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In Re: M/s Kiran Enterprise v/s M/s Abbott Healthcare Pvt. Ltd., Mumbai


Company & Directors' Information:- ABBOTT HEALTHCARE PRIVATE LIMITED [Active] CIN = U24200MH1997PTC104834

Company & Directors' Information:- ABBOTT INDIA LIMITED [Active] CIN = L24239MH1944PLC007330

Company & Directors' Information:- R G S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110PB2004PTC047381

Company & Directors' Information:- R G S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110CH2004PTC027689

Company & Directors' Information:- P. H. HEALTHCARE PRIVATE LIMITED [Active] CIN = U33110MH2010PTC208651

Company & Directors' Information:- N P K ENTERPRISE PRIVATE LIMITED [Active] CIN = U01400MH2007PTC174648

Company & Directors' Information:- B G P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232GJ2007PTC050417

Company & Directors' Information:- D R HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110GJ2006PTC048008

Company & Directors' Information:- L L ENTERPRISE PRIVATE LIMITED [Active] CIN = U26960AS2002PTC006815

Company & Directors' Information:- M J HEALTHCARE PRIVATE LIMITED [Active] CIN = U93090PN2008PTC132455

Company & Directors' Information:- J M V ENTERPRISE PRIVATE LIMITED [Active] CIN = U51109MH2008PTC186891

Company & Directors' Information:- S J HEALTHCARE PRIVATE LIMITED [Active] CIN = U85190MH2005PTC153435

Company & Directors' Information:- G R ENTERPRISE PRIVATE LIMITED [Active] CIN = U51109AS1998PTC005599

Company & Directors' Information:- G J HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110PB1998PTC021049

Company & Directors' Information:- B B M ENTERPRISE PVT. LTD. [Under Liquidation] CIN = U15520WB1995PTC072307

Company & Directors' Information:- I M HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232CH2010PTC032454

Company & Directors' Information:- J N S ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U51109WB2009PTC135819

Company & Directors' Information:- G C ENTERPRISE (INDIA) PVT LTD [Active] CIN = U19129WB1992PTC055125

Company & Directors' Information:- K G HEALTHCARE LIMITED [Active] CIN = U85110TZ1995PLC006402

Company & Directors' Information:- M S B ENTERPRISE PRIVATE LIMITED [Active] CIN = U70101DL1997PTC091079

Company & Directors' Information:- C S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110GJ2012PTC070018

Company & Directors' Information:- A B N ENTERPRISE PVT LTD [Active] CIN = U26941WB1996PTC080553

Company & Directors' Information:- M M HEALTHCARE LIMITED [Active] CIN = U74899DL1988PLC034339

Company & Directors' Information:- A L B HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85110UP2002PTC026786

Company & Directors' Information:- S B M HEALTHCARE (INDIA) PRIVATE LIMITED [Active] CIN = U33112DL2005PTC140703

Company & Directors' Information:- S A HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85100OR2014PTC018365

Company & Directors' Information:- AND HEALTHCARE LIMITED [Active] CIN = U51909PB2017PLC046446

Company & Directors' Information:- A AND R ENTERPRISE PRIVATE LIMITED [Active] CIN = U51900DL2011PTC226264

Company & Directors' Information:- J P M ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U99999MH1965PTC013316

Company & Directors' Information:- J K ENTERPRISE PVT LTD [Active] CIN = U55101AS1986PTC002580

Company & Directors' Information:- D. S. HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232WB2007PTC115617

Company & Directors' Information:- B N HEALTHCARE PRIVATE LIMITED [Active] CIN = U15412AS2000PTC006258

Company & Directors' Information:- P AND B HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U24230GJ2013PTC075056

Company & Directors' Information:- M M D HEALTHCARE LIMITED [Active] CIN = U65921CH1996PLC017595

Company & Directors' Information:- S S G ENTERPRISE (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL2000PTC103084

Company & Directors' Information:- M T ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U19201WB2001PTC092823

Company & Directors' Information:- T K D ENTERPRISE PRIVATE LIMITED [Active] CIN = U17122TN2013PTC090555

Company & Directors' Information:- B. T. H. ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U45400MH2010PTC209784

