In what is seen as a setback for Google, the National Company Law Appellate Tribunal (NCLAT) on Wednesday refused to grant any interim stay on a series of directions issued by the Competition Commission of India in the android matter ruling of October 20 last year. 

The competition watchdog had on October 20, 2022 levied a fine of ₹1,336.7 crore on Google in the Android mobile ecosystem matter besides issuing a series of non-monetary sanctions for indulging in anti-competitive conduct. 

Also read: Google moves NCLAT against CCI order

At the hearing of Google’s appeal on Wednesday, the NCLAT Bench comprising Justice Rakesh Kumar, Member (Judicial) and Alok Srivastava, Member (Technical), admitted Google’s appeal and directed that 10 per cent of the penalty be deposited. No other interim order has been passed by NCLAT. A final hearing on the matter has been fixed for April 3.

Abhishek Manu Singhvi, Senior Counsel, representing Google pressed for an immediate and complete stay of CCI order terming the same as “extraordinary”. However, NCLAT refused to accede to the request made by Dr. Singhvi noting that the appeal was filed after two months on the last day of expiry of the limitation period and also pointed out that records are voluminous in nature.

Samar Bansal, Advocate, assisted by Manu Chaturvedi, representing CCI, highlighted the contrived urgency created by Google through belated filing of the appeal and also pointed out that similar directions issued by the European Commission have already been complied by Google.

Three start-ups (Micromax, Carbon and one more) have also filed separate appeals challenging the CCI order while start-ups MapMyIndia, Os Lab Technologies and Alliance of Digital India Foundation (ADIF) filed impleadment applications opposing Google’s appeal.

The court declined Google’s prayer for an interim order reasoning that no order can be passed without going through voluminous records. NCLAT also rejected Google’s plea of urgency by pointing to the fact that while the impugned order was passed on October 20, the appeal was filed only in the last week of December.

Further, the Court rejected Google’s argument of Android’s benefit and influence on consumers, stating that the question is about Google’s anti competitive practices and abuse of dominance.

‘Some wisdom’

At the outset, the Tribunal also criticised the way Google filed the appeal in that as many as 3 vakalatnamas were filed on behalf of the Appellant. The Tribunal also remarked that some startups who have joined the appeal with Google might have done so due to their “sympathies.”

Also read: Google’s challenge to compliance with Indian regulations a double standard

On the allegations of copy-pasting orders from foreign jurisdictions, the Tribunal remarked that there must have been “some wisdom” in doing so.

The Tribunal also took exception to intervention/impleadment applications filed by some parties by remarking that in such a scenario the NCLAT would not be able to transact any other business except to hear intervention applications.

Google’s appeal

Google has appealed against this CCI ruling and sought an immediate and complete stay on the order.  

In its appeal, Google cited Startups testimonials raising ‘concerns’ over the CCI ruling. Google had challenged the findings of CCI as “patently erroneous” and ignoring “the reality of competition in India, Google’s procompetitive business model, and the benefits created for all stakeholders.” 

Also read: MakeMyTrip deposits 10% penalty, moves NCLAT for early hearing in CCI case

CCI’s order had been described as “fraught with substantive, analytical, and procedural errors including inter alia ignoring exculpatory evidence, statements from Indian OEMs and developers”. 

Interestingly, Google had accused the investigation arm of CCI i.e. the Office of the Director General (DG) of copy-pasting the conclusions from decisions of foreign authorities without any application of mind.

Separately on October 25 last year, CCI pulled up Google for abusing its dominant position as regards its Google Play policy and imposed a penalty of ₹937 crore on the tech giant.

The Competition law provides a sixty-day window for appeal before NCLAT against any order of the Competition watchdog.

 

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