Bharati Law Review, Jan. March, nature of the combinations whether contravening competition law regime or not. Keywords: Combinations, Appreci

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1 Bharati Law Review, Jan. March, Holcim-Lafarge Merger Vis-à-vis DLF-PVR Merger: Analyzing the Norms of Anti-Competitive Behavior in Combinations in India Abstract Mr. Victor Nayak Ms. Prashna Samaddar Combination, synonymous to mergers and acquisitions, has a wider impact on the participating and the non-participating entities making it even more imperative for a regulator to ensure that there is no sudden economic imbalance which has a detrimental effect on the market. Competition Commission of India even though an infant if seen in terms of regulators have taken giant strides in this context and the same can be seen clearly in its order in the case of PVR Limited acquiring DLF Utilities Limited where they have clearly laid down the guidelines as to what kind of acquisition can be permissible in context of the relevant market and the scope of Appreciable Adverse Effect on the Competition (AAEC) which surprisingly the body failed to take note in the case of Holcim Ltd. and Lafarge S.A. merger. Even though in the former case there was no appeal considering that CCI had taken significant steps to modify the original deal and thereby consider the issue of affecting the beneficial interest of the other players in the market. The paper here looks at two of the recent decisions of the CCI in context of combinations where even though the author feels that in both the cases there was sufficient case of AAEC but the manner of investigation and varying factors have provided different results. In this context the author plans to analyze the changes that have taken place to the understanding of relevant market. The author also outlines the changing role of CCI in considering the various factors at the time of investigation to appreciate the AAEC vis-a-vis market profits. Lastly the paper will analyze the two of the decisions in context of the recent amendments brought to the law with respect to pre-filing consultation and modifying the threshold to decide about the Assistant Professor, School of Law, Galgotia University, Noida. Research Scholar,the West Bengal National University of Juridical Sciences, Kolkata.

2 Bharati Law Review, Jan. March, nature of the combinations whether contravening competition law regime or not. Keywords: Combinations, Appreciable Adverse Effect on Competition, Competition Commission of India, Relevant Market, Threshold Limit Introduction The Indian merger control regime under the Competition Act, 2002 (Competition Act) has been in force for nearly five years. The provisions of the Competition Act are to be read together with the notifications issued, from time to time, by the Ministry of Corporate Affairs, Government of India (Ministry) and the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations), Regulations, 2011 (Combination Regulations). Exercising its powers, the Ministry has previously enhanced the jurisdictional thresholds under the Competition Act and also introduced exemptions. 1 The Competition Act, 2002 (as amended), follows the philosophy of modern competition laws and aims at fostering competition and protecting the Indian markets against anti-competitive practices. The Act prohibits the anti-competitive agreements, abuse of dominant position and regulates combinations (mergers and acquisitions) with a view to ensure that there is no adverse effect on competition within India. The provisions of the Act relating to regulation of combinations have been enforced with effect from 1 st June, On 5 March 2016, the Ministry has published Notifications S.O. 673(E), 674(E) and 675(E) dated 4 March 2016, enhancing the existing jurisdictional thresholds under the Competition Act and amending and extending the existing exemptions for the target enterprise and group. 3 1 India Merger Control Update: An analysis by Shardul Amarchand Mangaldas Bar & Bench, available at updateshardulamarchandmangaldas/ (last visited on February 8, 2017). 2 Id. 3 India Merger Control Update: An analysis by Shardul Amarchand Mangaldas Bar & Bench, available at updateshardulamarchandmangaldas/.

