Ksd Zonne Energie Llp Through Its Partner S Kandasamy vs Competition Commission Of India Through Its Secretary Mr Inder Pal Singh Bindra & Anr.
- Court
- Delhi High Court
$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13482/2025
Date of Decision: 14.05.2026
IN THE MATTER OF:
KSD ZONNE ENERGIE LLP THROUGH ITS PARTNER S
KANDASAMY
.....Petitioner
Through: Mr. Percival Billimoria, Sr. Advocate
with Ms.Anu Monga, Mr. Rahul
Goel, Ms. Aditi Sharma, Mr. Yash
Agarwal and Ms. Shweta Yadav,
Advocates.
versus
COMPETITION COMMISSION OF INDIA THROUGH ITS
SECRETARY MR INDER PAL SINGH BINDRA & ANR.
.....Respondents
Through: Mrs. Madhavi Divan, Sr. Advocate,
with Mr. Ranjan Sardana, Ms. Nidhi
Khanna, Ms. Aishani Narain
Advocates for R-1.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
J U D G E M E N T
PURUSHAINDRA KUMAR KAURAV, J. (ORAL)
1. The Petitioner, M/s KSD Zonne Energie LLP, a Limited Liability
Partnership incorporated on 03.07.2015 and registered as a “small”
enterprise under the Micro, Small and Medium Enterprises Development
Act, 2006 (“ MSME Act ”), engaged in the generation of electric power
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through solar energy has presented this petition challenging the order dated
19.05.2025 (“ Impugned Order ”) passed by the Competition Commission
of India (“ CCI ”) in Case No. 35 of 2024, under Section 26(2) of the
Competition Act, 2002 (“ Act of 2002 ”).
2. The Commission vide the Impugned Order closed the complaint filed
by the Petitioner holding that no prima facie contravention of Section 3 and
4 of the Act of 2002 is made out against Respondent No. 2, Canara Bank
Limited (“ Canara Bank ”).
3. For the purpose of commissioning a 3 MW solar plant project under
the Priority Sector Lending Guidelines, the Petitioner approached Canara
Bank and availed a term loan of Rs.13.25 crores, sanctioned vide letter dated
12.07.2016. The sanction letter stipulated an initial interest rate of 16.20%
per annum, which was stated to be “subject to review” by Bank keeping in
view DSCR, Debt/Equity, Margin, Repayment schedule, past experience etc.
and also further changes as may be decided by the bank and 'subject to
changes as decided by the bank from time to time.
4. At the behest of the Petitioner‟s request and a Credit Approval
Committee order dated 02.03.2018, the interest rate was revised to 11.00%
per annum, with an annual reset date of 03.09.2018, vide letter dated
06.03.2018. Canara Bank vide a separate letter dated 11.01.2021 allegedly
retrospectively imposed an interest rate of 14.45% for the period 04.09.2018
to 16.07.2020, demanding an additional sum of approximately
Rs.76,75,894/- as back interest, attributing the 11% rate to a “branch error”.
5. On 29.04.2021, Canara Bank offered the Petitioner a switch from the
Marginal Cost of Funds-based Lending Rate (“ MCLR ”) to the Repo Linked
Lending Rate (“ RLLR ”) regime at a reduced rate of 10.80% per annum, a
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transition mandated by the Reserve Bank of India (“ RBI ”) from 01.10.2019
onwards but with a caveat of prior payment of the disputed back-interest
demand of approximately Rs.73 lakhs, which the Petitioner failed to comply
with.
6. Under the RBI‟s Resolution Framework 2.0, on 22.07.2021, Canara
Bank converted the accumulated interest arrears of Rs.1,11,67,000/- into a
Funded Interest Term Loan (“ FITL ”) at 11% interest for a tenure of 5 years,
while simultaneously rescheduling the principal outstanding at a revised
floating rate of 10.95%, an arrangement which the Petitioner alleges
effectively constituted the charging of interest on interest.
7. When the Petitioner attempted to transfer its loan account to other
lenders offering more favourable terms, Canara Bank is alleged to have
withheld the original title/collateral documents which any competing lender
would mandatorily require for processing a loan takeover, thereby
foreclosing the Petitioner‟s access to the competitive credit market.
8. Demand notices under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
(“ SARFAESI Act ”) were issued on 24.01.2024 and 14.05.2024. The
Petitioner also alleges that Canara Bank conspired with its appointed valuers
to deliberately undervalue the solar plant for the purpose of facilitating its
disposal in the contemplated SARFAESI auction, thereby constituting an
anti-competitive agreement under Section 3 of the Act of 2002.
