XIII ILNU ANTITRUST MOOT COURT COMPETITION, 2024

TEAM CODE: DOLOS

XIII ILNU ANTITRUST MOOT COURT

COMPETITION, 2024

BEFORE THE HON’BLE COMPETITION COMMISSION OF INDRI

IN THE MATTER OF:

UPPER CASE PRIVATE LTD

(INFORMANT)
V.

BABBAR SHARE PRIVATE LIMITED

(OPPOSITE PARTY 1)

BANNER TAPE PRIVATE LTD.

(OPPOSITE PARTY 2)

CASE NO. 16 OF 2023

UNDER ARTICLE 19(1)(A) OF THE COMPETITION ACT, 2002

WRITTEN SUBMISSION ON BEHALF OF THE INFORMANT

MEMORIAL ON BEHALF OF THE INFORMANT I

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TABLE OF CONTENTS

Table Of Contents ........................................................................................................................... II

List Of Abbreviations .....................................................................................................................V

Index Of Authorities ..................................................................................................................... VI

Statement Of Jurisdiction .............................................................................................................. XI

Statement Of Facts ....................................................................................................................... XII

Issues For Consideration ............................................................................................................ XIV

Summary Of Arguments ..............................................................................................................XV

Arguments Advanced...................................................................................................................... 1

[1]. That The Competition Commission Of Indri Has Jurisdiction Over The Present
Matter As Opposed To The Securities And Exchange Bank Of Indri ................................. 1

1.1. Jurisdiction Of Cci And Sebi Do Not Override Each Other In The Present Case............ 1

1.2. Application Of The Maxim “Leges Posteriors Priores Contrarias Abrogant” .............. 2

1.3. Application Of Non-Obstante Clause ............................................................................... 3

[2]. That The Agreement Between Babbar Share And Banner Tape Is In Contravention
Of §3(4)(B) Of The Competition Act, 2002 ............................................................................. 3

2.1. The Prerequisites Of §3(4) Are Fulfilled .......................................................................... 3

2.1.1. Babbar Share And Banner Tape Are Enterprises....................................................... 4

2.1.2. Babbar Share And Banner Tape Operate At Different Levels Of The Production
Chain In Different Markets .................................................................................................. 4

2.2. There Is An Exclusive Dealing Agreement Between Babbar Share And Banner Tape ... 4

2.2.1. There Is An Agreement Between Babbar Share And Banner Tape........................... 5

2.2.2. The Agreement Is In The Nature Of Exclusive Dealing............................................ 5

2.2.3. The Agreement Does Not Fall Under The Exemption Under §3(5) Of The Act....... 6

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2.3. The Agreement Causes Aaec In The Relevant Market .................................................... 6

2.3.1. Babbar Share Has Market Power ............................................................................... 7

2.3.2. The Negative Effects Of The Agreement Outweigh The Positive Effects ................ 7

2.3.2.1. The Agreement Between Babbar Share And Banner Tape Causes Negative
Effects............................................................................................................................... 8

2.3.2.1.1. It Creates Barriers To New Entrants............................................................. 8

2.3.2.1.2. It Leads To Foreclosure Of The Market ....................................................... 8

2.3.2.2. The Agreement Has No Positive Effects On The Market ................................... 9

2.3.2.2.1. There Is Accrual Of Harm To The Consumers .......................................... 10

2.3.2.2.2. There Is No Improvement In The Production Of Goods Or Provision Of

Services ....................................................................................................................... 10

2.3.2.2.3. Babbar Share Does Not Promote Technical, Scientific, Or Economic

Development ............................................................................................................... 10

[3]. That Babbar Share Is Dominant In The Relevant Market And Is Abusing The Said
Dominant Position ................................................................................................................... 11

3.1. The Relevant Market In The Present Case Is The Market For ‘Online Trading
Applications’ In Indri ............................................................................................................ 11

3.1.1. Relevant Geographic Market Is Indri ...................................................................... 11

3.1.2. Relevant Product Market Is The Market For Online Trading Applications ............ 12

3.2. Babbar Share Is Dominant In The Identified Market ..................................................... 12

3.2.1. Babbar Share Can Operate Independently Of Competitive Forces ......................... 12

3.2.1.1. It Has High Market Share.................................................................................. 13

3.2.1.2. It Has High Market Power ................................................................................ 14

3.2.1.3. Vertical Integration Of Babbar Share And Creation Of Entry Barriers ............ 15

3.2.2. Babbar Share Affected Its Competitors And Consumers In Its Favour................... 16

3.3. Babbar Share Has Abused Its Dominant Position .......................................................... 16

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3.3.1. Unlawful Discrimination By Offering A Must-Have Service Like Jarvis 2.0 Only
To Simbaa .......................................................................................................................... 16

3.3.2. Babbar Share Restricted Market Access Through An Exclusive Agreement With
Banner Tape ....................................................................................................................... 18

[4]. Banner Tape Is Dominant In The Relevant Market And Is Abusing The Said Dominant
Position ..................................................................................................................................... 20

4.1. The Relevant Market Is The Market For Investment Education And Advisory
Applications In The Indri ...................................................................................................... 20

4.1.1. Relevant Geographic Market Is The Indri ............................................................... 20

4.1.2. Relevant Product Market Is The Market For Investment Education And Advisory
Applications ....................................................................................................................... 20

4.2. Banner Tape Is Dominant In The Identified Market ...................................................... 21

4.2.1. It Has A High Market Share .................................................................................... 21

4.2.2. It Has High Market Power ....................................................................................... 22

4.2.3. Dependence Of Consumers On Jarvis 2.0 ............................................................... 22

4.2.4. Size And Resources Of Banner Tape....................................................................... 22

4.2.5. Creation Of Entry Barriers By Monopoly Acquired Through Patent Act ............... 23

4.3. Banner Tape Has Abused Its Dominant Position By Engaging In Leveraging.............. 23

4.3.1. The Two Distinct Markets Are Interconnected ....................................................... 24

4.3.2. Banner Tape Is Dominant In One Of The Markets.................................................. 24

4.3.3. Banner Tape Engaged In Leveraging ...................................................................... 24

Prayer ........................................................................................................................................ XVII

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LIST OF ABBREVIATIONS

And &
Paragraph ¶
Percentage %
Section §
Versus v.
Artificial Intelligence AI
All India Report AIR
Antitrust Law Journal ALJ
Another Anr.
Appreciable Adverse Effect on Competition AAEC
Babbar Share BS
Banner Tape Private Limited BT
Competition Commission of Indri CCI
Edition Ed.
Et cetera Etc
European Commission EC
European Union EU
Incorporated Inc.
Intellectual Property Right IPR
Herfindahl-Hirschman Index HHI
Limited Ltd.
Others Ors.
Private Pvt.
Securities and Exchange Board of Indri SEBI
Supreme Court Cases SCC

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INDEX OF AUTHORITIES

INDIAN CASES

Arshiya Rail Infrastructure Ltd. v. CCI, 2013 SCC OnLine Comp AT 82 .................................. 17
Automobiles Dealers Assn. v. Global Automobiles Ltd., Case No. 33 of 2011 (CCI) .................. 7
Belaire Owners’ Association v. DLF Ltd Haryana Urban Development Authority Department of
Town and Country Planning, State of Haryana, 2011 Comp LR 239 (CCI) ............................ 14
CCI v. Bharti Airtel Ltd., (2019) 2 SCC 521 .................................................................................. 1
CCI v. JCB (India) Ltd., (2020) 17 SCC 446 ............................................................................... 18
Cine Prekshakula Viniyoga Darula Sangh v. Hindustan Coca Cola Beverages Pvt. Ltd., 2011 SCC
OnLine CCI 25 .......................................................................................................................... 15
Consumer Online Foundation v. Tata Sky Ltd, [2011] CCI ........................................................... 1
Dhanraj Pillay v. Ms. Hockey India, (2013) CompLR 543 (CCI). ............................................... 11
Exclusive Motors (P) Ltd. v. Automobili Lamborghini SPA Via Modena, 2014 SCC OnLine Comp
AT 1............................................................................................................................................. 5
Fx Enterprise Solutions Pvt Ltd. v. Hyundai Motor India Limited, Case No. 36 of 2014, (CCI). 22
H.M.M. Ltd. v. Director General, Monopolies & Restrictive Trade Practices Commission, (1998)
6 SCC 485. ................................................................................................................................ 17
HNG Float Glass Ltd. v. Saint Gobain Glass India Ltd., Case No. 51 of 2011 (CCI). ................ 16
HT Media Ltd. v. Super Cassettes Ltd., Case No. 40 of 2011 (CCI). .......................................... 18
In Re DG of Supplies & Disposals, Dept. of Comm, MoCI, GOI, Case No. 01 of 2012 (CCI). ... 5
In Re ESYS Information Technologies Pvt Ltd and Intel Corporation (Intel Inc), Case No. 48 of
2011(CCI).................................................................................................................................... 4
In Re ESYS Information Technologies Pvt. Ltd., 2014 SCC OnLine CCI 10 ............................. 22
In Re Federation of Hotel & Restaurant Assn. of India v. MakeMyTrip India Pvt. Ltd., Case No.
14 of 2019 (CCI) ......................................................................................................................... 7
In Re Indian Laminate Manufacturers Association, Case No. 61 of 2016 (CCI). ........................ 14
In Re Jasper Infotech Private Limited and Kaff Appliances Ltd., Case No. 61 of 2014 (CCI) ...... 5
In Re Prime Mag Subscription Services Pvt. Ltd. v. Wiley India Pvt. Ltd., Case No. 07 of 2016
(CCI)............................................................................................................................................ 7