3 Bharati Law Review, Jan. March, Meaning of combinations Broadly, a combination under the Act means acquisition of control, shares, voting rights or assets, acquisition of control by a person over an enterprise where such person has direct or indirect control over another enterprise engaged in competing businesses. Combinations are classified into horizontal, vertical and conglomerate combinations. If a proposed combination causes or is likely to cause appreciable adverse effect on competition, it cannot be permitted to take effect. Horizontal combinations are those that are between rivals and are most likely to cause appreciable adverse effect on competition. Vertical combinations are those that are between enterprises that are at different stages of the production chain and are less likely to cause appreciable adverse effect on competition. Conglomerate combinations are those that are between enterprises not in the same line of business or in the same relevant market and are least likely to cause appreciable adverse effect on competition. 4 As per the Act , a combination is of three types: acquisitions of control, voting rights, shares and assets acquisition of control over an enterprise that is engaged in similar or identical services mergers and acquisitions Thresholds for combinations under the Act 6 The current thresholds for the combined assets or turnover of the combining parties are as follows: Individual: Either the combined assets of the enterprises are more than 1,500 crores in India or the combined turnover of the enterprise is more than 4,500 crores in India. In case either or both of the enterprises have assets/ turnover outside India also, then the combined assets of the enterprises are more than US$ 750 million, including at least 750 crores in India, or turnover is more than US$ 2250 millions, including at least 2,250 crores in India. Group: The group to which the enterprise whose control, shares, assets or voting rights are being acquired would 4 Competition Commission of India, Regulation of Combinations, available at (last visited on February 3, 2017). 5 Sec. 5 of Competition Act Id; See, Krishan Keshav & Divya Verma, Competition and Investment Laws in India, Singhal Law Publications, pg

4 Bharati Law Review, Jan. March, belong after the acquisition or the group to which the enterprise remaining the merger or amalgamation would belong has either assets of more than 6000 crores in India or turnover more than crores in India. Where the group has presence in India as well as outside India then the group has assets more than US$ 3 billion including at least 750 crores in India or turnover more than US$ 9 billion including at least 2250 crores in India. The term Group has been explained in the Act. Two enterprises belong to a Group if one is in position to exercises at least 26 per cent voting rights or appoint at least 50 per cent of the directors or controls the management or affairs in the other. Vide notification S.O. 481 (E) dated 4th March, 2011, the government has exempted Group exercising less than fifty percent of voting rights in other enterprise from the provisions of section 5 of the Act for a period of five years. Thresholds of combinations under the Act (in tabular form) Applicable to Assets 7 Turnover 8 In India Individual Rs crore Rs crore Group Rs crore Rs crore Assets Turnover In India and Outside Total Minimum Indian Component Total Minimum Indian Component 7 The term Assets has not been defined under the Act. However, Explanation (c) to Section 5 gives some indication as to the meaning of this term and deals with determining the value of assets as follows: The value of assets shall be determined by taking the book value of the assets as shown, in the audited books of account of the enterprises, in the financial year immediately preceding the financial year in which the date of proposed merger falls, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, patent permitted use, collective mark, registered proprietor, registered trademark, registered user, homonymous geographical indication, geographical indications, design or layout design or similar commercial rights, if any, referred to in sub-section (5) of Section 5. 8 Section 2(y) of the Competition Act, 2002, talks about the term turnover to include the value of sale of goods or services.

5 Bharati Law Review, Jan. March, Individual $750mn Rs. 750 Cr $2250 mn Rs Cr Group $3 bn Rs. 750 Cr $9 bn Rs Cr [1 crore = 10 million Source: Competition Act, 2002] The turnover shall be determined by taking into consideration the values of sales of goods or services. The value of assets shall be determined by taking the book value of the assets as shown in the audited books of account of the enterprise, in the financial year immediately preceding the financial year in which the date of proposed combination falls, as reduced by any depreciation. The value of assets shall include the brand value, value of goodwill, or Intellectual Property Rights etc. referred to in explanation (c) to section 5 of the Competition Act. Scope and ambit of competition commission in regulating combinations The review process for combination under the Act involves mandatory pre-combination notification to the Commission. Any person or enterprise proposing to enter into a combination shall give notice to the Commission in the specified form disclosing the details of the proposed combination within 30 days of the approval of the proposal relating to merger or amalgamation by the board of directors or of the execution of any agreement or other document in relation to the acquisition, as the case may be. In case, a notifiable combination is not notified, the Commission has the power to inquire into it within one year of the taking into effect of the combination. The Commission also has the power to impose a fine which may extend to one per cent of the total turnover or the assets of the combination, whichever is higher, for failure to give notice to the Commission of the Combination. Forms of notification The Combination Regulations 2011 set out three different forms for filing a combination notification: Form I (short form) with a fee of Rs. 10 lakhs: Combination notifications must usually be filed in Form I. 9 9 Regulation 5(2).

