Team Code: R-2508

2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26

BEFORE THE SUPREME COURT OF SINDHUPRADESH

IN THE MATTER OF:

FLASH RETAIL PVT. LTD APPELLANT

versus

UNION OF SINDHUPRADESH & ORS.

RESPONDENT

MEMORIAL ON THE BEHALF OF RESPONDENT

MEMORIAL for RESPONDENT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS.......................................................................................................4

INDEX OF AUTHORITIES.........................................................................................................5

STATEMENT OF JURISDICTION............................................................................................6

STATEMENT OF FACTS............................................................................................................7

ISSUES RAISED...........................................................................................................................8

SUMMARY OF ARGUMENTS..................................................................................................9

ARGUMENTS ADVANCED.....................................................................................................10

ISSUE 1.........................................................................................................................................10

ISSUE 2.........................................................................................................................................17

1. THE IMPUGNED GUIDELINES DO NOT VIOLATE ARTICLE 19(1)(G) AS THEY CONSTITUTE

REASONABLE RESTRICTIONS IN THE INTEREST OF THE GENERAL PUBLIC UNDER ARTICLE 19(6)
17
2. THE IMPUGNED MEASURES DO NOT VIOLATE ARTICLE 14 AS THEY ARE BASED ON
INTELLIGIBLE DIFFERENTIA AND RATIONAL NEXUS.................................................................17
3.1 THE STATE ADVISORY DOES NOT AMOUNT TO A LEGALLY ENFORCEABLE BAN AND
IS WITHIN CONSTITUTIONAL LIMITS.........................................................................................17
3.1 POLICY DECISIONS SHOULD NOT BE INTERFERED WITH BY THE COURT IN THE
ABSENCE OF MANIFEST ARBITRARINESS..................................................................................17

ISSUE 3.........................................................................................................................................18

3.1 THIS ISSUE OUGHT NOT TO BE HEARD AND DECIDED AT SUCH A PRELIMINARY STAGE.18
3.1 FLASHRETAIL HOLDS A DOMINANT POSITION IN THE RELEVANT MARKET....................20
3.1 FLASHRETAIL HAS ABUSED ITS DOMINANT POSITION BY ENGAGING IN PREDATORY

PRICING BY SELLING BELOW COST TO ELIMINATE COMPETITION...............................................22

3.1 FLASHRETAIL HAS ABUSED ITS DOMINANT POSITION BY USING ALGORITHMIC PRICING

DISCRIMINATION.........................................................................................................................24

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MEMORIAL for RESPONDENT

3.1 FLASHRETAIL HAS ENTERED INTO ANTI-COMPETITVE EXCLUSIVE SUPPLY

ARRANGEMENT IN VIOLATION OF SECTION 3 OF THE COMPETITION ACT..................................25

ISSUE 4.........................................................................................................................................26

ISSUE 4.........................................................................................................................................31

PRAYER FOR RELIEF.............................................................................................................36

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MEMORIAL for RESPONDENT

LIST OF ABBREVIATIONS

ABBREVIATIONS WORDS

§ Section

¶ Paragraph

CCI Competition Commission of India

The Act Competition Act, 2002

cl Clause

Co. Company

DIPP Department of Industrial Policy and

Promotion
Edn. Edition

i.e Id est (that is)

FDI Foreign Direct Investment

FEMA Foreign Exchange ManagemenT Act,1999

FlashRetail Flash Retail Pvt Ltd.

FRH Flash Retail Holdings Ltd.

MANU Manupatra

No. Number

Ors. Others

Pvt. Ltd Private Limited

v. versus

W.P(C) Writ Petition (Civil)

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MEMORIAL for RESPONDENT

INDEX OF AUTHORITIES

STATUTES:
1. Constitution of Sindhupradesh
2. Competition Act 2002
3. Companies Act, 2013
4. Consolidated Foreign Direct Investment Policy Circular, 2017
5. Foreign Exchange Management Act, 1999
6. Foreign Exchange Managament (Non Debt Instruments) Rules, 2019

BOOKS:

1. Company Law by Avtar Singh

2. Taxmann’s Company Law & Practice by G.K Kapoor and Sanjay Dhamija
3. Company Law(Treatise on the Companies Act, 2013) by C.R Datta

CASES:

1. ArcelorMittal India Private Limited v. Satish Kumar Gupta (Civil Appeal Nos.9402 -
9405 / 2018)
2. Subhkam Ventures (I) Pvt. Ltd. v. SEBI [(2010) SAT 17]

STATUTORY PROVISIONS PAGE NO.

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MEMORIAL for RESPONDENT

Consolidated Version of the Treaty on European Union 25

The Companies Act, 2013 17
The Competition Act, 2002 1, 6, 7, 9, 12, 21
The Constitution of India 25

OTHER AUTHORITIES PAGE NO.

UNCTAD MENA Programme Expert, Competition Guidelines:

1, 3
Leniency Programmes at 1, UNCTAD/DITC/CLP/2016/3
UNCTAD MENA Programme Expert, Competition Guidelines:
Leniency Programmes at 1, UNCTAD/DITC/CLP/2016/3 (Jun. 22, 1, 3
2016)

REGULATIONS, NOTICES, GUIDES & POLICIES PAGE NO.

CMA73 CMA’s Guidance as to the Appropriate Amount of a Penalty §

2, 3, 4
3.13(a) (2021)
Commission Guidelines, Guidelines on the applicability of Article 101
of the Treaty on the Functioning of the European Union to horizontal 5
co-operation agreements, 2011 O.J. (C11) 1
Commission Notice on Immunity from fines and reduction of fines in
2
cartel cases, 2006 O.J. (C 298) 11
European Commission, Commission Notice on Cooperation within the
5
Network of Competition Authorities, 2004 O.J. (C101) 043
OFT1495 Applications for leniency and no-action in cartel cases OFT's
4, 6
detailed guidance on the principles and process § 4.22 (2012)
The Competition Commission of India (General) Regulations, 2009 7
The Competition Commission of India (Lesser Penalty) Regulations, 2, 3, 8, 21

2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 6

MEMORIAL for RESPONDENT

2009
US Department of Justice, Frequently Asked Questions About The
Antitrust Division’s Leniency Program And Model Leniency Letters, § 2, 6
5

BOOKS PAGE NO.

Abir Joy and Jayant Kumar, Competition Law in India (Eastern Law
3, 13, 24, 25
House, 2nd ed. 2008)
Alison Jones, Brenda Sufrin & Niamh Dunne, EU Competition Law:
6
Text, Cases and Materials (OUP Oxford eds.,7th ed., 2019)
Baskaran Balasingham, The EU Leniency Policy: Reconciling
9
Effectiveness and Fairness 78 (Wolters Kluwer eds., 1st ed. 2017)
C. Harding and J. Joshua, Regulating Cartels in Europe 178 (Oxford
9
University Press eds., 2nd ed. 2010)
Cyril Shroff and Nisha Kaur Uberoi, India, in Competition Law in
Asia Pacific: A Practical Guide 253-297 (Katrina Groshinski and 1
Caitlin Davies eds., Kluwer Law International, 2015)
Gautam Shahi, Indian Competition Law (Taxman, 1st ed. 2021) 13
Ingrid Margrethe and Halvorsen Barlund, Leniency in EU Competition
Law, International Competition Law Series 84 (Kluwer Law 17, 19
International eds., 2020)
Richard Wish and David Bailey, Competition Law (Oxford eds., 9th
6
ed. 2018)
S M Dugar, Guide to Competition Act, 2002 (Lexis Nexis eds., 8th ed.
7
2020)

JOURNALS & ARTICLES PAGE NO.

