Monsanto Company v. Competition Commission of India & Ors

ORDER %

12.10.2018

¶1The learned counsel appearing for the parties concur that the issue involvedin the presentcase is coveredby the decisionofthe DivisionBench of this Courtin CadilaHealth CareLimitedv. CompetitionCommissionof India &Ors \LPA No. 160/2018 decided on 12.09.2018.

¶2Mr Kapoor, the learned Senior Counsel appearingfor the petitioner states that the said decision is erroneous and requests that the impugned orderbe stayedfor aperiodoffifteendays for the petitionerto approachthe Division Bench of this Court. Mr Jayant, the learned Senior Counsel appearingfor the respondentstoutlyconteststhisrequest.

¶3Consideringthat the interim order passed on 15.05.2017 in these petitionsmerelyclarifiedthat "anyactiontaken by the respondentsin terms ofSection43 ofthe CompetitionAct, 2002 shallhe subjecttofurtherorders ofthe Courtit wouldnotbe appositeto pass any orderas requested.

¶4The petitionsare, accordingly,dismissed.All pendingapplicationsare also dismissed. f

¶5Order dasti under the signature of Court Master. VIBHU BAKHRU, J OCTOBER 12, 2018 pkv IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: November 19, 2018 Judsment delivered on: December 18, 2018 + LPA 637/2018 & CM. Nos. 47926/2018 and 47927/2018 MAHYCO MONSANTO BIOTECH (INDIA) PRIVATE LTD & ANR. Appellants Through: Mr. P.V. Kapiir, Sr. Adv. with Mr. Ajit Warrier, Mr. Rajshelchar Rao, Mr. Aditya Neiyyar, Mi'. Angad Koclihar, Mr. Aman Singh Sethi, Mr. Vaibhav Aggarwai, Ms. Yashika Maheshhwari and Mr. Siddhant Kapur, Advs. versus COMPETITION COMMISSION OF INDIA &ORS Respondents Through: Mr. Samar Bansal, Adv. and Mr. Maii.an Shishodia, Adv. for R-l/CCI Ms. Gauri Puri with Mr. Vinayak Mehrotra, Advs. for R-2. Mr. Sunil J. Mathews, Adv. for R-3 Mr. Jayant K. Bhushan, Sr. Adv. with Mr. Amitabh Kumar, Ml-.'Vaibhav Choukse, Ms. Akansha Mehta & Mr.Aditya Gupta, Advs. for R-4 to R6. •Mr. Sabah Iqbal Siddiqui, Adv. for R-7. LPA 637/2018 and connected matter Page 1 of42 + LPA 651/2018 & CM. Nos. 48742/2018 and 48743/2018 MONSANTO COMPANY Appellant Through: Mr. Ajit Warrier with Mr. Angad Kochhar & Mi\ Aditya Nayyar, Advs. versus COMPETITION COMMISSION OF INDIA AND ORS. Respondents Through: Mr. Samar Bansal with Ms. Devahuti Pathak & Mr. Manan Shishodia, Advs. for CCI Mr. Amitabh Kumar with Mr. Vaibhav Choukse & Ms. Akansha Mehta, Advs. for R-3.to 5 CORAM: HON'BLE THE CHIEF JUSTICE ' HON'BLE MR. JUSTICE V, I<A.MES.WAR RAO JUDGM.^EN.T V.KAMESWARRAO, J '

¶1These appeals have been filed by the appellants challengingthe order dated 12^'' October, 2018 passed by the learned Single Judge in W.P. (C) 7583/2016 and 7578/2016 whereby the learned Single has dismissed the writ petitions by relying upon the.judgment of the Coordinate Bench of this Court in Cadila Healthcare Ltd. and Anr. V, Competition Commission ofIndia,LPA No. 160/2018decidedon 12"^ September,2018. LPA 637/2018 and connected matter Page 2 of42

¶2It was the submission of Mr. P.V. Kapur and Mr. RajsheldiarRao, learnedSr. Counsel/ counselappearingfoi the appellantsthat in Cadila (Supra),the CoordinateBench of this Court has noticed the order passed by the Competition Commission,of India (CCI) in Ministry ofAgriculturev. M./s. Mahyco Monsanto Biotech Limited and has conHrmed the reasoningtherein. Accordingto them, the CoordmateBenchhas confirmedthe judgmentwhich was under challengein the writ petitionsbeforethe learnedSingleJudge. This was done without notice to the appellantsherein. As such the judgment of the CoordinateBench in Cadila (Supra) to the extent it affiims the order of the CCI impugnedby the.appellantsbeforethe learned Single Judge in the writ petitions has Aversely affected then-legalrightsand remediesas evidencedby the summarydismissal of the writ petitions. In this regard, they had relied upon the judgment of the Supreme Court in Poonam v. State of Uttar Pradesh and Ors. 2016 2 SCC 779.

¶3It was their submission that the judgment in Cadila (Supra) strongly indicates that the Division Bench was not apprisedof and made aware by CCI ofthe pendencyof the writ petitionsfiledby the appellantsherein,whereinthe challengehad LPA 637/2018andconnectedmatter ^ v\\ been squarelymountedto the said order of CCI in Ministiyof Agriculturecase (supra) (and connected matter). The private respondentshad filed an applicationbeing CM. No. llZlinm before the learned Single Judge seeking dismissal of the writ petitionby relyingon Cadila (supra). The appellantshad also filedan applicationbeingCM. no. 42823/2018seekingreference of the writ petition to a larger Bench in hght of the binding precedentof the SupremeCourt in CentralBoardof Dawoodi Bohra CommunityandAm. V. StateofMaharashtraandAnr.

(2005)2see 67S, 'whereinit was inter a/ifl contendedthat tire groundsraisedby the appellantsbeforethe learnedSingleJudge withrespectto thescope,ambitand applicabilityofSection48 ot the CompaniesAct, 2002 were neverraisedbeforeand / or dealt by the DivisionBench in Cadiia (Supra). It is stated that the learned Single Judge without calling upon CCI to clarify the actual facts and / or consideringthe applicationsfded by the appellants,summarilydismissedtliewritpetition,aitliougliit was amatter of recordthat certainsubstantialgroundsraised by the appellantsmthe writpetitionwithregardto the constructionand interpretationto be placed on Section 48 on the 2002 Act were neither raised before, nor consideredby the DivisionBench in Paee 4 of 42 LPA 637/2018and connectednialter Cadila(Supra). In essencethe substantialgroundsraisedby the appellants in relation to the constructionand interpretationof Section48 ofthe 2002 Act were neitherraisednor consideredin Cadila (Supra).

