The Supreme Court Bench comprising of the Chief Justice of India Justice S.H. Kapadia and Justices K.S. Radhakrishnan along with Swatanter Kumar, has refused to interfere in the investigations being conducted by Competition Commission of India (CCI) into an alliance between Kingfisher Airlines and Jet Airways. The Vijay Mallya owned Kingfisher Airlines was forced to withdraw its SLP by Senior Advocate Ashok Desai, on September 24.

Speaking to Bar & Bench, Competition Law Partner, Samir Gandhi said, “The Supreme Court’s decision is significant not only because it will allow the CCI to proceed with its investigation into the alliance between Kingfisher and Jet, but also because it sends out a clear message that it is unwilling to interfere with the investigations conducted by the Director General and the CCI at every stage”.

Samir added on to say, “The decision also effectively means that the earlier decision of the Bombay High Court remains good in law and consequently that the Commission has the authority to investigate any agreement which continues to have effect after the notification of the Competition Act”.

The CCI was represented by Additional Solicitor General Gaurav Bannerjee, who was instructed by ELP Competition Law Partners Suhail Nathani and Samir Gandhi, and Litigation Partner Tarun Gulati assisted by Senior Associate Sparsh Bhargava.

Kingfisher was advised by Senior Advocate Ashok Desai who was briefed by Jai Munim, Managing Partner of Bachubhai Munim and Partner Mustafa Doctor.

The Livemint reports the CJI Justice S.H. Kapadia stated, “CCI was entitled to investigate the carrier. The Director General of CCI is entitled to ask you for any paperwork,” Kapadia said to Kingfisher’s lawyers.

The Supreme Court’s standpoint clarifies the powers, functions and jurisdiction of the newly established watchdog, and makes it clear that the CCI can investigate agreements that pre-date the Competition Act of 2009. This follows the landmark ruling of September 9, in which the Supreme Court stated that entities being investigated don’t have the right to be heard while CCI decides on the legitimacy of complaints involving them. The Court also ruled that the appeals body, the Competition Appellate Tribunal can only hear cases on which CCI has passed its orders.

Bar & Bench had reported in November 2009, about Kingfisher approaching the Bombay High Court when CCI began the probe last year to examine whether the alliance was a case of cartelization. Kingfisher and Jet Airways cooperate in fuel management, ground-handling and cross-selling of flight tickets to select destinations. The current combined share of the two airlines in domestic passenger traffic is around 45 percent.