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Supreme Court stays NCLAT order against Flipkart

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The Supreme Court on Wednesday on Wednesday ordered a stay on the National Company Law Appellate Tribunal (NCLAT) order directing a probe by Competition Commission of India into allegations that Flipkart had abused its dominant position in the market while seeking the response of Competition Commission of India. 

A three-judge Bench of Chief Justice of India S.A. Bobde, A.S. Bopanna and V. Ramasubramanian issued the directions while hearing a plea filed by e-commerce company Flipkart challenging the NCLAT order given in appeal filed by All India Online Vendors Association alleging violation of dominant position by Flipkart.

During the hearing today, Senior Advocate Harish Salve appearing for Flipkart submitted before the Court that the NCLAT order was passed without even a prima facie finding of abuse and a serious case will be made if enquiry is conducted. On the question of whether Flipkart holds a dominant position in the market, Salve stated that are many players in the market but there is no dominant one. 

The Bench has issued notice and stayed the NCLAT order observing that NCLAT has not categorically come to a finding that Flipkart has abused its dominant position.

Flipkart has challenged the NCLAT order from March 2020 whereby the tribunal had set aside the CCI’s 2018 order which had absolved Flipkart of such allegations levelled by the All India Online Vendors’ Association (AIOVA). This was followed by the AIOVA filing a caveat in the Apex Court in March itself apprehending that Flipkart may approach the Supreme Court at some stage. 

The plea by AIOVA before NCLAT had urged the appellate tribunal to quash CCI’s order ruling out abuse of dominant position by Flipkart. The CCI order dated November 6, 2018, had held that no case of contravention of the provisions of section 4 of the Competition Act was made out against Flipkart India (wholesale unit) and Flipkart Internet (marketplace). Flipkart India was not found dominant in the relevant market of services provided by online marketplace platforms for selling goods in India, negating the issue of abuse of dominant position. However, according to AIOVA, CCI was unjust in ruling out dominance prima facie even after ample evidence was submitted to prove otherwise.

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