An appeal was filed in NCLAT against the CCI order for ANI Technologies Ltd. (OLA) claiming that there is neither an establishment nor any misuse of its dominant position. Justice Jarat Kumar Jain (Member – Judicial) and Dr. Alok Srivastava (Member – Technical) heard the appeal. The petitioner said that a comparison between Ola’s and Uber’s market behaviours shows that the Commission’s order clearing Ola of abusing its dominant status is unfounded. It was claimed that even if both parties were in dominating positions and engaging in unfair business practices, Ola’s predatory pricing couldn’t be deemed unfair because Uber was also using it. It further argued that it was incorrect to defend Ola’s pricing practices and the significant market share it gained through such pricing as being efficient, arguing instead that they were anti-competitive. The respondent argued that if it was determined that the enterprise did not possess a dominant position, then the conduct of the enterprise cannot be further examined or scrutinised for any breach of Sec. 4 of the Act. They argued that the Appellants were attempting to misdirect the Tribunal by continually focusing on Ola’s abusive pricing strategy, characterising it as market manipulation, and deflecting attention away from the crucial and important matter of determining whether Ola held a dominant position in the market sector. There was no need to look into any abuse caused by Ola’s pricing approach because the Commission did not determine that Ola held a dominant position in the market. They further argued that the entry hurdles are not insurmountable because the industry was fast expanding and growing, competitors like Uber entered the market throughout the relevant period, and the Commission properly decided that Ola did not possess a dominating position in the market sector. Ola and Uber cannot both be deemed dominant under the terms of the Act, as the Commission properly stated in the impugned order. Furthermore, they claimed that no proof had been shown to suggest that the market for financing lacked competition or that access to credit was unfair. The NCLAT opined that Ola was offering a mobile application-based solution to drivers and riders in order to ease the ride for both in terms of taxi booking and ride payment. It was observed that Ola was not enjoying a supreme position in the market by violating Sec. 4 of the Act as it was also a new entrant in the market. Ola had been continuously working on building a high demand by offering discount coupons to customers and then attracting more and more drivers to meet this increased demand. That’s how Ola creates a win-win situation for both drivers and riders and for itself. NCLAT acknowledged that this demand creation cycle and its continuity via a sufficient supply of drivers with the help of incentives and discounts could not be assumed as a predatory pricing strategy to expel its competitors from the market. Carefully analysing the CCI order in addition to the Director General’s (DG) investigation report, the Tribunal also observed that Ola itself was facing high competition in the respective market from major players like Fast Track, Meru, and later on Uber, while it was trying to create its position in the market, thus, it would not be right to claim that Ola enjoyed a dominant position in Radio taxi service market in Bengaluru and tried to expel its competitors by following unethical practices for enjoying the dominant position. Against Fast Track’s and Meru’s statement that Ola adopted an unfair pricing strategy, NCLAT found Ola’s pricing strategy suitable as per market requirements, it attracted heavy injection of foreign investment and thus opined that no such below-cost pricing strategy is followed by Ola for a specific period that could be categorised as predatory in nature and misuse of dominant position in the relevant market. Lastly, NCLAT observed that Ola had just used a pricing strategy with the motive of establishing its network and brand to offer convenient and user-friendly real-time services to customers and it cannot be faulted as predatory pricing to edge out competitors. NCLAT remarked that Ola was not in a dominant position and the question of abuse of dominant position via unethical pricing is invalid. NCLAT concluded that the CCI order did not call for any interference. NCLAT dismissed the appeal.