6 Bharati Law Review, Jan. March, Form II (long form) with a fee of Rs 40 lakhs: The parties to the combination have the option to give notice in Form II. Form II is preferred. 10 Form III: In case of public financial institutions, FIIs, bank or venture loan or any investment agreement without fees in Form III. Time limit for giving notice to the Commission Any person or enterprise proposing to enter into a combination shall notify the Commission in the specified form disclosing the details of the proposed combination within 30 days of the approval of such proposal by the board of directors or of the execution of any agreement or other document. The proposed combination cannot take effect for a period of 210 days from the date it notifies the Commission or till the Commission passes an order, whichever is earlier. If the Commission does not pass an order during the said period of 210 days the combination shall be deemed to have been approved. The draft regulations propose to dispose of notifications within 30 days in respect of Combination, which, in the opinion of the Commission, has little or no potential for appreciable adverse effect on competition in Indian markets. Failure to file notice 11 Where the parties to a combination fail to file notice, then Commission upon its own knowledge or information relating to such combination, inquire into whether such a combination has caused or is likely to cause an appreciable adverse effect on competition within India and direct the parties to the combination to file notice in Form II within 30 days of the receipt of the notice. HOLCIM and LAFARGE merger 12 : a bird s eye view Holcim is a global producer of cement and other construction material such as RMC, aggregates, asphalt, pre-cast concrete products, etc. In India, Holcim is active through its two indirect 10 Regulation 5(3); the parties to the combination either individually or jointly have a market share after combination of more than 25% in the relevant market, in the case of any vertical overlaps; or the parties to the combination have a combined market share after combination of more than 15% in the relevant market, in the case of any horizontal overlaps. 11 Regulation Notice under Section 6 (2) of the Competition Act, 2002 given by Holcim Limited and Lafarge S.A; Combination Registration No. C-2014/07/190, available at

7 Bharati Law Review, Jan. March, subsidiaries, i.e., ACC Limited and Ambuja Cements Limited and is present in the product segments of cement, RMC and aggregates. Holcim s shareholders had previously approved the merger-related resolutions at an Extraordinary General Meeting on May 8, With the completion of the merger the mandate of the new Board of Directors and of the new Executive Committee with Eric Olsen as CEO has become effective. 13 Lafarge is also a global producer of cement and other construction material such as RMC, aggregates, asphalt, pre-cast concrete products, etc. Lafarge is present in the product segments of cement, RMC and aggregates in India through its indirect subsidiaries, Lafarge India Private Limited and Lafarge Aggregates & Concrete India Private Limited. 14 The proposed combination is structured as an acquisition of shares and falls under Section 5(a) of the Act 15. In pursuance to the proposed combination, Holcim would file a public offer for all outstanding shares of Lafarge. As per the information filed by the Parties under Regulation 16 of the Combination Regulations, each Lafarge shareholder tendering Lafarge shares to the contemplated public exchange offer initiated by Holcim would receive 9 Holcim shares for 10 Lafarge shares. Therefore, pursuant to the proposed combination, Lafarge would become a subsidiary of Holcim. The offer would be subject to Holcim holding at least 2/3rd of the share capital and voting rights of Lafarge on a fully diluted basis. 13 Id. at 7, CCI order on HOLCIM-LAFARGE merger available at 7, 8 15 Combination The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if (a) any acquisition where - (i) the parties to the acquisition, being the acquirer and the enterprise, whose control, shares, voting rights or assets have been acquired or are being acquired jointly have, (A) either, in India, the assets of the value of more than rupees one thousand crore or turnover more than rupees three thousand crore; or (B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover of more than fifteen hundred million US dollars; or (ii) the group, to which the enterprise whose control, shares, assets or voting rights have been acquired or are being acquired, would belong after the acquisition, jointly have or would jointly have, (A) either in India, the assets of the value of more than rupees four thousand crore or turnover of more than rupees twelve thousand crore; or (B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover of more than six billion US dollars; or.