A. E. Rodrigues & Ahok menon, The Limits of Competition Policy: 8

2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 7

MEMORIAL for RESPONDENT

the shortcomings of antitrust in developing and reforming economies,

international competition 32 (Kluwer Law International eds., 2011).
Anandha Kumar, The Entanglement of the Principles of Natural
Justice Befitting to Competition Law 4 International Journal of Law 7
Management & Humanities 1144 (2021)
AZB and Partners, Cartel leniency in India: Overview, Thomson
4
Reuters (Nov. 1, 2020)
Bruce Wardhaugh, Punishing parents for the sins of their child:
extending EU competition liability in groups and to subcontractors 5 17
Journal of Antitrust Enforcement 32, 22 – 48 (2017)
Caroline Cauffman, The Interaction of Leniency Programmes and
3
Action for Damages, 7(2) CompLR 181-220 (Jul., 2011)
Bryant, P. and E.W. Eckard, Price Fixing: The Probability of Getting
Caught”, 73 The Review of Economics and Statistics 536, 531-536 3
(Aug., 1991)
Chen, Z. and P. Rey., On the Design of Leniency Programs 56 The
3
Journal of Law & Economics 938, 917-957 (2013)
James Harrington, Optimal Corporate Leniency Programs, 56 The
5
Journal of Industrial Economics 215 (2008)
Michael Blatter, Optimal Leniency Programs when Firms Have
Cumulative and Asymmetric Evidence, 52 Review of Industrial 5
Organization 403 (2018)

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MEMORIAL for RESPONDENT

STATEMENT OF JURISDICTION

It is humbly submitted before the Hon’ble Supreme Court of Sindhupradesh that it has the
jurisdiction to hear this matter under several Articles of the Constitution of Sindhupradesh :

i) Under Article 133, Appellate jurisdiction of the Supreme Court in appeal from
High Court of Wheli in the matter of Flash Retail Pvt. Ltd. vs. Union of
Sindhupradesh & Ors. (W.P. (C) No._____ of 2024)
ii) Under Article 133, Appellate jurisdiction of the Supreme Court in appeals from
Nakata High Court arising from the matter of Quick Commerce Entrepreneurs
Association vs. Union of Sindhupradesh (W.P. (C) No.____of 2024)
iii) Under Article 136, Special Leave Petition before the Hon’ble Supreme Court against
the Tumbai High court judgement, arising from Flash Retail Pvt. Ltd. vs. Competition
Commission of Sindhupradesh (W.P. No.____of 2024)
iv) Under Article 132, Appellate jurisdiction of the Supreme Court in appeal from
Taladas High Court arising from Consumer Rights Forum vs. Flash Retail Pvt. Ltd. &
CCPA (W.P. No.____of 2025)
v) Under Article 132, Appellate jurisdiction of the Supreme Court in appeals from
Wheli High Court arising from Digital Rights Foundation vs. FlashRetail & Ors.)

The respondent humbly submits to the jurisdiction of the Hon’ble Supreme Court of
Sindhupradesh.

THE PRESENT MEMORIAL PUTS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.

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MEMORIAL for RESPONDENT

STATEMENT OF FACTS

1. BACKGROUND

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MEMORIAL for RESPONDENT

ISSUES RAISED

ISSUE 1

Whether FlashRetail's business model violates Sindhupradesh's FDI policy by effectively

running an inventory-based model instead of a marketplace model.

ISSUE 2

Whether government proposals restricting ultra-fast delivery claims (like "10-minute

guarantees") and imposing minimum pricing on essential goods sold online violate constitutional
rights under Articles 14 (equality) and 19(1)(g) (freedom to trade)

ISSUE 3

Whether FlashRetail engaged in predatory pricing by selling below cost to eliminate

competition, entered anti-competitive exclusive supply agreements, or used algorithmic pricing
strategies that could amount to tacit collusion or abuse of market dominance.

ISSUE 4

Whether FlashRetail's app design practices ("dark patterns"), misleading "10-minute delivery"
advertisements, and personalized pricing and discounting strategies constitute unfair trade
practices under the Consumer Protection Act, 2019. ge on privacy rights under Article 21.

ISSUE 5

Whether FlashRetail users have the right to transparency in algorithmic decision-making, having
access to the relevant algorithms for review, and whether FlashRetail’s practices infringe on
privacy rights under Article 21.

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MEMORIAL for RESPONDENT

SUMMARY OF ARGUMENTS

ISSUE 1

Whether FastRetail's business model violates Sindhupradesh's FDI policy by effectively

running an inventory-based model instead of a marketplace model.

It is humbly submitted before this Hon’ble Supreme Court of Sindhupradesh that FlashRetail’s
business model does in fact violate the FDI Policy of Sindhupradesh by effectively running an
inventory-based model instead of a marketplace model. The Consolidated FDI Policy 2020 in its
Paragraph 5.2.15.2.3, expressly prohibits FDI in inventory-based e-commerce companies. Clause
(iv) of Paragraph 5.2.15.2.4, establishes that an e-commerce entity shall not exercise ownership
or control over inventory, as doing so would render its operations inventory-based. FlashRetail’s
procurement of over 60% of its products from two preferred wholesale vendors, significantly
exceeding the 25% threshold, results in a deemed control over inventory, thereby constituting a
direct violation of the FDI policy. Furthermore, internal communications obtained during
enforcement proceedings indicate that FlashRetail exercised substantial influence over pricing
strategies and inventory decisions, reinforcing the conclusion that its operations do not align with
the marketplace model. Moreover, FlashRetail’s preferential treatment of these vendors,
including its practice of funding product discounts, is in contravention of Clause (ix) of
Paragraph 5.2.15.2.4, which mandates that marketplace entities must operate in a fair and non-
discriminatory manner to ensure a level playing field.

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ARGUMENTS ADVANCED

ISSUE 1

Whether FastRetail's business model violates Sindhupradesh's FDI policy by effectively

running an inventory-based model instead of a marketplace model.

¶ [1].It is humbly submitted before this Hon’ble Supreme Court of Sindhupradesh that
FlashRetail’s business model does in fact violate the FDI Policy of Sindhupradesh by
effectively running an inventory-based model instead of a marketplace model.
¶ [2].The Consolidated FDI Policy Circular of 2020 drawn up by the DPIIT, Ministry of
Commerce and Industry, made effective from October 15 2020, in its Paragraph
5.2.15.2.1 states

“subject to provisions of FDI policy, e-commerce entities would engage only in Business
to Business (B2B) e-commerce and not in Business to Consumer (B2C) e-commerce”

¶ [3].The FDI Policy also outlines definitions for the terms “inventory-based model of e-
commerce” and “marketplace based model of e-commerce”
¶ [4].According to Paragraph 5.2.15.2.2:

(iii) Inventory based model of e-commerce- Inventory based model of e-commerce

means an e-commerce activity where inventory of goods and services is owned by e-
commerce entity and is sold to the consumers directly.

(iv) Marketplace based model of e-commerce- Marketplace based model of e-commerce

means providing of an information technology platform by an e-commerce entity on a
digital & electronic network to act as a facilitator between buyer and seller.

¶ [5].The Consolidated FDI Policy also outlines guidelines for foreign direct investment in the
e-commerce sector in Paragraph 5.2.15.2.3. It provides that 100% FDI under automatic
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 13
MEMORIAL for RESPONDENT

route is permitted in marketplace model of e-commerce and that FDI is not permitted in
inventory based model of e-commerce.
¶ [6].Several other conditions have been outlined in the subsequent Paragraph 5.2.15.2.4 of the
Consolidated FDI Policy. The conditions that are required to be noted in respect of the
given facts are circumstances are as follows:

iv)) E-commerce entity providing a marketplace will not exercise ownership or

control over the inventory i.e. goods purported to be sold. Such an ownership or
control over the inventory will render the business into inventory-based model.
Inventory of a vendor will be deemed to be controlled by e-commerce marketplace
entity if more than 25% of purchases of such vendor are from the marketplace entity
or its group companies.

v) An entity having equity participation by e-commerce marketplace entity or its

group
companies, or having control on its inventory by e-commerce marketplace entity or
its
group companies, will not be permitted to sell its products on the platform run by
such
marketplace entity.

ix) ) E-commerce entities providing marketplace will not directly or indirectly

influence the sale price of goods or services and shall maintain level playing field.
Services should be provided by e-commerce marketplace entity or other entities in
which ecommerce marketplace entity has direct or indirect equity participation or
common Consolidated FDI Policy 2020 Department for Promotion of Industry and
Internal Trade 51 control, to vendors on the platform at arm's length and in a fair
and non-discriminatory manner. Such services will include but not limited to
fulfilment, logistics, warehousing, advertisement/ marketing, payments, financing etc.
Cash back provided by group companies of marketplace entity to buyers shall be fair
and nondiscriminatory. For the purposes of this clause, provision of services to any

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MEMORIAL for RESPONDENT

vendor on such terms which are not made available to other vendors in similar
circumstances will be deemed unfair and discriminatory.