9. On 27.11.2024, the Petitioner filed a complaint under Section 19(1)(a)
of the Act of 2002 before the CCI, alleging contravention of Sections 3 and
4 of the Act of 2002 by Canara Bank, and seeking interim relief under
Section 33 of the Act of 2002.
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10. The Petitioner‟s case before the CCI was that. First , the relevant
market was the market for the provision of banking and loan services in
India. Second , Canara Bank holds a dominant position and has abused the
same by arbitrarily altering interest rates, retrospectively imposing back-
interest, and refusing loan transfer. Third , there existed an anti-competitive
agreement between Canara Bank and its valuers contrary to Section 3 of the
Act. Fourth , Canara Bank withheld collateral documents to prevent loan
transfer, thereby foreclosing competition.
11. The Petitioner seems to have inspected the case records on
06.02.2025, at which point no order had yet been passed. The Petitioner
inspected again on 21.04.2025, and upon that inspection discovered that an
order dated 05.03.2025 had been passed by the Commission on that date,
recording that “ the Commission considered the Information and decided to
pass an appropriate order in due course.”
12. The Petitioner contends that the order dated 05.03.2025 was never
served upon the Petitioner by the CCI. No notice of the date of the ordinary
meeting in which the information was considered was issued to the
Petitioner at any point prior to the passing of the Impugned Order. On
19.05.2025, the CCI passed the Impugned Order under Section 26(2) of the
Act of 2002.
13. The Commission, in the Impugned Order, perused the information
and the material on record and held that; (i) that Canara Bank, holding the
th
6 rank among public sector banks with a 5.73% share in the banking sector,
is not dominant in the relevant market, given the large number of players
including SBI, HDFC Bank, PNB, Bank of Baroda, ICICI Bank, Indian
Bank, Central Bank and Indian Overseas Bank, and accordingly no case
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under Section 4 arises; (ii) that the sanction letter dated 12.07.2016 itself
specifically stated that interest rates were “ subject to changes as decided by
the bank from time to time ”, the rate changes were agreed contractual terms,
and the back-interest dispute appears to be a dispute between the parties
with respect to the agreed terms and conditions and does not fall under the
purview of the Act; (iii) that the Petitioner had not provided any evidence in
support of the allegation of an anti-competitive agreement between Canara
Bank and its valuers; and (iv) that the retention of collateral documents until
full repayment is a standard banking practice. The operative paragraph no.
26 of the Impugned Order reads as follows:-
“ 26. In light of the above, the Commission is of the view that no prima
facie contravention of Section 3 and 4 of the Act is made out in the present
matter. The Commission directs that the matter be closed forthwith under
Section 26(2) of the Act. Consequently, no case for grant of relief(s) as
sought under Section 33 of the Act arises and the same is also rejected.”
14. Ms. Divan, learned Senior Counsel for CCI, raises a preliminary
objection to the maintainability of the present petition. She submits that an
order passed under Section 26(2) of the Act of 2002 is specifically
enumerated as appealable under Section 53A, and a specific, efficacious,
comprehensive statutory remedy of appeal before the NCLAT is available to
the Petitioner.
15. She urges that the Petitioner cannot bypass this statutory remedy by
approaching this Court. She submits that neither the Act of 2002 nor the CCI
(General) Regulations, 2024 mandates any prior notice or hearing to the
informant before the Commission passes a Section 26(2) order.
16. Mr. Billimoria, learned Senior Counsel for the Petitioner, submits that
the invocation of writ jurisdiction is fully justified because the Impugned
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Order is vitiated by violation of the principles of natural justice. He submits
that the CCI, being a quasi-judicial body, is bound by Section 36(1) of the
Act of 2002 to be guided by the principles of natural justice in the discharge
of all its functions, including the prima facie screening function under
Section 26(2).
17. He further argues that there is a fundamental distinction between an
order under Section 26(1), which is a direction simpliciter to investigate, and
an order under Section 26(2), which is a final order closing the complaint
and determining the Petitioner‟s rights. He contends that the finality of a
Section 26(2) order is compounded by Section 26(2A) of the Act of 2002,
which operates as a statutory bar on the Commission entertaining a fresh
information on the same or substantially the same facts, thereby rendering
the closure under Section 26(2) permanently irreversible in its consequences
for the Petitioner.
