Supreme Court of India · 2023

A.No.4193 of 2023 inC.S.No.186 of 2023Suit and the connected suits. Despite attempts to repackage the allegations, the core substance of the claims and the reliefs sought remain strikingly similar and nearly identical to those in the Connected Suits. The Plaintiff's endeavor to present its suit as distinct is merely a superficial attempt and a closer examination reveals that the essence of the allegations, centered around the defendants’ alleged abuse of dominant position and imposition of unfair conditions, mirrors the grievances raised and rejected in the connected suits. This overlap extends to the relief sought, including injunctions against delisting of apps and declarations regarding the legality of certain clauses in the DDA. Moreover, the strategic insertion of references to certain sections of the Indian Contract Act does not alter the basic premise of the case, which revolves around alleged violations of competition law and PSS Act. 2.4It is a settled law that plaintiffs cannot make bare allegations by the way of clever and ingenious drafting to get over the bar of civil court’s jurisdiction under a special statute. In essence, any differences in drafting style and the selective use of legal provisions do not change the underlying reality that the Plaintiff's suit is essentially a replica of the connected suits. A bare perusal of the purported Commercial Suit conclusively establishes that the cause of action 5/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023is rooted either in alleged rights and entitlements arising out of the CCI order or based on allegations of non-compliance with the CCI Order by one or the other of the named defendants. A suit based on such a cause of action is expressly barred under Section 61 of the Competition Act which clearly ousts the jurisdiction of civil courts in respect of matters that the CCI or the Appellate Tribunal. The National Company Law Appellate Tribunal ( in short "NCLAT") are empowered to determine by or under the Competition Act. In due exercise of its statutory powers under the Competition Act, the CCI has specifically examined the reasonableness of the service fee charged and did not find any violation with respect to either the right to collect service fee or the reasonableness of such fee. After its investigation, CCI did not arrive at a finding that the service fee charged is excessive, disproportionate or that such fee cannot be charged at all. Notably, these findings of the CCI on the service fee have not been appealed, and have, therefore, attained finality and the same cannot be challenged in a surreptitious manner as has been done by way of the present Commercial Suit. 2.5It is well settled that when a right or liability is established by a statute, that very statute not only defines the right and liability but also provides 6/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023the mechanism for enforcing them. The CCI was specifically established to address competition-related issues. Since the Plaintiff’s remedies lie within the purview of the Competition Act, Section 9 of the CPC does not give them an absolute right to file civil suits, much less in the commercial jurisdiction. It is settled that the right under Section 9 of CPC is not absolute. A civil suit can be ousted and barred by a law, either expressly or by necessary implication . Even otherwise, it is well recognised that the jurisdiction of civil courts is impliedly barred where a statute (i) provides a right to sue, (ii) lays down the procedure for exercise of such right, and (iii) establishes a separate machinery for enforcement of such right. This principle applies with greater force in the context of the Competition Act, which provides the right to seek redressal for abuse of dominant position, lays down the procedure for exercise of such right and expressly ringfences matters under Competition Act from the scrutiny of civil courts. Therefore, the jurisdiction of civil courts is barred in matters relating to the Competition Act.2.6Section 11 of the Commercial Courts Act precludes a commercial court from entertaining or deciding any suit or application thereunder where the jurisdiction of the civil court is either expressly or impliedly barred under any 7/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023other law. In this case, the cause of action, if any, arises out of the enforcement of the CCI Order and the institution of the suit is therefore expressly barred under Section 61 of the Competition Act. On this basis, this Court ought to reject this suit for want of jurisdiction and vacate the Ad-Interim Order. The allegation of violation of particularly Section 10A of the PSS Act and RBI Guidelines, can only be adjudicated by the RBI, which is the designated regulator under the PSS Act. The jurisdiction of the civil courts to adjudicate on such allegations is impliedly barred by the PSS Act. The PSS Act is a self-contained code which provides a complete machinery for regulation of payment systems in the country. The PSS Act defines the rights of parties, their corresponding obligations and the consequences of breach in case of a violation of the same. The PSS Act provides for a mechanism of adjudication of disputes between parties. For such purposes, the PSS Act identifies the RBI as the designated expert authority for overseeing the implementation and enforcement of the PSS Act. The provisions of the PSS Act make it clear that the PSS Act is a complete code, which provides a separate adjudicatory mechanism for all alleged violations of the PSS Act. As such, the jurisdiction of Civil Courts is impliedly barred. The provisions of PSS Act indicate the overwhelming power of RBI as designated authority to permit regulated entities to start, continue, and prevent 8/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023as well as terminate any rights and obligations under the PSS Act. Further, it provides finality to the decisions of RBI and Central Government on various issues. For non-compliance, the PSS Act