¶ [7].However, the DPIIT through Press Note No. 2 of the 2018 series has issued a review of
the FDI policy in the e-commerce sector and clarified its standing in respect of,
especially, inventory based model and marketplace based model.
¶ [8].In the present facts and circumstances of the case, it has been specified that over 60% of
the products sold on FlashKart were sourced through two preferred wholesale sellers who
operated almost exclusively for FlashRetail namely LeanBasket Traders and
QuickSupply OPC Ltd.
¶ [9].It is pertinent to note that the FDI Policy clearly states that “Inventory of a vendor will be
deemed to be controlled by e-commerce marketplace entity if more than 25% of
purchases of such vendor are from the marketplace entity or its group companies.”
¶ [10]. It can thus clearly be interpreted that if the maximum limit to procure goods and
services from a particular vendor is 25% and anything beyond that is not permitted in
case of a market-place based model. If this limit is breached, then the inventory of the
vendor will be deemed to be controlled by the e-commerce marketplace entity i.e.
FlashRetail in this case.
¶ [11]. Since FlashRetail is procuring more than 60% of the products sold on FlashKart,
from two entities, it can be clearly inferred that the 25% limit imposed under the FDI
policy is being breached in case of atleast one of the vendors, thus indicating that
FlashRetail is in violation of the said policy. The provision further indicates that since
more than 25% of the products are being procured from even one of the vendors, then
FlashRetail will deemed to be in control of the inventory of that vendor.
¶ [12]. By virture of Clause (iv) Paragraph 5.2.15.2.4 of the policy, the Appellant’s
operational model will effectively become an inventory based model despite their claim
of it being a marketplace based model, as the said clause clearly states that an “E-
commerce entity providing a marketplace will not exercise ownership or control over
the inventory i.e. goods purported to be sold. Such an ownership or control over the
inventory will render the business into inventory based model”

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MEMORIAL for RESPONDENT

¶ [13]. Since the Appellant i.e FlashRetail has deemed control over the inventory of one
or more than one of the vendors, such control renders its business into an inventory-based
model.
¶ [14]. In the case of All India Footwear Manufacturers & Retailers Association v.
Union of India1 a similar issue came up wherein it was alleged that the FDI Policy was in
violation of Article 14 of the Constitution of India. This was due to the fact that there
existed a dissimilar treatment between the FDI policy concerning other sectors when
compared with E-Commerce entities. This claim found its standing due to the fact that E-
Commerce giants got away scot-free with violating the FDI Policies by running
‘Inventory Based Models’ while dressing them up as ‘Marketplace Models’ through
complex investment channels that allowed them to easily and blatantly circumvent the
FDI Policy in place. The Government in response to this released clarifications in the
form of Press Notes clearly stating the grounds of an inventory based model clearing any
and all ambiguity present.
¶ [15]. The term ‘control’ has been defined in the Consolidated FDI Policy in Paragraph
2.1.8 as

‘Control’ shall include the right to appoint a majority of the directors or to control the
management or policy decisions including by virtue of their shareholding or
management rights or shareholders agreements or voting agreements. For the
purposes of Limited Liability Partnership, ‘control’ will mean right to appoint majority
of the designated partners, where such designated partners, with specific exclusion
to others, have control over all the policies of the LLP.

¶ [16]. The term ‘control’ has also been defined in several other legislations of which the
definitions provided in the Companies Act 2013 and the Competition Act 2002 have been
retained hereinbelow:

As per section 2(27) of the Companies Act 2013 2 "control" shall include the right to
appoint majority of the directors or to control the management or policy decisions
1
All India Footwear Retailers & Manufacturers Association v. Union of India [(W.P. (C) 7479/2015)]
2
Companies Act 2013, §2(27), No.18, Acts of Parliament, 2013 (India)
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 16
MEMORIAL for RESPONDENT

exercisable by a person or persons acting individually or in concert, directly or

indirectly, including by virtue of their shareholding or management rights or
shareholders agreements or voting agreements or in any other manner.

As per explanation (a) to section 5 of the Competition Act 20023,

(a) “control” means the ability to exercise material influence, in any manner
whatsoever over the management or affairs or strategic commercial decisions by
(i) one or more enterprises, either jointly or singly, over another enterprise or group; or
(ii) one or more groups, either jointly or singly, over another group or enterprise.

¶ [17]. These definitions have been carefully curated after several years of judicial
scrutiny and review, by the legislative authorities and pertain to the exercise of control by
a person or an entity. These definitions thus be used to support the contentions of the
Union of Sindhupradesh in context of the present facts and circumstances.
¶ [18]. It becomes pertinent to note that the legislative intent behind the formulation of
these provisions outlined in the FDI policy, specifically in Paragraph 5.2.15.2 in respect
of e-commerce activities is to protect small retailers from extinction due to capital-
dumping by big foreign players. The same was also highlighted by Wheli High Court
during the proceedings in this matter. The FDI Policy aims to facilitate economic
development of a country’s entrepreneurs by attracting foreign investments but does not
intend to have these foreign investments act in a counterproductive manner, causing
prejudice to smaller business entities and players. This specific legislative intent indicates
that the policy makers were interested in protecting the welfare of small retailers by
ensuring that they remain a part of the competitive market. This inference aligns with the
object of the Competition Act 2002 which is “…to prevent practices having adverse
effect on competition, to promote and sustain competition in markets, to protect the
interests of consumers and to ensure freedom of trade carried on by other participants
in markets, in India…”

3
Competition Act 2002 §5, No.12, Acts of Parliament, 2002 (India)
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 17
MEMORIAL for RESPONDENT

¶ [19]. It is therefore most humbly submitted before this Hon’ble Supreme Court of
Sindhupradesh that the definition of ‘control’ provided under the Competiton Act 2002
has utmost relevance in the present facts and circumstances.
¶ [20]. As per the facts and circumstances of the given case, it has been stated that
internal communications, obtained during an ED raid on FlashRetail’s offices indicated
that pricing strategies and inventory decisions being directed by FlashRetail’s
management, rather than independently by the nominal seller entities.
¶ [21]. This implies that FlashRetail could “control the management or policy
decisions” and had “the ability to exercise material influence, in any manner
whatsoever over the management or affairs or strategic commercial decisions” of the
vendor entity in respect of the its inventory, thus establishing that the business model
employed by FlashRetail was an inventory based model by virtue of Clause (iv)
Paragraph 5.2.15.2.4.
¶ [22]. In ArcelorMittal India Private Limited vs. Satish Kumar Gupta and Ors 4., the
Hon’ble Supreme Court in Parapraph 47 of the judgment stated

“47. The expression "control" is therefore defined in two parts. The first part refers to de
jure control, which includes the right to appoint a majority of the directors of a company.
The second part refers to de facto control. So long as a person or persons acting in
concert, directly or indirectly, can positively influence, in any manner, management or
policy decisions, they could be said to be "in control". A management decision is a
decision to be taken as to how the corporate body is to be run in its day to day affairs. A
policy decision would be a decision that would be beyond running day to day affairs, i.e.,
long term decisions. So long as management or policy decisions can be, or are in fact,
taken by virtue of shareholding, management rights, shareholders agreements, voting
agreements or otherwise, control can be said to exist.”

¶ [23]. In Subhkam Ventures (I) Pvt. Ltd. v. SEBI5, the Securities Appellate Tribunal
observed that,

4
Arcelormittal India Private Limited v. Satish Kumar Gupta and Others (2019) 2 SCC 1
5
Shubhkam Ventures (I) Private Limited v. SEBI, [2010] 99 SCL 159
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MEMORIAL for RESPONDENT

“If an acquirer were to control the management or policy decisions of a company, he

would be in control. This could happen by virtue of his shareholding or management
rights or by reason of shareholders agreements or voting agreements or in any other
manner. The test really is whether the acquirer is in the driving seat. To extend the
metaphor further, the question would be whether he controls the steering, accelerator,
the gears and the brakes. If the answer to these questions is in the affirmative, then alone
would he be in control of the company. In other words, the question to be asked in each
case would be whether the acquirer is the driving force behind the company and
whether he is the one providing motion to the organization. If yes, he is in control but
not otherwise. In short control means effective control”

¶ [24]. It is also indicated by the facts that the owners of the two preferred seller
companies i.e. LeanBasket Traders and QuickSupply OPC Ltd. have some kind of nexus
with FlashRetail as one of the owners of one of the said seller companies was a childhood
friend of FlashRetail’s founder and the other was a former executive at FlashRetail.
Although these relationships do not indicate any direct legal relationship or transaction,
they do raise doubt as to the possibility of exercise of undue influence by FlashRetail
over the said seller companies, in light of the previously made submissions.
¶ [25]. The possibility of exercise of undue influence by FlashRetail over the said seller
companies becomes significant as it has been stated in the facts that FlashRetail was
funding discounts on products procured from these preferred companies. All these facts
clubbed together act as serious circumstantial evidence against the Appelllant.
¶ [26]. This preference levied in favour of these companies by FlashRetail can be
inferred from the fact that more that 60% of the goods and services were procured from
these companies. This preferential treatment indicates that the Appellant has not
exercised fair and equitable discretion towards all the seller entities in the market.
¶ [27]. It is therefore humbly submitted before this Hon’ble Supreme Court of
Sindhupradesh that the Appellant stands in grave violation of Clause (ix) of Paragraph
5.2.15.2.4.
¶ [28]. It is also humbly submitted before this Hon’ble Supreme Court of Sindhupradesh
that the Appellant in addition to being in violation of several provisions the Consolidated

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MEMORIAL for RESPONDENT

FDI Policy, has also violated Rule 6(a) of the Foreign Exchange Management (Non-debt
Instruments) Rules, 20196 which states that “A person resident outside India may make
investment as under: -
(a) may subscribe, purchase or sell equity instruments of an Indian company in the
manner and subject to the terms and conditions specified in Schedule I…”
¶ [29]. Schedule I of the Foreign Exchange Management (Non-debt Instruments) Rules,
2019 has provided for Purchase or Sale of Equity Instruments of an Indian Company
by a Person Resident Outside India.
¶ [30]. Item No. 15.2 and subsequent item no. 15.2.1- 15.2.4, outline the provisions in
respect of guidelines and conditions for e-commerce sector. These provisions are similar
to those outlined in the Consolidated FDI Policy that have been retained hereinabove.