8 Bharati Law Review, Jan. March, The new entity will be named as LafargeHolcim and will be listed on SIX Swiss Exchange and Euronext, Paris. 16 Role of Competition Commission in the deal On , the Competition Commission of India received a notice under sub-section (2) of Section 6 of the Competition Act, 2002 given by Holcim Ltd. and Lafarge S.A. The Notice was filed with the Commission pursuant to the execution of combination agreement by and between the Parties on The board of directors of the Holcim and Lafarge made an announcement regarding the revised terms of the Combination Agreement pertaining to exchange ratio and certain governance provisions on The said changes were intimated to the Commission through their letter dated The said information was received by the Commission under Regulation of the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 and it was decided that the same may be noted and the Combination Agreement may be read with the proposed changes. 16 Supra note 14, at Id. at 1, Intimation of any change (1) The parties to the combination having filed a notice under regulation 5 or regulation 8 of these regulations, shall inform the Commission of any change in the information provided in the notice to the Commission at the earliest during the continuation of the proceedings under the Act. (2) The Secretary shall place the information relating to any change in the notice before the Commission not later than the third working day of its receipt in the Commission. (3) The Commission shall assess the significance of the information relating to that change and, if satisfied, take on record the information received. (4) Where the Commission is of the view that the change is likely to affect the factors for the determination of the appreciable adverse effect on competition significantly, it may, after giving an opportunity of being heard and after recording reasons, treat the notice already filed as not valid. (5) Where the Commission has held a notice to be not valid under subregulation (4), the Secretary shall convey the decision of the Commission to the parties to the combination within seven days of the decision of the Commission, Provided that no additional fee shall be payable if a notice is filed again by the parties to the combination for the same transaction within a period of thirty days from the date of communication of the decision of the Commission.

9 Bharati Law Review, Jan. March, In terms of Regulation of the Combination Regulations, vide letter dated , the Parties were required to provide certain information/document(s) latest by The Parties filed their reply on after seeking extension in this regard. Letters under Regulation 14 in continuation of the reply by the parties were issued on and respectively. 20 The Competition Commission of India (CCI) had approved the merger for a second time in February after Lafarge told the regulator that it would sell its entire assets worth about Rs. 10,000 crore. The CCI had earlier approved this merger in March 19 Scrutiny of notice (1) The notice filed under regulation 5 or regulation 8 of these regulations shall not be valid unless it is complete and in conformity with these regulations. (2) The Secretary shall issue an acknowledgement of the receipt of notice. (2A) Notwithstanding anything contained in sub-regulation (2), the Commission may, after recording reasons, invalidate a notice filed under regulation 5 or regulation 8 of these regulations when it comes to the knowledge of the Commission that such notice is not valid as per subregulation (1) and, in that case, the Secretary shall convey the decision of the Commission to the parties to the combination within seven days of such decision of the Commission. 8[Provided that the Commission may give an opportunity of being heard to the parties to the combination in accordance with regulation 24 of these regulations before deciding to invalidate a notice: Provided further that the period between the commencement of proceedings under sub-regulation (2A) of regulation 14 of these regulations till the decision of the Commission regarding validity of the notice, shall be excluded from the period specified in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations.] (3) Where the information or document(s) contained in the notice under regulation 5 or regulation 8 of these regulations or any response filed pursuant to these regulations is incomplete in any respect, the parties to the combination may be asked to remove such defect(s) or furnish the required information including document(s). (4) The Secretary shall place the proof of service of communication as referred to in sub- regulation (3) to the parties to the combination on record. (5) The parties shall comply with the directions as referred to in subregulation (3) within the time specified by the Commission and in the case of the notice filed under regulation 5 the time taken by the parties in removing such defects or furnishing the required information including document(s) shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub- regulation (1) of regulation 19 of these regulations (6) In case the parties fail to remove the defects or fail to furnish the required information including documents(s), within the time specified, the notice filed under regulation 5 or regulation 8 of these regulations shall not be treated as a valid notice. 20 Supra note 14, at 14.

