India: Private Enforcement Under Indian Competition Law – A Roadmap

Last Updated: 30 August 2017
Article by Anshuman Sakle

The Competition Act, 2002 (the Act) was brought into force inter alia with the objective of curbing anti-competitive behaviour which causes appreciable adverse effect on competition in the Indian market, to ensure a fair competitive environment.1 Although one does not find any mention of consumer welfare in the Statement of Objects and Reasons of the Act, the preface to the Act unequivocally lays down its spirit by providing that it intends to promote and sustain competition in the markets, to protect the interest of consumers and to ensure freedom of trade carried on by other participants in the market...

In furtherance of this objective, the Act empowers the Competition Commission of India (CCI) with multifarious penal powers to ensure compliance with the legal regime. However, such provisions are predominantly directed towards penalising the violators rather than compensating the parties affected by the anti-competitive behaviour of one or more market players. To ensure that the victims of anti-competitive behaviour receive their dues, the Act also lays down a mechanism for such parties to seek compensation for the losses that they may have suffered due to the anti-competitive behaviour.

The private damages regime under the Indian competition law, which came into force in 2009, lays down the legislative foundation for consumers and competitors to sue for compensation in relation to the damages suffered as a result of the anti-competitive behaviour. Considering that the Competition Law is still in nascent stages in India, there has been no ruling pronounced in this space until date. While the case involving the National Stock Exchange (NSE) and the MCX Stock Exchange (MCX- SX)2 remains the sole case to utilise the private enforcement provisions of the Act, the matter remains sub judice. Curiously, in the celebrated case involving DLF3, while private damages litigation was drawn up against DLF, it was consequently withdrawn.

Background to the private damages litigation in India

Before diving into the details of the NSE case4, by way of back- ground, the private damages regime is largely encased within Chapters VI and VIII-A of the Act.5

Post the recent amendment to the law, where the powers of the Competition Appellate Tribunal (COMPAT) stand transferred to the National Company Law Appellate Tribunal (NCLAT), the NCLAT now has original jurisdiction to hear applications from the Central or State Government or any person or enterprise who has suffered any loss or damage as a result of any contravention of Sections 3, 4, 5 and 6 of the Act, which has been established as a violation by the CCI or the COMPAT.6

The private litigation regime makes it mandatory that any claim can only arise after a finding of the violation of the substantive provisions of the Act has been established by the regulator or the appellate authority. Additionally, the enactment also provides for a application to be filed against enterprises when any damage is suffered by the applicant as a con- sequence of the enterprise violating any order or direction of the CCI or the appellate authority for seeking compensation.7

The Act, as drafted and amended, is significantly forward looking and provides for remedial actions, such as class action suits, which are at par with global best practices. In a situation where a group of persons have the same claim against the defaulter of the substantive provisions of the Act, a class action suit can be instituted to seek remedy. Although the Act allows one or more persons to file the application on behalf of all interested parties, this is subject to the Civil Procedure Code, 19088.

On the procedural front, though the Act does not stipulate the time period within which an application is to be filed for private compensation, guidance may be sought from the erstwhile monopolies and restrictive trade practices (MRTP) cases. In Director General (Investigation and Registration) v. Thermax (P) Ltd.9 and M.S. Shoes East Ltd. v. Indian Bank10, the MRTP Commission referred to the Supreme Court case of Corporation Bank v. Navin J. Shah11, which lays down the "doctrine of laches" i.e., if a claim is to be made, the same must be done within a reasonable time period. Although the scope of "reasonable time" is a matter of factual consideration, in the above- mentioned precedents of the MRTP, the private compensation claims were rejected since they were brought after a delay of more than 5 years.

Background to the NSE case

In the 9 years of the Act being in force, several landmark CCI decisions are pending in appeal before the Supreme Court of India for final adjudication. The NSE case12 was one of the first major abuse of dominance cases examined in the country and though the violation of the Act was upheld by the CCI and the COMPAT, it is presently sub judice before the Supreme Court

However, since the violation was upheld by the CCI and the COMPAT, under the scheme of the Act, a private damages claim was permissible to be brought before the COMPAT and the same was done by MCX-SX.13

By way of context, MCX-SX had filed an application against the NSE, alleging that NSE had abused its dominance in the market by engaging in predatory pricing to drive MCX-SX out of the market in the currency derivative (CD) segment. The CCI noted that NSE was dominant in the CD market and accordingly ordered NSE to modify its zero price policy in the relevant market and to cease and desist from its unfair pricing, exclusionary con- duct and unfairly using its dominant position in the other market(s) to protect its own CD market with immediate effect. Additionally, a penalty of INR 55.5 crore was also imposed on NSE.

In the appeal, the COMPAT upheld the CCI's finding that NSE had abused its dominant position, as well as the penalty and directions given by the CCI.

Private enforcement claim based out of the NSE case

Consequent to the findings of the CCI and the COMPAT, MCX-SX filed an application with the COMPAT for compensation to the tune of INR 588.65 crore from NSE for the damages suffered as a result of the abusive conduct of NSE. Accordingly, when the matter came up for hearing, the same was adjourned as MCX-SX wanted to make amendments to the amount of compensation claimed from the NSE.14 Subsequently, MCX-SX filed a compensation claim for a monetary sum of INR 856 crore based on the evaluation done by the industry experts.15 Media report suggests that the revised compensation amount was submitted pursuant to an independent report by a chartered accountant validating the claims and calculating the compensation amount based on that.16

Future course of action

As the matter is pending consideration, keen eyes from across the industry will be awaiting a few key observations of the NCLAT, including in relation to the issue of damages under the Act. It remains to be seen what standard will be adopted by the NCLAT to determine the amount of compensation that can be legitimately granted to or claimed by MCX-SX. Although the Act does not provide for punitive damages, it will be interesting to see whether the NCLAT makes any observation on the "passing-on" defence. "Passing-on" defence stipulates that if the person suffering losses from the anti-competitive concerns has passed on the losses to its consumers or other downstream stakeholders, then he is not entitled to claim the amount of losses which he has passed on.

Further, considering that punitive claims are not specifically envisaged under the scheme of the Act, it remains to be seen whether the compensation provided under the Act makes this remedy a viable one compared to the costs incurred (in terms of time and money for achieving so); or whether this provision will remain a paper tiger in the statute book. In either scenario, the NSE case17 will continue to remain under sharp scrutiny and will lay the road map for the efficiency and mobility of the private damages regime in India.


1              Recital 3 to the Statement of Objects and Reasons, Competition Act, 2002.

2              MCX Stock Exhange Ltd. v. National Stock Exchange of India Ltd., 2011 SCC Online CCI 52

3              Belaire Owner's Assn. v. DLF Ltd., Case No. 19 of 2010

4              2011 SCC Online CCI 52

5              Sections 53-N, 53-Q and 42-A of the Act

6              With effect from 26-5-2017, the appellate authority for all matter relating to the Act is the NCLAT. Originally,   this power was vested in the COMPAT.

7              Sections 42-A and 53-Q(2) of the Act.

8              Rule 8 of Order 1 of the First Schedule

9              (2003) 1 CPJ 158 (MRTP)

10            (2003) 1 CPJ 131 (MRTP).

11            (2000) 2 SCC 628 : (2000) 2 CPR 13

12            2011 SCC Online CCI 52

13            MCX-SX has since been renamed as Metropolitan Stock Exchange of India


15   msei -to – submit- report- to – compat- on-856 -crore-claim-against-nse/article18525916.ece.

16            Ibid.

17            2011 SCC Online CCI 52.

* The article was co-authored by Anisha Chand, Principal Associate

This article was first published in The Practical Lawyer

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.