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In Re Updated Terms of Service and Privacy Policy for Whatsapp Users, Case No. 01 of 2021
(CCI)............................................................................................................................................ 2
K.C. Marketing v. OPPO Mobiles MU Pvt. Ltd., Case No. 34 of 2018 (CCI) .............................. 5
MCX Stock Exchange Limited v. National Stock Exchange of India Ltd., Case No. 13 of 2009
(CCI).......................................................................................................................................... 24
Mohit Maglani v. Flipkart India Pvt Ltd, Case No. 80 of 2014 (CCI) ........................................... 5
Monsanto Holdings (P) Ltd. v. CCI, 2020 SCC OnLine Del 598. ................................................. 6
Municipal Committee, Malerkotla v. Mohd. Mushtaq, AIR 1960 PUNJAB 18. ........................... 2
Neeraj Malhotra, Advocate v. Deustche Post Bank Home Finance Limited, Case No. 05 of 2019
(CCI).......................................................................................................................................... 13
Noida Software Technology Park Ltd. v. Star India Pvt. Ltd., Case No. 30 of 2017 (CCI) ........ 14
Ram Niwas Gupta v. Omaxe Ltd., Case No.74 of 2011(CCI)........................................................ 5
Samir Agarwal v. ANI Technologies Pvt. Ltd., Case No. 37 of 2018 (CCI). .............................. 12
Shamsher Kataria v. Honda Siel Cars India Ltd., Case No. 03 of 2011 (CCI) ............................... 3
Shri Avtar Singh v. Ansal Township & Land Development Ltd., (2014) CompLR 154 (CCI) ... 12
Shri Ghanshyam Das Vij v. Bajaj Corp. Ltd .................................................................................. 6
Shri M.M. Mittal v. Paliwal Developers Ltd., Case No. 112 of 2015 (CCI). ............................... 11
Sri Rama Agency v. Mondelez India Foods Pvt. Ltd., Case No. 58 of 2015 (CCI). ...................... 4
State (NCT of Delhi) v. Narender, (2014) 13 SCC 100.................................................................. 3
Tata Engineering and Locomotive Co. Ltd. v. The Registrar of Restrictive Trade Agreement, AIR
1977 SC 973 ................................................................................................................................ 7
The National Stock Exchange of India Ltd v. CCI, 2014 Comp LR 304 ..................................... 15
Umar Javeed v. Google LLC, 2022 SCC OnLine CCI 61 ............................................................ 19
Vijay Gopal v. Inox Leisure Ltd., 2019 SCC OnLine CCI 4........................................................ 10
Whatsapp LLC v. CCI, 2022 SCC OnLine Del 2582 ................................................................... 14
XYZ v. Alphabet Inc, 2020 SCC OnLine CCI 41 ........................................................................ 23

FOREIGN CASES

Board of Trade of the City of Chicago v. US, 246 US 231 (1918) (USSC). ................................ 10
Case 258/78, Nungesser v. Commission, 1982 E.C.R. 2015 (ECJ) ............................................... 9
Case 27/76, United Brands v. EC, 1978 E.C.R. 207..................................................................... 13

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Case 310/93, BPB Industries PLC v. Commission, 1993 E.C.R. 385 .......................................... 11
Case 322/81, Michelin v. Commission, 1983 E.C.R. 3461 .......................................................... 18
Case 56/65, Societe Technique Miniere v. Maschinendau Ulm, 1966 E.C.R. 337 (ECJ). ............. 9
Case 6/73, Istituto Chemioterapico Italiano SpA v. Commission of the European Communities,
1974 E.C.R. 223 ........................................................................................................................ 17
Case C-234/89, Delimitis v. Henninger Brau AG, 1991 E.C.R. 935.............................................. 9
Case T-30/89, Hilti AG v Commission of the European Communities, [1990] E.C.R. II-163 .... 21
Case T-83/91, Tetra Pak International SA v. Commission of the European Communities, 1996
E.C.R. 436 ................................................................................................................................. 24
Commission Regulation 139/2004, Decision on the implementation of the commitments -
Purchaser approval, Case M.9094 - AMCOR/BEMIS91. ........................................................ 12
Continental T.V v. GTE Sylvenia, 433 US 36 (1997) (USSC). ..................................................... 9
Eastern Scientific Co. v. Wild Heerbrugg Instruments, Inc., (1978) 572 F.2d 883 (1st Cir.). ....... 7
Leegin Creative Leather Products Inc. v. PSKS Inc., 551 US 877 (2007). .................................... 6
Parks & Sons v. Hartman, 153 Fed. Rep. 24. ................................................................................. 9
Twentieth Century Music Corp. v. Aiken, (1976) 422 US 151 ...................................................... 6
U.S. v. Microsoft, 253 F. 3d 34 ...................................................................................................... 9
United States v. Image technical Services Inc., 504 US 451 (1992). ........................................... 11
United States v. Terminal Railroad Assn., 224 US 383 (1912) (USSC). ..................................... 17

STATUTES

Securities and Exchange Board of India Act, Preamble, No.15, Acts of Parliament 1992
(India)……………………………………………………………………………………. passim
The Indian Competition Act, Preamble, No.12, Acts of Parliament 2003 (India)………….. passim

BOOKS

ABIR ROY & JAYANT KUMAR, COMPETITION LAW I N INDIA (Eastern Law House 2014). ............ 11
D.P. MITTAL, COMPETITION L AW AND PRACTICE 297 (3d ed. 2011). ........................................... 11
F. WIJCKMANS, &F. TUYTSCHAEVER, VERTICAL AGREEMENTS IN EU COMPETITION LAW, 106 (2d
ed. 2011). ................................................................................................................................... 21

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PHILIP SUTHERLAND & KATHERINE KEMP, COMPETITION LAW OF SOUTH AFRICA (LexisNexis
2000).......................................................................................................................................... 17
R.S KHEMANI & D.M.SHAPIRO, GLOSSARY OF INDUSTRIAL ORGANISATION ECONOMICS AND

COMPETITION LAW (OECD, 1993). .............................................................................................. 7

RICHARD WHISH & DAVID BAILEY, COMPETITION L AW 684 (OUP 2018). .................................. 18
STANDING COMMITTEE ON FINANCE, MCA, ANTI-COMPETITIVE PRACTICES BY BIG TECH
COMPANIES 38 (2022) ................................................................................................................ 14
T. RAMAPPA, COMPETITION L AW IN I NDIA, 159 (Oxford 3d ed. 2014). ........................................ 12

ARTICLES

AM Spence, The Learning Curve and Competition, 12 BELL J ECON 49, (1981) ...................... 9
Gregory J.Werden, Network Effects And Conditions Of Entry: Lessons From The Microsoft Case,
69 ALJ 87, (2001). .................................................................................................................... 19
Jan Eeckhout & Laura Veldkamp, Data And Market Power 33 (NBER, Working Paper) .......... 15
JE Hodder & YA Illan, Declining prices and optimality when costs follow an experience curve,
MANAGERIAL & DECISION ECON 229, (1986); ............................................................................ 9
Lin William Cong & Simon Mayer, Data Union And Regulation In A Data Economy 27 (NBER,
Working Paper), ........................................................................................................................ 15
Oliver Hart & Jean Tirole, Vertical Integration and Market Foreclosure, BROOKINGS PAPERS ON
ECONOMIC ACTIVITY MICROECONOMICS 205, 278-280 (1990)................................................... 9

EU GUIDELINES

Commission Regulation (EU) No 330/2010, O.J. 2010/L 102/1 ¶19.............................................. 9

Consolidated Version of the Treaty on the Functioning of the European Union art. 101, May 9,
2008, 2008 O.J.(C 115) 47. ......................................................................................................... 6
Glossary of Terms used in EU Competition Policy – Antitrust and control of concentrations, at 17,
DG, (July, 2002). ......................................................................................................................... 8
Guidelines on the Assessment of Horizontal Mergers under the Council Regulation on the Control
of Concentrations Between Undertakings, O.J. 2004/C 31/03 ................................................... 5
Guidelines on vertical restraints, O.J. 2022/C 248/01, ¶ 2.2.......................................................... 5

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ONLINE SOURCES

Gide Loyrette Nouel, Competition Assessment of Vertical Mergers and Vertical Agreements in the
New Economy, EC, (Nov.,2001), .............................................................................................. 17
Herfindahl-Hirschman Index, US DEPARTMENT OF JUSTICE (Jan.17, 2024), ............................... 14
Meloria Meschi et al., Assessing the Importance of Market Power in Competition Investigations,
CCI ............................................................................................................................................ 14
MM Sharma, Exclusivity Clauses in Commercial Agreements, MONDAQ (Feb. 2, 2024)........... 5
P.D. Sudhakar & K.K. Sharma, Competition law and policy in India, CCI, (2008), ................... 13
Rossella Incardona, Distribution Agreements under EC Competition Law (University of Palermo,
Working Paper, 2005) ................................................................................................................. 8
Vertical Agreements in Indian Competition Law, SHARDUL AMARCHAND MANGALDAS (Jan. 14,
2024)............................................................................................................................................ 5
Vijay L Kelkar & Pradeep S Mehta, Whose jurisdiction is it anyway? India desperately needs a
regulatory overhaul, CENTRE FOR COMPETITION, INVESTMENT & ECONOMIC REGULATION (Jan.
8, 2024)........................................................................................................................................ 1

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STATEMENT OF JURISDICTION

The Informant humbly submits to the jurisdiction of the Hon’ble Competition Commission of Indri
under §19(1)(a) of the Competition Act, 2002. §19(1)(a) of the Competition Act, 2002 reads as
hereunder:

“19. Inquiry into certain agreements and dominant position of enterprise.

(1) The Commission may inquire into any alleged contravention of the provisions contained in
sub-section (1) of section 3 or sub-section (1) of section 4 either on its own motion or on—

(a) [receipt of any information, in such manner and] accompanied by such fee as may be
determined by regulations, from any person, consumer or their association or trade association”

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STATEMENT OF FACTS

INTRODUCTION

The Sovereign Republic of Indri, (hereinafter “Indri”) has a growing population of under 30 years.
The Competition Act, 2002 (hereinafter “the Act”) governs the competition law in the nation, and
is enforced by the Competition Commission. The culture for investing and trading in the stock
market is so prevalent such that the mobile manufacturers have started to offer pre-installed
investment and trading apps in their devices. Additionally, the number of individuals holding
trading accounts grew to 26.1 million in 2023.

BACKGROUND

Babbar Share, (hereinafter ‘BS’) engaging in brokerage services, portfolio management services,
etc., was one of the first brokers to introduce online trading in Indri and became India’s largest
stock broking house. It introduced its online trading through its app, “Simbaa” in 2014 which
became a huge success. It eliminated time consuming negotiations, the need to hire individual
brokers and provided real time updates of the stock market.

Banner Tape, (hereinafter ‘BT’) a fintech industry leader, operates in investment education and
advisory. In 2020, it launched “Jarvis”, an investment education and advisory app/service that
offered personalised investment strategies and was a disruptive innovative technology. Jarvis
quickly gained market share due to its user-friendly interface and advanced features, and held 41%
market share in the investment education and advisory applications market. Several trading
platforms including BS entered into licensing agreements for integrating Jarvis with their apps.
Jarvis held 41% market shares as in July 2022.

UNFOLDING OF EVENTS

In 2023, BT previewed Jarvis 2.0 at the World Fintech Expo, introducing advanced AI, automated
investing, predictive capabilities and could also invest money on behalf of the users. It not only
factored in risk tolerance and investment goals but also learned from market patterns and user
preferences gathered from sources like social media. This upgraded system executed trades,

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rebalanced portfolios in real time, and introduced a tax-loss harvesting feature to minimise client
taxes on capital gains. With these innovations, Jarvis 2.0 demonstrated its ability to provide
personalised and efficient financial services in the ever-evolving fintech landscape.