10 Bharati Law Review, Jan. March, on the condition that Lafarge sell two of its cement plants, in Chhattisgarh and Jharkhand, which had a total capacity of 5.15 million tons. They were valued around Rs. 5,000 crore. 21 Lafarge was unable to sell those plants as the Mines and Minerals (Development and Regulation) (Amendment) Act came into place that barred the transfer of rights of limestone mines attached with cement plants. This prompted Lafarge to present a fresh proposal from divesting its entire assets, which was approved by CCI on February 2 nd 2016 following the modification that it had suggested. 22 In its March order earlier, CCI had barred anyone with more than 5% share in the relevant markets from bidding for the assets up for sale. The two assets that were put up for sale initially were in Chhattisgarh and Jharkhand. This prevented Dalmia Cements from participating in the bidding process and it became one of the contentious grounds upon which the earlier allotment was challenged. Following this, Dalmia Cements moved COMPAT against CCI's approval on April 5, The order is pending further orders and it is open to further clarifications. Dalmia filed an appeal before COMPAT challenging the validity of the CCI order on the ground that CCI has no jurisdiction to approve a new approval after a final order approving a combination subject to modifications has been passed under Section 31 of the Act , according to a statement provided on behalf of Dalmia. 24 It was further 21 Deepak Patel, Holcim-Lafarge merger hits competition tribunal wall, available at April 14, 2016, (last visited on February 6, 2017). 22 Id. 23 S. 31 Orders of Commission on certain combinations This section provides that where the Commission is of the opinion that any combination does not, or is not likely to, have an appreciable adverse effect on competition, it shall, by order, approve that combination including the combination in respect of which a notice has been given under sub-section (2) of section 6. However, where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall direct that the combination shall not take effect and may frame a scheme to implement its order. It is further provided that where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination, to the parties to such combination to be carried out within the specified period and if parties fail to carry out the modification within such period. 24 P.R. Sanjai & Shreeja Sen, Competition Appellate Tribunal stays sale of Lafarge India assets, available at

11 Bharati Law Review, Jan. March, contended by the legal team of Dalmia Cements that CCI s second order was invalid as there was no provision under the Act which gives CCI the power to pass the second order when the first order was not followed. COMPAT prima facie accepted the arguments and has stayed the operation of the CCI s order till the next date of hearing. 25 DLF and PVR merger: an analysis DT Cinemas is the wholly owned subsidiary of the DLF Group. The Multiplex chain started its operations through its first Multiplex at DLF City Centre in Gurgaon with a belief to create a comprehensive retail experience for the Indian Consumers through the best retail entertainment. DT Cinemas has been showcased as the Entertainment Anchor for DLF malls by being the robust footfall driver. DT Cinemas have been screening movies since 2003 and is in sync with their customers needs to provide an ultimate movie experience. 26 With current operational cinemas at DT Star Cinema Saket, DT Star Cinema Vasant Kunj, DT Cinema Shalimar Bagh, DT Cinema City Centre and DT Cinema Mega Mall, DT Cinema Star Mall, Gurgaon, and DT Cinema, Chandigarh, they have 29 screens with an overall seating capacity of around PVR is the largest and the most premium film and retail entertainment company in India. Since its inception in 1997, the brand has redefined the way entertainment is consumed in India. It currently operates a cinema circuit comprising of 467 screens in 106 properties in 44 cities pan India. The subsidiaries range from the largest bowling chain in India, PVR bluo to the two casual dining restaurants Mistral and Mr. Hong under PVR Leisure. The group under the arm of PVR Pictures is into film distribution of non-studio/independent international films in India. 28 The company is also known for cultivating and spreading international movie culture countrywide and supports independent filmmakers on-appellate-tribunal-stays-sale-of-lafarge-india-a.html, (last visited on January 10, 2017) 25 Legally India, Luthra wins stay of CAM's Holcim-Lafarge mega-merger before Compat, (last visited on January 10, 2017) 26 Supra note PVR Strengthens its Position, available at (last visited on January 10, 2017). 28 Id.

12 Bharati Law Review, Jan. March, under the banner of Directors Rare. 29 In November 2009, PVR entered into an agreement to acquire DT Cinemas in cash and stock worth Rs crores and allotment of 25.57lakh shares of PVR (at Rs. 150 per share it comes to Rs crores) to DT Cinemas which comes to approx. 60 crores of total consideration. DLF did not increase the number of screens since November 2009 perhaps the same was not its core business and the same was done as part of its various township project. Revenue from the said business for FY 2009 was just 13 crores and FY 2010 the same was above 51 crores. PVR & DT Cinemas had entered into the Business Transfer Agreement dated 13th November The agreement stood automatically terminated if conditions precedent to the acquisition were not satisfied within 60 days or extended period mutually agreed by both the companies. The conditions precedent to the acquisition were not satisfied even within one extended period & hence acquisition was terminated. Later in March 2015 finally the parties came to a conclusion to ink the deal and get the approval of the appropriate regulatory bodies in this matter. Role of the Competition Commission After a delay of over six-months, the Competition Commission of India (CCI) has decided to release the blockbuster merger between the country s largest multiplex operator PVR Ltd and the real estate major DLF promoted DT Cinemas Ltd subject to certain changes to the original script. CCI in January 2016 had red flagged the Rs. 500-crore buy-out of DT Cinemas by PVR citing monopoly concerns under the Competition Laws. The deal, billed as the blockbuster deal to hit the box office ever, was flagged down by CCI on the grounds that it would give PVR a virtual monopoly over the cine exhibition space in Delhi NCR and Chandigarh regions. PVR already hold sway over the multiplex space with 1,700 screens accounting for one third of the country s burgeoning cine exhibition space. The fair trade regulator, in its order warned, both sides not to take it for granted and revoke its judgement and make it null and void if it found both sides violating its order in its letter and spirit or the information furnished by the parties were found wrong or misleading or wrong Id. 30 CCI Clears PVR-DT Cinema Merger with Riders, available at

