Pankaj Rai vs NIIT Ltd

Order under Section 26(2) of the Competition Act, 2002

This order shall govern the disposal of the instant Information filed by Shri Pankaj Rai (‘the Informant’) under Section 19(1)(a) of the Competition Act, 2002 (‘the Act’) against NIIT Limited (‘the Opposite Party’/‘OP’/‘NIIT’) alleging, inter alia, contravention of the provisions of Sections 3 and 4 of the Act.

For appreciating the genesis of and developments leading up to the filing of the instant Information, it would be appropriate to recapitulate the events arising out of the order dated 28.11.2017, passed by the Commission under Section 26(2) of the Act in Case Nos. 47, 48, and 49 of 2017 whereby, the Commission closed the Information filed by Shri Pankaj Rai against NIIT, finding no case of contravention of the provisions of the Act.

The said order was put in challenge in judicial review by Shri Pankaj Rai by filing a writ petition bearing W.P. No. 42223 of 2017 before the Hon’ble High Court of Hyderabad. The said writ petition came to be dismissed by a judgment and order dated 14.02.2018 passed by the learned Single Judge of the Hon’ble Hyderabad High Court by noting that the impugned order could be challenged in statutory appeal before the Hon’ble National Company Law Appellate Tribunal (NCLAT). The relevant excerpts from this order are noted below:

“….This Court has absolutely no scintilla of hesitation nor any traces of doubt to hold that the present writ petitions are liable to be rejected on the ground of availability of the alternative remedy….”

Aggrieved thereby and dissatisfied therewith, Shri Pankaj Rai preferred an intra-court appeal before a Division Bench of the Hon’ble High Court of Hyderabad bearing Writ Appeal No. 456 of 2018. The same also came to be dismissed vide an order dated 31.12.2018 passed by the Division Bench, noting the following:

“8. The aforesaid position notwithstanding having regard to various submissions made by the appellants touching the merits of the matter, and to satisfy ourselves as to whether any critical factor has been ignored for the purpose of exercising the discretion to entertain the writ petitions or not, on the face of an admittedly available alternative remedy, we had required the learned counsel appearing for the Commission to place before us the entire records relating to the case. We have perused those records. We do not see that the discretion exercised by the learned single Judge by relegating the appellants to the statutory appellate jurisdiction is unfounded on fundamental principles of law. We, therefore, do not find any ground to interfere with the impugned order.

For the aforesaid reasons, the Writ Appeals fail. We clarify that even if the appellants were move to the Appellate Tribunal established under the Competition Act, the said authority would not be bound by any of the observations made by the learned single Judge in the impugned order or by us through this Judgment, in acting upon the statutory appeal, in accordance with law…”

Against the aforesaid dismissal of the writ appeal, Shri Pankaj Rai filed a review petition before the Hon’ble High Court. In order to expedite the hearing on the review application, Shri Pankaj Rai moved a writ petition bearing W.P. (C) No. 1311 of 2019 before the Hon’ble Supreme Court under Article 32 of the Constitution of India in January 2019 and sought directions from the Hon’ble Supreme Court for early disposal of the review petition filed before the Hon’ble High Court. This writ petition also came to be dismissed, whereafter the review petition pending before the Hon’ble High Court was sought to be withdrawn by Shri Pankaj Rai. Accordingly, the review petition was dismissed with the following order of the Court dated 02.12.2019:

“Major Pankaj Rai, Party in Person, seeks liberty to withdraw the petitions. Therefore, the petitions are hereby dismissed as withdrawn”.

A bare perusal of the aforesaid order makes it evident that, while seeking withdrawal, no liberty was prayed for by Shri Pankaj Rai, much less granted by the Hon’ble High Court. Notwithstanding this factual backdrop, Shri Pankaj Rai made a false averment in a subsequent application dated 02.04.2021 (as will be shown in para 9 below) filed before the Commission while seeking review/recall of the Commission’s order dated 28.11.2017 along with an application for condonation of delay that the review petition was “withdrawn with liberty to approach NCLAT” (S. No. 7, at Page No. 6 of the application seeking condonation of delay moved by Shri Pankaj Rai).