confers RBI alone with the power to impose civil and criminal levies in the form of fine and penalty, respectively, for contravention of the PSS Act. The PSS Act ensures ring-fencing of actions before courts with respect to the subject matter and permits such actions only if they have been initiated through RBI. Section 32 specifies that the PSS Act will have an overriding effect. Even otherwise, because the RBI is designated as the expert authority, which exercises powers to regulate and supervise payment systems in India, courts should defer to the expert regulator to avoid any adverse impact on the health of the payment systems in India. In this view, the jurisdiction of civil courts is impliedly ousted and consequently, the Plaintiff is not entitled to maintain the present Commercial Suit before this Court, on the ground that certain provisions of PSS Act and directions issued thereunder have allegedly been violated.2.7The allegations of unconscionability, inter alia, under Section 16 of the Indian Contract Act are also based on the existence of an alleged economic dominance of Defendants. This dominance can only be ascertained by the CCI 9/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023under the Competition Act. In this specific case, the allegation of abuse of dominance before the CCI even included a claim that Defendants had imposed unfair contractual terms under Section 4(2)(a)(i) of the Competition Act through “higher bargaining power” - which is a mirror image of the claim that the Plaintiff now tries to assert under Section 16 of the Contract Act. In any event, no relationship, be it physical, fiduciary, emotional, mental has been pleaded in the plaint which attracts Section 16 of the Indian Contract Act. Order VI, Rule 4 of CPC requires a party to plead necessary particulars when making allegations such as undue influence. 2.8By intertwining allegations under the Indian Contract Act, and the abuse of dominance, the Plaintiff is complicating the core issues before this Court. It is imperative to recognize this tactic and consider the core contentions in the plaint, which are based on (i) alleged non-compliance of the directions passed by the CCI in its CCI Order and (ii) alleged abuse of dominance by Defendants. The law laid down by the Hon’ble Supreme Court in Charu Kishor Mehta (Supra) squarely applies, given that the Plaintiff is attempting to keep the specialized sectoral regulators (CCI and RBI) at bay by making vague and unsubstantiated allegations. The essence of the plaint lies in the alleged non-10/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023compliance with the CCI Order and Defendants’ purported abuse of dominance. If these central allegations are removed from the plaint, no valid cause of action would remain.2.9Therefore the present commercial suit is liable to be rejected at the threshold. 3Learned counsel for the first respondent/plaintiff would submit that the present application is nothing but a product of the lack of understanding and appreciation on the part of the applicants, especially the fundamental principles governing a civil dispute and the powers of a Civil Court to entertain and adjudicate the same. The present application sufficiently demonstrates the deliberate refusal of the applicants to acknowledge the rudimentary principles between a General and Special Statute, and the Courts and Forums established thereunder, to determine and decide the controversies brought before them. If for instance, the first respondent/Plaintiff refers to few income tax tribunal orders to describe Google’s advertisement and revenue model, it doesn’t mean that the said order is being enforced before the Civil Court, rather it is limited to the 11/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023purpose of bringing certain essential facts to the knowledge of the Court. Furthermore, the applicants had sought to manipulate the above-mentioned stray references to allege that the subject suit seeks to enforce the above Order of the CCI, while conveniently blindsiding themselves to the central issues and violations touching upon the PSS Act, the Indian Contract Act and tortious interference, pleaded in the subject plaint. In any event, in its urge to nit- pick, the applicants appear to have lost sight of the fact that the alleged exclusive jurisdiction clause is found in the DDA entered into between the first respondent with the 4th Respondent and as such, the applicants herein cannot and should not be permitted to invoke the alleged clause in a multi- party suit, more particularly, to maintain the present Application.3.1The applicants have gone to the extent of claiming and alleging that by its orders in various cases, the CCI has given its stamp of approval to the alleged “Service Fee” and also the “User Choice Billing” of the defendants in the subject suit, when such allegations are far from truth and such conduct of the defendants, more particularly, the applicants herein, for manipulating the above order to suit its narrative and convenience, deserves to be deprecated by this Court. Only Civil Courts can holistically adjudicate the issues at hand and grant 12/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023the relief sought for, which are emanating from a conjoint reading of the PSS Act and the Indian Contract Act. Even though there may be some overlaps in determining the issues which can partly be decided by the CCI and partly by RBI, however, both authorities cannot grant appropriate relief wherein a conjoint reading of all the laws is required, since its outside their remit. It is a well established principle of law that a plaint may not be rejected in part, and may only be rejected where each prayer therein is not maintainable, against any of the defendants to the suit. Neither the RBI nor the CCI can look into and give relief regarding any violation which is based on conjoint reading of the PSS Act and the Indian Contract Act. The prayer in the Plaint flows from the holistic determination of violation of both PSS Act and Indian