Company & Directors' Information:- S J ENTERPRISE PRIVATE LIMITED [Active] CIN = U51109WB1999PTC090492

Company & Directors' Information:- A AND R HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239DL1999PTC102404

Company & Directors' Information:- K. N. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85320RJ2018PTC061003

Company & Directors' Information:- R F B HEALTHCARE PRIVATE LIMITED [Active] CIN = U85190DL2021PTC384643

Company & Directors' Information:- M S HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239MH2001PTC130893

Company & Directors' Information:- T S ENTERPRISE PRIVATE LIMITED [Active] CIN = U51909WB2020PTC239687

Company & Directors' Information:- G A S HEALTHCARE PRIVATE LIMITED [Active] CIN = U74999BR2018PTC038700

Company & Directors' Information:- L. J. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100HR2019PTC078493

Company & Directors' Information:- B M P ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U74210TN2005PTC056329

Company & Directors' Information:- M N ENTERPRISE PRIVATE LIMITED [Active] CIN = U51101MH2012PTC238475

Company & Directors' Information:- N D K ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U15203MH2001PTC131796

Company & Directors' Information:- C J ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U51909MH2002PTC136247

Company & Directors' Information:- J. R. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85191UP2013PTC054982

Company & Directors' Information:- M A P H HEALTHCARE PRIVATE LIMITED [Under Process of Striking Off] CIN = U85100WB2010PTC144870

Company & Directors' Information:- N. C. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85191DL2007PTC164437

Company & Directors' Information:- N Y HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230GJ2010PTC063348

Company & Directors' Information:- T S D ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U74999WB1999PTC088932

Company & Directors' Information:- L A C ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U70102KA1984PTC006195

Company & Directors' Information:- H J ENTERPRISE PRIVATE LIMITED [Active] CIN = U74999WB1999PTC089075

Company & Directors' Information:- H 4 HEALTHCARE PRIVATE LIMITED [Active] CIN = U15100MH2021PTC353283

Company & Directors' Information:- D. B. HEALTHCARE PRIVATE LIMITED [Active] CIN = U33205MH2014PTC253439

Company & Directors' Information:- K S V HEALTHCARE PRIVATE LIMITED [Active] CIN = U85195HR2011PTC043767

Company & Directors' Information:- N M HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110MH2000PTC125392

Company & Directors' Information:- T K HEALTHCARE (INDIA ) PRIVATE LIMITED [Strike Off] CIN = U85190MH2003PTC139346

Company & Directors' Information:- H A P ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U74900UP2014PTC063344

Company & Directors' Information:- A R HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110CH2013PTC034820

Company & Directors' Information:- I P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239DL2003PTC121211

Company & Directors' Information:- A 2 Z HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100DL2010PTC208860

Company & Directors' Information:- K. D. HEALTHCARE INDIA PRIVATE LIMITED [Strike Off] CIN = U85100DL2015PTC281658

Company & Directors' Information:- V J T ENTERPRISE PRIVATE LIMITED [Active] CIN = U45201GJ2012PTC068630

Company & Directors' Information:- A P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230MH1999PTC122520

Company & Directors' Information:- K Y O S HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U51397HP2010PTC031280

Company & Directors' Information:- Z F HEALTHCARE PVT. LTD. [Active] CIN = U29295MH2006PTC164255

Company & Directors' Information:- K. B. B. K. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110RJ2013PTC041465

Company & Directors' Information:- J R R ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U45400MH2013PTC241527

Company & Directors' Information:- T.H.E. HEALTHCARE COMPANY PRIVATE LIMITED [Strike Off] CIN = U33111MH2012PTC229451

Company & Directors' Information:- J S B HEALTHCARE PRIVATE LIMITED [Active] CIN = U74120MH2013PTC248848

Company & Directors' Information:- J P R D ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U70102UR2010PTC033236

Company & Directors' Information:- J S D HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC046578

Company & Directors' Information:- S V T HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85100TZ2009PTC015287

Company & Directors' Information:- N D ENTERPRISE PRIVATE LIMITED [Active] CIN = U72200WB2013PTC222749

