, the need for a
basic level of clarity and certainty in the meaning terms is required. The society is evolving
and heading towards digitization, giving raise to new kinds of problems. The law must also
evolve and firmly tackle all technology-related issues. The law that we are following now
defeats the object and purpose of the act and is also against the intent of the policy makers 65.
Companies are getting away due to the convenient loophole of “Collective dominance” and
“informal agreements” despite exerting AAEC. Hence, we humbly submit that this Hon’ble
Court must direct the Government to frame new regulations.
62
India Glycol Ltd. v Indian Sugar Mills Association,Case No. 94 of 2014
(last visited on 5 Aug. 2012).
63
ICI v Commission [1972] E C R 619, paras [64]-[65].
64
106 Guidelines on the applicability of art. 101 to horizontal co-operation agreements [2011]
OJ C 11/1 para 61.
65
Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v Presiding Officer Labour Court
Chandigarh and Ors [1990] 3 SCC 682

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PRAYER FOR RELIEF
Therefore, in the light of the facts stated, arguments advanced and authorities cited, the
Counsels for the Appellants humbly pray and implore before this Hon’ble Supreme Court for
the following among other reliefs:
1) To Convict MoneyKart, Chapo and Premier under s3 and s4 of the Kratotian

Competition Act 2002, for Abuse of Dominant Position and entering into
Exclusivity Agreements.
2) To hold Premier, Mahjong, Chapo, MoneyKart, Brahmaputra liable for

cartel agreement under s3 of the Kratotian Competition Act 2002.
3) To direct the Government to frame new regulations curbing the anti-

competitive price variations set by pricing algorithms.
And to pass any other such order as it may deem fit in terms of justice, equity and good
conscience.
And for this act of kindness the Appellants shall as duty bound ever humbly pray.
Respectfully Submitted
Place: Trichy S/d______________________________
Date: March 2019 Counsel(s) for the Appellants

APPELLANT - Pratiksha Easwar

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2nd TNNLU-CCI NATIONAL MOOT COURT COMPETITION

BEFORE THE HONOURABLE SUPREME COURT OF KRATOS

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 007/2019

CONCERNING ANTI-COMPETITIVE AGREEMENTS, ABUSE OF DOMINANT POSITION

Memorandum On Behalf Of The Appellants Page |1

Title Page Number

STATEMENT OF ISSUES RAISED 11

1. WHETHER MONEYKART, CHAPO AND PREMIER

1.2) Two Entities Can Be Considered Dominants In The Same Market 13

1.2.1) Purposive Interpretation Of The Act 13

1.3) Abuse Of Dominant Position 15

1.4) EXCLUSIVE AGREEMENTS AMOUNTS TO ABUSE OF DOMINANCE 16

Memorandum On Behalf Of The Appellants Page |2

2. WHETHER THERE EXISTS A CARTELIZATION

AGREEMENT AMONG BRAHMAPUTRA, MAHJONG,

PREMIER, CHAPO AND MONEYKART? 17

2.1) What is a cartel? 17

2.1.1) Ingredients of a cartel 17

2.1.2) Factors to prove agreement 18

2.2) How circumstantial evidence can be incorporated to

2.2.1) Exchange of Information 20

2.2.2) Price Parallelism as evidence 20

2.2.3) Appreciable Adverse Effect on Market 21

2.3) Other Countries’ approach to Algorithms 22

3. WHETHER THIS HON’BLE SUPREME COURT

SHOULD DIRECT THE GOVERNMENT TO FRAME

3.1) Behavioural provision of the EU Competition Rules 24

3.2) Application to Indian Competition Law 25

Memorandum On Behalf Of The Appellants Page |3

FULL FORM ABBREVIATION

AAEC Appreciable Adverse Effect on Competition

ACT Competition Act, 2002

CCI Competition Commission of India

DG Director General of Investigation

FTC Federal Trade Commission

MCA Ministry of Corporate Affairs

MRTP Monopoly and Restrictive Trade Practices

TFEU Treaty on the Functioning of the European

USA United States of America

ECC European Competition Commission

MTU Madarasapattinam Traders Union

Memorandum On Behalf Of The Appellants Page |4

1. Arshiya Rail Infrastructure Ltd v Ministry of Railways Case No. 64 of 2010.

Memorandum On Behalf Of The Appellants Page |5

3. ‘Guidelines on the applicability of art. 101 to horizontal co-operation agreements’, [2009]

6. Vinod Dhall, ‘Report of the Working Group On Competition Policy’, <

1. S M Dugar, ‘GUIDE TO COMPETITION LAW’ (5th edition, Lexis Nexis Butterworths

Memorandum On Behalf Of The Appellants Page |6

Memorandum On Behalf Of The Appellants Page |7

All of which is respectfully submitted

Counsels for the Appellants

Memorandum On Behalf Of The Appellants Page |8

➢ GANGA AND ORIGAMI v PREMIER, MONEYKART, CHAPO, MAHJONG,

➢ MADRASAPATNAM TRADERS UNION Vs. PREMIER, MONEYKART, CHAPO,

Memorandum On Behalf Of The Appellants Page |9

➢ DAVID AND CO v PREMIER, MONEYKART, CHAPO.