BS, impressed by Jarvis 2.0, secured an exclusive licence for Simbaa, leading to a substantial
increase in Simbaa’s user base. As per this agreement, Simbaa would provide access to its vast
data mine and a huge licence fee, but this data is being provided without the consent of the user’s.
Following this integration, Simbaa’s market share has increased from 30% to 38% within a few
months.

PROCEEDINGS

Upper Case Private Limited, a competitor of Simbaa seeking to licence Jarvis 2.0, faced rejection
due to the exclusive arrangement with BS. Subsequently, Upper Case filed a complaint with the
CCI, alleging anti-competitive conduct and unfair practices. The CCI, in its meeting on December
29, 2023, decided to seek responses from BS and BT.

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ISSUES FOR CONSIDERATION

ISSUE I

WHETHER THE SECURITIES AND EXCHANGE BOARD OF INDRI H AS JURISDICTION OVER THE
PRESENT MATTER AS OPPOSED TO THE COMPETITION COMMISSION OF INDRI ?

______________________________________________________________________________

ISSUE II

WHETHER THE AGREEMENT BETWEEN BABBAR SHARE AND B ANNER TAPE IS IN CONTRAVENTION
OF §3(4)(B) OF THE COMPETITION ACT, 2002?

______________________________________________________________________________

ISSUE III

WHETHER BABBAR SHARE IS DOMINANT IN THE RELEVANT MARKET AND HAS ABUSED THE SAID
DOMINANT POSITION?

______________________________________________________________________________

ISSUE IV

WHETHER BANNER TAPE IS DOMINANT IN THE R ELEVANT M ARKET AND HAS A BUSED THE SAID
DOMINANT POSITION?

______________________________________________________________________________

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SUMMARY OF ARGUMENTS

[1]. WHETHER THE SECURITIES AND EXCHANGE BOARD OF INDRI HAS JURISDICTION
OVER THE PRESENT MATTER AS OPPOSED TO THE COMPETITION COMMISSION OF
INDRI?

It is humbly submitted that the Competition Commission of Indri has jurisdiction over the present
matter as opposed to the Securities and Exchange Bank of Indri. It is emphasized that the domains
of CCI and SEBI are distinct and their jurisdictions do not conflict, as established by various legal
precedents. Additionally, through the application of the maxim, ‘leges posteriors prioers
contrarias abrogant’, later laws are abrogated by any previous laws that contradict. It is also
submitted that the non-obstante clause in §60 of the Competition Act, which asserts the supremacy
of the Competition Act over any conflicting provisions in other laws. Therefore, it is contended
that CCI holds jurisdiction over the present matter, as held by legal principles and statutory
provisions.

[2]. WHETHER THE AGREEMENT BETWEEN BABBAR SHARE AND BANNER TAPE IS IN
CONTRAVENTION OF §3(4)(B) OF THE COMPETITION ACT, 2002?

It is humbly submitted that the agreement between Babbar Share and Banner Tape contravenes
§3(4)(b) of the Competition Act. Primarily, the conditions outlined in §3(4) are met as Babbar
Share and Banner Tape qualify as enterprises under §2(h) and operate in distinct segments of the
production chain across separate markets. Additionally, an exclusive dealing arrangement exists
between the two entities, as evidenced by the agreement, which exhibits characteristics of
exclusive dealing and does not meet the exemption criteria outlined in §3(5) of the Act. The
agreement also leads to causing Appreciable Adverse Effect on Competition within the relevant
market due to Babbar Share’s significant market influence and the negative benefits outweighing
any positive benefits. It causes negative effects through the creation of barriers to new entrants,
foreclosure of market, and does not result in any positive effects on the market, since there is
accrual of harm to the consumers, no improvement in the production of goods or provision of
services, and does not promote technical, scientific or economic development in any manner.

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[3]. WHETHER BABBAR SHARE IS DOMINANT IN THE RELEVANT MARKET AND HAS
ABUSED THE SAID DOMINANT POSITION?

It is humbly submitted that Babbar Share is dominant in the relevant market and has abused such
dominant position. The relevant market for Babbar Share encompasses ‘online trading
applications’ in Indri, through the relevant product and geographic market, incorporating demand
substitutability and §19(7). Subsequently, Babbar Share’s dominance in this identified market can
be inferred from its capacity to operate independently of competitive pressures owing to its
significant market share, formidable market influence, and vertical integration, which
consequently creates barriers to entry. Moreover, Babbar Share possesses the capability to
influence its competitors and consumers in its favor. It is also submitted that Babbar Share has
abused its dominant position, since it has engaged in unlawful discrimination by offering a must-
have service like Jarvis 2.0 only to BS, and has resulted in restricted market access through the
exclusive agreement with Banner Tape.

[4]. WHETHER BANNER TAPE IS DOMINANT IN THE RELEVANT MARKET AND HAS ABUSED
THE SAID DOMINANT POSITION?

It is humbly submitted that Banner Tape is dominant in the relevant market and has abused its
dominant position. Primarily, the relevant market for Jarvis comprises ‘investment education and
advisory applications’ within Indri, as understood through relevant geographic and product market,
through demand substitutability and §19(7). Banner Tape’s dominance in this particular market is
underscored by its commanding market share, substantial market power, reliance of consumers on
its services, and its considerable size and resources, which afford it the capability to influence
market entries. Banner Tape has abused its dominant position through leveraging, as the two
distinct markets are interconnected, with Banner Tape holding dominance in one of them and
engaging in illegal leveraging its position by entering into Simbaa’s market.

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ARGUMENTS ADVANCED

[1]. THAT THE COMPETITION COMMISSION OF INDRI HAS JURISDICTION OVER THE PRESENT
MATTER AS OPPOSED TO THE SECURITIES AND EXCHANGE BANK OF INDRI

1. It is humbly submitted before this Hon’ble Commission that the CCI has jurisdiction over the
present matter as opposed to the SEBI as the jurisdiction of CCI and SEBI do not override each
other in present case [1.1]. Assuming arguendo that they do override, the principle “Leges
posteriors priores contrarias abrogant” [1.2] and non-obstante clause would apply [1.3].

1.1. Jurisdiction Of CCI And SEBI Do Not Override Each Other In The Present Case

2. The CCI and SEBI operate in distinct domains, evident from their legislative preambles. While
the CCI focuses on preventing practices harmful to competition and safeguarding consumer
interests,1 SEBI’s role extends to protecting investors in securities and regulating the securities
market.2 It is important that the CCI’s jurisdiction, as the anti-monopoly watchdog in case of anti-
competitive agreements in financial sectors, is not overridden. 3 In the case of Consumer Online
Foundation v. Tata Sky Ltd.,4 the CCI held that “despite the existence of competition mandate
within sectoral laws, the power to investigate allegations of anti-competitive conduct continues to
rest with the CCI.” Additionally, the preamble of the Competition Act, 2002 read with §18 of the
Act empowers the CCI to eliminate practices detrimental to competition, and protect consumer
interests, ensuring its primary jurisdiction in regulating competition conditions within the relevant
market in India. 5

3. The Hon’ble Supreme Court, in the case of CCI v. Bharti Airtel,6 emphasized the undisputed
jurisdiction of the CCI in dealing with agreements that have a negative effect on competition,
stating that “if an agreement has an adverse effect on the competition within the relevant market

1 The Indian Competition Act, Preamble, No.12, Acts of Parliament, 2003 (India) [hereinafter ‘CA’].
2 Securities and Exchange Board of India Act, Preamble, No.15, Acts of Parliament, 1992 (India) [hereinafter SEBI’].
3 Vijay L Kelkar & Pradeep S Mehta, Whose jurisdiction is it anyway? India desperately needs a regulatory overhaul,

CENTRE FOR COMPETITION , INVESTMENT & ECONOMIC REGULATION (Jan. 8, 2024), https://cuts-ccier.org/whose-
jurisdiction-is-it-anyway-india-desperately-needs-a-regulatory-overhaul/.
4 Consumer Online Foundation v. Tata Sky Ltd, [2011] CCI 11.
5 CA, supra note 1, §18.
6 CCI v. Bharti Airtel Ltd., (2019) 2 SCC 521 [‘Airtel’].

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of the country, the CCI will exercise its jurisdiction, as it is a tailor-made authority to deal with
such issues. The jurisdiction to deal with such issues should not be disputed at any point of time.7

4. In the instant case, the exclusive agreement between BS and BT is deemed anti-competitive,
causing AAEC, as explained in detail in Issue 3. 8 The Supreme Court’s ruling in CCI v. Bharti
Airtel,9 further emphasized that the CCI is not limited to specific sectors but holds jurisdiction that
spans across sectoral boundaries, covering all industries. The court emphasized that the mere
existence of a sectoral regulator, such as SEBI, does not extinguish the CCI’s jurisdiction. This
underscores the broad and inclusive jurisdiction of the CCI, extending across sectoral boundaries
to address issues arising in diverse industries, including the evolving landscape of digital markets.

5. Further, in the case of In Re Updated Terms of Service and Privacy Policy for Whatsapp Users,10
the CCI observed that in digital markets, unreasonable data collection and sharing thereof, may
grant competitive advantage to dominant players and may result in exploitative and exclusionary
effects, which is a subject matter of examination under competition law. In the instant case, both
BS and BT hold dominant positions in their respective relevant markets and have also engaged in
data collection and sharing, squarely placing the present issue under the jurisdiction of the CCI.

1.2. Application Of The Maxim “Leges Posteriors Priores Contrarias Abrogant”

6. The Latin maxim “Leges posteriors priores contrarias abrogant,” which signifies that later
laws abrogate earlier contradictory laws, is applicable. This legal principle is founded on the
reasonable presumption that when Parliament introduces a subsequent law inconsistent with an
earlier one, it intends for the later law to take precedence. In the case of Municipal Committee,
Malerkotla vs Mohd. Mushtaq,11 the court affirmed that if two Acts cannot be reconciled, the later
Act supersedes the earlier one, whether by express or implied words. This aligns with the well-
established legal maxim that later laws take precedence over preceding ones.

7. Applying this principle to the instant case, the Competition Act, enacted in 2002, postdates the
SEBI Act, which came into effect in 1992. Therefore, in accordance with the principle, the

7 Id.
8 Memorandum, Issue 3.
9 Airtel, supra note 6.
10 In Re Updated Terms of Service and Privacy Policy for Whatsapp Users, Case No. 01 of 2021 (CCI).
11 Municipal Committee, Malerkotla v. Mohd. Mushtaq, AIR 1960 PUNJAB 18.

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Competition Act, being the later legislation, takes precedence over the SEBI Act. This reflects the
legislative intent that the provisions of the Competition Act are to prevail in case of any
inconsistency or conflict with the earlier SEBI Act.