Thereafter, Shri Pankaj Rai preferred an Appeal before NCLAT on 06.01.2020 after a delay of 730 days. This appeal came to be dismissed by an order dated 29.05.2020 passed by NCLAT, with the following observations:

“…It is flabbergasting to note that the Appellant, despite dismissal of his Writ Petition on the ground of efficacious remedy in the form of appeal being available under the Act, remained unfazed and adamant at pursuing remedy before the Hon’ble High Court by filing Writ Appeal and upon its dismissal sought further judicial intervention in the form of approaching the Hon’ble Apex Court and finally withdrawing the review petition. The Appellant persisted with his stubborn attitude in pursuing remedy before the Constitutional Courts and not filing appeal before this Appellate Tribunal though advised to do so by the Writ Court. Such conduct cannot constitute a “sufficient cause” for not exercising the statutory right of appeal. In view of the Appellant’s conduct he cannot be heard to say that he was prevented by a “sufficient cause” from filing an appeal within the statutory period of limitation. The Appellant, howsoever hoarse he may cry that miscarriage of justice has been done, has to blame himself. Keeping these factors in view, no substantial ground to admit appeal beyond prescribed period of limitation can be said to exist.

The appeal is accordingly dismissed as being barred by limitation. Any observations made in this Order shall not be construed as an expression on the merits of the appeal.”

The aforesaid order of the Hon’ble NCLAT was challenged by Shri Pankaj Rai before the Hon’ble Supreme Court in Civil Appeal No. 2967 of 2020. Vide an order dated 12.10.2020, the Hon’ble Supreme Court dismissed the said Civil Appeal and observed as follows:

“3. In these circumstances, it cannot be postulated that the appellant was bona fide pursuing his remedies before the High Court. Even after the dismissal of the petition by a Single Judge and an appeal by the Division Bench, the appellant persisted with a manifestly misconceived remedy. Despite being apprised of the legal position that a petition under Article 226 was not maintainable in view of an appellate remedy, the appellant chose to allow time to elapse by pursuing the proceedings. In this view of the matter, we agree with the view of the appellate tribunal that the delay could not have been condoned in the absence of a sufficient cause or explanation. Whereas the statute contemplates the filing of an appeal within sixty days, the appeal was filed with a delay of over seven hundred days.”

Thereafter, the aforesaid order of the Hon’ble Supreme Court was challenged by Shri Pankaj Rai in a Review Petition (Civil) 1926/2020. This review petition was also dismissed by the Hon’ble Supreme Court vide its order dated 27.01.2021.

Undeterred, Shri Pankaj Rai again moved an application dated 02.04.2021 before the Commission seeking review/recall of the order dated 28.11.2017 passed by the Commission, which had attained finality, as shown above. In these circumstances, while dismissing this application, the Commission, vide its order dated 03.06.2021, expressly noted the same as gross abuse of the process of law. The Commission also took serious note of the false averment made by Shri Pankaj Rai in this application, as detailed therein.

In view of the afore-detailed summary of events, it is manifestly evident that Shri Pankaj Rai was not pursuing his remedies in a bona fide manner. As previously noted, the Commission passed a final order under Section 26(2) of the Act, closing the matter on 28.11.2017. The statutory appeals filed thereagainst, before the Hon’ble Appellate Tribunal and the Hon’ble Supreme Court and excursions before the High Court and finally before the Commission once again by way of review/ recall proceedings, stand dismissed, as noted supra.

Thus, having exhausted all possible legal avenues before every conceivable forum in the judicial hierarchy and having lost at every stage, Shri Pankaj Rai moved the present Information against NIIT, seeking reopening of the issues decided by the Commission vide its order dated 28.11.2017, as shown in this order.