Company & Directors' Information:- A N S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100HP2011PTC031745

Company & Directors' Information:- J M HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230CH2007PTC030943

Company & Directors' Information:- N D ENTERPRISE PRIVATE LIMITED [Active] CIN = U72200JH2013PTC001004

Company & Directors' Information:- P R HEALTHCARE PRIVATE LIMITED. [Strike Off] CIN = U24231DL2003PTC120123

Company & Directors' Information:- R S M HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U24232DL2005PTC136255

Company & Directors' Information:- M H HEALTHCARE PRIVATE LIMITED [Active] CIN = U74999DL2016PTC289311

Company & Directors' Information:- N T HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100DL2012PTC241304

Company & Directors' Information:- R A HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85190DL2009PTC188221

Company & Directors' Information:- G & G HEALTHCARE PRIVATE LIMITED [Active] CIN = U51397HR2015PTC057293

Company & Directors' Information:- P D HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230GJ2004PTC045131

Company & Directors' Information:- L. V. G. HEALTHCARE PRIVATE LIMITED [Active] CIN = U24233GJ2006PTC047749

Company & Directors' Information:- G. N. ENTERPRISE PRIVATE LIMITED [Active] CIN = U14294RJ2018PTC061147

Company & Directors' Information:- L. J. R. ENTERPRISE PRIVATE LIMITED [Active] CIN = U29100MH2019PTC329418

Company & Directors' Information:- S H G HEALTHCARE PVT LTD [Strike Off] CIN = U85110WB1989PTC047231

Company & Directors' Information:- ENTERPRISE PRIVATE LIMITED [Dissolved] CIN = U74900KL1942PTC000334

    Case No. 91 of 2016

    Decided On, 08 March 2017

    At, Competition Commission of India

    By, THE HONOURABLE MR. JUSTICE DEVENDER KUMAR SIKRI
    By, CHAIRPERSON
    By, THE HONOURABLE MR. JUSTICE S.L. BUNKER
    By, MEMBER
    By, THE HONOURABLE MR. JUSTICE SUDHIR MITAL
    By, MEMBER
    By, THE HONOURABLE MR. JUSTICE AUGUSTINE PETER
    By, MEMBER
    By, THE HONOURABLE MR. JUSTICE U.C. NAHTA
    By, MEMBER & THE HONOURABLE MR
    By, JUSTICE G.P. MITTAL
    By, MEMBER

    For the Appearing parties: Deep Chand Gupta, Proprietor, Harish Kr. Gupta, Advocate.



Judgment Text

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

1. The information in the present case has been filed by M/s Kiran Enterprise (hereinafter, the 'Informant') under Section 19(1)(a) of the Competition Act, 2002 (hereinafter, the "Act") against M/s Abbott Healthcare Private Limited (hereinafter, the 'Opposite Party'), alleging contravention of the provisions of Sections 3 of the Act.

2. As per the information, the Informant is a wholesaler of pharmaceutical products having distributorship of number of companies and the Opposite Party is a pharmaceutical company.

3. It has been stated that the Informant placed an order with the Opposite Party for supply of medicines against advance payment vide letters dated 22th April, 2016 and 01st June, 2016 along with the required documents like drug license, etc. Thereafter, vide letter dated 05th July, 2016 the Informant requested the Opposite Party to send proforma invoice against the above said orders. However, the Opposite Party allegedly failed to respond to the demand made by the Informant. Subsequently, the Informant sent a legal notice dated 08th August, 2016 to the Opposite Party stating that if the Opposite Party fail to supply the goods or materials, the Informant will be constrained to take legal recourse.

4. It has been alleged that the Opposite Party vide its reply dated 10th August, 2016 refused to supply the medicines stating inter alia that its products are available in the market through various distributors and the Informant can approach the nearby local stockiest for availing its products. Subsequently, the Informant received another reply from OP dated 26th August, 2016 stating inter alia that the Informant may deal with the Carry & Forward Agent (CFA) of Opposite Party in connection with his further query/requisition.