ISSUE 2

Whether government proposals restricting ultra-fast delivery claims (like "10-minute

guarantees") and imposing minimum pricing on essential goods sold online violate
constitutional rights under Articles 14 (equality) and 19(1)(g) (freedom to trade)

1. THE IMPUGNED GUIDELINES DO NOT VIOLATE ARTICLE 19(1)(G) AS THEY CONSTITUTE

REASONABLE RESTRICTIONS IN THE INTEREST OF THE GENERAL PUBLIC UNDER ARTICLE

19(6)

¶ [31]. It is humbly submitted before this Hon’ble Supreme Court of Sindhupradesh that
the impugned draft guidelines do not violate the fundamental right to carry on any trade,
guaranteed under Article 19(1)(g) of the Constitution of India7.
¶ [32]. It is humbly submitted that the right guaranteed under Article 19(1)(g) is not
absolute in nature and is subject to reasonable restrictions, as specified in Article 19(6) 8.

6
Foreign Exchange Management (Non-Debt Instruments) Rules, 2019 Notification No. S.O. 3732(E)
[F.No.1/14/Em/2015]
7
INDIA CONST. art. 19(1)(g)
8
INDIA CONST. art. 19(6)
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MEMORIAL for RESPONDENT

¶ [33]. As per Article 19(6), nothing in Article 19(1)(g) should prevent the state from
making any law that imposes reasonable restriction on the exercise of such right in the
interest of the general public.
¶ [34]. The impugned draft guidelines mainly impose two restrictions on quick
commerce platforms. Firstly, they prohibit “express 10-minute delivery guarantees” and
secondly, they impose a minimum baseline price on essential commodities sold online. It
is humbly submitted that these restrictions are preventive in nature and are in the interest
of the general public as a whole.
¶ [35]. In the case of Modern Dental College and Research Centre and others Vs. State
of Madhya Pradesh & Ors9, the Supreme Court of India held that, “Reasonableness has
to be determined having regard to the nature of right alleged to be infringed, purpose of
the restriction, extent of restriction and other relevant factors. In applying these factors,
one cannot lose sight of the directive principles of State policy. The Court has to try to
strike a just balance between the fundamental rights and the larger interest of the
society.”
2. The Supreme Court of India, in the case of Cellular Operators Association of India and
others Vs. Telecom Regulatory Authority of India and Ors 10, stated that “Under Article
19(6) of the Constitution, the State has to conform to two separate and independent tests if it
is to pass constitutional muster — the restriction on the appellants' fundamental right must
first be a reasonable restriction, and secondly, it should also be in the interest of the general
public.”
3. What may be considered as a ‘reasonable restriction’ what this term connotes has been
explained in the case of Chintamanrao v. State of M.P11. wherein the Supreme Court held
that “The phrase “reasonable restriction” connotes that the limitation imposed on a person
in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is
required in the interests of the public. The word “reasonable” implies intelligent care and
deliberation, that is, the choice of a course which reason dictates.”
4. The court while examining the question of reasonableness of a restriction imposed under
Article 19(6) cannot proceed on the general notion of what is reasonable in abstract, nor can
9
Modern Dental College and Research Centre and others Vs. State of Madhya Pradesh & Ors. (2016) 7 SCC 353
10
Cellular Operators Association of India and others Vs. Telecom Regulatory Authority of India and Ors. (2016) 7
SCC 703
11
Chintamanrao v. State of M.P., 1950 SCR 759
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 21
MEMORIAL for RESPONDENT

examine such a question from the point of view of the persons on whom such a restriction is
imposed. It has to scrutinize whether the restrictions imposed are reasonable in the interests
of the general public or not, and not just those on whom such restriction is imposed upon. 12
This standpoint makes it clear that, the court must assess this issue from a larger viewpoint
than just that of quick commerce companies on whom such restrictions have been imposed.
5. In light of the authorities cited above, it is humbly submitted that the restrictions imposed by
the state have been curated with a view to ensure that road safety is not hampered while
delivery personnel carry out delivery operations and the quick commerce companies do not
enagage in predatory pricing, that hampers competition in the market.
6. It is humbly submitted that these concerns directly implicate public order, consumer
protection, and economic justice, all of which fall squarely within the ambit of Article 19(6)
and are not limited to the interests of the e commerce players, but are inclusive of the
interests of other market players, especially the small ones as well as the interests of public
at large who could be at risk of road accidents due to the misleading promises made my such
companies to the consumers, that induce delivery employees to ignore road safety rules in
order to carry out such promises, endangering not just themselves but everyone else present
on the road. It is also in the interests of all consumers as such misleading delivery guarantees
are violative of the provisions of the Consumer Protection Act.
7. It is humbly submitted that these restrictions do not prohibit quick commerce entities from
carrying out speedy deliveries all together which is a question of commercial efficiency but
prohibit them from promising the same for the reasons stated above. The guidelines thus do
not prohibit trade but seek to regulate the manner in which trade is conducted.
8. It is also submitted that these rules do not prohibit the companies from providing discounts
on products but merely sets a base limit so that such entities, who are strongly backed by
foreign capital, do not engage in exploitative and predatory practices. The regulation of
prices in such asymmetrical markets is necessary the current stage as it seeks to protect
competition and not distort it.
9. It is humbly submitted that these restrictions imposed on the quick commerce entities are
merely preventive in nature and are not aimed at curtailing of their rights beyond what is
necessary in the interest of general public.

12
Karnataka Live Band Restaurants Association Vs. State of Karnataka & Ors. (2018) 4 SCC 372
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 22
MEMORIAL for RESPONDENT

THE IMPUGNED GUIDELINES DO NOT VIOLATE ARTICLE 14 AS THEY ARE BASED ON

INTELLIGIBLE DIFFERENTIA AND RATIONAL NEXUS
13
10. It is humbly submitted that the impugned guidelines do not violate Article 14 of the
Constitution of Sindhupradesh as they are based clear intelligible differentia and have a clear
ration nexus with this specifically differentiated class.
11. It is submitted that quick commerce entities, targeted by these draft guidelines, employ real-
time digital ordering systems, algorithmic price structuring, and hyperlocal logistics
networks. They firstly give ultra-fast delivery guarantees due to which they operate at a
speed that raises legitimate concerns of road safety for delivery personnel and the public and
secondly, provide promotional rebates and employ flash discounts and algorithmic pricing
that may distort market competition in an instant.
12. Both of these factors clearly distinguish them from brick-and-mortar supermarket chains,
who even when employing discounts, are not capable of doing so in such manner that may
distort competition at an instant.
13. The restrictions imposed through the draft guidelines target these specific factors only, thus
establishing a rational nexus between the draft guidelines and the distinguished category on
whom such restrictions will be imposed.
14. It is thus submitted that the restrictions proposed are not arbitrary or discriminatory in nature
and meet the requirements stipulated under Article 14.
15. Article 14 means that “equals must be treated alike”, it does not mean that “unequals ought to
be treated equally”14
16. Article 14 forbids class legislation; it does not forbid reasonable classification of persons,
objects and transactions by the Legislature for the purpose of achieving specific ends.
Classification to be reasonable should fulfill the following two tests:
A. It should not be arbitrary, artificial or evasive. It should be based on an intelligible
differentia, some real and substantial distinction, which distinguishes persons of things
grouped together in the class from others left out of it.
B. The differentia adopted as the basis of classification must have a rational or reasonable
nexus with the object sought to be achieved by the statute in question.15
13
INDIA CONST. art. 14
14
M Jagdish Vyas v. UOI, (2010) 4 SCC 150
15
D.S. Nakara v. UOI, (1983) 1 SCC 305
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 23
MEMORIAL for RESPONDENT

17. It is humbly submitted that these the criteria specified in these tests have been met while
drafting the impugned guidelines.
18. It is also submitted that there is a presumption as to the constitution validity of any enactment
in favour of the state, that shifts the burden to prove any allegation of unconstitutionality on
the appellant. 16
19. The Supreme Court has explained the principle of initial presumption of validity as follows
in Ashutosh Gupta v State of Rajasthan17,
“There is always a presumption in favour of the constitutionality of enactment and the
burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles. The presumption of constitutionality stems from the wide power of
classification which the legislature must, of necessity possess in making laws operating
differently as regards different groups of persons in order to give effect to policies. It must be
presumed that the legislature understands and correctly appreciates the need of its own
people.”