18. The sole ground raised by Mr. Billimoria to invoke the jurisdiction of
this Court is alleged violation of principles of natural justice. He submits
that since the CCI has not afforded an opportunity of hearing to the
petitioner before closing the complaint, therefore, the order suffers with the
violation of principles of natural justice. According to him, the decision in
the case of Competition Commission of India v Steel Authority of India
1
Ltd . (hereinafter „ SAIL decision’ ), would reinforce the marked distinction
between both the provisions.
19. I have heard learned counsel appearing for the parties and have
perused the record.
20. Section 26 of the Act of 2002, which governs the procedure for
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inquiry, in herein reproduced as under:-
26. Procedure for inquiry under section 19.
(1) On receipt of a reference from the Central Government or a State
Government or a statutory authority or on its own knowledge or
information received 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:
Provided that if the subject-matter of an information received is, in the
opinion of the Commission, substantially the same as or has been covered
by any previous information received, then the new information may be
clubbed with the previous information.
(2) Where on receipt of a reference from the Central Government or a
State Government or a statutory authority or information received under
section 19, the Commission is of the opinion that there exists no prima
facie case, it shall close the matter forthwith and pass such orders as it
deems fit and send a copy of its order to the Central Government or the
State Government or the statutory authority or the parties concerned, as
the case may be.
[(2A) The Commission may not inquire into agreement referred to in
section 3 or conduct of an enterprise or group under section 4, if the same
or substantially the same facts and issues raised in the information
received under section 19 or reference from the Central Government or a
State Government or a statutory authority has already been decided by the
Commission in its previous order.]”
21. Section 36(1) of the Act of 2002, upon which the Petitioner relies, in
herein reproduced as under:-
“36. Power of Commission to regulate its own procedure.—
(1) In the discharge of its functions, the Commission shall be guided by
the principles of natural justice and, subject to the other provisions of
this Act and of any rules made by the Central Government, the
Commission shall have the powers to regulate its own procedure…”
22. The appellate remedy available to the Petitioner under Sections 53A
1
(2010) 10 SCC 744
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and 53B of the Act of 2002 is also material. Section 53A designates the
NCLAT as the Appellate Tribunal and confers upon it jurisdiction to hear
and dispose of appeals against orders of the Commission under Section
26(2), inter alia . Section 53B(1) provides that any person aggrieved by such
an order may prefer an appeal. Section 53B(2) prescribes a period of sixty
days from receipt of the order for filing such appeal, extendable upon
sufficient cause. Section 53B(3) empowers the NCLAT to confirm, modify
or set aside the order under challenge. It is thus seen that the Impugned
Order, being an order under Section 26(2) of the Act of 2002, is an
appealable order within the meaning of Section 53A.
23. The doctrine of natural justice embodies two fundamental rules: nemo
debet esse judex in propria causa (no one shall be a judge in their own
cause) and audi alteram partem (no decision shall be made against a party
without a fair hearing). In the evolution of this doctrine, the House of Lords
2
in Ridge v. Baldwin , delivered by Lord Reid, rejected the rigid limitation of
natural justice to judicial and quasi-judicial decisions, and affirmed that the
question is whether the decision-maker is duty-bound to observe procedural
fairness having regard to the nature of the power exercised and the
consequences for the affected party. Ridge (supra) has been characterised as
the “Magna Carta of natural justice” owing to the abovementioned
reasoning.
24. According to Mr. Billimoria, a plain reading of paragraph 91 of SAIL
decision coupled with other paragraphs would clearly indicate that the
Supreme Court was conscious of the marked distinction between both the
provisions. According to him, the repeated observations made by the
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Supreme Court in different paragraphs would reinforce that the adjudication
was limited to the provisions of Section 26(1) of the Act of 2002.
25. The Supreme Court gave full effect to this evolution in A.K. Kraipak
3
v. Union of India , holding that the dividing line between administrative and
quasi-judicial functions had become thin and was being gradually
obliterated:-
“13.The dividing line between an administrative power and a quasi-
judicial power is quite thin and is being gradually obliterated. For
determining whether a power is an administrative power or a quasi-
judicial power one has to look to the nature of the power conferred, the
person or persons on whom it is conferred, the framework of the law
conferring that power, the consequences ensuing from the exercise of that
power and the manner in which that power is expected to be exercised…”
“20. Till very recently it was the opinion of the courts that unless the
authority concerned was required by the law under which it functioned to
act judicially there was no room for the application of the rules of natural
justice. The validity of that limitation is now questioned. If the purpose of
the rules of natural justice is to prevent miscarriage of justice, one fails to
see why those rules should be made inapplicable to administrative
enquiries.”