¶4It was the submission of the learned counsel for the appellantsthat the Schemeof Act of 2002 does not contemplate punishment of the Directors / Officers of a company under Section27 ofthe 2002 Act and that they can only be proceeded againstifthe orders/ directionsof CCI are not obeyed and / or . are floutedby the company.However,CCI may, in agiven case, be entitledto invokeprovisionsofChapterVI ofthe 2002 Act if the pre-conditionof the various Sections containedtherein are shownto have beenfulfilled. The:categoiiesofordersthatcan be passed under Section 27 of the 2002 Act can only be directed againstan 'enterprise'as definedunder Section2(h) ofthe Act, 2002, and not against individualDirectors/ officers. It is their submission that since the grounds and points raised by the appellants at' the time .of hearing before this Court have admittedlynot been consideredby the DivisionBench in Cadila (Supra),this court oughtto referthe matterto alargerBench to decidethe legal challengeraisedby the appellants.In this regard LPA 637/2018andcomiectedmatter they rely upon the judgmentofthe SupremeCourt in the case of DawoodiBohra (supra).

¶5It was the submission of the learned counsel for the appellantsthatDivisionBench in Cadila(Supra)only considered a limitedargumentin relationto Section48 of the 2002 Act and admittedly did not consider the arguments raised by the appellants before the Id. Single Judge. A reading of Cadila (Supra) would show that the Division Bench has, without consideringthe specialschemeand constructionofthe 2002 Act, gone into an elaboratediscussionon the interpretationofSection 138 ofNegotiableInstrumentsAct, 1881 and while doing so, the DivisionBench, with utmost respect, did not considerthat two statutes can only be said to be m..pari materia with each other whenthey deal withthe same subject-matterand/ or sameperson or thingsand/ or same class or persons,or havethe samepurpose or objects. The rationale behind this rule is based on the inteipietativeassumptionthat words employedin legislationsare used in an identicalsense. Acomparisonofthe preambleas also the Statementof Objectsand Reasonsof the 2002 Act and the NI Act would show that there is no similaritybetween the subject matter of the two legislationsand they do not deal with the same LPA 637/20J8andconnectedmatter Page 6of42 c IT personor things and / or same class orpersons,or have the same purpose or objects. Therefore, there was no justification or warrant to refer to the NI Act, when the 2002 Act, as a special Act, deals with a subjectmatterwhichis entirelydistinctfrom the NI Act. In this regard, they would rely on S/m/i and Co., Bombay y. State ofMaharashtra anclAnr. AIR 1967 SC1877 8c BangaloreTurfClub Limitedv. RegionalDirectorEmployees' StateInsuranceCorporation(and Connectedappeals) (2014) 9 see 657

¶6It was submitted that in light of special construct and scheme ofthe 2002 Act, an interpretationthat Section48 can be invokedby the CCI againstindividualOfficers/ Directorsofthe Company to investigatetheir role and conduct'of offences, as contemplatedunder Sections 3and 4 ofthe 2002 Act, and made punishable under Section 27 thereof, would result in a legal absurdityand would render the statutoryprovisionsunworkable and nonsensicalfor the reasonthat such an interpretationwould renderthe words "punishedaccordingly", appearingin Section 48 ofthe 2002 Act nugatoryinasmuchas the orders which CCI can pass under Section27 ofthe 2002 Act can only relateto and be directed against an enterpriseand not individualDirectors/ LPA 637/2018andconnectedmailer Officers of a company. The same is also evident from the fact that Section27 ofthe 2002 Act.employsterms such as ""turnover'" and "profifwhichterms can only be relevantto an enterpriseand not to an individual. If ''turnover is interpreted to include incomeofa director/ olficer(as suggestedby the learnedcounsel for the respondentsherein),the same would amountto re-writing Section27 ofthe Act. Further,the term ''profit'cannotbe applied in the context of a Director/ Officer. The Supreme Court in Excel Crop Care Ltd v. CompetitionCommissionofIndia and Ors. AIR 2017 SC 2734 has. interpretedthe word ''turnover'" appearingin Section27 ofthe 2002 Act to mean onlythe relevant turnoverpertainingto the infringingproduct(s). In the contextof a director / officer of a company and.,in the absence of any enabling provision or prescribed parameters being prescribed under the 2002 Act, it would be impossible to ascertain the relevant turnover.

¶7According to the counsels, it is a settled rule of interpretationthat ifthe languageused in a statuteis capableof bearing more than one construction,a constructionthat results in absurdityor anomaly should be eschewed. On the contrary,the court should prefer a constructionthat brings it into harmony LPA 637/2018andcomiecledmatter Page 8of42 with its purpose as it may always be presumed that while employing a particular language in the provision, absurdity or anomalywas never intended. In this regard,reliancewas placed onthejudgmentpassedbythe SupremeCourtin M. Nizamudeen V. ChemplastSanmar Limitedand Ors. (2010)4 SCC 240.

¶8It was the submission of the learned counsel for the appellantsthatthe SupremeCourtwhile interpretingthe2002 Act in Excel Crop Care (supra), also observed that in a situation wheretwo inteipretationsare possible,one that leans in favourof the infringer has to be adopted on the principle of strict interpretation. It is.equallysettledthat the court cannotrewrite, recast or refiame the legislation for the reasons that it has no power to legislate. Further, the.,court cannot add words to a statute or read words into it which are not there. Even assuming there is a defect or omission in the words used by the legislature, the Court cannot correct or make up the deficiency and it shall only decide what the law is and not what it should be. In this regardrelianceisplacedon thejudgmentofthe SupremeCourtin the case of Union of India v. Deoki Nandan Aggarwal (1992) Supp.(l)SCC323. ' 9. It was the submission of the learned counsel for the LPA 637/2018andconnectedmatter 9 of42 appellantsthat duringthe courseofargumentson 19"'November, 2018,aquerywas put to the appellantswhetherSection27 (g) of the 2002 Act would empower CCI to punish erring Officers/ Directorsof a Companyunder Section27 of the 2002 Act. To which It was their submission that the power'to prescribe punishmentunder a statute is an importantlegislativefunction and the said functioncamiotbe presumedin favourofthe CCI so far as directors/ officersofacompanyare.concerned.Ifsuch an interpretationis ascribedto Section27 (g) ofthe 2002 Act despite the statuteitselfbeing bereft of such an enablingprovisionand any concomitantstatementof defined guidelinesor parameters, then CCI wouldhaveunbridledand uncanalisedpowersto punish the Officers / Du-ectors of Company without any legislative guidelines/ checks and as per its whims and fancies, which is anathema to rule of law. In this regard,reliancewas placed on KishanPrakashSharmaand Ors. VUnion ofIndia and Ors.

(2001)5see 212 andB.R. Enterprisesv. StateofU.P. and Ors.