3.1 THE STATE ADVISORY DOES NOT AMOUNT TO A LEGALLY ENFORCEABLE BAN AND
IS WITHIN CONSTITUTIONAL LIMITS

¶ [36]. Nknk
¶ [37]. Njnk

ISSUE 3

Whether FlashRetail engaged in predatory pricing by selling below cost to eliminate

competition, entered anti-competitive exclusive supply agreements, or used algorithmic
pricing strategies that could amount to tacit collusion or abuse of market dominance.

16
Chiranjit Lal Chowdhary v. Union of India, 1950 SCR 869
17
Ashutosh Gupta v State of Rajasthan 2002 (4) SCC 34
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 24
MEMORIAL for RESPONDENT

3.1 THIS ISSUE OUGHT NOT TO BE HEARD AND DECIDED AT SUCH A PRELIMINARY STAGE.

¶ [38]. It is humbly submitted before this Hon’ble Supreme Court of Sindhupradesh that
this issue before this Hon’ble Court ought not to be decided at such a preliminary stage.
¶ [39]. It is submitted that the CCS has merely formed a prima facie opinion at this stage
and has ordered the DG to investigate the matter under Section 26(1) of the Competition
Act.
¶ [40]. It is also submitted that the Hon’ble Tumbai High Court has also refrained from
interfering in with the CCS’s investigation order, citing Supreme Court’s rulings that
courts should not readily stop investigations by expert regulators unless jurisdiction is
plainly absent. It also stated that CCS should be allowed to gather evidence and analyze
market data. It also highlighted the appellant would have ample opportunity to present its
case before the CCS and that the that new-age tech markets present novel competition
issues and it would be premature for the judiciary to chart the path before the expert body
does.
¶ [41]. In the case of Delhi Vyapar Mahasangh v. Flipkart Internet Private Limited &
Anr., the CCI formed a prima facie opinion and directed the DG to probe an investigation
into the matter under the provision of Section 26(1) of the Competition Act. The
Opposite parties in the matter then went on to file a Writ Petition before a Single Bench
of the Karnataka High Court against the order of the CCI, wherein the Hight court
initially granted an interim stay order in their favour but later in June 2021, vacated the
same order stating that “An order under Section 26(1) of the Act passed by the
Commission is an 'administrative direction' to one of its wings departmentally and
without entering upon any adjudicatory process”
In July 2021, the division bench at Karnataka High Court reaffirmed the judgment of the
Single bench and went on to state that “The appellants, it appears, do not want to
participate at all in the proceedings initiated by the CCI and do not want the CCI to
proceed ahead in accordance with law. This Court really fails to understand as to why
the appellants do not want to participate in the enquiry, in which the appellants will have
an opportunity to produce the material before the Director General on the basis of
which, after hearing the appellants and after following the due process of law, the
Director General shall be able to conduct an enquiry.”

2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 25

MEMORIAL for RESPONDENT

It further stated “The competition law enforcement deals with anti- competitive practices
and in those circumstances, once the CCI forms a prima facie opinion on receipt of a
complaint which is given under Section 26(1) of the Act of 2002, directs the Director
General to conduct an investigation, at that initial stage, it cannot foresee and predict
whether any violation of the Act would be found upon investigation and what would be
the nature of violation revealed through investigation. If the investigation process is to be
restricted in the manner projected by the appellants, it would defeat the very purpose of
the Act, which is to prevent practices having appreciable adverse effect on the
competition. Therefore, at this stage, in the considered opinion of this Court, the issues
and grounds raised in respect of anti- competitive practices as argued by the learned
counsel for the appellants does not arise. The appellants are certainly entitled for
opportunity of hearing as provided under the Statute and the present petitions/appeals
are certainly premature.”

“22. The Hon'ble Supreme Court in the aforesaid case has held that unless and until the
show cause notice is vague or has been issued by an authority not competent to do so,
interference can be done in the matter. In the present case, the order passed by the CCI
directing an enquiry is the first stage of initiating process under the CCI Act and the
enquiry is yet to commence. The appellants do not want to participate in the enquiry for
the reasons best known to them.
23. The present case is not a case where the mala fides are alleged against the
Regulator, nor there is any jurisdictional infirmity. The order passed under Section 26(1)
is neither an adjudication, nor determinative, but merely an inquisitorial, departmental
proceedings in the nature of a direction to the Director General to make an
investigation.”
“The Hon'ble Supreme Court in the case of CCI v. SAIL has held that the threshold
requirement for establishing a prima facie case under Section 26(1) is a low threshold
and what constitutes a prima facie case at the stage of Section 26(1) must be gleaned
from the stand point of setting the process into motion and not from point of view of
granting any interim measure or adjudicating the matter.”

2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 26

MEMORIAL for RESPONDENT

¶ [42]. These principles have been successfully upheld by the Hon’ble Supreme Court of
India in the cases of Competition Commission of India v Steel Authority of India Ltd.&
Anr18. and in Competition Commission of India v. Bharti Airtel Limited19
¶ [43]. The opposite parties in the case once again appealed the Division Bench Order
before the Hon’ble Supreme Court. By way of an order dated 9 August 2021, the Hon’ble
Supreme Court dismissed the appeal noting that there were no reasons to interfere with
the decisions passed by the High Court.
¶ [44]. This case clearly establishes that any judicial interference at this stage of the
proceedings is unwarranted and uncalled for. The stage is too premature for any
conclusion regarding the issue to be arrived at, and the repetitive appeals filed by the
appellant at such a premature stage are thus liable to be dismissed.
¶ [45]. It is thus humbly submitted that any submissions made in respect of this issue
before this Hon’ble Court are incomplete without detailed report of the DG, especially
since these issues are quite new and without a detailed analysis by the CCI first itself
¶ [46]. It is also humbly submitted that, any conclusive order made by this Hon’ble at
such a premature stage in this issue without its scrutiny by the expert regulator could
amount to a gross violation of the principles of natural justice.

3.1 FLASHRETAIL HOLDS A DOMINANT POSITION IN THE RELEVANT MARKET.

¶ [47]. It is humbly submitted before this Hon’ble Supreme Court of Sindhupradesh that
FlashRetail holds a dominant position in the relevant market in the given facts and
circumstances of the case.
¶ [48]. Section 4 Section 4 of the Competition Act deals with abuse of dominant
position. To examine the allegations of abuse of dominance as per the provisions of
Section 4, it is essential to first determine the relevant market and then examine the
dominance of OP in the relevant market.20

18
Competition Commission of India v. Steel Authority of India Ltd. & Anr., (2010) 10 SCC 744
19
Competition Commission of India v. Bharti Airtel Limited, (2019) 2 SCC 521
20
Gajinder Singh Kohli v. Genius Propbuild Private Limited, 2016 SCC OnLine CCI 41
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 27
MEMORIAL for RESPONDENT

¶ [49]. Section 2(r) of the Competition Act defines relevant market; wherein it specified
that the relevant market must be determined with reference to the relevant product market
or the relevant geographic market or with reference to both the markets.
¶ [50]. As per Section 2(s) of the Competition Act, Relevant geographic market means a market
comprising the area in which the conditions of competition for supply of goods or
provision of services or demand of goods or services are distinctly homogenous and can
be distinguished from the conditions prevailing in the neighbouring areas. Further, the
factors required to be considered for the determination of relevant geographic market
have been provided in Section 19(6).
¶ [51]. In this context, it is humbly submitted that the relevant geographic market in the
current case would be the ‘Major metropolitan cities of Sindhupradesh’ wherein quick
commerce companies have established themselves to a substantial extent and carry out
their deliveries smoothly considering that there is a similar demand for the same across
these regions, as opposed to non-metropolitan cities.
¶ [52]. Section 2(s) of the Competition Act defines relevant product market wherein the
two factors of consideration are firstly, substitutability of the product by the consumer
and secondly, substitutability in terms of production and supply. The factors for
determination of relevant product market are specified under section 19(7).
¶ [53]. In this context, it is humbly submitted that the relevant product market is
‘Ultrafast Online Grocery Delivery’ as FlashRetails competitors in this market among
others who carry out similar operations include Zipmart and TurantDelivery. These
enterprises also engage in grocery delivery services and satisfy the criteria of consumer
substitutability.
¶ [54]. It is humbly submitted that offline grocery chains ought not to be included within
this relevant market due to the different nature of their services and lack of immediate
substitutability by consumers as well as suppliers in this aspect.
¶ [55]. In the case of All India Online Vendors Association v. Flipkart India (P) Ltd.21,
although the CCI did not find the enterprise to be dominant, it did go on to highlight the
distinction between online and offline market spaces as “ No doubt, to the end
consumers, the distinction line between online and offline sellers is sometimes blurry, yet