Contract Act, the exercise which only the civil court can undertake to grant relief.3.2It is trite law that while considering an application under Order 7 Rule 11 of the CPC, the averments in the plaint together with the plaint documents alone shall be considered and therefore, no other extraneous material/factor/allegation can be taken into consideration. Any pleas taken by the applicants/defendant Nos. 6 and 7 on merits and any other arguments would be irrelevant, and cannot be adverted to, or taken into consideration. In support of 13/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023this Contention, the learned counsel relied on the decisions reported in MANU/SC/1403/2022, (2020) 7 SCC 366 and 2014 SCC OnLine Del 3092. Section 61 of the Competition Act, 2002 itself would prove that the CCI or the Appellate Tribunal established under the above Act shall have jurisdiction to entertain any suit or Proceedings in respect of any matter, of which the said Forums are empowered by or under the Competition Act, 2002 to determine. Thus, the Civil Court may not determine whether a conduct of an enterprise is in violation of Section 3 and Section 4 of the Competition Act, 2002; but there is no bar on Civil Court to deal with issues arising out of PSS Act, Contract Act and tortious interference.3.3The jurisdiction provided under the Competition Act, 2002 is very specific. It empowers the Forums established thereunder to entertain and decide matters pertaining to Anti-Competitive Agreements which would cause an appreciable adverse effect on the competition within India, to prohibit enterprises from abusing its dominant position, to regulate the Combinations which could cause an appreciable adverse effect on competition within the relevant market in India, amongst others. The Competition Commission of India is empowered to pass orders under Section 27 or Section 28 of the Act only it 14/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023has found a violation of Section 3 and 4 of the Competition Act, and not of any other laws. A bare reading of the plaint would disclose that it does not contain any averment to seek any of the reliefs or remedies provided for under the Competition Act, 2002. Hence, it is a misnomer to allege that the subject plaint is attempting to re-agitate or seeking to enforce the above order dated 25-10-2022 of the CCI. It is not even the case of the applicants that the CCI is empowered to entertain, decide or adjudicate upon the matters covered under the PSS Act or the Contract Act. In such a background, the applicants shall be precluded from contending that the jurisdiction of this Court stood ousted by virtue of Section 61 of the Competition Act, 2002.3.4The Hon’ble Delhi High Court dealt with a similar issue in JCB India Ltd. vs I.P. Address :122.163.98.166 and Ors, IA No. 9062/2008 in CS (OS) 691/2008 wherein challenge was raised to the jurisdiction of the Civil Court being barred by Section 61 of the Information Technology Act, 2000. However, the violation alleged pertained to both the Information Technology Act, 2000 and the Copyright Act, 1957. In light of the diagram above, Prayer 3 in the plaint cannot be given either by the CCI or the RBI. The Hon’ble Supreme Court 15/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023of India has ruled that cannot be a price regulator. In support of his contentions, the learned counsel relied on the decidion reported in (2020) 16 SCC 615. Even Prayer 1 can be granted partly by the CCI, only to the extent of determination of abusive terms in contract, independent of any assessment of Google being a system provider or a system participant, whose conduct is in violation of the PSS Act. Prayer 2 can be partly granted by the RBI, only to the extent of determination of ‘authorized service provider’. RBI is not vested with the power to look into purely contractual clauses like Clause 15.3 which relates to termination of contract. Prayer 4 is an injunctive relief which is based on a holistic determination of all the averments made in the Plaint, which only the Civil Court is empowered to completely adjudicate upon. RBI is not empowered under the PSS Act to provide any injunctive relief or an interim relief.3.5The reliefs claimed are those emanating out of the violations of the 16/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023Indian Contract Act, 1872 and the PSS Act. Moreover, the CCI in Combination Registration No. C- 2018/05/571 involving Walmart International Holdings, Inc. @ Para 12 has held that the CCI cannot look into provisions of other laws wherein the question, in that case, was related to FDI Policy violation. The reliefs sought by the Plaintiff are beyond the scope of the CCI, the Civil Courts jurisdiction cannot be ousted under Section 61 of the Competition Act. It is submitted that the Hon’ble CCI is not empowered to adjudicate the violations and grant reliefs thereon by application of provisions of the PSS Act and the Indian Contract Act. By placing reliance on Paragraph Nos. 399 to 401 of the Order of the CCI, the applicants have claimed that the effect and validity of UCB was tested and found to be a “Mitigating Factor” for imposition of penalty and therefore, an independent exercise to determine the validity of the same by this Court would prove redundant. It is not even the case of the applicants that the CCI had found the said GPBS or UCB as valid from the lens of the PSS Act, which exercise can be carried out only by this Court and not by the CCI. The introduction of the above UCB Model in its Pilot stage by the defendants was only after conclusion of oral arguments and when the Judgement was reserved in the above proceedings before the CCI, it has given a clean chit to UCB is far from truth. Further, in any event, the UCB as mentioned in the said paragraph of 17/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023the CCI order pertains to a pilot project given to certain developers as opposed to the UCB which is the subject matter of the subject plaint. A comparative reading of the above