26. The Division Bench of this Court, in Mahindra Electric Mobility
4
Limited v. Competition Commission of India, , while upholding the
constitutional validity of the Competition Act and examining the nature of
the CCI, held that the CCI is “ a body that is in parts administrative, expert
(having regard to its advisory and advocacy roles) and quasi-judicial when
it proceeds to issue final orders, directions and/or penalties .” This
characterisation of the CCI, as partaking of administrative, expert and quasi-
judicial attributes at different stages of its functioning, is directly relevant to
2
[1964] AC 40.
3
(1969) 2 SCC 262.
4
(2019) SCC OnLine Del 8032.
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the question of the degree of natural justice that attaches to each stage.
27. Importantly, however, natural justice is not a monolithic, uniform
5
standard. As the Supreme Court held in Maneka Gandhi v. Union of India ,
the locus classicus on procedural fairness under the Constitution, the
procedure must be right and just and fair, but the specific requirements of
natural justice are calibrated to the nature of the function being exercised
and the availability of remedies. The relevant paragraph no. 7 is reproduced
as under:-
“7.The principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of reasonableness in
order to be in conformity with Article 14. It must be 'right and just and
fair' and not arbitrary, fanciful or oppressive; otherwise, it would be no
procedure at all and the requirement of Article 21 would not be satisfied.”
28. A gate-keeping, screening function, at which an expert regulatory
body forms a preliminary opinion on whether a matter warrants
investigation, does not carry the same procedural obligations as a full
adjudicatory determination. This principle was further crystallised in
6
Swadeshi Cotton Mills v. Union of India , where the Supreme Court
articulated the doctrine of pre-decisional and post-decisional hearing in
paragraph no. 44:-
"44. In short, the general principle, as distinguished from an absolute rule
of uniform application, seems to be that where a statute does not, in terms,
exclude this rule of prior hearing but contemplates a post-decisional
hearing amounting to a full review of the original order on merits, then
such a statute would be construed as excluding the audi alteram partem
rule at the pre-decisional stage
5
(1978) 1 SCC 248.
6
(1981) 1 SCC 664.
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29. This principle from Swadeshi Cotton Mills (supra) is of direct and
decisive application in the present case. Section 53A read with Section 53B
provides, after the Section 26(2) order, a post-decisional hearing before the
NCLAT amounting to a full review on the merits, encompassing findings of
fact, legal analysis, and market definition. Such a comprehensive appellate
remedy, specifically designed for challenges to Section 26(2) orders, is
precisely the mechanism that Swadeshi Cotton Mills holds excludes the pre-
decisional hearing requirement at the screening stage.
30. The nature of the Commission‟s function at the prima facie stage
under Section 26, and the question of whether parties are entitled to notice
or hearing before the Commission forms its opinion, fell for comprehensive
determination before the Supreme Court in Competition Commission of
7
India v. Steel Authority of India Ltd., (hereinafter as “ SAIL decision” ).
This is the foundational and controlling authority on the subject matter under
consideration.
31. The Supreme Court in SAIL (supra) framed, inter alia , the following
question for determination. “What is the ambit and scope of power vested
with the Commission under Section 26(1) of the Act and whether the parties,
including the informant or the affected party, are entitled to notice or
hearing, as a matter of right, at the preliminary stage of formulating an
opinion as to the existence of the prima facie case.”
32. The Supreme Court answered this question by holding that the
Commission‟s function at the prima facie stage is administrative,
inquisitorial and departmental in character, and that neither the informant
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nor the opposite party is entitled to notice or hearing as a matter of right at
this stage. Paragraph 91 of the SAIL decision, the relevant paragraph, is
extracted hereunder:-
“91 . The jurisdiction of the Commission, to act under this provision, does
not contemplate any adjudicatory function. The Commission is not
expected to give notice to the parties i.e. the informant or the affected
parties and hear them at length, before forming its opinion. The function is
of a very preliminary nature and in fact, in common parlance, it is a
departmental function. At that stage, it does not condemn any person and
therefore, application of audi alteram partem is not called for. Formation
of a prima facie opinion departmentally (the Director General, being
appointed by the Central Government to assist the Commission, is one of
the wings of the Commission itself) does not amount to an adjudicatory
function but is merely of administrative nature. At best, it can direct the
investigation to be conducted and report to be submitted to the
Commission itself or close the case in terms of Section 26(2) of the Act,
which order itself is appealable before the Tribunal and only after this
stage, there is a specific right of notice and hearing available to the
aggrieved/affected party. Thus, keeping in mind the nature of the functions
required to be performed by the Commission in terms of Section 26(1), we
are of the considered view that the right of notice or hearing is not
contemplated under the provisions of Section 26(1) of the Act.”