1.3. Application Of Non-Obstante Clause

8. A non-obstante clause is a statutory provision intended to give an overriding effect over other
provisions or enactments.12 It provides that in case of conflict between two statutes, if there is a
non-obstante clause then the provision of that statute will affect it. §60 of the Competition Act
provides a non-obstante clause,13 establishing the supremacy of competition legislation within the
domain of competition enforcement. Additionally, §32 of the SEBI Act states that the act is
applicable in addition to any other law in force at a particular time,14 emphasizing that the powers
vested in the SEBI are intended to coexist with other regulatory bodies rather than supersede them.

9. Therefore, in light of these legal principles, timelines, and judicial pronouncements, it is most
humbly submitted that that the CCI indisputably possesses jurisdiction over the present matter
as opposed to the SEBI, with the Competition Act prevailing over the SEBI Act.

[2]. THAT THE AGREEMENT BETWEEN BABBAR SHARE AND BANNER TAPE IS IN
CONTRAVENTION OF §3(4)(B) OF THE COMPETITION ACT, 2002

10. It is humbly submitted before this Hon’ble Commission that an agreement is anti-competitive
if it causes or is likely to cause AAEC in the market.15 Therefore, it is humbly submitted that BS
has violated §3(4)(b) of the act as firstly, the prerequisites outlined in §3(4) are duly satisfied [2.1];
secondly, there exists an exclusive dealing agreement between BS and BT [2.2]; and lastly, the
said agreement is causing an Appreciable Adverse Effect on Competition [2.3].

2.1. The Prerequisites Of §3(4) Are Fulfilled

11. In order for an agreement to fall within the purview of §3(4), specific prerequisites must be
met. It is submitted that the criteria outlined in §3(4) of the Act are satisfied in the present case as

12 State (NCT of Delhi) v. Narender, (2014) 13 SCC 100.

13 CA, supra note 1, §60.
14 SEBI, supra note 2, §32.
15 Shamsher Kataria v. Honda Siel Cars India Ltd., Case No. 03 of 2011 (CCI) [‘Shamsher’].

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firstly, BS and BT are enterprises [2.1.1]; and secondly, BS and BT operate at different levels of
the production chain in different markets [2.1.2].

2.1.1. Babbar Share And Banner Tape Are Enterprises

12. For an agreement to be anti-competitive it must be between two enterprises. 16 The term
‘enterprise’ includes any person engaged in production, storage, supply, distribution, acquisition,
or control of articles or goods, or the provision of services, of any kind. 17 The term ‘person’ has
been interpreted to encompass companies, firms, or associations. 18 In the instant case, BS functions
as a major trading platform, 19 while BT operates as an investment education and advisory
platform, 20 with Simbaa being the online trading smartphone application of BS. 21 Both entities are
actively involved in providing services, therefore meeting the definition of an enterprise.

2.1.2. Babbar Share And Banner Tape Operate At Different Levels Of The Production Chain In
Different Markets

13. For an agreement to be considered anti-competitive under §3(4), the involved enterprises must
operate at distinct levels of the production chain in different markets. 22 In the instant case, BS
operates in the downstream market of online trading applications, while BT operates in the
upstream market by supplying automated AI investment software to BS. The licensing of Jarvis
2.0 to BS for integration into Simbaa,23 further highlights their distinct roles in different markets.
Therefore, it is submitted that BS and BT operate at disparate levels of the production chain in
different markets. Therefore, the prerequisites under §3(4) are duly fulfilled in the present case.

2.2. There Is An Exclusive Dealing Agreement Between Babbar Share And Banner Tape

13. §3(4) provides an inclusive list of agreements that may be anti-competitive.24 It is submitted
that there is an exclusive dealing agreement between BS and BT because firstly, there is an

16 CA, supra note 1, §3(4).

17 CA, supra note 1, §2(h).
18 CA, supra note 1, §2(1).
19 Moot Proposition, ¶5.
20 Moot Proposition, ¶8.
21 Moot Proposition, ¶6.
22 In Re ESYS Information Technologies Pvt Ltd and Intel Corporation (Intel Inc), Case No. 48 of 2011(CCI); Sri

Rama Agency v. Mondelez India Foods Pvt. Ltd., Case No. 58 of 2015 (CCI).
23 Moot Proposition, ¶15.
24 CA, supra note 1, §3(4).

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agreement between BS and BT [2.2.1]; secondly, the agreement is in the nature of exclusive
dealing [2.2.2]; and thirdly, the agreement does not fall under the exemption under §3(5) of the
Act [2.2.3].

2.2.1. There Is An Agreement Between Babbar Share And Banner Tape

14. An agreement includes any arrangement, understanding, or action in concert, and need not be
in writing or legally enforceable.25 Under §3(4) of the Act, existence of an agreement is necessary
to prove AAEC.26 The existence of an agreement can also be inferred from coercive conduct when
such conduct is used for imposing a unilateral policy with the tacit acquiescence of other parties.27
In the instant case, the deal between BS and BT is an arrangement for the imposition of a coercive
unilateral policy. Moreover, considering that BT explicitly decided to refuse the offer by Upper
Case, citing that it is contractually bound by the agreement with BS, 28 shows the tacit acquiescence
of BT to the agreement. Therefore, it is submitted that there is an agreement between BS and BT.

2.2.2. The Agreement Is In The Nature Of Exclusive Dealing

15. Exclusive dealing agreements are those which enables a party to deal exclusively with another
and not to deal with any other parties. 29 Such agreements act as restrictions on sellers, 30 and are
considered more detrimental to competition than non-exclusive agreements. 31 Companies need to
exist at two different levels of the supply chain to establish an exclusive dealing agreement.32 In
the instant case, BT exists in the upstream market while BS exists in the downstream market.33
Hence, they exist in two different levels of production chain and consequently have gotten into a
vertical agreement under §3(4).34 Additionally, BS has restricted BT to license Jarvis 2.0 only to

25 In Re DG of Supplies & Disposals, Dept. of Comm, MoCI, GOI, Case No. 01 of 2012 (CCI).
26 Vertical Agreements in Indian Competition Law, SHARDUL AMARCHAND MANGALDAS (Jan. 14, 2024)
https://www.amsshardul.com/insight/vertical-agreements-in-indian-competition-law/#_ftn7; Exclusive Motors (P)
Ltd. v. Automobili Lamborghini SPA Via Modena, 2014 SCC OnLine Comp AT 1 [‘Exclusive Motors’]; Mohit
Maglani v. Flipkart India Pvt Ltd, Case No. 80 of 2014 (CCI) ; K.C. Marketing v. OPPO Mobiles MU Pvt. Ltd., Case
No. 34 of 2018 (CCI).
27 In Re Jasper Infotech Private Limited and Kaff Appliances Ltd., Case No. 61 of 2014 (CCI) [‘Jasper’].
28 Moot Proposition, ¶19.
29 A Douglas Melamed, Exclusive Dealing Agreements and Other Exclusionary Conduct - Are There Unifying

Conducts?, 73 ALJ 375, (2006).

30 MM Sharma, Exclusivity Clauses in Commercial Agreements, MONDAQ (Feb. 2, 2024), https://www.mondaq.com.
31 Guidelines on vertical restraints, O.J. 2022/C 248/01, ¶ 2.2.
32 Guidelines on the Assessment of Horizontal Mergers under the Council Regulation on the Control of Concentrations

Between Undertakings, O.J. 2004/C 31/03.

33 Id.
34 Ram Niwas Gupta v. Omaxe Ltd., Case No.74 of 2011(CCI).

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BS. By imposing this restriction, BS has restricted the availability of Jarvis 2.0 in the market. As
a result, BT’s innovative technology, that is, Jarvis 2.0 is exclusively available to BS. 35 Therefore,
it falls within the definition of an exclusive dealing agreement under §3(4)(b).

2.2.3. The Agreement Does Not Fall Under The Exemption Under §3(5) Of The Act

16. §3(5) of the Act ensures that the prohibition on anti-competitive agreements in §3 does not
hinder an individual’s right to prevent infringement or impose reasonable conditions to protect
their IPRs.36 However, it is crucial to note that the overarching purpose of IPR is not to establish
monopolies but rather to foster innovation, with economic interests serving as a secondary
consideration.37 In the case of Monsanto Holdings Pvt. Ltd. v. Competition Commission of India,38
it was held that despite IP holders having full rights over their inventions, the absolute application
of these rights is not guaranteed. If such applications adversely affect market competition, the CCI
has the authority to investigate and issue necessary directives.39 Given these considerations, it
becomes apparent that in the instant case, the restrictions imposed are not reasonable or necessary.

2.3. The Agreement Causes AAEC In The Relevant Market

17. An agreement falling under §3(4) of the Act,40 is deemed to be in violation of §3(1), 41 only if
it causes, or is likely to cause AAEC in the market.42 An essential requirement is to prove the
adverse effect of an exclusive dealing agreement. 43 These agreements are not per se illegal. 44 Rule
of reason must be applied to them.45 Therefore, it is submitted that the exclusive dealing agreement
between BS and BT causes AAEC in the market because firstly, BS has market power [2.3.1]; and
secondly, the negative effects of the agreement outweigh the positive effects [2.3.2].

35 Moot Proposition, ¶15.

36 CA, supra note 1, §3(5).
37 Twentieth Century Music Corp. v. Aiken, (1976) 422 US 151.
38 Monsanto Holdings (P) Ltd. v. CCI, 2020 SCC OnLine Del 598.
39 Id.
40 CA, supra note 1, §3(4)(c).
41 CA, supra note 1, §3(1).
42 CA, supra note 16, §3(4); Shamsher, supra note 15; Shri Ghanshyam Das Vij v. Bajaj Corp. Ltd., Case No. 68 of

2013 (CCI) [‘Ghanshyam’]; Consolidated Version of the Treaty on the Functioning of the European Union art. 101,
May 9, 2008, 2008 O.J.(C 115) 47.
43 Supra note 31.
44 Leegin Creative Leather Products Inc. v. PSKS Inc., 551 US 877 (2007).
45 Jasper, supra note 27; Tata Engineering and Locomotive Co. Ltd. v. The Registrar of Restrictive Trade Agreement,

AIR 1977 SC 973; Eastern Scientific Co. v. Wild Heerbrugg Instruments, Inc., (1978) 572 F.2d 883 (1st Cir.).

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2.3.1. Babbar Share Has Market Power

18. An enterprise with substantial market power is more likely to cause AAEC. 46 Market power
refers to the ability of the firm to raise and maintain prices above the level which would prevail in
a competitive market.47 Generally, firms holding more than 30% of the market share are considered
to possess sufficient market power.48 Further, in EU jurisprudence too, an enterprise is not
protected under the block exemption regulation of the vertical guidelines if its market share
exceeds 30%.49 The CCI in the case of Shri Ghanshyam Das Vij v. Bajaj Corp. Ltd.,50 held that an
agreement will not cause a significant effect on competition if the enterprise has a weak position
in the market. Furthermore, when both the parties have considerable presence in their respective
markets and enter into a restrictive arrangement that leads to a refusal to deal with a few parties
and an exclusive arrangement between them, then it will potentially cause AAEC in the market. 51

19. In the instant case, BS is India’s biggest stock broking house 52 and has a stronghold in the
market of ‘online trading applications’ with a share of 38 %. It is the only enterprise offering online
trading with automated investing, thereby exercising a 100% monopoly in that area. 53 This
significant market share and unique market position confer upon BS substantial market power.
Therefore, considering the market share and strong position of BS, it is argued that BS has
significant market power capable of causing AAEC in the market.