13 Bharati Law Review, Jan. March, The order issued based on a revised merger proposal furnished by PVR and DLF, among other things depends on PVR terminating its joint venture agreements with some third parties concerned, shelving expansion or completion plans of certain projects as well as stringent non-cooperating clauses. 31 One of the conditions laid down by the CCI was commitments pertaining to relevant market for exhibition of films in Multiplex Theatres in Noida, Delhi. The Commission accepted the commitments offered by PVR regarding the relevant market for exhibition of films in multiplex theatres in Noida subject to the Acquirer complying with the following: The Acquirer shall, within thirty days from the date of the Order submit a letter confirming that it has terminated its lease agreement dated 31st March, 2015, entered into with International Recreational Parks (P) Ltd for development of a multiplex in Garden Galleria, along with a copy of the termination notice issued by the Acquirer. The said letter will be co-signed by the authorized signatory of International Recreational Parks (P) Ltd. The Parties shall not consummate the Proposed Combination till this requirement is complied with. 32 Also it has been further held: The Acquirer shall, within thirty days from the Effective Date, submit a letter confirming that it has terminated its agreement dated 18 September 2015, entered into with Reach Promoters Pvt Ltd for the development of a multiplex in Airia Mall, along with a copy of the termination notice issued by the Acquirer. The said letter will be co-signed by the authorized signatory of Reach Promoters Pvt Ltd. The Parties shall not consummate the Proposed Combination till this requirement is complied with. 33 The Commission has also laid down a stringent non-competing and non-soliciting clause between the two parties as a precondition for clearing the merger. The Commission accepts the commitments offered by the Acquirer regarding the Non-Compete Agreement subject to the Acquirer submitting within thirty days from the Effective Date: a copy of the modified Non-Compete Agreement after incorporating 31 DLF Utilities Limited and PVR Limited, Combination Registration No. C- 2015/07/288, available at 32 Id. at 67; See, Annexure A, p Id. at 77; See, Annexure A, p. 37.

14 Bharati Law Review, Jan. March, the revised terms provided by the Acquirer in its commitments; and a copy of the revised combination agreement after incorporating the revised terms in all provisions pertaining to Non-Compete Agreement in the Combination Agreement. 34 It has been also stated that The Commission accepts the commitments offered by the Acquirer regarding the Co-operation Agreement subject to the Acquirer submitting, within thirty days of the Effective Date, a letter confirming that it will not enter into the Cooperation Agreement 35 Apart from these broad points CCI had also modified the scheme with respect to further expansion 36, cap on ticket prices and food & beverages 37, distributor-exhibitor relationship 38 to name a few. Concluding remarks In both the cases the role of CCI has come under the scanner as being of different nature as the standards/test applied for determining the AAEC in context of relevant market seems to be flawed and it was only in the former case that due to a challenge the matter has come to the forefront. On the other hand as PVR preferred not to challenge the matter in the appellate tribunal CCI s will have the last laugh. PVR should have challenged the proposal of modification or the refusal of the CCI to accept the terms of hybrid proposal, proposed by it as the competition assessment issues such as threat of substitutes, threat of new entrants, industry rivalry, bargaining power of distributors and buyers was not extensively discussed (these issues were also mentioned in the minority order), which should have clarified some of the concepts under the Indian competition law jurisprudence. However, I understand that the main motive of the parties (after ten months of deliberations with the CCI) in the best interest of business was to close the transaction and move ahead with the integration process rather than prolonging the legal battle. 34 Id. at Id. at Id. at Id. 38 Id. at 92.