21
All India Online Vendors Association v. Flipkart India (P) Ltd., 2018 SCC OnLine CCI
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 28
MEMORIAL for RESPONDENT

it cannot be denied that online marketplaces offer convenience for sellers as well as the
buyers. For the sellers, they save costs in terms of setting up of a store, sales staff,
electricity and other maintenance charges. The benefits afforded to buyers includes
comfort of shopping from their homes thus saving time, commuting charges and at the
same time they can compare multiple goods.”
¶ [56]. In the case of In Re: Matrimony.com Ltd and Google LLC, the CCI went on to
support the DG’s delineation of the relevant market wherein the online market was
clearly demarcated from the offline market due to lack of substitutability by consumers.
¶ [57]. In the case of Lifestyle Equities BV. v. Amazon Seller Services Private Limited,
CCI reiterated the view that online platforms have distinguishing characteristics wherein
the sellers would be interested in selling when increasingly high number of buyers visit
such online platform and vice versa, thus characterising the online platforms with cross-
side network effects.
¶ [58]. An enterprise is considered to be in a dominant position if it enjoys a position of
strength in the relevant market, that enables it to operate independently of the competitive
forces prevailing in the relevant market or affect its competitors or consumers or the
relevant market in its favour22.
¶ [59]. Section 19(4) provides for the factors required to be considered while determining
whether an enterprise enjoys such dominant position. These factors include but are not
limited to (a) market share of the enterprise;(b) size and resources of the enterprise; (c)
size and importance of the competitors; (d) economic power of the enterprise including
commercial advantages over competitors; etc.
¶ [60]. As per a market research report, FlashRetail commanded approximately 45%
market share in Q3 2024 within the defined market segment. The next largest competitor
held a share of only 25%. This margin of 20 percentage points clearly establishes
FlashRetail has the largest market share, satisfying section 19(4)(1) of the Competition
Act, and most influential player in the relevant market.
¶ [61]. Further, FlashRetail also has technological advantages and its ability to command
exclusive supply from its vertical subordinates, indicates that the appellant can affect its
competitors in its favour.

22
The Competition Act, 2002, explanation (a) to § 4, No. 12, Acts of Parliament, 2003 (India)
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 29
MEMORIAL for RESPONDENT

¶ [62]. In the case of dlf

¶ [63]. In the case of

3.1 FLASHRETAIL HAS ABUSED ITS DOMINANT POSITION BY ENGAGING IN PREDATORY

PRICING BY SELLING BELOW COST TO ELIMINATE COMPETITION.

¶ [64]. It is humbly submitted before this Hon’ble Supreme Court of Sindhupradesh that
FlashRetail has abused its dominant position by engaging in predatory pricing and
thereby violating Section 4(2)(a)(ii) of the Competition Act.
¶ [65]. As per the explanation (b) to Section 4 of the Competition Act, “predatory price”
means selling at a price which is below the cost of production of the goods or provision
of services, with a view to reduce competition or eliminate the competitors.
¶ [66]. It is humbly submitted that the respondents rely upon the comparative data
evaluating the prices of 100 commonly purchased grocery items available on
FlashRetail’s platform and those sold at local kirana stores and supermarkets which
indicates that in a significant number of instances, FlashRetail’s effective selling price
after providing discounts was found to be 10–20% lower than the wholesale
procurement cost, thereby confirming deliberate below-cost pricing.
¶ [67]. Internal industry communications and leaked investor emails, further reveal
that FlashRetail expressly intented to “bleed out the competition” by engaging in deep
discounting as it is backed by deep pockets due to its funding from FDI. This aggressive
pricing model is intended to artificially depress market prices, drive smaller rivals and
traditional kirana stores out of the market, and then recoup losses by raising prices after
they have exited.
¶ [68]. These predatory practices coupled with a clear intention to oust competitors out of
the market clearly fit the definition of predatory pricing, such predatory pricing amounts
to exploitative abuse of dominance under section 4(2)(a)(ii).
¶ [69]. In the case of Transparent Energy Systems (P) Ltd. v. TECPRO Systems Ltd 23,
the CCI noted that “In order to find out whether the opposite party resorted to the
predatory pricing, the Commission has to give a finding that the prices of the goods or

23
Transparent Energy Systems (P) Ltd. v. TECPRO Systems Ltd 2013 SCC OnLine CCI 42
2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 30
MEMORIAL for RESPONDENT

services of the OP were at a very low level with the object of driving out competitors
from the market, who due to low pricing would be unable to compete at that price. In
predatory pricing, there is always a significant planning to recover the losses if any
after the market rises again and the competitors have already been forced out. It is
considered that only a dominant company in such a market may have inclination and
resources to finance such a strategy.”
¶ [70]. In the case of AKZO Chemie BV v. Commission of the European Communities,
the Court observed that "the exclusionary consequences of a price-cutting campaign by a
dominant producer might be so self-evident that no evidence of intention to eliminate a
competitor is necessary. On the other hand, where the low pricing could be susceptible of
several explanations, evidence of an intention to eliminate a competitor or restrict
competition might also be required to prove an infringement."
¶ [71]. At the case at hand, it is evident that not only is there a price-cutting campaign by
a dominant producer but also evidence of an intention to eliminate a competitor and
therefore restrict competition, clearly indicating the applicability of the AZKO case.
¶ [72]. In MCX v. NSE

3.1 FLASHRETAIL HAS ABUSED ITS DOMINANT POSITION BY USING ALGORITHMIC

PRICING DISCRIMINATION.

¶ [73]. It is humbly submitted before this Hon’ble Supreme Court that FlashRetail has
abused its dominant position in the relevant market by engaging in algorithmic pricing
discrimination, thereby contravening of Section 4 of the Competition Act, 2002
¶ [74]. FlashRetail’s use of algorithmic pricing, which adjusts prices dynamically based
on real-time demand and individual consumer profiles, amounts to discriminatory
pricing. Consumers are shown different prices or discounts for the same goods, based not
on rational market segmentation but on behavioural inferences and perceived willingness
to pay. Such discriminatory conduct violates Section 4(2)(a)(i) of the Act, as it imposes
unfair and unequal conditions on consumers and extracts greater surplus from those with
lower price sensitivity, while aggressively underpricing for others to block their shift to
competitors.

2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 31

MEMORIAL for RESPONDENT

¶ [75]. The aggregate effect of personalized, opaque, and algorithm-driven pricing, when
deployed by a dominant enterprise, not only distorts consumer choice but also
undermines the competitive process. The ability to leverage consumer data to create
pricing asymmetry across users is a direct threat to the structural integrity of competitive
markets.

3.1 FLASHRETAIL HAS ENTERED INTO ANTI-COMPETITVE EXCLUSIVE SUPPLY

ARRANGEMENT IN VIOLATION OF SECTION 3 OF THE COMPETITION ACT

¶ [76]. It is humbly submitted that FlashRetail has engaged in conduct violative of

Section 3(4) of the Competition Act, 2002 by entering into exclusive supply agreements
with certain high-demand consumer brands.
¶ [77]. The term agreement has
¶ [78]. Section 3(4) of the Competition Act, 2002 prohibits any vertical agreement that
causes or is likely to cause an appreciable adverse effect on competition (AAEC) in
India.
¶ [79]. Explanation (b) to section 3 defines “exclusive dealing agreement” includes any
agreement restricting in any manner the purchaser or the seller, as the case may be, in the
course of his trade from acquiring or selling or otherwise dealing in any goods or services
other than those of the seller or the purchaser or any other person, as the case may be;
¶ [80]. These exclusive supply arrangements with certain high-demand consumer brands,
including a premium dairy brand and a gourmet snacks line, which are made available
solely on its platform in specific cities, which prevent the concerned brands from
supplying their products to rival platforms or retail outlets, constitute exclusive dealing
agreements within the meaning of Section 3(4)(b) respectively. By foreclosing market
access to competing platforms and restricting the availability of marquee products,
FlashRetail has created artificial entry barriers, distorted inter-brand competition, and
impeded consumer choice. The Competition Commission of India, in Fx Enterprise
Solutions v. Hyundai Motor India Ltd., has held that such vertical restraints, when
leading to market foreclosure, may have an appreciable adverse effect on competition.

2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 32

MEMORIAL for RESPONDENT

¶ [81]. In the present case, FlashRetail’s conduct, especially in conjunction with its
dominant market position, has the effect of substantially distorting competition and
harming the overall competitive structure of the ultrafast online grocery delivery market.
¶ [82]. Nkn
¶ [83]. Nkn
¶ [84]. Nmn
¶ [85]. Jkjk
¶ [86]. Nknk

ISSUE 4

Whether FastRetail's app design practices ("dark patterns"), misleading "10-minute

delivery" advertisements, and personalized pricing and discounting strategies constitute
unfair trade practices under the Consumer Protection Act, 2019. ge on privacy rights
under Article 21.