2.3.2. The Negative Effects Of The Agreement Outweigh The Positive Effects

20. Whether an agreement causes AAEC is always a balancing act between the positive and
negative factors.54 §19(3) of the Act provides the factors to be taken into consideration for
determining AAEC. 55 Under §19(3), clauses (a) to (c) are the negative factors that restrict
competition in the market, whereas clauses (d) to (f) are the positive factors that enhance

46 In Re Prime Mag Subscription Services Pvt. Ltd. v. Wiley India Pvt. Ltd., Case No. 07 of 2016 (CCI).
47 R.S KHEMANI & D.M.SHAPIRO, GLOSSARY OF INDUSTRIAL ORGANISATION ECONOMICS AND COMPETITION LAW
(OECD, 1993).
48 Automobiles Dealers Assn. v. Global Automobiles Ltd., Case No. 33 of 2011 (CCI) [‘Global Automobiles’].
49 Ghanshyam, supra note 38.
50 Id.
51 In Re Federation of Hotel & Restaurant Assn. of India v. MakeMyTrip India Pvt. Ltd., Case No. 14 of 2019 (CCI)

[‘MakeMyTrip’].
52 Moot Proposition, ¶5.
53 Ghanshyam, supra note 38.
54 Shamsher, supra note 15.
55 CA, supra note 1, §19(3).

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efficiency.56 When the negative factors outweigh the positive factors, the agreement is considered
to cause AAEC.57 It is also contended that while determining if a particular agreement causes or
has the potential to cause an adverse effect on competition, a wide interpretation to the term AAEC
has to be adopted.58 Therefore, it is submitted that the negative effects of the agreement outweigh
the positive effects as firstly, the agreement between BS and BT causes negative effects on the
market [2.3.2.1]; and secondly, the agreement has no positive effects [2.3.2.2].

2.3.2.1. The Agreement Between Babbar Share And Banner Tape Causes Negative Effects

21. It is submitted that the agreement causes negative effects as firstly, it creates barriers to new
entrants [2.3.2.1.1]; secondly, it leads to foreclosure of competition [2.3.2.1.1.2].

2.3.2.1.1. It Creates Barriers To New Entrants

22. When new entrants are discouraged from entering the market, it is considered an entry barrier.59
Vertical restraints often increase entry barriers to potential competitors. 60 An exclusive dealing
agreement restricts the entry of other players into the market by affecting intra-brand competition.
In the instant case, Jarvis 2.0 being the patented technology of BT, positions the company as the
sole provider of this advanced AI technology. BS’s restriction on BT to deal exclusively with BS
is creating barriers to entry for potential competitors wanting to enter the market of ‘online trading
application’. Hence, it is submitted that the agreement causes barriers to new entrants in the market.

2.3.2.1.2. It Leads To Foreclosure Of The Market

23. Vertical restraints often cause market foreclosure,61 characterized by elevated barriers to entry
or expansion.62 The act of entering into exclusive agreements by dominant undertakings causes
market foreclosure.63 This restraint, even if partial, is considered unreasonable and therefore

56 Shamsher, supra note 15.

57 Id.
58 Exclusive Motors, supra note 26.
59 Glossary of Terms used in EU Competition Policy – Antitrust and control of concentrations, at 17, DG, (July, 2002).
60 Rossella Incardona, Distribution Agreements under EC Competition Law (University of Palermo, Working Paper,

2005), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1185371.
61 Oliver Hart & Jean Tirole, Vertical Integration and Market Foreclosure, BROOKINGS PAPERS ON ECONOMIC

ACTIVITY MICROECONOMICS 205, 278-280 (1990).

62 Supra note 31, at ¶100.
63 Commission Regulation (EU) No 330/2010, O.J. 2010/L 102/1 ¶19; U.S. v. Microsoft, 253 F. 3d 34.

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unlawful. 64 In the instant case, the exclusive dealing agreement between BS and BT has resulted
in market foreclosure for entities desiring access to advanced AI technology for trading. BT being
the only player in the market to provide Jarvis 2.0, coupled with the exclusive licensing agreement
with BS, restricts potential competitors from integrating this software into their applications.
Consequently, this arrangement effectively limits the supply of innovative technology, hindering
entry of potential competitors and preventing healthy competition and innovation.

24. Further, the exclusive agreement also has potential to drive existing competitors out of the
market. This is evidenced by the fact that other competitors in the relevant market, including those
who collaborated with the original Jarvis app were struggling to compete with this new technology
and had to resort to different strategies to secure their position in the market. 65 The agreement
between BT in the upstream market and BS in the downstream market by exclusive dealing to only
BS, exploits the other competitors,66 and hence leads to foreclosure of the market. Therefore, it is
submitted that the agreement between BS and BT has caused negative effects on the market by
causing entry barriers, driving out existing competitors, and foreclosing the relevant market.

2.3.2.2. The Agreement Has No Positive Effects On The Market

25. The pro-competitive and anti-competitive effects of an agreement must be evaluated on a case-
to-case basis,67 and a net negative effect68 renders the agreement void. 69 While determining the net
effect on competition, the restrictions in the agreement have to be assessed in the context of the
market.70 Moreover, the vertical restraints imposed by the agreement must be reasonable to foster
positive competition in the market.71 Therefore, it is submitted that the agreement does not have
positive effects on the market because firstly, there is accrual of harm to consumers [2.3.2.2.1];
secondly, there is no improvement in the production of goods or provision of services [2.3.2.2.2];
lastly, the agreement does not promote technical, scientific and economic development [2.3.2.2.3].

64 Parks & Sons v. Hartman, 153 Fed. Rep. 24.

65 Moot Proposition, ¶17.
66 JE Hodder & YA Illan, Declining prices and optimality when costs follow an experience curve, MANAGERIAL &

DECISION ECON 229, (1986); AM Spence, The Learning Curve and Competition, 12 BELL J ECON 49, (1981).
67 Case C-234/89, Delimitis v. Henninger Brau AG, 1991 E.C.R. 935.
68 Continental T.V v. GTE Sylvenia, 433 US 36 (1997) (USSC).
69 Global Automobiles, supra note 48.
70 Case 258/78, Nungesser v. Commission, 1982 E.C.R. 2015 (ECJ); Case 56/65, Societe Technique Miniere v.

Maschinendau Ulm, 1966 E.C.R. 337 (ECJ).

71 Board of Trade of the City of Chicago v. US, 246 US 231 (1918) (USSC).

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2.3.2.2.1. There Is Accrual Of Harm To The Consumers

26. The most important aspect of Competition law is to protect the interests of the consumers. 72
CCI is obligated to promote competition in the market by curbing anticompetitive practices. 73
Foreclosure in the market results in restrictions on the consumers and loss of consumer welfare. 74
As argued above, the exclusive dealing agreement has led to the foreclosure of the market, and
also restricts consumer choices, resulting in a loss of consumer welfare, thereby leading to harm
to consumers. Hence, it is submitted that there is no accrual of benefits to the consumers.

2.3.2.2.2. There Is No Improvement In The Production Of Goods Or Provision Of Services

27. An agreement that enhances the production of goods or the provision of services is deemed to
have a positive impact on competition. 75 However, in the instant case, the agreement restricts the
supply of automated AI investment software by stipulating that BT shall only provide this facility
to BS. Further, this restriction hampers the ability of other players to utilize Jarvis 2.0 for their
services. In light of this, it is argued that the agreement is hampering the provision of services, and
hence causes no improvement in the production of goods or provision of services.

2.3.2.2.3. Babbar Share Does Not Promote Technical, Scientific, Or Economic Development

28. The agreement hampers technical and scientific development in the online trading applications
industry by restricting the supply of Jarvis 2.0. Since BT is the sole provider of Jarvis 2.0, and
since Jarvis 2.0 is the patented technology of BT, the agreement restricts other players from
developing a similar technology. Hence, there is no technical, scientific, or economic development
as a result of the agreement. Therefore, the agreement has no positive effects on competition, and
the negative effects of the agreement between BS and BT outweigh the positive effects.

29. Therefore, it is submitted that Babbar Share has violated §3(4)(b) of the Act because there
exists an anticompetitive agreement in the nature of an exclusive dealing agreement between
Babbar Share and Banner Tape which results in causing AAEC in the market.

72 CA, supra note 1.

73 CA, supra note 1, §18.
74 Vijay Gopal v. Inox Leisure Ltd., 2019 SCC OnLine CCI 4.
75 CA, supra note 1.

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[3]. THAT BABBAR SHARE IS DOMINANT IN THE RELEVANT MARKET AND IS ABUSING THE
SAID DOMINANT POSITION

30. A firm in a dominant position has a responsibility to not to engage in conduct that can impair
undistorted competition on the market,76 in public interest.77 This is based on the concept of sliding
scale relationship, 78 and the need to establish proportionality between the harm avoided and the
action that the parties undertook to avoid this harm. 79 The conditions are not abusive provided their
imposition is a legitimate competition need. 80 Therefore, it is humbly submitted before this
Hon’ble Commission that the exclusive dealing agreement entered into by BS amounts to an abuse
of dominance violating §4 of the Act as firstly, the relevant market is the market for online trading
smartphone applications [3.1]; secondly, BS occupies a dominant position in the relevant market;
and [3.2] and lastly, BS has abused its dominant position under multiple clauses of §4 [3.3].

3.1. The Relevant Market In The Present Case Is The Market For ‘Online Trading
Applications’ In Indri

31. To ascertain abuse of dominance, it is essential to determine the relevant market.81 The relevant
market can be determined with reference to the relevant product market and relevant geographic
market.82 Therefore, it is submitted that firstly, the relevant geographic market is the Indri [3.1.1];
secondly, the relevant product market is online trading and education applications [3.1.2].

3.1.1. Relevant Geographic Market Is Indri

32. The relevant geographic market is an area where conditions of competitions are similar and
distinguishable from the other neighbouring areas. 83 In the instant case, the conditions of
competitions are homogeneous throughout the nation of Indri with a common consumer base adept
in technology. 84 Further BS is a national brand and has supplies throughout the nation. Therefore,
it is submitted that the relevant geographic market is Indri.