would not only prove and substantiate the misleading and inconsistent pleas of the defendants to the suit but also their attempt to twist and turn various stray observations and references made by the CCI in a different context and perspective, to allege that the issues that are sought to be determined in the plaint, were already tested and adjudicated upon and hence, there is no need or necessity for this Court to entertain the subject plaint.3.6The provisions seeking to bar jurisdiction of Civil Courts require strict interpretation. The Court would normally lean in favour of construction which would uphold the jurisdiction of the Civil Court. Thus, to entertain the subject suit alleging breach or contravention of civil nature under the provisions of the PSS Act, the jurisdiction of the Civil Courts cannot be said to be ousted. In a case reported in 2019 SCC OnLine SC 92, it was held that in cases where multiple remedies are available, “When secured creditors like the Respondent are driven from pillar to post to recover what is legitimately due to them, in attempting to avail of more than one remedy at the same time, they do not “blow hot and cold”, but they blow hot and hotter….”. It is humbly submitted that the applicants’ contend that the Court should have a hands-off approach. If 18/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023such a plea is accepted then the plaintiffs will be remediless as the CCI is not empowered to adjudicate on issues relating to violation of PSS Act, tortious interference and Contract Act and on issues of price regulation.3.7A bare perusal of the Section 28 of PSS Act would clearly indicate that the “Offences” referred to therein relates to offences that can be taken cognizance of and punished by the Metropolitan Magistrate/Judicial Magistrate, under the Code of Criminal Procedure, 1973 and by no stretch of imagination, can it refer to the breaches and contraventions that can be taken cognizance of by the Civil Courts. Chapter VII (Offences and Penalties) of the PSS Act and more specifically, Section 26 (Penalties) of the said Act, would fortify the above contention of this respondent. In the absence of any special Forum/Tribunal formed under the PSS Act, to entertain Petitions/Complaints alleging breach or contravention of civil nature under the provisions of the PSS Act, the jurisdiction of the Civil Courts cannot be said to have been ousted and consequentially, this Court retains jurisdiction to adjudicate and decide on such breaches and violations and grant reliefs of Declaration and Injunction, which cannot be sought for from or granted by the Magistrates. Furthermore, it is trite law that the same set of facts may give rise to commission of multiple violations under 19/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023the provisions of different Statutes, giving cause of action to the Court of competent jurisdiction to adjudicate upon the same as held in the decision reported in 2020 SCC OnLine Bom 816.3.8There is neither an express bar on the jurisdiction of the Civil Court nor an implied bar that can be inferred under the PSS Act. Applying the tests laid down by the Hon’ble Supreme Court in the case of Dhulabhai v. State of M.P. and Anr., AIR 1969 SC 78 –(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter 20/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.3.9The remedy of injunction is not available before the authorities under the PSS Act. Undoubtedly, RBI is the apex authority under the Act and is given the power to frame the regulations. However, once such regulations are framed, they are not only enforceable by the RBI against the Payment Systems Operators, but also amongst the participants and operators inter-se. In this latter class of cases, the PSS Act contains no provision for injunction restraining breach which causes a civil harm. The remedies prescribed under this Act are only for prosecution which would take place after the damage is done. The Statute does not confer powers to the Authorities under the PSS Act to grant an injunction. Applying Dhulabhai, it is clearly a case where an implied ouster could not be said to exist. Moreover, Section 24 of the PSS Act is also a summary proceeding as the same deals with settlement of despite among system participants, which is not the case herein. Section 24 of the PSS Act provides a mechanism for the resolution of a narrow class of disputes by reference to the 21/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023RBI, being disputes pertaining to the manner of operations of the payment system provider, under its rules. Notably, Section 24 of the PSS Act does not include disputes as to the validity or otherwise of the rules/agreements under which the payment system provider is operating within the ambit of the disputes to be referred to the RBI. Even if the aforesaid dispute can be said to pertain to the payment system provider in question’s rules, such a dispute would be with respect to the validity or otherwise of such rules, which is a class of dispute expressly not included within the ambit of Section 24 of the PSS Act. Therefore, in either case, the instant dispute is not amenable to the dispute resolution jurisdiction of the RBI under Section 24 of the PSS Act. The Plaint is about a declaration that the operation of GPBS / UCB is against the various rules and regulations which are applicable to a payment aggregator and also runs in violation of contractual principles.3.10In the absence of an express ouster under the PSS Act, the Impugned Judgment errs in holding that the PSS Act ousts the jurisdiction of civil courts under Section 9 of the CPC, without ascertaining or even considering how the “scheme” of the PSS Act necessarily ousts the jurisdiction of civil courts, or whether such necessary ouster is even possible by virtue of the 22/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023“scheme” of a statute, rather than a provision thereof. To the contrary, unlike other statutes (Section 46 (5) read with Section 61 of the Information Technology Act, 