The Delhi High Court on Wednesday refused to stay the notice dated June 4, 2021, to WhatsApp by the Director-General of Competition Commission of India (CCI). The Division Bench Justice Anup Jairam Bhambhani and Justice Jasmeet Singh said that “we would only urge the DG, CCI to bear in mind that investigation against the appellant is under judicial consideration before a Division Bench of this court.”
The bench also underlined that, in our view, there is no doubt that the issuance of impugned notice by the DG is a step in furtherance of the investigation commenced in the suo-motu case, in which the investigation is a subject matter of the challenge in the present Letter Patents Appeal (LPA).
“…we do not consider it appropriate to stay the operation of impugned notice dated 04.06.2021, at this stage…” says the Delhi High Court. Senior Advocate Harish Salve, appearing on behalf of WhatsApp LLC submitted that while the present LPA is pending before a Division Bench of this court, in an act that smacks of overreach, the DG has issued notice dated June 4, 2021, purporting to be under section 41(2) read with section 36(2) of Competition Act 2002, demanding from the appellant information and response to certain queries, which are 22 in number, and which are already the subject matter of the challenge in the LPA.
Salve also informed the court that related challenges are also pending before the Supreme Court. Additional Solicitor General, Aman Lekhi, appeared for the CCI stated that he has instructions to say that though the issuance of notice dated June 4, 2021, was perfectly in line with the procedure contemplated under the statute for taking forward an ongoing investigation, which has not been stayed by the Division Bench.
He said it would take substantial time for the preparation of a report pursuant to the receipt of the information called for by way of the impugned notice; which report would thereafter be forwarded to the Competition Commission of India.ASG Lekhi accordingly submitted that preparation of the report would not be completed at least before the next date of hearing before the Roster Division Bench i.e., July 9, 2021.
The fresh pleas were filed by Facebook and Whastapp on an ongoing petition whereby the companies have challenged single-judge bench order dismissing their pleas against the CCI decision. Earlier, the Division Bench had issued notice to the CCI in the matter.
Senior Advocate Harish Salve and Former Attorney General Mukul Rohatgi appeared for the petitioners and had told the court that CCI proceedings must be kept in abeyance as the matter is pending before Supreme Court and High Court.
Additional Solicitor General (ASG) Aman Lekhi, who represented CCI in the matter, had earlier told the court that the matter is not of privacy but access to data and the Competition is going to deal with metadata