¶ [87]. It is humbly submitted in front of this Hon’ble Supreme Court of Sindhupradesh

that FastRetail's app design practices ("dark patterns"), misleading "10-minute delivery"
advertisements, and personalized pricing and discounting strategies constitute unfair trade
practices under the Consumer Protection Act, 2019.
¶ [88]. Whether FastRetail's app design practices ("dark patterns") constitute unfair trade
practices under the consumer protection act
¶ [89]. It is humbly submitted before this hon’ble Supreme Court of Sindhupradesh that
the app design practices of flash retail constitute unfair practices under the consumer
protection act, 2019.
¶ [90]. A violation of law can be dressed up in whatever fancy jargon one aims to dress it
up as it stays a violation of law. Flash retail in their attempt to evade the law has
disguised the dark patterns prevalent in their app as effective marketing statergy.

2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 33

MEMORIAL for RESPONDENT

¶ [91]. The Central Consumer Protection Authority on 30 th November by virtue of the

power vested in them under Section 18 of the Consumer Protection Act, 2019 has issued
the Guidelines for Prevention and Regulation of Dark Patterns, 2023. These guidelines
mark significant headway in the realm of consumer protection due to the fact that they
have gone on to expressly prohibit the use of dark patterns under clause 4 of the said
guidelines.
¶ [92]. The guidelines clearly demarcate what constitutes a dark pattern within Annexure
1 of the said guidelines. When going through the annexure, one can clearly see that the
acts of Flash retail namely- basket sneaking, nagging patterns, the practice of making
unsubscribing from marketing emails or deleting one’s account deliberately cumbersome
(a “roach motel” pattern) are clearly listed out as dark patterns.
¶ [93]. Even though such dark patterns are clearly stated to not be a form of binding law
or even interpretative in nature, it still important to take into account the guidance aspect
of them as the legislative intent behind such guidelines is clearly to draw the attention of
the public and the courts towards certain apparent dark patterns which are harmful to the
consumers and are seen across the realm of online applications.
¶ [94]. The guidelines mentioned above also provide a formal definition to dark patterns
under clause 2(e). The definition reads as-
¶ [95]. “(e) “dark patterns” shall mean any practices or deceptive design pattern using
user interface or user experience interactions on any platform that is designed to mislead
or trick users to do something they originally did not intend or want to do, by subverting
or impairing the consumer autonomy, decision making or choice, amounting to
misleading advertisement or unfair trade practice or violation of consumer rights;
¶ [96]. The Delhi High Court in its recent order in the case of Anil Kapoor vs Simply
Life India and Ors. also acknowledged a definition provided for said draft patterns. The
definition has been reproduced below-
¶ [97]. “Such dark patterns include practices on the internet that are deceptive in nature
in order to somehow mislead and trick the consumers, and subvert or impair their
decision-making skills, which is violative of consumer rights.”
¶ [98]. The commonality between both the definitions above is the practice of
deliberately making the consumers confused by impairing their decision making ability.

2ND NLU MEGHALAYA NATIONAL MOOT COURT COMPETITION 2025-26 PAGE | 34

MEMORIAL for RESPONDENT

The nagging patterns, the basket sneaking and even the difficulty in cancelling
subscription can certainly be interpreted to be misleading and tricky for the consumers to
navigate hence by extension being considered to be an impairment to their decision
making ability.
¶ [99]. There are also a multitude of foreign judgements in this regard where the
activities of flash retail have been severely penalised.
¶ [100]. In the Matter of Adore Me Inc. vs the Attorney general of Vermont, the fact that
Adore me Inc made it deliberately difficult for the users to cancel their subscription was
deemed to be unfair to the consumers which led to a fine of 2.35 million being levied on
them.
¶ [101]. In the case of FTC and The State of Illinois v. North American Automotive
Services, Inc., et al a situation similar to basket sneaking occurred wherein the consumers
were being deceived to buy some pre-selected products without their consent. The case
ended with the company being given a 10 million dollar fine. Although the app rectified
this subseuqnetly it is still deemed to be an activity which has been severely penalised
under foreign jurisprudence.
¶ [102]. Hence by looking at the plethora of case laws both Indian and foreign and by the
bare reading of the guidelines in place it become apparent that the activities of flash retail
do in fact make up dark patterns that are illegal and unfair trade practices in both Indian
and foreign jurisprudence.
¶ [103]. It is humbly submitted in front of this Hon’ble Supreme Court of SindhuPradesh
that the false “10 minute delivery” guarantees do constitute unfair trade practices under
the consumer protection act.
¶ [104]. The Central Consumer Protection
Authority (CCPA), New Delhi in the matter of IITian,s Prashikshan Kendra Pvt Ltd has
gone on to define the ingredients of a fair advertisement. The same has been reproduced
below-
“From a bare reading of the above provisions of the Act, it is clear that any
advertisement should:-
i. Contain truthful & honest representation of facts,

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MEMORIAL for RESPONDENT

ii. Have assertions, guarantees only when backed by underlying credible and
authentic material, study etc.
iii. Not indulge in unfair trade practice as defined in Section 2(47) of the Act. It
should be free from false representation that the goods/services are of particular
standard, quality [(section 2(47)(a)] and should not make false or misleading
representation concerning the need for or usefulness of any goods or services
[(section 2(47)(f)] of the Act with respect to unfair trade practice.
iv. Disclose important information in such a manner that they are clear, prominent
and extremely hard to miss for viewers/consumers so as to not conceal important
information.”

One of the ingredients identified by the CCPA is disclosure of important information is such a
manner that it is clear, prominent and extremely hard to miss for viewers/consumers. The claim
of a “guaranteed ten minute delivery” by FlashKart while adding avg. ten minute delivery T&C
may apply in fine print is a clear violation of the CCPA’s definition of a fair advertisement.

¶ [105]. The CCPA in recent times has also gone

on to scrutinise the quick commerce companies such as Blinkit, Zepto to provide proof
for their 10 minute or under delivery claims. In their scrutiny they have allowed for a
buffer of up to 14 minutes but not higher. A buffer larger than that compels the CCPA to
issue directions in order to the consumers to modify their tag lines or advertisements. In
the present case FlashKart is known to have delays of up to 20 to 30 minutes on a regular
basis as is made apparent by the growing number of consumer complaints against them
which means that they are advertising claims that go far beyond the reasonable leeway
provided by the government to such entities.
¶ [106]. The CCPA in 2022 also issued the
Guidelines for Prevention of Misleading Advertisements and Endorsements for
Misleading Advertisements. According to clause 11(2)(e) of the said guidelines

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MEMORIAL for RESPONDENT

“(¢) a disclaimer shall be so clear, prominent and legible as to make it clearly visible to
a normally-sighted person reading the marketing communication once, from a
reasonable distance and at a reasonable speed”

¶ [107]. The facts of the present case suggest that

the disclaimer of the advertisement was in fine-print (which is usually a small text at the
edge of an advertisement) and hence is in clear violation of the guidelines issued by the
CCPA due to the fact that the attention of the consumer when reading the advertisement
would clearly go to the polarising terms such as “guaranteed” and “10 minute delivery”
whereas the fine print would go unnoticed.
¶ [108]. Hence the advertisements claiming a
guaranteed 10 minute delivery are in clear violation of the Consumer Protection Act,
2019 and are unfair trade practices.
¶ [109]. It is humbly submitted in front of this
Hon’ble Supreme Court of Sindhu Pradesh that the personalised pricing and discounting
strategy that Flash Retail is indulging in constitutes an unfair trade practice under the
Consumer Protection Act, 2019.
¶ [110]. Personalised pricing and discounting
strategies are relatively new in the arena of consumer protection due to the fact that such
strategies are only possible through machine learning which is a very recent
phenomenon. However the foresight of our drafters has not left this new evil completely
unchecked.
¶ [111]. The Consumer Protection (E-Commerce)
Rules, 2020 in rule 4(11)(a) and 4(11)(b) make it so that-

¶ [112]. 11) No e-commerce entity shall-- (a)

manipulate the price of the goods or services offered on its platform in such a manner as
to gain unreasonable profit by imposing on consumers any unjustified price having regard
to the prevailing market conditions, the essential nature of the good or service, any
extraordinary circumstances under which the good or service is offered, and any other
relevant consideration in determining whether the price charged is justified;

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MEMORIAL for RESPONDENT

¶ [113]. (b) discriminate between consumers of

the same class or make any arbitrary classification of consumers affecting their rights
under the Act”
¶ [114]. By virtue of subclause (b) it becomes
clear that the practice of making it so that new users obtain a price lower than other
veteran users is clearly an unfair trade practice as it the duty of all E-Commerce entities
to follow and abide by these rules.
¶ [115]. Further the fact that there exists a clear nexus between subclause (a) of the said
rule and the surge pricing tactics Flashkart tries to enforce upon its consumers makes
such practice unfair as well.
¶ [116]. Hence there the personal pricing and discounting schemes are also unfair trade
practices under the Consumer Protection Act of 2019.

