DG’s Finding : The DG, on investigation, found that there is contravention of the provisions of Section 3 (3) (a) read with Section 3 (1) by OP-2 and OP-3. The Product Supply Agreement (hereinafter, “ the PSA ”) entered into between OP-2 and OP-3 had an explicit anticompetitive clause i.e. Clause 8.2, which imposed a mutual obligation on OP-2 and OP-3 not to take any step detrimental to each other’s market interests with respect to the market prices of DCB. This clause, when seen in light of Clause 17 of the PSA which stated that the agreement between OP-2 and OP-3 was “ not of joint venture, partnership or agency relationship ”, exhibits existence of concurrence of intention between “ two independent principals in commercial transaction ” to protect each other’s interests in the market. Further, from the e-mail communications on record exchanged between Mr. Parimal Vazir of OP-2 and Mr. Rakesh A., Mr. Sorab Parekh and Mr. Sunil Patil of OP-3, it can be observed that OP-2 and OP-3 exchanged commercially sensitive pricing strategies to maintain price parity of DCB in the market in line of the prices jointly determined by the other major players Eveready and Nippo. OP-2 and OP-3 had a price monitoring system in place whereby they would point out each other’s deviations from the agreed price levels prevailing in various towns/ cities and ask for corrective action so as to reduce or even eliminate competition in the market. The period of cartel was from 12.01.2012 when the PSA was signed till November 2014 when OP-3 stopped taking supplies of DCB from OP-2.