(1999) 9 see 700

¶10Further they distinguishedthe judgmentrelied upon by the learned counsel for private respondents in the case of RajasthanPharmaceuticalLaboratory,Bangaloreand Ors. V. LPA 637/2018andcomiecledmailer State of Karnataka

(1981) 1 SCC 645, which was in the context of the Drugs and Cosmetics Act, 1940. The respondents, by relying upon a similarly worded section therein as Section 48 of the 2002 Act, sought to argue that once an offence is committed, both the company and its officers are deemed to be guilty of the offence. Plowever, perusal of the judgment would show that to the contrary, the said judgment supports the case of the appellants inasmuch as at Paragraph 7, it was clearly observed that the words ''punished accordingly" in'the' context would mean that a person deemed guilty of an offence committed by a company shall receive the punishment and that is prescribed by the Act for that offence. In the present case, since no punishment can be ^ imposedupon individualdirectors./officersofacompanyunder Section 27 of the 2002 Act, such individual directors / officers of a company cannot be proceeded against and punished, except as contemplated under Chapter VI of the 2002 Act. n. They also submitted that the learned counsel for the respondents have contended that if the interpretation which is sought to be given by the appellants to Section 48 of the 2002 Act has to be accepted, the same would render Section 48 of the 2002 otiose in its entirety. This submission is wholly misplaced and LPA 637/2018 and connected matter Page 11 of42 deserves to be rejected. In terms of the interpretation propounded by the appellants to Section 48 of the 2002 Act, it is their stand that the said section would only apply in a case where orders / directions of CCI are disobeyed / flouted by individual directors / officers of a company.

¶12The learned counsels for the appellants in the alternative contended that if this court were to come to a conclusion that judgment passed in Cadila (supra) does not require reconsideration by a larger Bench, it would be seen that the said judgmentis primarilypremisedon a judgmentof a three Judge Bench of the SupremeCourt in AneetaHacla v. M/s. Godfather Travels and Tours Private Limited (2008) 13 SCC 70. The issue in that case was whethera director/ officerof a company could be prosecutedwhen the company has not been arrayed as an accused.

¶13On the other hand, it is the submissionsof Mr. Jayant K. Bhushan, learned Senior Counsel appearing for the respondent nos. 4 to 6 in LPA 371/2018 and respondent Nos.3 to 5 in LPA 351/2018 that the plea of the appellants that no notice can be issuedto the Directorsor persons in-chargeof the Companytill the Competition Commission returns a finding against the LPA 637/2018and connectedmatter Page 12 of42 Company that it has indulged in anti-competitive activities, is squarely covered by the judgment of the Division Bench of this Court in the case of Caclila (Supra) which is binding on this Court and there is no occasion arises for disagreeing with it or referring the matter to a larger Bench.

¶14It is his submission that the vicarious liability of persons in-charge of companies for offences committed by companies exists in several statutes, such as the Negotiable Instruments Act, 1881 (Section 141), Prevention of Food Adulteration Act, 1954 (Section 17) and the Drugs and Cosmetics Act, 1940 (Section 34). In none of these statutes is there any provision which envisages a two stage inquiry, as, has been canvassed by the , Appellants, nor is there any judgment ofthe Supreme Court or of this Court or any other High Court to the loiowledge of the respondents that states that such a two stage process is envisaged or that before notice is issued to the persons in-charge of the company, a finding of guilt must be recorded against the company. According to Mr. Bhushan, it would not even be in the public interest as it would prolong the proceedings and may even result in the same issue being argued twice. If for instance, the initial proceedings were only against the company and the LPA 637/2018 and coiviectedmatter Page 13 of42 s companydid not properlydefenditselfand a findingof guilt was recordedagainstthe company,the directors or person-incharge would surely come and challengethe finding before they could be held vicariouslyliable and would insist on that findingbeing revisited.

¶15It was his submissionthat no prejudicewould be caused to personsin-chargeif they were asked / permittedto participate in the proceedingsat the initialstageitself. They wouldbe given a chanceto contestthe chargeagainstthe companyas well as the chargethat they were in-chargeofthe companyat the time when the offence was committed. He refers to paras 52 to 55 of the judgmentofthe DivisionBenchofthis Court in Cadila (Supra). Further,it was submittedthat the reasoningofthe learnedSingle Judge in Pran Mehra vs. CCI, W.F. (C) 6258/2014as well as the Division Bench in Cadila (Supra) is correct and needs no re-visitation.In this regardhe would rely upon the judgmentof the Kerala High Court in B. Unnikrishnan and Ors. vj-. CCI and Ors. W.P. (C) 22534/2016.

¶16It was his submissionthat Section48 which providesfor vicariousliabilityof person in-chargeof and responsiblefor the conduct of business of the company will apply only for LPA 637/2018andconnecLedmatter Page 14of42 contraventionof orders of the CCI or DG under Section42 to 44 ofthe CompetitionAct and not for contraventionofSection3 and 4 of the Competition Act by the Company is misconceived. The only basis on which the appellantssubmit that Section 48 i appliesonly to contraventionofordersofthe CCI or DG and not to contraventionofSection3and4ofthe CompetitionAct by the companyis on the groundthat under Section27, the penaltyfor contravening Sections 3 or 4 is a maximum of 10% of the turnoverofthe company. Accordingto him, areadingofSection 48 ofthe CompetitionAct shows that it appliesin case of any of the provisionsof the CompetitionAct or rule or regulationor contraventionof an order or directionpassedby the CCI or DG. V Therefore, to hold that, Section '48 'applies only' for a contraventionofan orderofthe CCI or DG wouldrenderthe first part of the Sectionnamely, 'contraventionof ^ provisionsof the CompetitionAct' completelyredundantand otiose. It is a fundamental principal of interpretation of statutes that no constructionshouldbe put on aprovisionwhichrendersapart of it otiose. Reliancewas placedon the judgmentofconstitutional benchofthe SupremeCourtin the case ofAswiniKumar Ghosh and Ors, vs. Arabinda Ghosh AIR 1952 SC 369 on this issue LPA 637/20J8andconnectedmailer p^,gg15of42 wherein it is held as under: "Itis nota soundprincipleofconstructionto brush aside words in a stQ.tuteas beingin oppositesurplusage, ifthey can have appropriate application in circumstances conceivablywithinthe contemplationofthe statute."

¶17It was submittedthat Section48 of the CompetitionAct ciystalclearas it statesthat whereacompanycontravenesany provision of the CompetitionAct, a person in-charge of the company, when the contravention was committed, shall be - "deer}n.edto be guiltyofthe contraventionandshall be liable to be proceededagainst and punished accordingly." The words "punishedaccordingly"have been'interpretedby the Supreme Courtin RajasthanPharmaceuticalLaboratory(supra)whereinin paras 6and 7, it has been held that-''punishedaccordingly" does not meanthatindividualshaveto be punishedin exactlythe same mannei as the company. The punishment prescribed for the offence in the CompetitionAct for contraventionof Section 3 and 4 is in Section27 i.e. apenaltywhich shall not be more than the average of the turnoverof the last 3 precedingyears. The provision was basically enacted in reference to an enterprise which would be conductingbusinessbut that does not mean that the deemingprovisioncannot be interpretedfor an individualin LPA 637/2018andconnectedmatter Page 16 of42 s the context of the Competition Act. Meaning of the term 'tmiiover', in the context of an individual, can easily be interpreted to mean the income of the individual from the company in question. Merely because the term needs an interpretationdoes not mean thatthe individualescapescomplete liability although Section 48 is very clear that the person in-charge of managingthe affairs of the companyshall be deemed to be guiltywhenthere is a contraventionof Section3 or 4 of the CompetitionAct by a company. In this connection,reliancewas placed on Excel Crop Care Limited (Supra) wherein even though Section27 of the CompetitionAct only said turnoverof the company, the Supreme Court interpreted turnover in the ^ contextto meanturnoverfor the relevantproduct.It is submitted that this judgmentthereforeshows that the word 'turnover" has to be interpreted in the conteixt of,the offence and need not literallymean what:itprimafacie states. Thus, in the contextof an individual who is in-charge of a company, turnover may mean his income from that company. It is submitted that the interpretationofSection48 as suggestedby the appellantsthat it would not apply to contravention of any provision of the CompetitionAct is totallycontraryto the expresslanguageofthe LPA 637/2OlSand connectedmatter Page 17 oj42 ; sectionand can neverbe the correctinterpretation.

