JUSTICE (R) MIFT AH-UD-DIN, MEMBER TECHNICAL --- The appellant has filed this appeal against the judgment dated 27-01-2017 whereby the appellant was found guilty of indulging into Exclusionary conduct based on alleged predatory pricing strategy in violation of section 3(3) read with subsections 3(2) and (1) of Competition Act and imposed a penalty of Rs.5 lacs. Neelam Jhelum Hydro Power Company was directed to cancel the impugned bid forthwith and file compliance report with the office of Registrar .
It was further ordered that Neelam Jhelum Hydro Power Company may conduct a fresh bid pertaining to the credit rating for the proposed issue of sukuk comprising of Pak Rs. 100 Billion.
2. Brief facts of the case are that the Pakistan Credit Rating Agency Ltd. (PACRA) lodged a complaint with the learned Competition Commission of Pakistan found it on the allegations, that the appellant participated in a bid to procure a credit rating assignment for sukuk issue of Pak Rs.100 Billion by Neelam Jhelum Hydro Power Company .
In order to out bid the complainant PACRA the appellant submitted a bid without making any commercial sense and legitimate business justification. That the appellant has quoted a token price of Pak Rs.1100 (An initial fee of PKR and surveillance fee of PKR 100 per annum) for the rating assignment spanning 10 years. The bid was made far too low and was solely made to oust its competitor from the biding. The complainant prayed that the bid submitted by appellant be declared as anti-competitive and violative of the provisions of section 3 of Competition Act.
3. The complaint of respondent No,2 was inquired into. The inquiry report proposed that the commission may consider initiating proceedings against the respondent for a prima facie violation in terms of section 3(3) read with subsection 3(2) and (1). Consequently the Competition Commission of Pakistan issued show-cause notice to the appellant who submitted his written reply to the complaint. After hearing the learned counsel for the parties, the learned Competition Commission of Pakistan declared the biding process anti-competitive and fined the appellant for Rs.5 lacs with direction to Neelam Jhelum Hydro Power Company to cancel the bid and proceed with fresh biding in a transparent manner through the impugned judgment and order dated 27-01-2017.
Aggrieved from the same the appellant has preferred this appeal. During the pendency of appeal an application for impleadment of Neelam Jhelum Hydro Power Company was made and this Tribunal came to the conclusion that Neelam Jhelum Hydro Power Company is a necessary party to the present proceedings, hence arrayed Neelam Jhelum Hydro Power Company as a party to the present appeal.
4. The learned counsel for Neelam Jhelum Hydro Power Company argued that the biding process was made by the NJHPC which was a necessary party before the Competition Commission of Pakistan, but the learned Competition Commission of Pakistan just obtained some information regarding the biding process without formally impleading Neelam Jhelum Hydro Power Company as party to the proceedings before the learned Competition Commission of Pakistan. He further submitted that the complainant respondent No,2 has also failed to implead Neelam Jhelum Hydro Power Company as a party to the proceedings before Competition Commission of Pakistan and that it was after the expiry of about one year that the Neelam Jhelum Hydro Power Company was made a party at appellate stage with the result that in the absence of any restrainin g order from the Competition Commission of Pakistan as well as appellate Tribunal, the Neelam Jhelum Hydro Power Company proceeded with the biding process by entering into agreement with National Bank and sixteen local banks/financial institutions who have undertaken to invest Rs.100 billion in the sukuk issue. He further submitted that Neelam Jhelum Hydro Power Company has completed the biding proce ss, but even then, the learned Competition Commission of Pakistan has cancelled the bid without making Neelam Jhelum Hydro Power Company as party to the proceedings hence the Neelam Jhelum Hydro Power Company as well as other financial institutions/banks have been condemned unheard therefore, the present appeal be accepted and the case be remanded to the learned Competition Commission of Pakistan to decide the same afresh after taking into account the assertion of Neelam Jhelum Hydro Power Company in this connection.
5. The learned counsel for the appellant contended that the appellant specifically raised certain issues including the issue that the appellant share is not more than 40% per revenue shares, therefore, the appellant was not at all holding a dominant position but neither the necessary issues were framed nor the appellant was afforded an opportunity to lead evidence on such issues, hence the learned Competition Commission of Pakistan has not effectively and justly adjudicated the necessary questions in controversy between the parties. In this view of matter , it was prayed that the impugned order be declared illegal, unlawful and of no legal ef fect.
6. The learned counsel for Pakistan Credit Rating Agency and Competition Comm ission of Pakistan opposed the contentions so raised by learned couns el for Neelam Jhelum Hydro Power Company and contended that this Tribunal has got ample power to decide the matter without remanding the same after impleadment of Neelam Jhelum Hydro Power Company . The learned counsel submitted that remand of the case would prolong the agonies of the parties by subjecting them to a new round of litigation hence, the same will be wrong and unjustified.
7. After hearing the learned counsel for the parties and perusal of relevant material available on the record we have come to the conclusion that the learned Competition Commission of Pakistan has only framed issues favourable to the complainant and relevant pleas raise d by the appellant have not been reflected in the issues framed with the result that A the appellant has not been afforded an opportunity to lead evidence in support of the issue raised in the written reply . Similarly , the Neelam Jhelum Hydro Power Company was a necessary party to the proceedings because not only the biding process was started by it but even the same has been allegedly completed in the absence of any restraining order from the Competition Commission of Pakistan and this Tribunal. It is also an admitted fact on the record that during the biding process agreement was made with National Bank of Pakistan and other banks and financial institutions, but the same process has been cancelled by, the learned Competition Commission of Pakistan without affording an opportunity of hearing to all concerned: Resultantly , we hold that the Neelam Jhelum Hydro Power Company and other financial institutions have been condemned unheard through the impugned judgment which has caused a grave miscarriage of justice. In the circumstances, the remand of this case is inevitable.
8. Resultantly without dilating upon merits of the case in detail as it may prejudice the case of either party , we hold that proper issues based on contentions of all the parties concerned were neither framed nor answered and Neelam Jhelum Hydro Power Company and other financial institutions have been condemned unheard.
9. Resultantly the present appeal is accepted and the impugned judgment and order dated 27-01-2017 is set aside.
The case is remanded to Competition Commission of Pakistan to decide the same afresh in accordance with law after taking into account assertions of all parties concerned. No order as to costs.