76 Case 310/93, BPB Industries PLC v. Commission, 1993 E.C.R. 385 [‘BPB’].
77 ABIR ROY & JAYANT K UMAR, COMPETITION LAW IN INDIA (Eastern Law House 2014).
78 United States v. Image technical Services Inc., 504 US 451 (1992).
79 Dhanraj Pillay v. Ms. Hockey India, (2013) CompLR 543 (CCI).
80 D.P. MITTAL, COMPETITION LAW AND P RACTICE 297 (3d ed. 2011).
81 Shri M.M. Mittal v. Paliwal Developers Ltd., Case No. 112 of 2015 (CCI).
82 CA, supra note 1, §2(r).
83 Shri Avtar Singh v. Ansal Township & Land Development Ltd., (2014) CompLR 154 (CCI) [‘Avtar’].
84 Moot Proposition, ¶2.

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3.1.2. Relevant Product Market Is The Market For Online Trading Applications

33. It is an established principle of competition law that a narrow market should be considered
while defining a relevant product market. A market definition which is too broad assists the
dominant firm to escape its liability. The European commission had rejected the claim of the party
to consider the broad market and defined the narrow market.85 Relevant product markets may be
established by all or any factors listed under §19(7). 86 Consumer preference,87 and end use are
important factors while determining relevant product markets.88 Demand substitutability is also to
be considered when determining the relevant product market. It involves the products which in the
event of a price rise of a product, a consumer would consider to be close substitutes, in the instant
case, applications such as Xerodha, Uppercase. It is submitted that the market for ‘online trading
and education applications’ can be constituted as a separate product market.

3.2. Babbar Share Is Dominant In The Identified Market

34. The dictionary meaning of the word ‘dominant’ is ‘overriding’ or ‘influential’. 89 It is humbly
submitted that dominance is a position of strength enjoyed by an enterprise in a market enabling it
to operate independently of competitive market forces or favourably affect consumers and/or
competitors.90 Determination of dominant position is an essential condition under §4 of the Act. It
is submitted that BS is dominant in the relevant market as firstly, it can operate independently of
competitive forces [3.2.1]; and secondly, it can affect its competitors or consumers or the relevant
market in its favour [3.2.2].

3.2.1. Babbar Share Can Operate Independently Of Competitive Forces

35. An enterprise is said to operate independently of competitive forces if it is not affected by the
actions of competitors in the market. It is submitted that BS can operate independently of
competitive forces as firstly, it has high market share [3.2.1.1]; secondly, it has high market power
[3.2.1.2]; and lastly, vertical integration of Simbaa and creation of entry barriers [3.2.1.3].

85 Commission Regulation 139/2004, Decision on the implementation of the commitments - Purchaser approval, Case
M.9094 - AMCOR/BEMIS91.
86 CA, supra note 1, §19(7).
87 Samir Agarwal v. ANI Technologies Pvt. Ltd., Case No. 37 of 2018 (CCI).
88 CA, supra note 1, §19(7)(c).
89 T. RAMAPPA, COMPETITION LAW IN INDIA, 159 (Oxford 3d ed. 2014).
90 CA, supra note 1, §4.

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3.2.1.1. It Has High Market Share

36. Market share serves as a key indicator of an enterprise’s dominance within a relevant market,91
providing initial insights into market structure and helps in understanding competition in the
market. Market share,92 can be considered as a factor to determine dominance.93 While market
share alone may not be the sole criterion for determining dominance, it holds high persuasive
value.94 The courts have held firm’s dominant on the basis of high market share.95 This evaluation
involves considering two pertinent factors, which is the market share of the alleged dominant
company and a comparative analysis of market share with other competitors. In the instant case,
BS held the highest market share in the online trading and education applications, with a market
share of 38% and thus, it should be presumed as dominant in the relevant market. Further, the
market share of other players in that market is very less as compared to BS.

37. Additionally, the economic landscape in Indri witnessed substantial growth in GDP and per-
capita income, prompting a surge in the population’s exploration of various financial investment
avenues.96 The latest government financial data indicates a remarkable increase in the number of
trading accounts held by individuals aged 18-30 years, soaring from 6.4 million in March 2020 to
26.1 million in September 2023.97 In this context, it is important to recognize that the current
scenario represents a distinctive situation for enterprises operating in digital markets, distinct from
traditional markets. Unlike traditional markets, the economic drivers that are rampant in digital
markets quickly result in a few massive players dominating vast swathes of the digital ecosystem. 98

38. Additionally, Herfindahl-Hirschman Index a mathematical tool that can be utilized to

determine the dominant players with help of market share.99 It is calculated by taking the sum of
the square of each market share: HHI = S12 + S22+S32+….+Sn2

91 Case 27/76, United Brands v. EC, 1978 E.C.R. 207.

92 P.D. Sudhakar & K.K. Sharma, Competition law and policy in India, CCI, (2008),
http://164.100.58.95/sites/default/files/presentation_document/OECDKoreaCentreIndianCompetitionLaw14Nov200
8.pdf?download=1; MINISTRY OF LAW AND JUSTICE, R EPORT OF T HE HIGH LEVEL COMMITTEE ON COMPETITION
POLICY AND LAW (1999).
93 CA, supra note 1, §19(7)(c).
94 Neeraj Malhotra, Advocate v. Deustche Post Bank Home Finance Limited, Case No. 05 of 2019 (CCI).
95 Hoffmann v. South African Airways, (2002) 12 BLLR 1365 (CC).
96 Moot Proposition, ¶3.
97 Id.
98 STANDING COMMITTEE ON FINANCE, MCA, ANTI-COMPETITIVE P RACTICES BY BIG T ECH COMPANIES 38 (2022).
99 Herfindahl-Hirschman Index, US D EPARTMENT OF JUSTICE (Jan.17, 2024), https://www.justice.gov/atr/herfindahl-

hirschman-

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39. Here, the square of individual shares is used to determine concentration of the market. The
concentration level will be low where the total is below 1,500; moderate if between 1500 and 2000;
and high where it is above 2500.100 In the instant case, BS holds 38% of the market share which
means HHI is 2822 which shows the market is highly concentrated and proves the existence of a
dominant player in the market. Thus, BS holds a dominant position in the market.

3.2.1.2. It Has High Market Power

40. Dominant position is associated with the concept of market power that enables an enterprise
to act independently of competitive forces. 101 The assessment of market power is an essential
element in determining the dominance of a firm,102 as it signifies the ability of a firm to act
independently of the persisting competitive forces. The CCI through its practice considers any
enterprise having market share with over 20-25% in the relevant market as having prima facie
market power.103 In the instant case, BS holds a commanding market share of 38%. To determine
whether an enterprise possesses market power, several factors such as the size and resources of the
enterprise and its competitors, the economic power of the enterprise, and consumer dependence
are taken into account.104 Internet companies’ control of data gives them enormous power. Data is
the new oil. 105

41. In the instant case, BS access to the vast data, including user profiles that it had gathered over
the years through Simbaa as well as other businesses relating to offline brokerage services,
portfolio management etc.106 Simbaa being the first online trading application has one of the largest
data mines. 107 This data abundance equips enterprises with the ability to understand the demand
of the consumer, and produce only high-demand services, eliminating production risks, 108 thereby

index#:~:text=The%20term%20%E2%80%9CHHI%E2%80%9D%20means%20the,then%20summing%20the%20r
esulting%20numbers.
100 In Re Indian Laminate Manufacturers Association, Case No. 61 of 2016 (CCI).
101 Belaire Owners' Association v. DLF Ltd Haryana Urban Development Authority Department of Town and Countr y

Planning, State of Haryana, 2011 Comp LR 239 (CCI) [‘Belaire’].

102 Meloria Meschi et al., Assessing the Importance of Market Power in Competition Investigations, CCI,

https://www.cci.gov.in/public/images/economicconference/en/2assessing-the-importance-of-market-power-in-
competition-investigations1652334908.pdf.
103 Jasper, supra note 27.
104 Noida Software Technology Park Ltd. v. Star India Pvt. Ltd., Case No. 30 of 2017 (CCI).
105 Whatsapp LLC v. CCI, 2022 SCC OnLine Del 2582.
106 Moot proposition, ¶14.
107 Moot proposition, ¶15.
108 Jan Eeckhout & Laura Veldkamp, Data And Market Power 33 (NBER, Working Paper)
https://www.nber.org/system/files/working_papers/w30022/w30022.pdf.

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reducing competitions. 109 This reservoir of data stands as a potent resource exclusive to BS,
endowing it with significant market power and the capacity to exert a considerable influence.
Additionally, BT’s agreement with BS adds another layer to this influence, acting as a deterrent
for potential competitors seeking entry into the market. This collective influence and strategic
alliances consolidate Simbaa’s position, giving it the leverage to significantly shape and influence
market competition. Hence, it is submitted that the Simbaa owns sufficient market power to
influence the market.

3.2.1.3. Vertical Integration Of Babbar Share And Creation Of Entry Barriers

42. Vertical integration, 110 can be a factor to determine dominant position in the market.111 The
commission is required to check vertical integration of enterprise especially those made by
contracts. It can foreclose access to a segment of the market, since competitors of the integrating
firm often can no longer deal with such an enterprise. Vertical integration by an enterprise would
be anti-competitive if it involves the refusal to deal or if it creates captive distribution channels, so
as to foreclose rival firms from the market. Thus, the level of vertical integration in comparison to
its competitors is a factor to attribute dominant position, 112 if such vertical arrangements have the
effect of reducing or limiting competition. 113 Such high levels of vertical integration can compel
the consumers to depend on one product alone.114

43. In the instant case, the exclusive dealing agreement has effectively restricted the availability
of Jarvis 2.0 solely through Simbaa. This means that customers desiring to use Jarvis 2.0 services
are compelled to utilize Simbaa as their exclusive provider, as the agreement explicitly prohibits
Jarvis 2.0 from engaging with other competitors in the market. This restrictive arrangement not
only limits the choices available to customers but also acts as a formidable barrier for potential
competitors attempting to enter the market. This vertical integration facilitated by the exclusive
dealing agreement significantly contributes to the establishment of a dominant position for Simbaa
within the identified market thereby amplifying Simbaa’s dominance.

109 Lin William Cong & Simon Mayer, Data Union And Regulation In A Data Economy 27 (NBER, Working Paper),
https://www.nber.org/system/files/working_papers/w30881/w30881.pdf.
110 CA, supra note 1, §19(4)(e).
111 Belaire, supra note 101.
112 The National Stock Exchange of India Ltd v. CCI, 2014 Comp LR 304.
113 Cine Prekshakula Viniyoga Darula Sangh v. Hindustan Coca Cola Beverages Pvt. Ltd., 2011 SCC OnLine CCI 25.
114 Belaire, supra note 101.