2000) which bars the jurisdiction of civil courts and confers the power of civil courts upon the authority created under the statute, the PSS doesn’t confer any such power on the RBI. Rather, a closer look at Section 30(3), 30(5) of the PSS Act would show that RBI relies upon civil courts to even enforce the penalty imposed by them. Thus, on a collective reading of the foregoing submissions, it is an explicit indication that the PSS Act does not oust the jurisdiction of the civil courts and the same cannot be read into the PSS Act, let alone the “scheme” thereof. In a case of Rajendra Sethia v. Punjab National Bank AIR 1991 Del 285 @ Para 17, the High Court of Delhi has held that any agreement that Parties would not have recourse to Indian Courts would be void under Section 28 of the Indian Contract Act, 1872. Clause 16.8 of the DDA relating to exclusion of jurisdiction of all the Court of India, thus cannot be enforced.3.11In the case of Deborah Louise Douez v. Facebook, Inc, (2017) 1 SCR 751, Supreme Court of Canada @ Para 39, 40, 50, 52-58, 73, 116-117, has held that the forum selection clause of Facebook is unenforceable on a consumer 23/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023due to inequality in terms of bargaining power and vide Clause 16.8 of DDA (i.e., Exclusion of Jurisdiction Clause), the 3rd Defendant in the Original Suit had regrettably excluded the ‘Conflict of Law’ provision. This is illegality on the face of it and the said term cannot be sustained as the plaintiffs will be left remediless. Moreover, because of exclusion of “Conflict of Law” provision as present in the same clause of DDA, the Courts of California will not recognize the PSS Act and Indian Contract Act and shall not apply its provisions. On a demurrer, it is a multi-party Suit and an Exclusive Jurisdiction Clause cannot be enforced against defendants who are not parties to the said contract like defendants 4 and 7, who are offering payment aggregator services in India. The applicants have themselves admitted to the fact of fourth defendant is running GPBS and the Order of the CCI at Para 23 notes that 6th defendant performs the payment aggregator function. In such view thereof, the fact that the cause of action arose in India cannot be disputed or denied. Hence, the exclusive jurisdiction Clause deserves to be discarded. To support his contentions, the learned counsel relied on the decision reported in 1995 (5) SCC 482.3.12 Parties cannot exercise their unequal bargaining power to impose one-sided clauses on the other party, even if both parties are commercial entities. 24/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023The learned counsel placed reliance on the decisions reported in (2008) 1 SCC 618, (2023) 3 SCC 629. On this basis, in this case, a standard form contract was held to be void. It is clear from the reading of Para 244 of the Order of the along with Clause 3.5 DDA and Clause 12.2, 12.3 Google Payments Terms of Service-Seller (IN) that the agreements existed for a long and the Applicants/ Defendants are now trying to unilaterally change and novate the contract terms by increasing the ambit of the term of Service and also charging an unconscionable service fee of 15 to 30%, essentially altering the terms of the contract unilaterally which amends the very substratum of the contract, without consent. It hits at the very core of unconscionability as held in the case of A. Schroeder Music Publishing Co. Ltd. v. Macaulay (Formerly Instone), [1974] 1 Wlr 1308 @ Page 1314-1316]. All these issues of unilateral novation can be only dealt by the Civil Court.3.13Even assuming but not admitting that the plaint fails to disclose cause of action as against defendant Nos.1, 2, 5 to 7, the applicants herein are expected to be well aware of the well settled legal principle to the effect that “a Plaint cannot be rejected in part or as against few defendants, merely because, the same fails to disclose cause of action as against the few of them”. The said 25/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023principle finds approval in the words of the Hon’ble Supreme Court, in the case of Madhav Prasad Aggarwal and Ors. Vs. Axis Bank Ltd., and Ors (2019 (7) SCC 158), wherein it was held that “The Court answered the said question in the negative by adverting to several decisions on the point, which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a Plaint including against some of the Defendant(s) and continue the same against the others. In no uncertain terms, the Court has held that if the Plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) of Code of Civil Procedure will have no application at all and the suit as a whole must then proceed to trial.”3.14It is not the case of the applicants that there is absolutely no connection, whatsoever, between the defendants to the suit or that the applicants or any of the defendants are not performing any act that are specified in the plaint. Therefore, in effect, the applicants are demanding proof of their respective roles, as stated in the plaint averments, which in any case is a subject matter for trial. In an application seeking to reject the plaint, the plaint averments relating to role and connection with the subject matter of the dispute 26/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023shall be taken at a face value. In any event, the plaint has unambiguously averred that the defendants therein are acting in concert and act as a monolithic block and are collectively attempting to by-pass the PSS Act. The endeavour of the applicants/defendant Nos.6 & 7 herein to espouse the cause of defendant Nos.1, 2 and 5 itself is indicative of their connection and relationship with each other. In any case, the Order dated 25-10-2022 of the CCI, which had adjudicated, inter alia, upon GPBS in the light of the provisions of the Competition Act, 2002, would show that out of 05 Opposite Parties in the said case, 04 of them are defendants to the subject suit viz., 1st sefendant, 2nd defendant, 6th defendant and the 7th defendant. Hence, the