5. It has been further averred that after receiving the above said reply from the Opposite Party, the Informant vide letter dated 08th September, 2016 approached CFA of Opposite Party located in Delhi for supply of goods as per the requirement. As no response was forthcoming from the Opposite Party, the Informant vide another letter dated 23rd September, 2016 again sought delivery of the goods from the Opposite Party. It has been averred that the Informant received a reply from the Opposite Party dated 30th September, 2016 in which the Opposite Party allegedly refused to supply the medicines ordered by the Informant on the premise that the goods of the Opposite Party are available in the market for intending purchasers.

6. In this regard, the Informant has relied on the order passed by the Commission in case no. 30/2011 titled M/s Peeveear Medical Agencies, Kerala vs All India Organization of Chemist and Druggists & Others. It has been averred that the Informant as a wholesaler and distributor is entitled for the goods of the Opposite Party directly from it or from its CFA so that the Informant can give the maximum benefit to the customer.

7. The Informant has also alleged that the Opposite Party has abused its dominant position by indulging into unfair trade practices which may adversely and appreciably affect the competition in the market. Aggrieved by the alleged anti-competitive conduct of the Opposite Party, the Informant has, inter alia, prayed the Commission to direct the Director General to institute an inquiry into violation of Section 3 of the Act by the Opposite Party and impose penalty on the Opposite Party.

8. The Commission, after considering the information on 15th November, 2016, decided to call the Informant for a preliminary conference on 31st January, 2017. During the preliminary conference, the Informant reiterated the allegations and claims as mentioned in the information.

9. Based on the facts and allegations made in the information, oral submissions of the Informant and the material available on record, the Commission notes that the Informant is aggrieved by the alleged refusal on the part of the Opposite Party to supply medicines ordered by the Informant in contravention of Section 3 of the Act. The Informant has also alleged that Opposite Party has abused its dominant position by indulging into unfair trade practices in violation of Section 4 of the Act.

10. In this regard, the Commission notes that mere refusal to supply to one party when there are already enough distributors in the existing supply chain cannot be said to be anti-competitive. In the instant case, the Commission notes from the replies of Opposite Party that it already has 5229 distributors across India catering to chemists in India and has 65 stockists in Delhi region. Further, the Opposite Party has not received any complaint with respect to shortage or nonavailability of its medicines from them, and that the existing stockists have been able to make effective supply to the consumers. The Opposite Party has also stated that its product expiries are already at 3%, which is more than the industry average substantiating the fact that there is no shortage of its medicines.

11. The Opposite Party has further conveyed to the Informant that adding additional distributors to its existing distribution network is not desirable from a business perspective, and had accordingly directed the Informant to purchase the company's product from its nearby local stockist. 

12. The Commission also notes that it has passed orders against pharmaceutical companies for refusing to deal with a particular distributor if the refusal is on the basis of a requirement of No Objection Certificate (NOC) from any chemists and druggists association. A press release dated 03rd February, 2014 was also issued by the Commission to all India level, State level and District level associations of chemists, druggists, stockiest, whole-sellers and manufacturers that penalties would be imposed by the Commission on such trade associations of chemists and druggists if they are found to commit such anti-competitive practices. In the present case, the Commission notes that the Informant has not placed on record any document suggesting that refusal by the Opposite Party to supply medicines to the Informant is on account of any requirement of NOC from any chemists and druggists association.

13. Thus, the Opposite Party has sufficient commercial reasons for not supplying the medicines to the Informant and its refusal cannot be held to be in violation of Section 3(4)(d) of the Act.

14. The Informant has also alleged that Opposite Party has abused its dominant position by indulging into unfair trade practices by using unfair means which may adversely and appreciably affect the competition in the market. However, the Informant has not placed a

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ny cogent material on record to show as to in which market the Opposite Party is dominant. Further, there is no specific information available in the public domain to suggest that the Opposite Party is dominant in any particular market. In the absence of such information, the instant matter cannot be examined under the provisions of Section 4 of the Act. 15. In the light of the above analysis, the Commission finds that no prima facie case of contravention of the provisions of Sections 3 and 4 of the Act is made out against the Opposite Party in the instant matter. Accordingly, the matter is ordered to be closed under the provisions of Section 26(2) of the Act. 16. The Secretary is directed to inform the Informant accordingly.
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