33. Paragraph 97 of the SAIL decision holds that the Commission must
nonetheless express its prima facie opinion in clear terms, with reference to
the information furnished:-
“97.At the stage of forming a prima facie view, as required under Section
26(1) of the Act, the Commission may not really record detailed reasons,
but must express its mind in no uncertain terms that it is of the view that
prima facie case exists, requiring issuance of direction for investigation to
the Director General. Such view should be recorded with reference to the
information furnished to the Commission. Other decisions and orders,
which are not directions simpliciter and determining the rights of the
parties, should be well reasoned analysing and deciding the rival
contentions raised before the CCI by the parties.”
7
(2010) 10 SCC 744.
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34. Two propositions of binding force emerge from SAIL (supra) for the
purposes of the present case. First, neither the informant nor the opposite
party is entitled, as a matter of right, to notice or hearing before the
Commission forms its prima facie opinion and passes an order under Section
26, whether that results in a direction to investigate under sub-section (1) or
a closure under sub-section (2).
35. The observation in paragraph 91, “ close the case in terms of Section
26(2) of the Act, which order itself is appealable before the Tribunal and
only after this stage, there is a specific right of notice and hearing ”, is the
Supreme Court‟s articulation of when the hearing right accrues: after the
Section 26(2) stage, before the Appellate Tribunal. Second , a Section 26(2)
order, being one that puts an end to the proceedings initiated upon receiving
the information and where closure of the case causes determination of rights
and affects a party, i.e. the informant, is specifically made appealable under
Section 53A, thereby conferring upon the informant a full remedy before the
NCLAT.
36. Mr. Billimoria submits that the observations in paragraph 91 of the
SAIL decision with respect to Section 26(2) constitute obiter dicta , the
primary controversy having arisen in respect of a Section 26(1) direction. He
8
relies upon State of Orissa v. Sudhansu Sekhar Misra, wherein the
Supreme Court, approving the dictum of Earl Halsbury L.C. in Quinn v.
9
Leathem , held that a case is an authority only for what it actually decides.
This submission, however, cannot be accepted.
37. The Supreme Court in paragraph 91 of SAIL addressed both possible
8
1967 SCC OnLine 17.
9
[1901] AC 495.
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outcomes of the Commission‟s prima facie examination and deliberately
located the hearing right as arising only after the Section 26(2) stage. This
forms an integral part of the reasoning in identifying why hearing rights do
not attach before the Commission. Such an observation, being part of the
ratio and not a tangential remark on a different matter, carries binding
authority.
38. The SAIL decision‟s characterisation of the Commission‟s prima
facie function as administrative and the resulting limitation on writ
jurisdiction has been recognised and applied by this Court in a series of
decisions.
39. The Division Bench of this Court in Mahindra Electric (supra)
decided a batch of writ petitions filed by automobile manufacturers
challenging the constitutional validity of the Competition Act and orders
passed by the Commission. The Division Bench, in a comprehensive
judgment running over 150 pages, held that the CCI is a body that is in parts
administrative, expert (having regard to its advisory and advocacy roles) and
quasi-judicial when it proceeds to issue final orders, directions and/or
penalties.
40. Relying on SAIL (supra), the Court reaffirmed that the initial stages
of the Commission's process, including formation of prima facie opinion
and directing investigation under Section 26(1), are administrative and
inquisitorial in nature, and not judicial. The adjudicatory character of the
Commission‟s function arises only after investigation and hearing of parties
on the Director General‟s report. The Court upheld the constitutional
validity of the Act and rejected the challenges to procedural safeguards.
41. This Court also considered the procedural framework of the
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Competition Act in Cadila Healthcare Limited v. Competition Commission
10
of India , decided by a Division Bench. This Court, while declining to
interfere in an ongoing inquiry, observed that the Commission is an expert
regulatory body whose functioning “ should not be crippled by technical
procedural rules ” and that the Commission‟s statutory framework is
designed to enable effective enforcement of competition law. The Court held
that questions of jurisdiction and procedure are, in the ordinary course,
matters to be raised before the Commission and, thereafter, before the
Appellate Tribunal under Section 53A of the Act of 2002.
42. The Supreme Court in Competition Commission of India v. Bharti
11
Airtel Limited , (hereinafter “ Bharti Airtel decision ”) reaffirmed that the
extraordinary writ jurisdiction of the High Court against orders of the
Commission under Section 26 is very narrow and is to be exercised in
exceptional cases. The controversy in Bharti Airtel arose from a challenge
by major telecom operators to a Section 26(1) direction.