ISSUE

Whether FastRetail's app design practices ("dark patterns"), misleading "10-minute

delivery" advertisements, and personalized pricing and discounting strategies constitute
unfair trade practices under the Consumer Protection Act, 2019 on privacy rights under
Article 21.

¶ [117]. It is humbly submitted before this Hon’ble supreme court of Sindhupradesh that
that users do have a right to transparency in algorithmic decision-making, having access
to the relevant algorithms for review and that FlashRetail’s practices do in fact infringe
on right to privacy guaranteed under Article 21.
¶ [118]. The Digital Personal Data Protection Act, 2023 (hereinafter referred to as the
“DPDP Act”) allows for the data principle (defined under Section 2(j) of the Act as the
individual who the data relates to) to demand the processing activities his/her personal
data is being used for by the data fiduciary (defined under Section 2(i) of the Act as any
person who alone or in conjunction with other persons determines the purpose and means

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MEMORIAL for RESPONDENT

of processing of personal data) by virtue of Section 11 (a) of the Act. The same has been
reproduced below:
“11. (1) The Data Principal shall have the right to obtain from the Data Fiduciary to
whom she has previously given consent, including consent as referred to in clause (a) of
section 7 (hereinafter referred to as the said Data Fiduciary), for processing of personal
data, upon making to it a request in such manner as may be prescribed, —
(a) a summary of personal data which is being processed by such Data Fiduciary and
the processing activities undertaken by that Data Fiduciary with respect to such
personal data;”

¶ [119]. Hence it can be clearly seen through this section that the data principle in this case
being the individuals using flash retail even having given his consent can seek for a
review of the processes being conducted on his personal data.
¶ [120]. Processing is defined under Section 2(x) of the Act. The definition is reproduced
below:
“(x) “processing” in relation to personal data, means a wholly or partly automated
operation or set of operations performed on digital personal data, and includes
operations such as collection, recording, organisation, structuring, storage, adaptation,
retrieval, use, alignment or combination, indexing, sharing, disclosure by transmission,
dissemination or otherwise making available, restriction, erasure or destruction”

¶ [121]. The definition reproduced above is inclusive of automated processes hence by

extension being inclusive of algorithms. This opens up a way to the common public using
the Flashkart delivery application to demand information regarding functioning of the
algorithms that use their personal data to curate their in-app experience.
¶ [122]. Hence under the provisions of the Digital Personal Data Protection Act of 2023
the very fact that there exists an algorithm that uses the personal data of the app users,
makes it so that the users have a right to review the algorithm and its processes in a
completely transparent manner and places a duty on the data fiduciary to comply with the
request whenever it is made.

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MEMORIAL for RESPONDENT

¶ [123]. The JS Puttuswamy vs Union of India judgment lays down the importance of
transparency in data and the right of individuals to seek transparency in the data they are
giving up by virtue of their consent.
¶ [124]. The Group of Experts on Privacy report laid down the nine privacy principles that
was acknowledged by the Supreme Court of India to be one of the conceptual
foundations for legislations upholding the concept and importance of privacy. One of the
principles laid down by the report is the principle of “access and correction” by virtue of
which the committee sought to allow individuals the right to review the information the
entities were collecting for them. By virtue of this it is seen that the legislative intent
behind the act also seeks to provide individuals with the right to review their information
whenever they see fit.
¶ [125]. In the judgement of JS Puttuswamy vs Union of India the court also
acknowledged the importance of consent whenever the data of any individual was
concerned. The reports that later solidified the formation of the Act namely the “Sai
Krishna Report” coupled with “The Group of Experts on Privacy Report” also labelled
consent as one of the most intrinsic aspects of data privacy. The Act once it finally came
into fruition also touted the importance of consent in Section 6(1) which reads as-
¶ [126]. “6. (1) The consent given by the Data Principal shall be free, specific, informed,
unconditional and unambiguous with a clear affirmative action, and shall signify an
agreement to the processing of her personal data for the specified purpose and be limited
to such personal data as is necessary for such specified purpose.”
¶ [127]. The muddling up of the consent clauses with the general terms and conditions by
the Data Fiduciary in this case is a clear mockery of the long and deep legislative intent
behind the law in force. The consent obtained should not be treated as simply a check
mark on a box and as the Act reads should have the following elements to it namely-
clear affirmative action, specific, unambiguous. A simple and bare reading of the facts
clearly indicates the fact that the data fiduciary does not even meet the bare minimum as
specified in the section stated above and hence goes against the law formulated in the
light of Article 21 (Right to privacy). The muddling in of the consent clauses with the
general terms and conditions only serves to confuse the consumers of FlashKart as it
unnecessarily complicates the terms of the contract being established.

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MEMORIAL for RESPONDENT

¶ [128]. In the case of L.I.C. Of India & Anr vs Consumer Education & Research Centre
the concept of uneven bargaining power was discussed. The judgement went on to talk
about such contracts wherein there are two parties with one having all the negotiating
power whereas the other having little to none. The relevant paragraph of the judgement
has been reproduced below-
¶ [129]. “ It was held that rule giving power to terminate the services of the permanent
employee with one month's notice or salary in lieu thereof was unconstitutional. The
above ratio was upheld, per majority, in D.T.C. v. D.T.C. Mazdoor congress, 1990 (1)
Supp. SCR 142, one of us K.R.S., J. considered similar contract of service whether
consistent with the Constitution. Approving the statement of law by, Chitti on Contract,
25th Edn., Vol.I and is Anson's Law of Contract, p.6-7, held that the freedom of contract
must be founded on equality of bargaining power between contracting parties. Though
ad idem is assumed, the standard form contract is the rule. The consent or consensus ad
idem of a weaker party be totally absent. He must assent to it in terms of the dotted line
contract or to forgo the goods or services. The freedom of equal bargaining power is
largely an illusion. It was also further held that in paragraph 22 at p.308 that in today's
complex world of giant corporations with their vast infrastructural organisations and
with the State, through its instrumentalities and agencies has been entering into almost
every branch of industry and commerce and field of service. There can be myriad
situations which result in unfair and unreasonable bargain between parties possess
wholly disproportionate and unequal bargaining power. The court must judge each case
on its own facts and circumstances. While approving the ratio in Brojonath's case per
majority, it was held that Regulation 9 was unconstitutional. “
¶ [130]. The consent mechanism in the application delivery system of FlashKart is also
plagued with a similar situation wherein the consumers are given a “take it or leave it
choice”. The hall mark of such choices are that it usually has one party (usually the
corporation) that has all the bargaining power while the other party (usually the
consumer) has to comply with the terms and conditions of said “all powerful party”. Such
contracts or provisions within the contract can’t be held to be binding as the consumer in
such situations has no choice but to accept the terms and conditions of the corporation or
simply forgo the goods and services as most general terms and conditions of the

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MEMORIAL for RESPONDENT

application require the consumer to accept them in order to access the application,
leaving no choice for the consumers but to give their consent for usage of their personal
data. Hence since the consent seeking mechanisms for acquiring the personal data users is
itself flawed, hence it is definitely a violation of the right to privacy under Article 21 due
to the fact that consent in obtaining data is one of the cornerstones of right to privacy.
¶ [131]. The Puttuswamy judgement also draws attention to the fact that the data fiduciary
should not collect more information than needed. There are also a plethora of foreign
cases wherein the collection of unnecessary and extra data has been penalised. One such
matter is the matter of Carrefour France Investigation by CNIL the company was fined
800000 euros for retaining extra and unnecessary data.
¶ [132]. The fact flash retail is indulging in such practices wherein they are collecting
contact information and messaging data which is not necessary points towards the fact
that they are in violation to the Right to Privacy.
¶ [133]. The issue of turning of the location significantly reducing the apps functionality
can also be treated as tacit coercion. Most users of the act would simply allow the
permission for the location to be tracked at all time due to the frustration caused by using
the app without the permission. This amounts of coercion on the part of flash retail which
in turn violated the consent aspect of right to privacy. Consent that is obtained through
coercion can’t be treated to be free consent which is one of the essentials of the right to
privacy. This coercive consent and permission hence does not safe Flash Retail from the
legal liability of being in violation of article 21.

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PRAYER FOR RELIEF

Wherefore, in the light of facts stated, issues raised, arguments advanced, and authorities cited, it
is most humbly and respectfully prayed before this Hon’ble Supreme Court of Sindhupradesh
that it may be pleased to:

1. Declare that, FlashRetail has violated the FDI Policy by effectively running a
Inventory based model instead of a marketplace model
2. Declare that
3. Declare that
4. Declare that
5. Declare that

or

Pass any other order or grant any other relief in favour of the respondent, which this Hon’ble
Supreme Court of Sindhupradesh may deem fit to meet the ends of equity, justice and good
conscience.

For this act of Kindness, The Respondent shall duty bound forever pray.

SD/-

COUNSELS for RESPONDENT

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