The Delhi High Court on Tuesday asked Competition Commission to provide the NSE by friday its complete order including views of members dissenting with the majority ruling that held the bourse guilty of abusing market dominance.
The National Stock Exchange (NSE) will have to reply to the Competition Commission of India (CCI) in the five working days after getting the complete order, along with the dissent notes, the court said.
The order came a day after NSE approached the court seeking complete order, including views of the members who dissented on the order pronouncing it guilty of abusing its dominant position and following unfair trade practices in currency derivatives trading segment.
The NSE had said that CCI did not share the views of dissenting members in contravention to an earlier court direction to provide it with the complete order.
Hearing the matter, Justice S Muralidhar directed the CCI to provide NSE the copy of complete order, including the dissent notes and said that "the Commission is a public body and all its order must be available to all".
"Why keep the dissenting note back? You are not a private body. All your opinions must be in public. In fact you should put it on website. None should need to file an application to get your order," Justice Muralidhar observed.
"CCI is directed to furnish a copy of dissenting note of the order dated April 29 and the reasoned order dated May 25 (holding NSE guilty) by Friday. NSE will file its reply to it within 5 working days thereafter," the judge said.
Counsel for complainant MCX-SX, on whose complaint CCI had conducted the probe and finally issued its order, alleged that attempts are being made to complicate the matter as the current CCI chairman was retiring on the coming June 3.
"They are complicating the situation by delaying. Chairman is retiring and then they will plead 'forum non-judice' (re-decide the issue from beginning) " he said.
The bench, however, said it does not wish to go into that aspect as the issue has not been raised earlier.
The court mentioned in its order that "thereafter (after NSE replies) the committion will proceed in the matter".
"Everything being done is to delay the relief to which I am entitled immediately," the MCX Counsel said.
The CCI, in an order on May 25, held the NSE guilty of abusing its dominant position with regard to the currency derivatives trading segment. The seven-member CCI had passed a majority order, with five members favouring an action against NSE.
This is for substantially reducing transaction fees on currency and derivatives trading to eliminate competition and discouraging other entities from entering the market.
The CCI's order was based on a majority (5-2) view, indicating that some members might not have been in agreement with the ruling. While the affidavit did not name the dissenting members, two of the CCI members, Anurag Goel and Geeta Gouri, are said to have not agreed with the order against NSE.
Incidentally, Goel is among the short-listed candidates to succeed Dhanendra Kumar as the next CCI Chairman. CCI was expected to issue its final order by June 3, but latest development might delay the process, possibly beyond the term of the current Chairman of the Commission. Companies can be fined up to 10 per cent of their three-year average profit for violating section 4 of the
Competition Act, pertaining to abuse of dominant position. Following a nearly two-year probe that began after a complaint from rival exchange MCX-SX, CCI charged NSE of abusing its dominant market position and adopting unfair trade practices in currency derivatives trading.
Along with its 140-page order, CCI has also issued a notice to NSE before deciding on the the quantum of the penalty and sought a response in a week's time. Besides the penalty, CCI may propose various steps to be taken by NSE in the interest of the market. These include levy of transaction fees and other charges in various market segments including currency derivatives.
Such fees and charges need to be more than the average total cost of providing the services and NSE would have to maintain separate accounts of its various market segments and get them audited on a half-yearly basis. CCI can ask NSE to implement these measures within a month of its final order for a minimum period of five years. Also, NSE may have to stop offering free trading software to its members.