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3.2.2. Babbar Share Affected Its Competitors And Consumers In Its Favour

44. It is submitted that if an enterprise is able to affect its consumers in its favour, then it should
be considered dominant.115 The dependence of consumers on an enterprise is an important factor
to determine dominant position. 116 It has been an accepted principle that an undertaking with the
largest network of processors and distributors and the largest acceptance with the customers, can
operate independently in the market and to influence consumers in its favour. 117 In the case of
Belaire Owners’ Association v. DLF Ltd,118 the CCI took “dependence of customers” as an
important factor to attribute dominance. In the instant case, only BS provides an online trading
smartphone application with automated investment facility. Due to the unavailability of this
service elsewhere, consumers are dependent on BS. Therefore, due to such high market share and
the dependence of consumers on BS, it is dominant in the market.

3.3. Babbar Share Has Abused Its Dominant Position

45. The Competition Act does not find the dominance of an enterprise to be illicit, but bars it from
abusing it. It is submitted that BS is at a dominant position and also has abused its dominant
position as firstly, it has imposed unfair condition in offering a must-have service like Jarvis 2.0
only to Simbaa and denied access to essential facility [3.3.1]; secondly, it has denied market access
by making exclusive dealing agreement with BT [3.3.2].

3.3.1. Unlawful discrimination by offering a must-have service like Jarvis 2.0 only to Simbaa

46. A dominant enterprise can abuse its position by imposing unfair and discriminatory conditions
on other parties. It is submitted that BS abused its dominant position as it imposed unfair condition
on BT. In HMM Ltd v. DG, 119 the CCI observed that for holding a trade practice to be unfair, it
must cause loss or injury to the consumer. If a condition imposed by a dominant firm is causing
loss to consumers or to other competitors, then it shall be considered as unfair or discriminatory.
Essential facility doctrine means that the dominant player in the market who owns some essential
facility, has to share it with other players to maintain healthy competition. 120 “Essential facility”

115 CA, supra note 1, §4.

116 CA, supra note 1, §19(4)(f).
117 HNG Float Glass Ltd. v. Saint Gobain Glass India Ltd., Case No. 51 of 2011 (CCI).
118 Belaire, supra note 101.
119 H.M.M. Ltd. v. Director General, Monopolies & Restrictive Trade Practices Commission, (1998) 6 SCC 485.
120 United States v. Terminal Railroad Assn., 224 US 383 (1912) (USSC).

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has been defined as “an infrastructure or resource that cannot reasonably be duplicated, and
without access to which competitors cannot reasonably provide goods or services to their
customers.”121 In the case of Arshiya Rail Infrastructure Ltd. Informant v. Ministry of Railways,
the CCI held that essential facility doctrine can be applied on case which involve technical aspect
and where the usage of such a facility is necessary.122

47. In the instant case, in Indri, a substantial portion of the population diversified their financial
investments into various avenues to manage their income and seek profits. 123 Jarvis 2.0 is a pivotal
technology in such a scenario, given the extreme volatility of stock markets. The ability to
automatically invest at the right time represents a significant technological advancement. As Jarvis
2.0 is exclusively provided by BT, it holds a monopoly over this technology, and consequently, it
bears the responsibility to share this essential facility. However, BS imposed a condition on BT
that it would not deal with any other competitor in the market and has exclusively licensed Jarvis
2.0. Further, BT denied to deal with Upper Case due to the unfair condition imposed on it, which
eventually caused injury to consumers.

48. A vertical agreement may cause foreclosure when the combined undertaking controls the
essential facilities. 124 In the case of Istituto Chemioterapico Italiano Spa v. Commission of the
European Communities,125 the court had held that “a dominant undertaking which both owns or
controls and itself uses an essential facility i.e. a facility or infrastructure without accesss to which
competitors cannot provide services to their customers, and which refuses its competitors accesss
to that facility or grants accesss to competitors only on terms less favourable than those which it
gives its own services, thereby placing the competitors at a competitive disadvantage, infringes
Article 86, if the other conditions of that article are met”.

49. In the instant case, owing to the exclusive agreement between BS and BT, the essential facility
of Jarvis 2.0 is being used exclusively by Simbaa and being prevented from being used by anyone
else, creating an unjust and discriminatory condition. This contravenes the essential facility

121 PHILIP S UTHERLAND & KATHERINE KEMP, COMPETITION LAW OF SOUTH AFRICA (LexisNexis 2000).
122 Arshiya Rail Infrastructure Ltd. v. CCI, 2013 SCC OnLine Comp AT 82.
123 Moot Proposition, ¶3.
124 Gide Loyrette Nouel, Competition Assessment of Vertical Mergers and Vertical Agreements in the New Economy,

EC, (Nov.,2001),
https://ec.europa.eu/docsroom/documents/%203658/attachments/1/translations/%20en/renditions/native.
125 Case 6/73, Istituto Chemioterapico Italiano SpA v. Commission of the European Communities, 1974 E.C.R. 223

[‘Instituto’].

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doctrine, and it is therefore argued that BS has abused its dominant position by imposing unfair
conditions on BT, causing harm to competitors and limiting choices for consumers.

3.3.2. Babbar Share restricted market access through an exclusive agreement with Banner Tape

50. The creation of entry barriers by a dominant firm, whether direct or indirect, constitutes an
abuse of its position. 126 When an enterprise is dominant, it gets special responsibility to not create
entry barriers and not to allow its conduct to impair undistorted competition on the internal
market.127 In the case of CCI v. JCB India Ltd.,128 the CCI held that a dominant firm was abusing
its dominant position as it was denying market access and was creating entry barriers. Similarly,
in the case of Shamsher Kataria v. Honda Siel Cars India Ltd.,129 car manufacturers were abusing
their dominant position by denying market access and violating essential facility doctrine.

51. An exclusive dealing agreement by a dominant enterprise is deemed abusive, as it results in

the denial of market access, irrespective of any positive impact it might have on competition. 130
Any exclusionary practice, including such exclusive agreements, by a dominant enterprise is
considered an abuse of dominance.131 In the instant case, due to the exclusive dealing agreement
between BS and BT, Simbaa’s rivals, including those who collaborated with the original Jarvis
app were struggling to compete with this new gen technology and thus were unable to access
market.132 Therefore it is submitted that conduct of BS has resulted in denial of market access.

52. Additionally, a cluster of consumers form a network, and such a network benefits consumers
when the size of the network increases. 133 This benefit has been termed as a “network effect”.
When two networks compete in a market, the one with the larger network has an added advantage
since it offers more quality or cost advantage, thereby allowing the larger network to become
larger, and shrinking the smaller network. For a potential entrant to succeed in such a market it
must possess an inherent advantage lacking which it cannot survive in the market. “Indirect

126 CA, supra note 1, §4(2)(c).

127 Case 322/81, Michelin v. Commission, 1983 E.C.R. 3461.
128 CCI v. JCB (India) Ltd., (2020) 17 SCC 446.
129 Shamsher, supra note 15.
130 RICHARD WHISH & DAVID B AILEY, COMPETITION LAW 684 (OUP 2018).
131 HT Media Ltd. v. Super Cassettes Ltd., Case No. 40 of 2011 (CCI).
132 Moot proposition, ¶17.
133 Gregory J.Werden, Network Effects And Conditions Of Entry: Lessons From The Microsoft Case, 69 ALJ 87,

(2001).

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network effects” refer to the impact a large network has on the production of its competitors, 134
where positive network effects benefit consumers and indirect network effects harm competitors.

53. In the instant case, the position of Simbaa is such that it enjoys positive network effects. The
exclusive dealing agreement has established Simbaa as the exclusive platform for consumers
seeking to use Jarvis 2.0. Furthermore, the automated AI investment facility provided by Jarvis
2.0 is exclusively available through Simbaa due to the terms of the agreement. This particular
feature holds immense appeal for consumers, especially in the context of highly volatile stock
markets. The ability to automatically invest at precisely the right moment represents a significant
advantage, where even a time difference of seconds can make a substantial impact. This exclusive
facility has been a key factor in attracting consumers to Simbaa, evident in the substantial increase
in Simbaa’s market share from 30% to 38% following the agreement.

54. Additionally, Jarvis 2.0 utilizes access to substantial amounts of data to enhance its AI
functionality, and Simbaa is the primary source of this data. As a result, an increasing number of
users on Simbaa translates to more data for Jarvis 2.0, strengthening its AI functionality. Given
that users are particularly interested in the AI facility, the positive correlation emerges: as Jarvis
enhances its AI functionality, more consumers are drawn to Simbaa to access this feature. This
creates a self-reinforcing loop where the improvement in Jarvis’s AI functionality, driven by the
growing user base, contributes to a positive network effect for Simbaa. The attractiveness of the
Simbaa experiences a positive correlation with the growing number of users.

55. While improving Jarvis 2.0 benefits consumers, it also creates barriers to entry due to the
agreement, preventing other competitors from using Jarvis 2.0. In the case of Federation of Hotel
& Restaurant Associations of India v. Make My Trip India (P) Ltd.,135 the Court held that network
effects create insurmountable entry barriers for existing as well as potential market participants.
Therefore, it is submitted that Simbaa’s conduct has led to the imposition of entry barriers
competitors, denying market access and constituting an abuse of its dominant position.

56. Therefore, it is humbly submitted that, the relevant market of Babbar Share is the market of
online trading and education applications, and that Babbar Share is dominant in the identified

134 Umar Javeed v. Google LLC, 2022 SCC OnLine CCI 61.
135 MakeMyTrip, supra note 51.

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market and due to imposing of unfair condition and denial of market access, has abused its
dominant position in the relevant market.

[4]. BANNER TAPE IS DOMINANT IN THE RELEVANT MARKET AND IS ABUSING THE SAID
DOMINANT POSITION

57. It is humbly submitted before this Hon’ble Commission that BT has contravened §4 of the Act
as firstly, the relevant market is the market for investment education and advisory applications
[4.1]; secondly, BT occupies a dominant position in the relevant market [4.2]; and lastly, BT has
abused its dominant position under multiple clauses of §4 [4.3].

4.1. The Relevant Market Is The Market For Investment Education And Advisory
Applications In The Indri

58. It is humbly submitted that the relevant geographic market is the Indri [4.1.1]; and secondly,
the relevant product market is investment education and advisory applications [4.1.2].

4.1.1. Relevant Geographic Market Is The Indri

59. The relevant geographic market is an area where conditions of competitions are similar and
distinguishable from the other neighbouring areas. 136 In the instant case, the conditions of
competitions are homogeneous throughout the nation of Indri with a common consumer base adept
in technology. 137 Further BT is a national brand and provides its service throughout the nation.
Therefore, it is submitted that the relevant geographic market for BT is Indri.

4.1.2. Relevant product market is the market for investment education and advisory applications

60. §19(7) establishes the end-use of the product to be one of the factors that must be considered
while determining the relevant market. 138Jarvis is an investment education and advisory
appplication/service providing personalised investment strategies and financial advice, and hence
comes under the market of investment education and advisory applications. It is submitted that the
relevant product market is also primarily determined by assessing consumer-oriented product

136 Avtar, supra note 83.

137 Moot Proposition, ¶2.
138 CA, supra note 1, §19(7).

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substitutability. 139 This involves understanding the products which the consumers can substitute
to satisfy their demand. In this context, Jarvis can be substituted by other investment education
and advisory applications available in the same geographic market, such as Bulls & Bears or Hugo.