¶18It was the submissionof Mi". Bhushanthat the rationalefor the vicariousliabilityofthe personsin-chargeis the same for the contravention of Section 3 and 4 as it is for the contravention of ^ any directionof the CCI or DG. The whole idea behind these provisionsofvicariousliabilityis that the companybeing a non-thinlcingentity,cannotthinkfor itselfbut it is the human beings, being directorsor persons in-charge,who thinlc for it. Thus, to provide a disincentivefor repetitionof such activity, not only must the companybe penalizedbut the persons who have been thinldngfor the wrong doings must also be penalized. Thus, the liabilityof directors or the persons in-charge is just, valid and ^ necessaryfor the contraventionby the company of Sections3 and 4of the CompetitionAct as it is for a contraventionby the Companyofan orderor directionby the CCI or DG.

¶19Further,Mr. Bhushanon the secondsubmissionmade by the appellants that Section 48 occurs in Chapter VI of the Competition Act, therefore, the same will apply only to contraventionby companiesunder Chapter VI itself, submitted that the said argumentis statedto be rejectedbecauseSection48 does not say that it shall apply to any contraventionof that LPA 637/2018andconnectedmatter Page 18 of42 •1 > Chapter alone. It specificallysays it applies to a contravention by a company of any provision of the Competition Act.

¶20On the third submission made by the appellants that Section 48 only applies to an enterprise and only punishes enterprises for contravention of the Competition Act is concerned,it is submittedthat Section27 may apply only to an enterprise, but when the enterprises is a company (which it obviouslycan, as per definitionof enterprisein Section2(h) and definitionof person under Section 2(I)(iii) of the Competition Act), Section48 becomes applicableand every person, n'amely, individualwould be deemedto be guilty of the same offenceas the company. This is the statutoryframework of many similar deeming provisionsof guilt for persons'in-chargeof companies where offences were committedby companies in various other Acts.

¶21On the issue of hearing the appellants by the Division Benchbeforepronouncingthejudgmentin Cadila(Supra),since the Bench pronounced on the correctness of Competition Commission's order in the appellants' case is concerned, it the submission of Mr. Bhushan that often similar issue arises in different cases. It is an accepted position in law that the Court LPA 637/2018 and connectedmatter while deciding a lis between some parties lay down the law which will have an effect on the lis between separate parties which are still pending. Yet, there is no requirementin law for hearing all parties who may be affected. In deciding the lis between the parties involvedin Cadila (Supra), this Court has laid down law and while layingdown that law, it has noticedthat thejudgmentofthe CCI inthe presentcase, laiddown the correct law. There is absolutely nothing wrong with this and the submission that the appellants were therefore condemned unheardis totallymisplaced.'

¶22In the end, it is his submissionthat the points raised by ~\ the appellantsare either covered by the Cadila (Supra) or have y no merit. In any case, that the^app,e%nts have held up the proceedingsbefore the CompetitionCommissionby filing one petitionafter another,none ofwhich.haveany merit, for the last nearly three years. The CCI proceedingsbegan from February 2016 and despite the DG having submitted the investigation reportto the CCI, no final orderofthe CCI has been given yet on accountoffrivolouslitigationspendingin this Court initiatedby Monsanto. He submittedthat this Courtmay dismissthe appeals with exemplary costs as they have not only held up the CCI LPA 637/2018andconnectedmatter Page20 of42 proceedings but also liave wasted valuable time of this Court.

¶23Mr. Samar Bansal, learned counsel for the CCI; had argued on similar lines as was argued by Mr. Bhushan. In effect he has adopted the arguments of Mr. Bhushan.

¶24Having heard the learned counsel for the parties and perused the record including the written submissions filed in this appeals, the following issues arise for consideration:-

(i) Whether before deciding the appeal in the case of Cadila (supra), the Division Bench was required to hear the appellants as the Division Bench has pronounced on the correctness of the CCI orders in two cases in Ministry of Agriculture v. M/s. Mahyco Monsanto Biotech Limited and connected matter, which were under challenge in two writ petitions filed by the appellants herein;

(ii) Whether no notice can be issued to the Directors / Persons In-charge of the Company till the CCI returns a finding against the Company that it has indulged in anti-competitive activities under Sections 3 and 4 of the Competition Act;

(iii) Whether Section 48 of the Competition Act, which provides for vicarious liability of persons In-charge and responsible for the conduct of business of the Company, will LPA 637/2018 and connected matter Page 21 of42 rV apply only on contravention of orders of CCI or DG under Sections to of the Competition Act and not to contravention of Sections 3 and 4 of the Competition Act. ISSUE NQ.l

¶25Insofar as the issue No.l is concerned, no doubt the judgment passed by the CCI in Ministry of Agriculture (supra) and connected matter was under challenge before the learned • Single Judge of this Court; the said judgment having been approved by the Division Bench in the case of Cadila (supra), the appellants were required to be heard. In any case we have also heard the learned counsel for the appellants on the issues, which they had raised in their writ petitions or at least in their applications for amendment for additional grounds and which have been incorporated in these appeals and accordingly, proceed to decide the same. So, to that extent, the grievance of the appellants has been addressed.