43. Supreme Court, after noting that an order under Section 26(1) is
administrative in nature and constitutes only a prima facie view, held that
the writ jurisdiction against such orders is narrow and exceptional, and that
the appropriate remedy for parties aggrieved by the Commission‟s prima
facie assessment is the statutory appeal before the Appellate Tribunal. While
the primary facts of Bharti Airtel (supra) concerned a Section 26(1)
direction, the underlying principle, that writ jurisdiction against Section 26
orders is limited and the statutory remedy before the Appellate Tribunal is
the appropriate avenue, applies equally to Section 26(2) closure orders and
10
(2018) 252 DLT 647.
11
(2019) 2 SCC 521
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reinforces the analysis emerging from the SAIL decision.
44. The SAIL decision‟s (supra) holding on the absence of a notice or
hearing requirement at the Section 26 prima facie stage has received its most
recent and explicit reaffirmation from the Supreme Court in Competition
12
Commission of India v. Kerala Film Exhibitors Federation & Ors .,
decided on 26.09.2025 (hereinafter “ KFEF decision ”). Although the
primary question in the KFEF decision (supra) concerned the adequacy of
notice for imposing penalties on individual office-bearers under Sections 27
and 48 of the Act of 2002, the Supreme Court while referring to SAIL
conducted a comprehensive survey of the procedural framework under
Section 26 and made the following observations at paragraph 38, which are
directly applicable to the present case:-
“71. The intimation received by the Commission from any specific person
complaining of violation of Section 3(4) read with Section 19 of the Act,
sets into motion, the mechanism stated under Section 26 of the Act. Section
26(1), as already noticed, requires the Commission to form an opinion
whether or not there exists a prima facie case for issuance of direction to
the Director General to conduct an investigation. This section does not
mention about issuance of any notice to any party before or at the time
of formation of an opinion by the Commission on the basis of a
reference or information received by it. Language of Sections 3(4) and
19 and for that matter, any other provision of the Act does not suggest
that notice to the informant or any other person is required to be issued
at this stage. In contradistinction to this, when the Commission receives
the report from the Director General and if it has not already taken a
decision to close the case under Section 26(2), the Commission [must
afford a hearing before passing final orders].”
[Emphasis Supplied]
45. The Supreme Court in the KFEF (supra) thus confirmed, in the most
express terms, that no provision of the Act of 2002, whether Section 26(1),
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26(2), or any other provision requires the Commission to issue notice to the
informant or any other party at the stage of forming its prima facie opinion.
The KFEF decision proceeds from the SAIL decision as its foundation and
applies the same reasoning to the contemporary statutory framework.
46. Beyond judicial authority, the statutory architecture independently
and conclusively supports the conclusion that no prior hearing is required at
the Section 26(2) stage. As extracted above, Section 26(9) of the Act of
2002, inserted by the Competition (Amendment) Act, 2023 effective from
19.09.2024, contains an express and mandatory hearing requirement in its
proviso, “ the Commission shall issue a show-cause notice... and give a
reasonable opportunity of being heard to the parties concerned .” This
requirement applies at the post-investigation closure stage. By the very same
Amendment, Parliament did not introduce any corresponding hearing
requirement in Section 26(2), which operates at the anterior prima facie
screening stage.
47. The differential treatment of these two closure provisions is the
clearest possible expression of legislative intent. Where Parliament wanted
to mandate a hearing, it did so expressly, in Section 26(9), in the proviso to
Section 6(6), and in the show-cause notice requirements under Sections 27
and 31. Where it did not, as at the Section 26(2) stage, the omission is
intentional and must be given full effect. This Court, in terms of the
13
interpretive principle applied in CIT v. Tara Agencies , must interpret the
statute as it stands and cannot add words that Parliament chose not to use.
The maxim expressio unius est exclusio alterius (the express mention of a
12
2025 INSC 1167.
13
(2007) 6 SCC 429.
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requirement in one provision implies its exclusion from another) operates
with full force here.
48. Therefore, the Commission was not required to issue notice or afford
an opportunity of hearing to the Petitioner before passing the Impugned
Order under Section 26(2) of the Act of 2002. The natural justice obligation
under Section 36(1) is, at this stage, discharged by the requirement to pass a
speaking, reasoned order and by the availability of a comprehensive
appellate remedy before the NCLAT.
49. The legal position declared in the SAIL decision, as reaffirmed in the
KFEF decision, has received specific and direct affirmation in a matter
factually and legally identical to the challenge raised in the present petition.