In this Information filed against NIIT, the Informant Shri Pankaj Rai has raked up stale issues which have not only already been decided by the Commission but have also attained finality. To overcome the legal bar, the Informant has submitted that the present Information is not barred by the principle of res judicata. It is based on a “fresh” cause of action and on points that were not adjudicated earlier on merits. The fresh causes of action is also not barred by the principle of constructive res judicata since they were not in the knowledge of the Informant earlier and hence, could not have been raised earlier. The Informant avers that OP is dishonest but falsely claimed to be honest to induce the Informant to part with his lifetime savings and earnings. This aspect, claims the Informant, could not have been raised before the Commission earlier.

The Informant has further purported to cite a few instances of anti-competitive agreement/abuse of dominant position by OP, which are claimed to be not covered in the earlier order dated 28.11.2017.

The Informant has submitted that OP misled the Informant to sign an exclusive supply agreement by claiming to be an honest business entity. In furtherance of this, the Informant has relied on the “Vision Statement” of OP; concealment by OP of being dishonest in its business dealings; pending criminal proceedings against it since 2011 in Karnataka; and signing an exclusive supply agreement which, in turn, allows OP to become 100 per cent dominant.

Further, the Informant has relied upon various orders issued by different courts/tribunals against OP to establish its alleged bad credentials as a dishonest business entity. The same shall be referred to by the Commission in the succeeding paras in this order at the appropriate stage.

For the reasons mentioned hereinabove and to be detailed hereinafter, it is unnecessary to reproduce the various averments, allegations, and judicial pronouncements as detailed in the Information, since the same are wholly irrelevant and have no bearing whatsoever on the present case.

Based on the same, the Informant has, inter alia, prayed the Commission to inquire into the conduct of OP for contravening the provisions of Sections 3 and 4 of the Act.

The Commission had a preliminary conference with the Parties on 01.06.2022. After hearing the Parties, the Commission decided to pass an appropriate order in due course. The Parties were allowed to file their respective written submissions, if any, by 08.06.2022.

During the hearing, the Informant again submitted the pleas which have already been finally decided against it. It was contended that the order of the Hon’ble Appellate Tribunal dated 29.05.2020 dismissing the appeal of the Informant by not going into the merits of the case but on the technical ground of limitation, has still not attained finality though upheld by the Hon’ble Supreme Court. It was argued that res judicata is not applicable to the instant case for the following four mutually exclusive reasons: (i) Neither res judicata nor constructive res judicata apply to an order obtained by playing fraud; (ii) Res judicata does not apply to points not decided; (iii) Res judicata does not apply when the Court which had jurisdiction did not exercise it and when a Court which did not have jurisdiction exercised jurisdiction; and (iv) OP has not denied that the agreement is anti-competitive in view of resale price agreement, exclusive distribution agreement and exclusive supply agreement, and the License Agreement had an adverse effect on the Informant.

In reply, OP submitted that the Informant had previously filed an earlier Information, i.e., Case No. 47 of 2017, before the Commission, alleging that the same License Agreement contravened Section 3 and Section 4 of the Act. These allegations have been previously considered and dismissed by the Commission vide the order dated 28.11.2017. OP further submitted that the said order had attained finality and all statutory remedies against the same have been exhausted (before the Hon’ble NCLAT through order dated 29.05.2020 and before the Hon’ble Supreme Court through order dated 12.10.2020 and order dated 27.01.2021 in the subsequent review petition before the Hon’ble Supreme Court). The present Information, containing same or similar allegations arising from the same License Agreement, has already been adjudicated upon and is, therefore, barred by res judicata. Further, any and all allegations in the present Information not raised in the earlier Information are barred by the principle of constructive res judicata.

OP further submitted that the Informant is a chronic litigant who has initiated a number of legal proceedings in a multitude of legal fora against OP, including before this Commission. The Informant is in the habit of routinely casting aspersions against OP, its advocates, and even judicial institutions.

