In its order dated August 27, 2018, CCI rejected allegations of abuse of dominance against Mondelez India Foods Private Limited (‘Mondelez’) raised by its terminated distributor, Khemsons Agencies’ (‘Khemsons’/‘Informant’)). It was inter alia alleged that the dealership agreement was one-sided, without scope for negotiation and that Mondelez had terminated Khemson’s dealership on frivolous and false grounds. It was also alleged that Mondelez’s software was creating barriers for free flow of products and that its distributors were obligated to purchase visi-coolers from Mondelez to be eligible for various incentive schemes. Mondelez was also accused of engaging in resale price maintenance by controlling the price of goods sold and related discounts.CCI held that as the Informant itself was desirous of becoming a distributor of Mondelez, it was fully aware of the terms and conditions of the agreement. Accordingly, it could not be said that it was coerced into executing the dealership agreement in 2010 with Mondelez. CCI also reviewed the termination notice and accompanying email correspondences between Mondelez and Khemsons, and concluded that the dealership was terminated on account of Khemsons unsatisfactory performance and could not be said to be without reason or unjustified.Turning to allegations of abuse of dominance, CCI defined the market as the “market for chocolate in India”. In doing so, CCI referenced its earlier order in Sri Rama Agency v. Mondelez India Foods Private Limited[1] in which it had defined the market as the “market for chocolates in the State of Karnataka”. CCI, however, acknowledged that with the introduction of the Goods and Services Tax, chocolates may be purchased across India at the same price. Accordingly, Mondelez’s conduct would have a pan-India effect.On the basis of publicly available information, CCI noted that Mondelez’s market share in 2014 was 55.5% whereas its nearest competitor, Nestle SA had a market share of 17%. On this basis alone, CCI concluded that Mondelez was dominant in the relevant market for chocolates in India.CCI, however, found that Mondelez had not abused its dominance in respect of any of the allegations raised by the Informant. Mondelez’s software that allowed sales to be made through registered distributors appeared to be an organized set up for data and inventory management and could not be said to be abusive. Similarly, CCI found the requirement for procuring vizi-coolers was to ensure that temperature sensitive perishable goods were appropriately stored to maintain the quality of chocolates and did not violate the provisions of the Act. On the issue of Mondelez allegedly requiring the Informant to provide pre-signed post-dated cheques, CCI held this was simply a payment mechanism that cannot be said to anti-competitive. CCI found the Informant’s allegations of Mondelez saddling its distributors with near expired products and failing to take back expired products was in the nature of a business dispute. Admittedly, the Informant was contesting this issue in other legal fora and was thus not a competition issue.Finally, against allegations of Mondelez engaging in resale price maintenance (‘RPM’), CCI found that the Informant failed to provide any evidence or communication to support its allegations. CCI further observed that RPM is not a per se violation under the Act. Absent any information to suggest that Mondelez’s conduct resulted in an appreciable adverse effect on competition (‘AAEC’) in the market, no prima facie case of violation of Section 3 of the Act may be sustained.Mondelez was successfully represented by AZB & Partners.[1] Case No. 58 of 2015