Being part of Technical Bid of Cartel by Supplier of ‘Vinyl’ and ‘Flex’ is an Offence u/s 3(3)(c) of Competition Act: NCLAT upholds Penalty 

The Principal bench of the National Company Law Appellate Tribunal(NCLAT)has held that being part of the technical bid of a cartel by a supplier of ‘vinyl’ and ‘flex’ is an offence under section 3(3)(c) of the Competition Act,2002 and upheld the penalty.

Hith Impex Pvt. Ltd, the appellant challenged the order imposing penalty under the Competition Act, 2002. The Commission Suo Motu took up a matter under Section 19(1) of the Competition Act, 2002 in response to a complaintregarding bid-rigging and cartelisation in the tender floated by SBI Infra Management Solutions Pvt. Ltd. (SBIIMS) for the supply and installation of new signages/replacement of existing signages for branches/offices/ATMs of SBI located at specified metro centres of various circles of SBI across India (impugned tender).

The Suo Motu proceedings were initiated against as many as seven Respondents in which Hith Impex Pvt.Ltd. Mr Naresh Kumar Dasari of Opposite Party (OP)6 had stated that he was basing his pricing logic on ‘inputs’ from ‘MJ’. On oath, Mr Naresh Kumar Dasari has clarified that ‘MJ’ refers to Mr Manish Jodhavat of OP-7, which is a flex & vinyl dealer of OP4. The OPs have also stated in their depositions that ‘MJ’ referred to in Mr. Naresh Kumar Dasari’s e-mail is Mr. Manish Jodhavat of OP-7, which company is a flex & vinyl material dealer.

It was argued that the Appellant (Company) was not involved in the bidding though it had given the technical bid but was not part of the final bid. It was also submitted that the Appellant was the supplier of ‘Vinyl’ and ‘Flex’ and not beyond that, therefore, he could not have been considered to be part of the Cartel to return a finding against him and ultimately imposing the penalty, in the case of the Company to the tune of Rs. 5,94,619/- and in the case of the Director i.e. Manish Jodhavat to the tune of Rs.12,923/-.

A two-member bench comprising Justice Rakesh Kumar Jain,  Member (Judicial) and Naresh Salecha, Member (Technical) was satisfied that the company as well as Manish Jodhavat was somehow or the other were involved and, therefore, the conclusion drawn by the Commission cannot be faulted.

While dismissing the appeal, the authority upheld the penalty.

Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates