SC dismisses Google's plea for modification in Jan 19 order upholding NCLAT view on penalty

New Delhi: The Supreme Court on Friday refused to entertain the plea of Google LLC seeking modification of its January 19 order and said the company can raise its grievances during hearing of its appeal before the NCLAT.

A bench of Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala said at most it can add "without prejudice" in the January 19 order and nothing more.

Senior advocate Maninder Singh, appearing for the US tech giant said some portion in the January 19 order needs to be deleted.

The bench said the order was dictated in the open court and therefore there is nothing to clarify or modify.

The counsel appearing for Competition Commission of India (CCI) said the appeal of Google LLC is listed for hearing next week before the National Company Law Appellate Tribunal (NCLAT) and they can raise these issues before the tribunal.

The bench told Singh, "Sorry, it can't be done. We will not do it. You can raise all these grievances during the hearing of the appeals".

On January 19, in a setback to Google, the top court had endorsed the order of the NCLAT declining to grant an interim stay on the imposition of a penalty of Rs 1,337 crore on the US tech giant by the competition regulator for allegedly abusing its dominant position in the Android mobile device ecosystem.

The top court had said at the interlocutory stage, it would suffice to say that the findings of the CCI against Google were neither without jurisdiction nor suffering from any manifest error warranting its interference.

It had granted a week's time to the US firm to deposit 10 per cent of Rs 1,337 crore penalty imposed on it by the CCI.

The top court had asked the NCLAT to decide Google's appeal against the competition regulator's order by March 31 this year after charting out the time schedule for the hearing.

"It is suffice to note that the findings which have been arrived at by the CCI cannot be held, at the interlocutory stage, to be either without jurisdiction or suffering from a manifest error which would have necessitated interference at the interlocutory stage", it had ordered.

Google had earlier moved the top court against the January 4 order of the NCLAT refusing an interim stay on the competition regulator imposing a Rs 1,337 crore penalty on it.

The NCLAT, however, had admitted the search giant's challenge to the CCI imposing the fine for abusing the dominant position of its Android smartphone operating system in the country and ordered listing of its plea in April.

The US headquartered firm, during the hearing, had said without prejudice, it was ready to partly comply with the order of the CCI.

"These may be followed to the following extent - A. Google would ensure unbundling of only search and chrome from Play, chrome from search; In terms of the decision of the EC (European Commission) dated 18 July 2018, Google would ensure that the search app pre installation exclusivity only on portfolio wise RSAs would not be pursued," the top court had said.

It had noted that the NCLAT had listed the appeal for final hearing and hence, did not hear the case on merits.

Earlier, the CCI had said the issue pertaining to alleged abuse of dominant position by Google in multiple markets in the Android mobile device ecosystem is of "national importance" and the world is looking at how India is dealing with the matter.

The CCI had on October 20 last year asked Google to allow smartphone users on the Android platform to uninstall applications and let them select a search engine of their choice.

That order was to become effective from January 19.

On October 20 last year, the CCI besides slapping the steep penalty on Google had also ordered the internet major to cease and desist from various unfair business practices.

The regulator, which passed the order after having directed a detailed probe more than three years ago, has also asked Google to modify its conduct within a defined timeline.

The CCI, which had started probing the case in April 2019, has directed that Original Equipment Manufacturers should not be restrained from choosing from amongst Google's proprietary applications to be pre-installed and also not be forced to pre-install a bouquet of applications on their smart devices.