¶26Before we come to the other two issues raised by the appellants in these appeals, it is necessary to note the only issue, which the Division Bench in Cadila (supra) has framed for its consideration, which has a bearing on the judgment passed by the CCI in Ministry of Agriculture (supra) and which was under LPA 637/2018 and connected matter Page 22 of42 challenge before the learned Single Judge by the appellants is question No.4 which reads, ''Whether DG could have issued notice to Cadila Officials under Section 48

¶27That apart, the issue whether the penalty could have been imposed on the Officers / Directors only for contravention of Sections to of the Competition Act or also for contravention of Sections 3 and 4 of the said Act, is an issue, which was neither raised nor considered by the Division Bench in Cadila (supra). Having said that, we now proceed to answer the two issues, which have arisen for our consideration. ISSUE NO. 2

¶28Insofar as issue No. 2 is concerned, the Division Bench in Cadila (supra), in paras 52 to 54, has held as under;-

¶52Cadila's argument on this aspect'is that without first recording the complicity or otherwise of a company, its directors or employees/officials cannot be issued notice for contravention of the Act. In other words, according to Cadila, the CCI has to first record that the company is guilty of an abusive act, after which it can proceed against its director, etc. The relevant provision is as follows: —Contravention by Companies

¶48(1) Where a person committingcontraventionof any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder is a company, everyperson who, at the . time the contravention M>as committed, was in-LPA 637/2018 and connected matter Page 23 of 4j. a charge of, and M>as responsible to the companyfor the conduct of the business of the company, as yvell as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contraventionwas committedwithout his Jmowledge or that he had. exercised all due diligence to prevent the commission of such contravention.

(2) Notwithstanding anything contained in sub section (1), where a contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder has been committed by a company and it is proved that the contravention has taken place yvith the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that contraventionand shall he liable to be proceeded against and punished accordingly. . • h Explanation.—Forthepurposes of this section, a.) "company"m.eansa body corporateand includes afirm or otherassociationofindividuals;and b) "director", in relation to afirm, means a partner in thefirm..

¶53The questionsoughtto be agitatedwas urged before another, single judge in Pran Mehra vs. Competition Commission of India and Another (Writ Petitions No. 6258/2014, 6259/ 2014 and 6669/2014) when the court held asfollows: "6.... I am in agr-eem-eritwith the submissionsofMr. Chandhiok that there cannot be two separate LPA 637/2018andconnectedmatter Page24 of42 proceedings in respect of the company (i.e. VeriFone)and the key-personsas the schem.eofthe Act, to my mind, does not contemplate such a procedure. The procedure suggested by Mr.Ramji Srmivasanis both inefficaciousand inexpedient.As in every such matter, including the proceedings underSection138ofthe NegotiableInstrumentsAct, 1881 (in short N.I Act), a procedure of the kind ^ suggestedis not contemplated.Thejudgmentofthe Supreme Court in the case AneetaHada. dealt with proceedingsunder Section 138 of the N.I Act. The ' judgmentdoes not deal with issue at hand, which is whetheradjudicationin two parts, as contendedby Mr. RamjiSrinivasan,is permissible.Thejudgment, • in my opinionis distinguishable.

¶7It is no doubttrue that thepetitionerscan only be heldliableif the CCI, were to come to a conclusion that they were the key-persohs,who were in-charge and responsiblefor the conductof the business''of the company.In the courseof-theproceedingsqua. a company, it would be open to'the key-persons to contend that the contravention, if any, was not committedby them, and that, they had in any event y employeddue diligencetoprevent_the contravention. • These arguments can •easily-be'~advanced by key-persons withoutprejudiceto the main issue, as to whetheror not the com.panyhadcontravened,in the firstplace, the provisionsofthe Act, as allegedby the D.G.I, ina givencase. • The CCI has, by its separate order, in Ministry of AgriculturevM/s Mahyco Monsanto Biotech Ltd (Ref Case No.02/2015,order dated26/07/2016)followedthe above decisionand hadfurthercitedShailendraSwamp V. The Director, EnforcementDirectorate (2011) 162 Comp. Cas. 346 (Del) which held that FERA proceedingscan he heldsimultaneouslySushilaDevi vs. SecuritiesandExchangeBoardofIndia (2008) 1 Comp. L.J. 155 Del, where the petitionerbeing the officer in-chargeofandresponsiblefor the conductofthe business LPA 637/2018andconnectedmatter 25 of42 rG VJ of the company was swrnnoned as an accused for violation of Sections 24 (1) of the Securities and Exchange Board of India Act, 1992 along with-the company. The CCI also noticed that the law on this aspect was finally settled in Aneeta Hada vs. M/s Godfather Travels cS; Tours Private Limited (2008) 13 see 70.

¶54Aneeta Hada set at rest the controversywhether in one proceeding, against the company, its director ("person in-charge") can also be prosecuted or proceededagainston the principleofvicariousliability. Before Aneeta Hada, there existed a dichotomy of opinions-on the one hand, in Sta.te ofMadras v^- C V. ParekhandAnother(1970) 3SCO 491 held that without prosecuting the company tdn.e director could not be prosecutedSheoratanAgai^aland Anothervs State of Madhya Pradesh (1984) 4SCO 352(on the other hand) explainedthe decision in C. V. Parekh (supra) by a tM>o ludge bench of the Court which held that the company alone or theperson in-chargeofand responsiblefor the conduct of business of the company alone, m.ay be prosecutedfor the acts of the company as there is no statutory requirement that suck person cannot be \ prosecutedunless the, company is also arraignedas an accusedwith him. In Aneeta Hada (supra) it was held inter alia, asfoUoM>s:

¶58Applyingthe doctrineofstrictconstruction,we are of the consideredopinion that commission of offence by the company is an express condition precedentto attractthe vicariousliabilityofothers. Thus, the words —as well as the companyW appearing in the section make it absolutely unmistakablyclear that when the company.can be prosecuted,then only the persons mentionedin the other categoriescould be vicariouslyliablefor the offencesubjectto the avermentsin the petitionand proofthereof One cannot be oblivious of thefact that the company is ajuristicperson and it has its own respectability.If afinding is recordedagainst LPA 637/2018andconnectedmatter 26 of42 o it, it would create a concavity in. its reputation. There can be situations when the corporate reputation is affected when a Director is indicted. This court is ofopinion that the correctinterpretationof law was given in Pran Mehra the reasoningof which is hereby confirmed, as is the reasoning in Ministry of Agriculturev M/s Mahyco MonsantoBiotechLtd, yvhich •4, proceeds on a correct appreciation of the law.• AccordinglyCadila'sgrievancewith respectto issuance of notice to its directorsby citingSection 48 is without substance;it is hereby rejected. The impugnedjudgment cannot befaulted. " 2'19. The submissionof Mr. Kapur and Mr. Rao on this issue was that the judgmentof Cadila (supra), is primarilypremised on ajudgmentofthree Judges in AneetaHada (supra),wherein the issue was whetheraDirector/ Officialof a Companycould be piosecutedwhen the Company has not been arrayed as an ^ accused. In otherwords,the saidjudgmentis notapplicable. We are unable to accept the said contention. Para 58 of the of the judgment in Aneeta Hada (supra), as-noted by the Division Benchis very clearand we reproducedthe same as under;- ''58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence bv the company/is an express condition precedent to attract the vicarious liability of others. Thus, the words —"as well as the company ' avpearins in the section m.ake it absolutely unmistakablyclear that when the company can be prosecuted, then only the persons mentionedin the other categories coidd he vicariously liable for the offencesubjectto the avemientsin the petitionand proof LPA 637/2018andconnectedmatter 27of42 >• -V thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding: is recorded against it. it would create a concavit]^ in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted. "