claim of the applicants that the above defendants have no interest in the subject suit is a far- cry and is destined to be ignored.3.15 The main contention of the learned counsel for the plaintiff/first respondent is that the present suit is nothing to do with the earlier suits filed by other members of the association which are not identical to the present suit for the reason that allegation on breach of privacy policy, the introduction of consumption only model amount to restraint of trade, on waiver of service fee is meritless and vexatious, novation, on tortious interference and applicability of 27/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023Contract Act not find place in the earlier suits. Therefore, the present plaint cannot be rejected totally and partial rejection is not permissible.4Heard the learned Senior Counsel for the applicants and the learned counsel for the first respondent/plaintiff and perused the materials available on record. 5The main contention of the learned Senior Counsel for the applicant/D4 is that the suit claim is expressly barred under Competition Act and impliedly under PSS Act. The identical reliefs were sought for by some parties and the applicant filed applications for rejection of plaints and this Court allowed the applications accepting the contention of the applicant and rejected the plaints. Challenging the same, the aggrieved parties filed appeals before the Division Bench of this Court and the Division Bench confirmed the order of the learned Single Judge. Aggrieved against the order of the Division Bench of this Court, the respondents/plaintiffs in that applications filed SLP before the Hon'ble Supreme Court, which has not stayed the order of the Division Bench, even in the original application filed in the present suit for interim injunction, the first respondent/plaintiff has stated that present suit is similar to earlier suits and 28/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023based on that they obtained interim order, which itself clearly shows that this suit is also identical with other suits. 6Mere clever drafting of the plaint will not give any right for them to maintain the suit and the learned Senior Counsel further argued that since the prayers sought for by the plaintiffs in the connected suits are the mirror prayer sought for in the present suit. The subject matter of the suit is expressly barred under Competition Act and impliedly barred under PSS Act, since the present suit is also identical.7But, However, the learned counsel for the first respondent/ plaintiff has contended that the prayer in the present suit is unique than the other suits, which were rejected by this Court in the applications filed by the applicants. In the instant suit there is specific relief to set aside the Clause 15.3 of DDA between the plaintiff and the defendant/Google entity, which relief is not found in the earlier suits. In the present suit the plaintiff challenged the validity of Clause 15.3 of DDA and in the earlier suits it is absent. Therefore the order passed in the earlier suits by the learned Single Judge as confirmed by the Division Bench and now pending before the Hon'ble Supreme Court is nothing 29/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023to do with the present suit. 8Further the main contention of the learned counsel for the first respondent/plaintiff is that the present suit is materially different from the previous suits, which is evident from prayer sought for in the present suit and the previous 14 suits. Previous suit is not asked for striking of clause 15.3 of DDA. Previous suits have no relief for striking of clause 2.1 the Developer Terms of Service for Alternate Billing System and the clause 3.4 of the DDA read with “Service Fee” and they have not been specifically challenged in the previous suits. The main contention of the learned counsel for the plaintiff that this subject matters cannot be decided by the CCI and also does impliedly bar under PSS Act and the plaint has to be either rejected in-toto or it has to be tried. The plaint cannot be rejected in part if the plaintiff is entitled to maintain the suit for granting even any one of the reliefs sought for in the plaint.9Now the core question to be decided is that whether the plaint is expressly or impliedly barred by jurisdiction of the Civil Court and whether the suit claim is expressly and impliedly barred by any law and all the reliefs sought for by the plaintiff can be adjudicated before the CCI.30/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 202310If the suit is barred by law, all the reliefs sought for in the plaint can be adjudicated by CCI then the suit is not maintainable and if the suit is not barred by law and all the reliefs cannot be granted by CCI then the suit is maintainable. It is useful to refer Order VII Rule 11(d) CPC and Section 11 of the Commercial Courts Act,2015 and Sections 3, 4, 19, 26, 61 of Competition Act, 2002.“Order VII Rule 11(d) CPC:Rejection of plaint – where the suit appears from the statement in the plaint to be barred by any law;Section 11 of Commercial Courts Act, 2015:Bar of jurisdiction of Commercial Courts and Commercial DivisionsNotwithstanding anything contained in this Act, a Commercial Court o r a Commercial Division shall not entertain or decide any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the civil court is either expressly or impliedly barred under any other law for the time being in force. Sections 3, 4, 19, 26, 61 of Competition Act, 2002:3. Anti – Competitive agreements (1) No enterprise or association of 31/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.(2) Any agreement entered into in contravention of the provisions contained in subsection (1) shall be void.(3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which—(a) directly or indirectly determines purchase or sale prices;(b) limits or controls production, supply, markets, technical development, investment or provision of services;(c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way;(d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition:Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement 32/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.