4.2. Banner Tape Is Dominant In The Identified Market

61. Dominance refers to the advantageous position held by an enterprise within a market, granting
it the ability to operate independently of competitive forces or exert influence over consumers and
competitors.140 The Competition Act, under §19(4), outlines the factors that the Commission must
consider when assessing the dominance of an enterprise.141 In the instant case, BT is dominant in
the relevant market as, firstly, it has a high market share [4.2.1]; secondly, it has high market power
[4.2.2], thirdly, the dependence of consumers [4.2.3], fourthly, size and importance of competitors
[4.2.4], and lastly, it created entry barriers by monopoly acquired through patent act [4.2.5].

4.2.1. It Has A High Market Share

62. The existence of a dominant position may derive from several factors which, taken separately,
are not necessarily determinative, but among these factors, the existence of very large market
shares is highly important.142 Market share is an important factor in assessing the dominance of an
enterprise,143 since it indicates the strength of the enterprise in relation to its competitors to an
extent. Very large shares are in themselves, and save in exceptional circumstances, evidence of the
existence of a dominant position. In the instant case, in market for ‘investment education and
advisory applications’ in Indri, BT has a huge market share of 41% with the rest of market diffused
between several applications in such a way that no manufacturer exerts sufficient competitive
constraints on BT, and hence it is understood that and it is in a significant position of strength
within the relevant market.

63. Using the Herfindahl-Hirschman Index the concentration of the market in the instant case is
2966. This means that the market is highly concentrated, and since Jarvis owns the highest share
with no close competitors it can be considered as dominant in the relevant market.

139 F. WIJCKMANS, &F. TUYTSCHAEVER, VERTICAL AGREEMENTS IN EU COMPETITION LAW, 106 (2d ed. 2011).
140 CA, supra note 1, §4.
141 CA, supra note 1, §19.
142 Case T-30/89, Hilti AG v Commission of the European Communities, [1990] E.C.R. II-163
143 CA, supra note 1, §19(4)(a).

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4.2.2. It Has High Market Power

64. Market share is a useful indication of the market structure and of the relevant importance of
the other competitors active in the market.144 As per European competition law, block exemption,
i.e. legal presumption of validity granted to an agreement, is only provided where either the
manufacturer or the distributor has a market share of more than 30% in any market.145 Hence, it
can be reasonably inferred that where any of the parties to an exclusive dealing arrangement has a
market share of more than 30% in any market for any of the products, such a market share is
construed to be a sufficient market share to restrain free competition. In India, CCI has set
“sufficient market power”, instead of dominance, as the threshold to judge potential effects of a
vertical restraint agreement on competition. 146 In the instant case, BT has a market share of 41%,
in the market for investment education and advisory applications. 147 Therefore, it has sufficient
market power could use its market share to restrain free competition.

4.2.3. Dependence Of Consumers On Jarvis 2.0

65. Jarvis 2.0 stands as the exclusive provider of automated AI investment technology, a distinctive
offering in the market. As the patented technology of BT, it enjoys sole ownership, rendering it
unavailable for use by any other player. Being one-of-a-kind software, it received an
overwhelming response and is in high demand due to lack of competitors in similar footing.
Therefore, the consumer base would largely depend on Jarvis 2.0.148 The dependence of consumers
on a dominant enterprise due to the non-availability of another such application is an important
indicator for attributing dominance.149 Therefore, due to the non-availability of alternative
software offering automated AI investment facility, BT is dominant in the identified market.

4.2.4. Size And Resources Of Banner Tape

66. In the case of BPB Industries PLC v. Commission,150 the CCI held that it was necessary to
consider not only the position of the enterprise in the market but also its technological and financial

144 In Re ESYS Information Technologies Pvt. Ltd., 2014 SCC OnLine CCI 10.
145 Supra note 63.
146 Fx Enterprise Solutions Pvt Ltd. v. Hyundai Motor India Limited, Case No. 36 of 2014, (CCI).
147 Moot proposition, ¶11.
148 CA, supra note 1, §19(4)(f).
149 Instituto, supra note 125.
150 BPB, supra note 76.

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resources. In the case of XYZ v. Alphabet Inc,151 it was held that access to data by an enterprise
would result in a competitive advantage over its competitors.

67. In the instant case, Simbaa being the oldest online trading platform has amassed extensive data
over the years.152 Following the agreement between BS and BT, BT received access to this large
data mine, enabling it to have more technological resources than its counterparts. This is also
evidenced from the fact that even though its competitors attempted to develop a similar software
it proved to be unsuccessful.153 This is because Jarvis 2.0 uses access to large amounts of data to
strengthen its A.I. functionality. The failure of competitors to develop a comparable software
highlights the pivotal role of data accessibility in reinforcing Jarvis 2.0’s A.I. functionality. The
exclusive access to this data mine sets BT apart and exemplifies its dominance in the relevant
market, as competitors’ inability to replicate Jarvis 2.0’s success signals the superior technological
resources of BT.

4.2.5. Creation Of Entry Barriers By Monopoly Acquired Through Patent Act

68. Patent, or any other IP can be considered as factor to determine dominant position as it creates
entry barriers. In the Tetra Pack case the acquisition of patent by the company was regarded as an
indicator of dominance in the market as it creates barriers for the other players. 154 In the instant
case, BT has patent over Jarvis 2.0. Due to this, BT is the sole owner of this product and no other
player can use this. BT has monopoly over this product and hence BT is a dominant player in the
market. Further, the agreement between BS and BT is restricting BT to provide Jarvis 2.0 to other
players. Thus, BT is restricting new entrants by creating entry barriers.

4.3. Banner Tape Has Abused Its Dominant Position By Engaging In Leveraging

69. The Competition Act 2002 lays down the various means employed by an enterprise to abuse
its dominant position. BT has abused its dominant position by way of illegally leveraging its
position in one market to enter into another. In order to establish the same, it is submitted that,
firstly, there are two distinct but interconnected markets [4.3.1]; secondly, BT is dominant in one
of the markets [4.3.2], and lastly, it has engaged in illegal leveraging [4.3.3].

151 XYZ v. Alphabet Inc, 2020 SCC OnLine CCI 41.

152 Moot Proposition, ¶14.
153 Moot Proposition, ¶17.
154 Case T-83/91, Tetra Pak International SA v. Commission of the European Communities, 1996 E.C.R. 436.

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4.3.1. The Two Distinct Markets Are Interconnected

70. It is humbly submitted that the two distinct relevant markets have an associational link. 155 Since
there exists an overlap between the consumer base in the market for ‘investment education and
advisory applications’ and ‘online trading and education applications’, where one market tends to
act as an input for the other, there is an associational link between the two. Therefore, it is
submitted that both the markets are interconnected.

4.3.2. Banner Tape Is Dominant In One Of The Markets

71. It is submitted that order for an enterprise to engage in leveraging, it must have a dominant
position in one market.156 It is humbly submitted that BT is dominant in the ‘investment education
and advisory applications’ market, as proved in the prior arguments.

4.3.3. Banner Tape Engaged In Leveraging

72. The Competition Act, 2002 prohibits the abuse of dominant position rather than the dominance
itself. §4(2)(e) recognizes the fact that an enterprise may use its position of strength in one market
to leverage its position and gain an unfair advantage in the other market. It has already been shown
that the agreement entered into between BS and BT was an exclusive dealing agreement. 157 It is
submitted that this exclusive dealing agreement was used by Jarvis to take advantage of its
dominance in the investment education and advisory applications market in order to enter into the
online trading and education applications market.

73. Leveraging occurs when a dominant firm uses its power in one market to induce or foreclose
sales in the second market and thereby exercise its market power in the second market.158 §4(2)(e)
also recognises that an enterprise may utilise its position of strength in one market to leverage its
position and gain an unfair advantage in the other market.159 Concerns about leveraging are with
respect to structural changes in the secondary market, which occur not due to a superior product

155 MCX Stock Exchange Limited v. National Stock Exchange of India Ltd., Case No. 13 of 2009 (CCI) [‘MCX’].
156 Id.
157 Memorandum, ¶15.
158 MCX, supra note 155.
159 CA, supra note 1, §4(2)(e).

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offered but due to its market power in another market.160 The resulting existence of market power
in the second market is through the leveraging of market power in the first market. 161

74. In the instant case, Jarvis being a dominant entity in their respective market, has exercised such
dominance to foreclose the competitions in the online trading education applications market,
enabling Simbaa to be the only undertaking in the market. The release of Jarvis 2.0 had far-
reaching implications in not just Banner Share’s relevant market but also in BS’s relevant market.
This is evident from the fact that post the integration of Jarvis 2.0 with Simbaa, other players in
the online trading education applications market were struggling to compete,162 and were
compelled to resorted to different strategies to secure their position in the market.,163 with some
competitors reducing charges and implementing aggressive marketing campaigns. 164 The
technology adapted by Jarvis in its 2.0 version is so superior, that even during its inception it was
expected to disrupt and innovate the market.165 Hence, it is submitted that Jarvis, by virtue of its
dominant position, was able to foreclose competition in the online trading and education
applications market through leveraging.

75. Therefore, it is humbly submitted that, the relevant market of Banner Tape is the market of
investment education and advisory applications, and that Banner Tape is dominant in the
identified market and due to engaging in illegal leveraging and denial of market access, it has
abused its dominant position in the relevant market.

160 MCX, supra note 155.

161 Id.
162 Moot Proposition, ¶17.
163 Id.
164 Moot Proposition, ¶16.
165 Moot Proposition, ¶10.

MEMORIAL ON BEHALF OF THE INFORMANT 25

 XIII ILNU ANTITRUST MOOT COURT COMPETITION, 2024

PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited, the Counsel of
the Informant most respectfully and humbly pray that the Hon’ble Commission may be pleased to
adjudge and declare that:

i. The CCI has jurisdiction over the present matter as opposed to SEBI.
ii. The agreement between Babbar Share and Banner Tape is in contravention of §3(4)(b) of
the Competition Act, 2002.
iii. Babbar Share is dominant in the relevant market and has abused the said dominant position.
iv. Banner Tape is dominant in the relevant market and has abused the said dominant position.
v. The Director General may institute an investigation in the instant matter

AND/OR pass any other order that the Hon’ble Commission may deem fit and be pleased to grant
in the interest of justice, equity and good conscience. And for this demonstration of kindness, the
Informant shall forever be duty bound ever humble pray.

All of which is respectfully submitted

Counsel for the Informant

MEMORIAL ON BEHALF OF THE INFORMANT XVII