¶30That apart in Pran Mehra v. CCl and another, Writ Petitions No. 6258/2014, 6259/2014 and 6669/ 2014 decided on February26, 2015, a learned Single Judge of this Court, has on the preciseissue dealingwith the provisionsofthe Competition . Act, stated as under:- "6.... I am in asreement with the subm.issions ofMr. Chandhiok that there cannot be two separate proceedings in respect of the company (i.e. VeriFone) and the key-persons as the scheme of the Act, to my mind, does not contemvlate such a procedure. The procedure sup^ested bv Mr.Rcum'i Sriniyasanis both inefficacious-and inexpedient.As ^ in eyery such matter, including the proceedings / ' underSectionI38ofthe'NegotiableInstrwnentsAct, 1881 (in short N.I. Act), a procedure of the kind suggestedis not contemplated.Thejudgmentof the Supreme Court in the case AneetaTlqda dealt with proceedings imder Section 138 of the N.I. Act. The judgment does not deal with issue at hand, which is whetheradjudicationin two parts, as contendedby Mr. RamjiSriniyasan,is permissible.Thejudgment, in my opinionis distinguishable,(emphasissupplied by this Court)

¶7It is no doubt true that the petitioners can only be held liable if the CCL were to come to a conclusion that they were the key-persons, who were in-charse and responsible for the conduct of the business of the company.In the course of the proceedings Qua a LPA 637/2018andconnectedmatter Pa^e2S of42 •V company, it would be oven to the key-persons to contend that the contravention, if any, was not committed by them, and that, they had in any event employeddue diligenceto prevent the contravention. These arguments can easily be advanced by key-persons without vreiudice to the main issue, as to whether or not the company had contravened, in the first place, the provisions of the Act, as alleged bv the D.G.I., in a s^iven case, (emphasissuppliedby this Court)

¶31We agree with the aforesaid conclusion of the learned Single Judge, which is independentof what was held in Aneeta Hada (supra),which is the correctinterpretationoflaw. So, we rejectthe submissionofMr. Kapurand Mi-.Rao. ISSUE NO. 3

¶32On this issue,the submissionsofMr. Kapur and Mr. Rao can be summed up as under;-

(i) The Scheme of Competition-Act,does not contemplate punishment of the Officers / Directors of a Company under Section27 ofthe Act as the order contemplatedthereincan only •be againstan'e«te77™eV

(ii) They can only be proceeded against if the orders / diiections of CCI are not obeyed and / or, are flouted by the Company;

(iii) The interpretationthat Section48 ofthe CompetitionAct LPA 637/2018andconnectedmatter 29 of42 Of •-v can be invoked by CCI against individual Officers / Directors of the Company to investigate their role and conduct, for offences as contemplated under Sections 3 and 4 of the Competition Act and made punishable under Section 27 thereof would result in legal absurdity and would render the statutory provisions unworkable and nonsensical for the reason that such an intei"pretationwould render the words ^punished accordingly' appearing in Section 48 of the Competition Act nugatoiy, inasmuchas the orders which CCI can pass under Section27 of CompetitionAct can only relate to and be directed against an enterprise and not to individual Officers / Directors of a Company. The same is evident from Section 27 of the Act, which employsterms such as 'turnover'and 'profit'whichterms can only be relevantto an 'enterprise'and not to an individual.

(iv) It is a settled rule of interpretationthat if the language used in a Statute is capable of bearing more than one constiuction,the constructionthat leads to absurdityor anomal)' shouldbe eschewed. On the contrary,a constructionthat brings it into harmonywithitspurposemustbe followed.

(v) In the Cadila judgment, the Division Bench without considering the special Scheme and construction of the LPA 637/2018andconnectedmailer Page30 of42 Competition Act lias ,gone in to elaborate discussion on the interpretation of Section 138 of NI Act. A comparison of two statutes can only be said to be pari materia with each other, when they deal with the same subject matter and / or samx person or things and / or same class of persons or have the same purpose or objects.

¶33Having noted the submissions made by Mr. Kapur and Mr. Rao, to answer this issue, it is necessary to reproduce Sections 27, 42 to 44 and 48 of the Competition Act:-

¶27Orders by Commission after inquiry into agreements or abuse of dominant position -Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it m.aypass-Ml-or any of thefollowing orders, namely:—

(a) direct any enterpriseor assbcidtionof enterprises or person or association of persons, as the case m.ay be, involved in such agreement, or abuse of dominant position, to discontinue and not, to re-enter such agreement or discontinue such abuse of dominant position, as the case may be;

(b) imposesuchpenalty,as it may deemfit whichshall be not more than tenpercent of the average of the turnover for the last threeprecedingfinancialyears, upon each of such person or enterprises which are parties to such agreements or abuse: [Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, LPA 637/2018and connectedmatter Page 31 of42 J f? "X distributor, trader of serviceprovider included in that cartel,apenaltyofup to three times ofitsprofitfor each yearofthe continuanceofsuch agreementor tenpercent. of its turnoverfor each year of the continuanceofsuch-agreement,whicheveris higher.] r'==''-"7

(d) direct that the agreementsshall stand modifiedto the extentand in the manner as may be specifiedin the order by the Commission;

(e) direct the enterprisesconcerned,to abide by such other orders as the Commission may pass and com.ply with the directions, includingpayment of costs, if any; [Omittedby Competition(Am.endm.ent)Act, 2007]

(g) pass such other45[orderor issuesuch directions]as it may deem fit. 46[Providedthat while passing orders under this section, ifthe Commissioncomes to afimding, that an. enterprisein contraventionto section3 or section 4 ofthe Act is a mem.berofa group as definedin clause

(b) of the Explanationto section-5 of the Act, and other mem.bers of such a group are also responsiblefor, or have contributed to, such •a .contravention, then it m.ay pass orders, under this section, againstsuch mem.bersof the group. '

¶42Contraventionof orders of Com.m.ission- (1) The Com.m.ission may cause an inquiry to be made into com.plianceofits ordersor directionsm.ade in exerciseof its powers under the Act.

(2) If any person, without reasonable clause, fails to comply with the orders or directionsof the Com.mission issued,under sections 27; 28, 31, 32, 33, 42A and 43A of the Act, he shall be punishable with fine which m.ay extendto rupees one lakhfor each day duringwhichsuch non-complianceoccurs, subjectto a maximum, of rupees ten crore, as the Commission may determine.