(4) Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including—(a) tie-in arrangement;(b) exclusive supply agreement;(c) exclusive distribution agreement;(d) refusal to deal;(e) resale price maintenance,shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India.(5) Nothing contained in this section shall restrict—(i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon himunder—(a) the Copyright Act, 1957 (14 of 1957);(b) the Patents Act, 1970 (39 of 1970);(c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999(47 of 1999);(d) the Geographical Indications of Goods (Registration and 33/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023Protection) Act, 1999 (48 of1999);(e) the Designs Act, 2000 (16 of 2000);(f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000);(ii) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export.Abuse of dominant position4. (1) No enterprise shall abuse its dominant position.(2) There shall be an abuse of dominant position under sub-section (1), if an enterprise.—-(a) directly or indirectly, imposes unfair or discriminatory—(i) condition in purchase or sale of goods or service; or(ii) price in purchase or sale (including predatory price) of goods or service,(b) limits or restricts—(i) production of goods or provision of services or market therefore; or(ii) technical or scientific development relating to goods or services to the prejudice of consumers; or(c) indulges in practice or practices resulting in denial of market access; or34/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023(d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or(e) uses its dominant position in one relevant market to enter into, or protect, other relevant market.Inquiry into certain agreements and dominant position of enterprise19. (1) The Commission may inquire into any alleged contravention of the provisions contained in subsection (1) of section 3 or sub-section (1) of section 4 either on its own motion or on—(a) receipt of a complaint, accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or(b) a reference made to it by the Central Government or a State Government or a statutory authority.(2) Without prejudice to the provisions contained in sub-section (1), the powers and functions of the Commission shall include the powers and functions specified in sub-sections (3) to (7).(3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under section 3, have due regard to all or any of the following factors, namely:—(a) creation of barriers to new entrants in the market;(b) driving existing competitors out of the market;(c) foreclosure of competition by hindering entry into the market;35/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023(d) accrual of benefits to consumers;(e) improvements in production or distribution of goods or provision of services;(f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.(4) The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under section 4, have due regard to all or any of the following factors, namely:—(a) market share of the enterprise;(b) size and resources of the enterprise;(c) size and importance of the competitors;(d) economic power of the enterprise including commercial advantages over competitors;(e) vertical integration of the enterprises or sale or service network of such enterprises;(f) dependence of consumers on the enterprise;(g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise;(h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers;(i) countervailing buying power;(j) market structure and size of market;36/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023(k) social obligations and social costs;(/) relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition;(m) any other factor which the Commission may consider relevant for the inquiry.(5) For determining whether a market constitutes a "relevant market" for the purposes of this Act, the Commission shall have due regard to the "relevant geographic market'' and "relevant product market".(6) The Commission shall, while determining the "relevant geographic market", have due regard to all or any of the following factors, namely:—(a) regulatory trade barriers;(b) local specification requirements;(c) national procurement policies;(d) adequate distribution facilities;(e) transport costs;(f) language;(g) consumer preferences;(h) need for secure or regular supplies or rapid after-sales services.(7) The Commission shall, while determining the "relevant product market", have due regard to all or any of the following factors, namely:—(a) physical characteristics or end-use of goods;(b) price of goods or service;37/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023(c) consumer preferences;(d) exclusion of in-house production;(e) existence of specialised producers;(f) classification of industrial productsProcedure for inquiry on complaints under Section 1926. (1) On receipt of a complaint or a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information, under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter.(2) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission.(3) Where on receipt of a complaint under clause (a) of sub-section (1) of section 19, the Commission is of the opinion that there exists no prima facie case, it shall dismiss the complaint and may pass suchorders as it deems fit, including imposition of costs, if necessary.(4) The Commission shall forward a copy of the report referred to in sub-section (2) to the parties concerned or to the Central Government or the State Government or the statutory authority, as the case may be.(5) If the report of the Director General relates on a complaint and such report recommends that there is no contravention of any of the provisions of this Act, the complainant shall be given an opportunity to38/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023rebut the findings of the Director General.