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M/s. K. Sera Sera Digital Cinema Pvt. Limited, Through Dheeraj Salian v/s Digital Cinema Initiatives, California & Others

    Appeal No. 42 of 2016 in I.A. No. 7 of 2017 in Case No. 30 of 2015

    Decided On, 01 February 2017

    At, Competition Appellate Tribunal

    By, THE HONOURABLE MR. RAJEEV KHER
    By, MEMBER & THE HONOURABLE MS. ANITA KAPUR
    By, MEMBER

    For the Appellant: Subodh Prasad Deo, Tanveer Verma, Advocates. For the Respondents: Rachit Batra, Advocate.



Judgment Text

1. This Application has been filed by M/s. UTV Software Communications Ltd. under Section 53O of the Competition Act, 2002 (hereinafter referred to as 'the Act') for rectification of the order of this Tribunal dated 09.11.2016 in Appeal No. 42/2016. Vide the impugned order, we had set aside the order of the Competition Commission of India (hereinafter referred to as 'the Commission') dated 08.06.2016 passed under Section 26(2) of the Act. We had held that the Commission had committed serious error by declining to order an investigation pursuant to the information filed by M/s. K. Sera Sera Digital Cinema Pvt. Ltd. and directed that the Director General would conduct investigation into the allegations contained in the said information. The Applicant has now sought rectification of our order, praying that "M/s. Walt Disney Company India" arrayed as Respondent No. 2 be replaced with "The Walt Disney Company India/UTV Software Communications Ltd." It has been claimed by the Applicant that the UTV Software Communications Ltd. was impleaded by the Commission as Respondent No. 2 pursuant to its order dated 14.10.2015 under Section 38 of the Act which was also filed on 05.11.2015 as additional documents before this Tribunal in Appeal No. 79 of 2015. It is, therefore, submitted by the Applicant that the error in the memo of parties, which is apparent on the face of the record, needs to be rectified through an appropriate order of the Tribunal.

2. We have heard Shri Subodh Prasad Deo, Advocate for the Applicant and Shri Rachit Batra, Advocate for M/s. K. Sera Sera Digital Cinema Pvt. Ltd .(hereinafter Appellant).

3. Perusal of our record shows that in the memo of parties in Appeal No. 42 of 2016 filed by the Appellant, M/s. Walt Disney Company India was listed as Respondent at Serial No 2. The Appellant had challenged the order dated 08.06.2016 passed by the Commission in Case No. 30/2015. The Commission in the said order had listed "The Walt Disney Company India/UTV Software Communications Ltd." as Opposite Party No. 2. The Appellant, for the reasons best known to it, did not make UTV Software Communications Ltd. as a Respondent in its appeal. In its affidavit of Dasti service also the Appellant furnished acknowledgement receipt of delivery to M/s. Walt Disney Company India. The case was heard by us on 24.10.2016 wherein we recorded the presence of Shri Gopal Jain, Senior Advocate assisted by Shri Subodh Prasad Deo, Ms. Radhika Seth, Ms. Tanveer Verma and Ms. Kriti Awasthi, Advocates for Respondent No. 2 i.e. M/s. Walt Disney Company India.

4. In the present Application ,error has been claimed in our order on the ground that UTV Software Communications Ltd. was impleaded by the Commission in its order dated 14.10.2015 under Section 38 of the Act which was filed on 05.11.2015 as additional document in Appeal No. 79/2015, and we failed to list the Applicant as a Respondent. We are of the view that a person can be impleaded as a party either by the Appellant or on a specific order of this Tribunal during the hearing of an appeal. No impleadment application for impleading UTV Software Communications Ltd. was filed before us when we heard the matter. A document filed in an Appeal other than the Appeal, in which the order sought to be rectified has been passed, cannot become a basis for rectification on the ground of error apparent on the face of the record. On the record of this appeal, there is no material to suggest that there was an error of non-consideration of a document and a party cannot be impleaded after the passing of the Order, on the facts of this case. In any case, it may be noted that the order of the Commission dated 14.10.2015 relied upon by the Applicant related to rectification of an order dated 22.04.2015 and only amended the "presence section" of the said order. Order dated 22.04.2015 was not the impugned order before us when we passed the order dated 09.11.2016. The impugned order before us was the order dated 08.06.2016 of the Commission.

5. The Advocate of the Applicant also submitted during

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the hearing before us that he had filed Power of Attorney on behalf of the Applicant, when we heard the Appeal on 24.10. 2016. We have carefully pursued our record and do not find any such Power of Attorney. 6. In view of the above discussion, we find that there was no error apparent on the face of the record warranting amendment of our order under Section 53-O of the Act, and the Application is dismissed. Application dismissed.
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