(3) If any person does not comply with the orders or LPA 637/20J8 and connected matter ' Page 32 of42 directions issued, orfails to pay thefine imposedunder sub-section (2), he shall, without prejudice to any proceeding under section 39, be punishable with imprisonmentfor a term, which m.ay extendto threeyears, or withfine which m.ay extendto rupeestwentyfive crore, or M'ith both, as the ChiefMetropolitanMagistrate,Delhi m.ay deem,fit: Provided that the ChiefMetropolitan Magistrate, Delhi shall not take cognizance of any offence under this section save on a complaintfiled by the Comm.issionor any ofits officersauthorizedby it.] 42A Compensationin case of contraventionof orders of Comm.ission]- Withoutprejudice to theprovisionsof this Act, anypersonm.ay make an applicationto the Appelkite Tribunalfor an orderfor the recovery of compensation from any enterprisefor•any loss or damage shown, to have been siffered, by suchperson as a. result of the said, enterpriseviolatingdirectionsissuedby the Commission or contravening, without any reasonable ground, any decision or order of the Comm.ission issued under sections 27, 28, 31, 32 and 33 or any condition or restriction .subject to which any. approval, sanction, directionor exem.ptionin relationto any matterhas been accorded, given, made or granted under this Act or delayingin carryingout such orders or directionsof the Com.missionf • •

¶43Penalty for failure to comply with directions of Comm.issionand Director General - If any person fails to com.pl.y, withoutreasonablecause, with a directiongiven by— • the Com.mission under sub-sections (2) and (4) of section 36; or (b) the Director General while exercising powersreferredto in sub-section(2)ofsection41, such person shall be pimishable with fine which m.ay extendto rupees one lakhfor each day duringwhichsuch failure continues subject to a maximum of rupees one .crore, as may be determ.inedby the Commissionf LPA 637/2018and coime.ct.edmailer POS'^ of42 43A Power to impose penalty for nonfurnishing of information on combinations] - If any person or enterprise who fails to give notice to the Commission under sub-section(2) of section 6, the Commission shall ' imposeon suchperson or enterprise a penalty M'hich m.ay extend to one percent, of the total turnover or the assets, whichever is higher, ofsuch a combination.]

¶44Penalty for m.akingfalse statement or omission to ^ furnish m.aterial information - If any person, being a part)! to a combination,—

(a) makes a statement which is false in any material particular, or Imowing it to befalse; or

(b) omits to state any material particular Imowing it to be material, such person shall be liable to a penalty M'hich shall not be less than rupees fifty lakhs but which may extend to rupees one crore, as may be determined by the Commission.

¶48Contravention by companies-(l) Where a person committing contravention of any of.the provisions of this Act or of any rule, regulation, order made or direction issued thereunder is a company, evejyperson who, at the time the contravention was•committed,was in charge of and M>as responsible to the companyfor the conduct of the business of the company, as well as the company, shall be deemed to be guilty of. the contravention and shall be liable to be proceeded against and punished ' accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishnent 'if he proves that the contravention was committed, yvithout his Imowledgeor that he had exercisedall due diligence to prevent the comm.issionofsuch contravention.

(2) Notwithstanding anything contained in sub-section

(1), where a contra.ventionofany oftheprovisions of this Act or of any rule, regulation, order m.ade or direction LPA 637/20J8and connectedmatter Page 34 of42 issued thereunder has been committed by a company and it is proved that the contraventionhas taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, m.anager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to he guilty of that contravention and. shall be liable to be proceeded. against and punished. accordingly. Explanation.—For thepurposes ofthis section,— k

(a) "company" means a body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a.firm, means a partner in the firm.

¶34We may state at the outset that, in view of our conclusion to issue No.2 above, we proceed to answer this issue, on the premisethat Officers/ Directorscan be proceededagainst,along with Company.We also say that the Officers/ Directors can only be liable if the CCI were to come to the conclusion that they were the key persons who were Iri-charge and responsible for the conduct of the business of the Company.

¶35On a perusal of Section 27 of the Act, it is clear that it stipulates,the CCI on a finding that there is a contraventionof Section 3 or Section 4, can pass orders against an 'enterprise' and a 'person' i.e individual,who has been proceeded against, imposing penalty;

¶36The issue is, as contended by Mi". Kapur and Mr. Rao that, the penalty under Section27(b) being 10% of the average LPA 637/2018 andcoimededmatter Page 35 of42 A turnover for the last three precedingfinancialyears cannot be on the person/ individual/Director/ Official. This they say so, as there is no 'turnover'ofaperson. On this submissionofMr. Kapur, the argument of Mr. Bhushan and Mr. Bansal was primarilywas that on a reading of Sections27(b) and 48' of the CompetitionAct, it is clear that apenaltycan be imposed on a personfor violationofthe provisionsofthe Act, which includes Sections3and4also, in viewofthepresenceofthe words "upon each of such person" in Section 27(b) and "where a person committingcontraventionofany oftheprovisionsofthis Act" in Section48(1).

¶37We agree with the said submissionof Mi*. Bhushanand Ml. Bansal. There cannot be any cjispirtethat if the Company and the Officers / Directors m-e being proceeded against for violationofSections3and 4, therehas to be aconsequencefor violation. IVtr. Kapur and iVtr. Rao's plea was that the word 'turnover'would not be applicableto Officers/ Directors. The plea appears to be appealingon afirst blush, but on adeeper consideration,if we agree witli the submissionmade by Mi-. Kapur and Mr. Rao then the very provision of penahy to be imposedon the Officers/ Directorsbeing 'persons'in terms of LPA 637/2018and connectedmatter A Section 27(b) would be rendered otiose / nugatory. In other words, there would not be any stipulation of penalty to be imposed on Officers / Directors even if they are found to be violatingSections3 and 4. That cannotbethe intent of Sections 27(b) and 48. Such a stipulation,surely requires a purposive interpretation.

¶38The Supreme Court in State of Bihar & Ors. V. Anil Kumarand OrsAIR 2017SC2716has by relyinguponNational InsuranceCo. Ltd. v. LaxmiNarainDliut (2007) 4 SCALE36 held as under; -

¶68Astatute is an edict ofthe Legisla.t.ureand in construing a statute, it is necessary to seek the intentionof its niaker. A statute has to be construed accordins! to the intent of those who make it and the duty of the court is to act upon the trup intentionofthe Lesislaiure.Ifa statutoryprovision is open to more than one internretation the Court has to choose that interpretationwhich represents the true intentionofthe Leeislature.This taskveiy often raises difficultiesbecauseofvarious reasons, inasnmch as the words used may not be scientific symbolshavinganypreciseor definitemeaningand the languagem.ay be an imperfectmedium,to convey one's thought or thai the assembly ofLegislatures consistingofpersons ofvarious shades of opinion purport to conveya meaningwhich may be obscure. It is impossible even for the most imasinative Legislature to foresee all situations exhaustively and circumstancesthat may emer2eafter enacting a statute where its applicationmay be called for. - Nonetheless, the function of the Courts is onlv to LPA 637/2018andconnecledmatter Page37of42 expound and not to legislate. Lesislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit The legislation is primarily directed to the problems before the Lesislature based on information derived, front past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e., the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose, or object which comprehends the mischief and its remedy to which the enactment is directed. (See District Mining.Officerand Ors. v. Tata Iron & Steel Co. &Anr. JT'WOl (6) SC 183). It is also well settled that to arrive at the intention of legislation depending on the objects for which the enactment is made, the Court can resort to historical, contextual and purposive interpretation leaving textual interpretation aside. (emphasis supplied)

¶69It was also opined: More often than not, literal interpreta.tion of a. statute or a provision of a statute results in absurdity. Therefore, while interpreting statutory provisions, the Courts should keep in mind the objectives or purpose for which statute has been enacted.JusticeFra.nl<furterof U.S. Supreme Court in an article titled as Some Reflections on the ReadingofStatutes(47 ColumbiaLawReports527), observed that, LPA 637/20.18andcomecledmailer Page 38 of42 lesislation has an aim, it seeks to obviate some mischief, to supply an adequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the languase of the statutes, as read in the lisht of other external manifestations of purpose".