The NCLAT, in Competition Appeal (AT) No. 05/2018, Karnataka Power
Corporation Ltd. v. Competition Commission of India and Anr ., decided
on 13.01.2026 (hereinafter “ KPCL decision ”), was directly confronted with
the question of whether the Commission is obligated to issue notice and
grant a hearing to an informant before passing a Section 26(2) closure order.
50. The Petitioner in KPCL (supra) herein preferred a statutory appeal
before the NCLAT specifically urging, as its primary ground, the same
contention that is urged in the present petition, that the Commission was
obligated to notify the Peititoner and grant it an opportunity of hearing
before passing the final closure order, and that the failure to do so amounted
to a violation of principles of natural justice. The NCLAT, after a thorough
examination of the statutory scheme and the SAIL decision, rejected this
contention. The NCLAT held that the statute does not require the
Commission to issue notice to the informant before closing the complaint
under Section 26(2) of the Act of 2002, and specifically characterised the
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allegation of violation of natural justice as completely untenable.
51. KPCL challenged the NCLAT‟s order before the Supreme Court in
Civil Appeal No. 6670 of 2026. The Supreme Court, by order dated
24.04.2026, dismissed the civil appeal. The order of the Supreme Court is
extracted hereunder:-
"1. Delay condoned.
2. Having heard Mr. Balbir Singh, the learned Senior Counsel appearing
for the appellant and having gone through the materials on record, we
find no good ground to interfere with the impugned Order passed by the
National Company Law Appellate Tribunal, Principal Bench, New Delhi
in Competition Appeal (AT) No. 05/2018.
3. The Appeal is, accordingly, dismissed.
4. Pending applications, if any, also stand disposed of."
52. Since the order passed by the Supreme Court is in a civil appeal, the
principles of merger will be attracted, as has been held by the Supreme
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Court in Kunhayammed & Ors. v. State of Kerala & Anr. .
53. The doctrine of merger was expounded by the Supreme Court in
Kunhayammed (supra). The Court stated the foundational logic of the
doctrine as follows: The logic underlying the doctrine of merger is that there
cannot be more than one decree or operative order governing the same
subject matter at a given point of time. When a decree or order passed by an
inferior court, tribunal or authority is subjected to a remedy available under
the law before a superior forum then, though the decree or order under
challenge continues to be effective and binding, nevertheless its finality is
put in jeopardy. Once the superior court has disposed of the lis before it
either way, whether the decree or order under appeal is set aside or modified
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or simply confirmed, it is the decree or order of the superior court which is
the final, binding and operative decree or order wherein merges the decree
or order passed by the court below.
54. The Supreme Court in Kunhayammed (supra) drew a precise and
legally consequential distinction between two stages of jurisdiction under
Article 136 of the Constitution of India.
55. The first stage is the stage of disposal of the prayer for special leave
to appeal. At this stage, the Supreme Court exercises its discretionary
jurisdiction, it merely decides whether the case is deserving of the Court‟s
attention. A dismissal at this stage does not attract the doctrine of merger.
The order of the subordinate court retains its independent existence. A
dismissal of the SLP, whether by a speaking or non-speaking order, does not
constitute a determination on the merits of the inferior court‟s order, does
not operate as res judicata, and does not prevent the aggrieved party from
pursuing other available remedies
56. The second stage commences when leave to appeal is granted and the
special leave petition stands converted into a civil appeal. At this stage, the
Supreme Court exercises its appellate jurisdiction. The hearing is on the
merits of the matter before the Court. If the appeal is dismissed at this stage,
whether by a speaking order or otherwise, the doctrine of merger applies.
The subordinate court‟s order merges into the Supreme Court‟s order, and it
is the latter that subsists as the final, binding and operative order.
57. The question that arises for determination is at which of these two
stages did the Supreme Court exercise its jurisdiction in Civil Appeal No.
6670/2026. The answer is conclusively provided by the order itself and by
14
(2000) 6 SCC 359.
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the caption of the proceedings. Three features are determinative. First , the
proceedings before the Supreme Court are captioned as a civil appeal, not a
special leave petition. Second, the Supreme Court condoned the delay,
thereby entertaining the appeal on its merits. Third, and most importantly,
the Supreme Court heard Learned Cou on behalf of KPCL, who specifically
advanced the argument that a Section 26(2) order terminates proceedings,
impacts the informant‟s rights, and thereby attracts the principles of natural
justice under Section 36 of the Act of 2002, and, after such hearing, found
no good ground to interfere. This is, in every essential respect, an exercise of
appellate jurisdiction at the second stage under the Kunhayammed (supra)
framework, not a discretionary dismissal at the first stage.