Having perused the Information, reply filed by OP, submissions made by the Parties, and considering the background of the case, the Commission has no hesitation in holding that the present Information is a gross abuse of regulatory process, whereby and whereunder the Informant is seeking to reopen the case which has already been decided against it by the Commission and which has attained finality. The issues raised by the Informant against OP have already been dealt with by the Commission and are also not based on any new information, cause of action, or evidence. It may be pointed out that the purported new facts which the Informant has mentioned as a ground for filing the instant Information are ex facie misconceived. The Informant has said that, on 27.05.2018, it came to know that OP has been indicted by MRTP Commission on 23.03.1988 for making “tall claims and false representations”; the Informant has further averred that, on or around the same time, it came to know that OP and its Chairman had once again been indicted by NCDRC on 03.09.2012 for cheating a student; on or around 26.10.2020, the Informant “learnt” that OP and its Chairman and Vice-Chairman had cheated one “Mr. Manoj Tiwari”, who had filed a case of cheating against them; the Informant further avers that somewhere around the third week of May 2021, he “came to know that Hon’ble Delhi High Court injuncted OP for infringing trademark of Mr. Keshav Kumar Agarwal…”; and lastly, the Informant avers that, on 26.06.2021, it “came across” a judgment of Karnataka High Court where the “quash petition” filed by NIIT for having committed offences punishable under the Karnataka Excise Act, was dismissed.

The Commission observes that the present Information does not raise any new facts or cause of action on account of “fresh knowledge”. It is noted that the Informant has cited a few cases/orders issued by different tribunals/courts against OP and has claimed acquiring “fresh knowledge” of OP’s dishonesty and that such “fresh knowledge” constitutes a fresh cause of action. However, none of the cases referred to by the Informant has any bearing on any competition law issues. Moreover, as pointed out by OP, all such orders/judgments rendered against OP were available in the public domain when the Informant filed the earlier Information, i.e., Case No. 47 of 2017.

On a bare perusal of these purported new facts, it is evident that not only do the same have no bearing whatsoever on the intrinsic issues involved in the present case but have also been “learnt” by the Informant in a convenient way post passing of the previous order by the Commission on 28.11.2017, under Section 26(2) of the Act.

Having examined the issues from a holistic perspective, the Commission is of the considered opinion that the instant Information is thoroughly misconceived, abusive and not maintainable. The Information has been filed in a desperate manner to overreach the various previous orders passed by the Commission as well as the Hon’ble Appellate Tribunal and the Hon’ble Supreme Court. If such attempts are acceded to, there will be no end to litigation and the Parties would remain perpetually in uncertain situations – a scenario wholly against public interest and public policy.