¶39Further, it has been held by the Supreme Court in Board of Muslim Wakfs Rajasthan v. Radha Krishna cQ; ors (1979) 2 see 468, that the construction which tends to malce any part of tlie statute meaningless or ineffective must always be avoided and construction which advances the remedy intended by the statute should be accepted. Mi\ Kapur and Mr. Rao, in their submissions had relied on the general meaning of the word 'turnover' the income of a Company in a particular period, but the synonyms of the word 'turnover'' (as per English Oxford Living Dictionary) are revenue, gross revenue, income, yield, volume of business, business sales. So, the turnover, in the context of Officers / Directors has to be interpreted as the income of the Officers / Directors from the Company, as there cannot be an income of an Officer / Director from an infringing product. We have been told, during the course of the arguments that the CCI has been imposing penalty on the income of the Officers / LPA 637/2018 and connected niatler Page 39 of42 <^0 •J. Directors of the Company. We agree with such an action.

¶40So, tlie plea of Mr. Kapur and Mr. Rao that Section 27(b) shall be applicable to an 'enterpriseis not appealing.

¶41Insofar as the plea of Nfr. Kapur and Mr. Rao that Section 48 as it falls under Chapter VI, only relates to the contravention of Sections 42 to 44 of the Act, is also not appealing, inasmuch as the Section contemplates, "on contravention of the provisions of the Act", one shall be hable to-be proceeded against and punished accordingly.The contraventionof the provisions of the Act includes Sections 3 and 4, as is clear from Section 46, which is also in Chapter VI, stipulates lesser penalty for violating Section3 in certaineventualities. If'the interpretationas sought to be advancedby Mr. Kapur and Mr., Rao, is to be accepted/ agreedto, then Section48 shallbecomenugatory,and there shall be no penalty for violating the Act.

¶42Insofar as the judgments,as relied upon by the learned counsels for the appellantsare concerned,in Poonam (supra), the reliancewas placed on a propositionof law that no order can be passedbehindthe backofapersonadverselyaffectinghim.

¶43Insofaras CentralBoardofDawoocliBohra Community and Am. (supra), the reliance was placed by the appellantsin LPA 637/2018andconnectedmatter Page 40 of42 support of their contention that the matter must be referred to a larger Bench in the facts of this case.

¶44Insofar as the judgments in the case of Shah and Co., Bombay (supra) & Bangalore Turf Club Limited relied upon by the appellants in support of their submission that there is no justification to refer to the NI Act when the 2002.Act as a Special Act deals with the subject matter, which is entirely distinct from the NI Act.

¶45Insofar as the M. Nizamudeen (supra) is concerned, the same was relied upon by the learned counsel for the appellants to contend that it is a settled rule of interpretation that if the language used in a statute is capable,of.bearing more than one construction,a constructionthat results in absurdityor anomaly • should be eschewed.

¶46Similarly, Union of India v. Deoki Nandan Aggarwal (supra),was reliedupon by the learnedcounselfor the appellants to contend that defect or omission in the words used by the legislator,the Courtcannotcorrector make up the deficiency. It shall only decide what the law is, and not what it should be.

¶47Insofar as B. Unnikrishnan and Ors. and B. R. Enterprises (supra) are concerned, the same were relied upon LPA 637/2018andcoimectedma!tar Page 41 of42 that the Officers / Dkectors cannot be punished without any legislative guideHnes / checks and as per whims and fancies this is anathema to rule of law.

¶48Suffice it to state, in view of our conclusion above, the judgments so relied upon have no applicability.

¶49We see no reason, to refer the writ petition for consideration by a larger Bench.

¶50In-view of our discussion above, we are of the view, that the impugned order needs no. interference. The appeals are dismissed. No costs. CM. Nos. 47926/2018 and 47927/2018 in LPA 637/2018 CM. Nos. 48742/2018 and 48743/2018 in LPA 651/2018 Dismissed as infructuous. i, V. I<A.MESWAR RAO, J CHISf JUSTICE DECEMBER 18, 2018/ygM - • I -V, / LPA 637/2018 and conn Page 42 of42

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7578/2016 & CM No. 31231/2016.31232/2016, 31234/2016.15836/2017.18316/2017. 41878/2018 MONSANTO COMPANY Petitioner ThroughMrP.V. Kapoor,SeniorAdvocatewith MrAjitWarrier,MrHarmanSingh,MrAngad Kochhar,Mr Aman Sethi,Mr VaibhavAggarwal, Ms Yashika, Advocates. versus COMPETITION COMMISSION OF INDIA & ORS Respondents ThroughMr JayantBhushan,SeniorAdvocate with Mr Amitabh Kumar, Mr Vaibhav Cholkse, Mrs Ela Bah, Advocates. Mr Pallav Saxena, with Mr Surabhi Sinha, Advocate for CCI. Mr SanjayJain, SeniorAdvocatewithMrAmit Tyagi,MrPavanSaxena,Advocatesfor CCI. Mr Sunil J. Mathews, Advocate for R3. Mr SabahIqbal Siddiqui,Advocatefor R7. / W.P.(C) 7583/2016 & CM Nos. 31242/2016. 31243/2016. 31245/2016. 44926/2016.15833/2017.18311/2017. 41877/2018 MAHYCO MONSANTO BIOTECH (INDIA)PRIVATELTD. &ANR Petitioners ThroughMrP.V. Kapoor,SeniorAdvocatewith MrAjitWarrier,MrHarmanSingh,MrAngad Kochhar,Mr Aman Sethi, Mr Vaibhav Aggarwal, Ms Yashika, Advocates. versus COMPETITION COMMISSION OF INDIA Respondent Cj ThroughMr JayantBhushan,SeniorAdvocate with Mr Amitabh Kumar, Mr Vaibhav Cholkse, Mrs ElaBali,Advocates.MrPallavSaxena,with Mr SurabhiSinha,Advocatefor CCI. Mr Sanjay Jain, SeniorAdvocatewithMrAmitTyagi,Mr PavanSaxena,Advocatesfor CCI. MrSunilJ. Mathews, Advocate for R3. Mr SabahIqbalSiddiqui,Advocatefor R7. CORAM: HON'BLE MR. JUSTICE VIBHU BAKHRU