(6) If, after hearing the complainant, the Commission agrees with the recommendation of the Director General, it shall dismiss the complaint.(7) If, after hearing the complainant, the Commission is of the opinion that further inquiry is called for, it shall direct the complainant to proceed with the complaint.(8) If the report of the Director General relates on a reference made under sub-section (/) and such report recommends that there is no contravention of the pro visions of this Act, the Commission shall invitecomments of the Central Government or the State Government or the statutory authority, as the case may be, on such report and on receipt of such comments, the Commission shall return the reference if there is no prima facie case or proceed with the reference as a complaint if there is a prima facie case.(9) If the report of the Director General referred to in sub-section (2) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.Exclusion of jurisdiction of civil courts39/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 202361. No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.”11A careful perusal of the plaint, counter affidavit filed by the respondents, oral arguments, writ submissions on either side and the documents annexed, shows that admittedly all the plaintiffs in the earlier suits are members of the Association in which plaintiff is also a member and they have filed applications before the CCI and now the dispute is pending with CCI. Once the subject matters are lying before CCI and CCI is the statutory authority to decide those issues, the subject matter is expressly bared under Competition Act and impliedly bar under PSS Act. 12The first respondent/plaintiff also accepted that the parties to the agreement i.e. some of the aggrieved parties viz. the plaintiffs in some of the previous suits, who are the members of the Association of the present plaintiff have filed application before CCI and CCI also entertained the applications. It is to be noted that the CCI has not rejected those applications referring clause 16.8 40/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023in DDA that the Court or the authority of the California alone has got jurisdiction, however CCI has not raised territorial jurisdiction and they entertained the applications. Therefore once CCI empowered to decide all the issues, the suit is expressly barred under Section 61 of the Competition Act and also impliedly bar under PSS Act. 13Even though one of the main grounds raised by the first respondent/plaintiff is that they have not challenged clause 15.3 of the DDA and sought to declare the same as null and void in the earlier suits, but, whereas, once CCI has entertained those applications and they have not questioned or disputed the territorial jurisdiction, mere clever drafting of the plaint will not give jurisdiction to the Civil Court Commercial Division to decide the matter, since this suit is expressly and impliedly barred. Therefore the contention of the learned counsel for the first respondent/plaintiff is not acceptable.14It is settled proposition of law at the time of deciding application under Order VII Rule 11 CPC, the Court has to see only the averments made in the plaint and without addition or omission the plaint has to be considered in-toto and not the defence taken by the defendant and it is also settled 41/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023proposition of law the plaint cannot be rejected in part either it can be rejected in-toto or can be proceeded into further and if the Court can grant any of the reliefs and the plaint cannot be rejected in part. 15There is no quarrel with the settled proposition of law as laid down in various decisions referred to by the learned counsel for the first respondent/plaintiff. However in this case, especially when the plaintiff challenged certain clauses of DDA, but once CCI already entertained the application, question of challenging the said clause before the Civil Court would not arise. Therefore the contention of the learned counsel for the first respondent/plaintiff is not acceptable.16The dispute pending before CCI, which has got power to decide the relevant issues and therefore once CCI has got jurisdiction and entertained the complaint/claim to decide the issues, jurisdiction of civil Court is expressly barred under the Competition Act. Other aspects impliedly bar under PSS Act. Therefore, the allegation of the plaintiff that abuse of dominant position by an enterprise is a matter that falls within the exclusive jurisdiction of the CCI and hence, the jurisdiction of civil Court is expressly barred under Section 61 of 42/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023Competition Act. 17As far as other allegations are concerned, the Reserve Bank of India is the authority to look into the same under PSS Act and the Civil Suit is impliedly bar. This Court finds from the reading of the entire plaint and the documents annexed therewith, the dispute raised in the present suit is expressly and impliedly bar under Competition Act and PSS Act. It is also settled proposition of law that mere clever drafting of the plaint will not give any right to the party to invoke civil jurisdiction.18 There is a specific procedure established under Sections 42 and 42A of the Competition Act, pursuant to which the CCI and NCCAT have exclusive jurisdiction to cause an enquiry to be made into alleged non-compliance with its orders and directions, and compensate any loss suffered on account of such non-compliance. 19Therefore, under these circumstances, this Court finds that subject matters are expressly barred by Competition Act and impliedly bar under PPS 43/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023Act. 20For the foregoing reasons and observations, the application stands allowed and the plaint in C.S (Comm Div).No.186 of 2023 is hereby rejected. 30.04.2024cgi44/45 https://www.mhc.tn.gov.in/judis A.No.4193 of 2023 inC.S.No.186 of 2023P.VELMURUGAN, J.cgiPre-Delivery Orders inA.No.4193 of 2023 inC.S.No.186 of 202330.04.202445/45