Before concluding, the Commission notes that the Informant has filed a series of applications/memos/written submissions/interlocutory applications, etc., without any direction or permission of the Commission, in utter disdain of the procedure laid down under the Competition Commission of India (General) Regulations, 2009. To just highlight the extent of such frivolous filings, the Commission deems it appropriate to note a few of them: the Informant sent an email dated 18.07.2021 enclosing a copy of First Information Report 04.05.2021 against NIIT; On 31.07.2021, the Informant sent an e-mail seeking clarification on the date of hearing; On 06.08.2021, the Informant sent an e-mail requesting early hearing, in October 2021, before the scheduled date of hearing, i.e., 09.12.2021; On 30.10.2021, the Informant sent an e-mail stating that he has another matter before the Supreme Court scheduled on 09.12.2021 and therefore, requested a convenient date to appear before the Commission on any date after 16.12.2021; On 12.11.2021, the Informant sent an e-mail seeking a fresh date of hearing either on 16.12.2021 or any date thereafter; On 13.02.2022, the Informant filed written arguments; On 15.02.2022, the Informant mailed a copy of citations; On 17.04.2022, the Informant mailed additional written arguments; On 22.04.2022, the Informant filed a Memo dated 22.04.2022 alleging that OP had filed counter affidavit without giving any reason for filing a reply after the stipulated date, 15.04.2022; On 28.04.2022, the Informant filed rejoinder to OP’s submission and added new prayers i.e.: (a) Permit the Informant to examine the officials of OP, including but not limited to Mr Rajendra Pawar and Mr Vijay Thadani through VC link; (b) Hold that, prima facie, the Opposite Party has contravened Sections 3 and 4 of the Act; (c) Refer the professional misconduct of Ms Muthappa and the law firm M/s TT&A to the Bar Council; Again, on 28.04.2022, the Informant filed an email for summoning witnesses left out in the email sent earlier on the same day – Interlocutory Application to Summon Witnesses under the provisions of Section 36(2)(a) of the Act read with Section 151 of CPC, 1908 – and sought permission to summon the following witnesses: (a) Ms Dinoo Muthappa of TT&A, (b) Mr Rajendra Pawar Chairman of OP, (c) Mr Vijay Thadani Vice Chairman of OP, (d) Mr Sapnesh Lalla, CEO of OP, (e) Mr Taposh Ray, Vice Chairman of OP, (f) Mr Bikas Jha, Legal Head of OP, and (g) Mr Deepak Bansal, Company Secretary of OP.

On 07.05.2022, the Informant filed yet another Memo dated 07.05.2022, seeking permission to bring the another purported instance of suppression of facts by OP; On 19.05.2022, the Informant filed written arguments regarding apprehension of bias because the Opposite Party is represented by TT&A, non-applicability of res judicata and constructive res judicata; On 28.05.2022, the Informant filed an updated version of the Memo dated 07.05.2022, showing alleged fraud by the Chairman of OP; On 30.05.2022, the Informant filed an undertaking; On 05.06.2022, the Informant filed written submissions along with nine citations pursuant to the hearing on 01.06.2022, wherein the Informant had stated that an application seeking recall of the order of the Hon’ble Supreme Court has been filed vide Diary No 8640 of 2022 on 21.03.2022 before the Supreme Court and further stated that res judicata is not applicable to the instant case; On 09.06.2022, the Informant filed four additional citations, claiming the same to be relevant to the pronouncement of orders on perjury/falsehood by OP. On 14.06.2022, the Informant filed Memo dated 14.06.2022, bringing to the notice of the Commission the recent order passed by the Hon’ble NCLAT in the matter of Amazon; On 22.06.2022, the Informant filed yet another Memo dated 22.06.2022, bringing out two more purported and alleged instances of facts suppressed by OP; On 28.06.2022, the Informant filed Memo dated 28.06.2022, requesting that his identity be kept confidential for a period of one year, in accordance with Regulation 35(1) of CCI (General) Regulations, 2009.

On careful perusal of the matter, the Commission has no hesitation in holding that the Informant is a chronic, compulsive, and habitual litigant in the habit of filing frivolous and vexatious proceedings before various judicial fora, wasting culpably the public time and resources.

Finally, the Commission observes that Shri Pankaj Rai has moved an application to keep his identity confidential after completion of proceedings before the Commission and after having appeared in-person in the virtual proceedings in the presence of OP. It is evident that the identity is sought to be claimed confidential so as to avoid any public scrutiny of the gross abuse of judicial processes resorted to by Shri Pankaj Rai.

In view of the above, no case of contravention of the provisions of the Act is made out against OP in the instant matter. Accordingly, the Information is ordered to be closed forthwith in terms of the provisions contained in Section 26(2) of the Act. All applications/memos/communications, etc. filed by the Informant, shall also stand dismissed.

The Commission further directs that no further application or Information or any other communication made by the Informant against NIIT in respect of the agreement or the issues, which have been subject matter of the previous proceedings, shall be entertained by the Commission or otherwise listed before the Commission.

The Secretary is directed to communicate to the Parties, accordingly.