58. Applying the doctrine of merger as enunciated in Kunhayammed
(supra), the order dated 13.01.2026 of the NCLAT in Competition Appeal
(AT) No. 05/2018 stands merged into the order dated 24.04.2026 of the
Supreme Court in Civil Appeal No. 6670/2026. The NCLAT‟s order ceases
to have independent existence.
59. It is the Supreme Court‟s order of 24.04.2026 that now subsists as the
final, binding and operative order on the question of whether Section 26(2)
of the Act of 2002 requires prior notice and hearing to be afforded to an
informant before the Commission passes a closure order.
60. An important aspect of the adequacy of the statutory remedy available
to the Petitioner is the question of standing. The Supreme Court in Samir
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Agrawal v. Competition Commission of India , delivered by a three-Judge
Bench, settled the question of whether an informant whose information has
been closed by a Section 26(2) order has locus standi to prefer an appeal
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before the NCLAT under Section 53B of the Act of 2002.
61. In Samir Agrawal (supra), the informant had filed information
alleging that cab aggregators Ola and Uber used algorithms to facilitate
price-fixing among drivers, thereby violating Section 3 of the Act. The CCI
passed a Section 26(2) closure order. The NCLAT dismissed the informant‟s
appeal at the threshold on the ground that he, not being a consumer of either
Ola or Uber, lacked the locus standi to maintain an appeal under Section
53B. The Supreme Court reversed this finding and held that The expression
„any person‟ in Section 53B needs to be construed liberally. Since the
informant's information was dismissed, he was „aggrieved‟ and entitled to
appeal. Competition proceedings are actions in rem aimed at protecting
public interest, and a person filing information need not demonstrate
personal injury or legal grievance for the purpose of maintaining an appeal
before the Appellate Tribunal.
62. The Supreme Court further held that since the Act uses the wide
expression “ any person ” in Section 53B, unlike the earlier MRTP Act which
confined appeals to “ aggrieved parties ” in a narrow sense, a liberal
interpretation must be accorded and the informants right to appeal must be
recognised. This decision conclusively establishes that the Petitioner has full
and unquestionable standing to prefer a statutory appeal before the NCLAT
under Section 53B of the Act of 2002. The concern, sometimes raised, that
the statutory remedy under Section 53A may not be available to an
informant is completely put to rest by the Samir Agrawal (supra)
63. In light of the holding that the Commission was not required to issue
notice or afford a hearing to the Petitioner before passing the Impugned
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(2021) 3 SCC 136.
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Order, it is crucial go addresses the maintainability of the present writ
petition in the light of the available statutory remedy.
64. Additionally, the holding from the decision of the NCLAT in Maj.
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Pankaj Rai v. Secretary, Competition Commission of India , is instructive.
In that case, the informant was aggrieved by a Section 26(2) closure order
passed by the CCI. Rather than preferring a statutory appeal under Section
53B of the Act, the informant approached the Telangana High Court by way
of a writ petition alleging natural justice violation, and thereafter pursued
litigation before the Division Bench and then the Supreme Court, consuming
a total of 693 days before finally filing an appeal before the NCLAT.
65. The NCLAT held that such time spent before the constitutional Courts
in the pursuit of a remedy that was not available, while the specific statutory
remedy remained unexhausted, did not constitute “sufficient cause” within
the meaning of the proviso to Section 53B(2) for condoning the delay in
filing the appeal. The NCLAT further held that a litigant aggrieved by a CCI
order cannot be permitted to choose between remedies under the pretext of
the order being against natural justice, as such conduct would amount to
“forum shopping” and would defeat the legislative purpose of the special
limitation under Section 53B of the Act.
66. For all the aforesaid reasons, the instant petition stands dismissed.
67. Liberty is, however, granted to the Petitioner to avail the statutory
remedy of appeal under Section 53A of the Act of 2002 before the National
Company Law Appellate Tribunal against the order dated 19.05.2025 passed
by the Competition Commission of India under Section 26(2) of the Act of
2002.
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68. This Court has not expressed any opinion whatsoever on the merits of
the challenge to the Impugned Order dated 19.05.2025, or on any of the
substantive contentions raised by the Petitioner with respect to the alleged
contravention of Sections 3 and 4 of the Act of 2002 by the Canara Bank.
69. All rights and contentions of the parties are left open.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
MAY 14, 2026
NK
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Competition Appeal (AT) No. 01 of 2020, decided on 29.05.2020.
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