2025:MHC:1333 IN THE HIGH COURT OF JUDICATURE AT MADRAS

Order reserved on 28.04.2025

Order pronounced on 11.06.2025

CORAM:

THE HON'BLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY

A.No.4193 of 2023 in

C.S.(Comm Div) No.186 of 2023

1. Google India Pvt. Ltd.

Represented by its Managing Director

Corporate Identification No.U72900KA2003PTC033028

With its registered address at:

No.3, RMZ Infinity – Tower E, Old Madras Road

4

th

& 5

th

Floors, Bangalore,

Karnataka 560 016. ..1

st

Applicant/

6

th

Defendant

2. Google India Digital Services Pvt. Ltd.

Represented by its Managing Director

(CIN) U74999DL2017PTC376205

5

th

Floor, DLF Centre, Block-124

Narindra Place, Sansad Marg,

New Delhi-110 001. ..2

nd

Applicant/

7

th

Defendant

v.

1. Testbook Edu Solutions Private Limited

Through their Authorised Signator,

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Mr. Sankalp Aggarwal

Corporate Identification No.U72200MH2013PTC241118

Having registered address at:

1

st

& 2

nd

Floor, Zion Building,

Plot No.273, Sector 10, Kharghar, Panvel

Navi Mumbai Raigarh

Maharashtra, India-410 210. ..1

st

Respondent /

Plaintiff

2. Alphabet Inc.

Represented by its Authorized officer,

1600 Amphitheatre Parkway Mountain View,

CA 94043, United States of America. ..2

nd

Respondent/

1

st

Defendant

3. Google LLC

Represented by its Authorized Officer

A Limited Liability Corporation

With its registered address at:

251 Little Falls Drive

Wilmington, Delaware 19808

United States of America ..3

rd

Respondent/

2

nd

Defendant

4. Google Asia Pacific Pte. Ltd.

Represented by its Authorized Officer

Unique Entity Number 200817984R

With their registered address at:

8 Marina Boulevard,

#05-02, Marina Bay Financial Centre,

Singapore 018981 ..4

th

Respondent/

3

rd

Defendant

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5.Google Payment Corp.

Represented by its authorized officer

1600 Amphithreatre Parkway Mountain View,

CA 94043, United States of America. ..5

th

Respondent/

4

th

Defendant

6. Google Payments India Private Ltd

Represented by its Managing Director

(CIN) U72200DL2007PTC360455

5

th

Floor, DLF Centre, Block-124,

Narindra Place, Sansad Marg,

New Delhi-110 001. ...6

th

Respondent/

5

th

Defendant

PRAYER: Judge's Summons filed under Order XIV Rule VIII of

Original Side Rules and Order VII Rule 11 of the Code of Civil

Procedure praying that this Court to reject the plaint in C.S.(Comm

Div) No.186 of 2023 and pass such others as this Court may deem fit

in the facts and circumstances of this case and thus render justice

For Applicants : Mr.P.S.Raman, Senior Advocate

for 1

st

Applicant

Mr.Sajan Poovayya, Senior Advocate

for 2

nd

Applicant for

M/s.G.Balasubramanian, S.Anand for

M/s.Leela & Co.

For Respondents : Mr.Abir Roy, Mr.Devashish Marwah,

Mr.Aman Shankar, Mr.Sastribata Panda,

Ms.Ridhhima Sharma

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ORDER

In the suit instituted by a plaint presented and admitted in July,

2023, the plaintiff, which is an ed-tech services company, has prayed

for declaratory relief to declare the Google Payment Terms of

Service-Seller Payment Policies, clause 15.3 of the Developer

Distribution Agreement (DDA) and the charges levied by the

defendants under the Google Play Billing System (GPBS) and the

User Choice Billing (UCB) system as illegal and unenforceable. The

plaintiff has also prayed for a permanent injunction restraining the

defendants from removing/delisting the apps operated, owned and

marketed by the plaintiff in the Google Play Store in India on account

of refusal to subscribe to the Google Payment Terms of Service –

Seller Payment Policies.

2. The 6

th

and 7

th

defendants in the suit presented this

application seeking rejection of the plaint under Order VII Rule 11 of

the Code of Civil Procedure, 1908 (the CPC). The application has

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been presented on the grounds of non-disclosure of cause of action

[Order VII Rule 11(a) of the CPC] and that the suit is barred by law

because the jurisdiction of civil courts is barred under the

Competition Act, 2002 (Competition Act) and the Payment and

Settlement Systems Act, 2007 (the PSS Act) [Order VII Rule 11(d) of

the CPC].

Counsel and their contentions

3. The first applicant/sixth defendant was represented by

Mr.P.S.Raman, learned senior counsel, and the second

applicant/seventh defendant by Mr.Sajan Poovayya, learned senior

counsel. They were instructed and assisted by Mr.G.

Balasubramanian of M/s.Leela & Co., Advocates. Mr.Abir Roy,

learned counsel, appeared on behalf of the first respondent/plaintiff.

Both parties also filed written submissions.

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4. Mr.P.S.Raman opened his submissions by pointing out that

the subject of the suit is the service fee charged by Google to app

developers intending to display their app on the Google Play Store.

He submitted that about 13 suits were filed earlier by other app

developers seeking identical reliefs; a learned single Judge of this

Court, by common judgment dated 03.08.2023, allowed applications

filed by the present applicants for rejection of the plaint in those

suits; and that the said judgment was carried in appeal by the

respective plaintiffs before the Division Bench of this Court. By

judgment dated 19.01.2024, he submitted that the batch of appeals

(OSA (CAD) Nos.97 to 100 and 102 to 110 of 2023 and Cross

Objection Nos.56 to 68 of 2023) were rejected. He also pointed out

that the plaintiffs therein carried the matter to the Supreme Court by

way of special leave petitions and that the special leave petitions are

pending, but the judgment impugned therein has not been stayed by

the Supreme Court and operates as on date.

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5. Mr.Raman contended thereafter that the plaintiff has

attempted to differentiate this suit from the earlier suits by making

cosmetic changes. While the plaintiffs in the earlier suits used the

phrase 'abuse of dominant position', this plaintiff uses the phrase

'superior bargaining power'. Other than these cosmetic changes,

learned senior counsel submitted that the pleadings are substantially

similar, and, in fact, nearly identical. After further submitting that

one of the earlier suits was filed by an entity called Nasadiya

Technologies Private Limited (Nasadiya), learned senior counsel

invited my attention to a comparative table of the pleadings of

Nasadiya and the pleadings of the plaintiff with the minor

differences shown therein in bold font. In fact, he pointed out that

even the alleged violation of Sections 16 and 27 of the Indian

Contract Act, 1872 (the ICA) was pleaded at paragraphs 97 and 98 of

Nasadiya's plaint. Likewise, he submitted that it was also pleaded by

Nasadiya that the defendants are joint tortfeasors. Mr.Raman further

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submitted that leave to sue was obtained by the plaintiff by asserting

that the present suit is identical to suits filed earlier by similarly

situated parties, wherein leave was granted. In support of this

contention, he relied upon paragraph 99 of the plaint. Indeed, he

submitted that interim relief was obtained in the first instance by the

plaintiff by contending that interim relief had been granted to other

similarly situated plaintiffs. In these circumstances, Mr. Raman

submitted that the present plaint should also face the same fate as the

other plaints which were rejected.

6. Mr.Sajan Poovayya, learned senior counsel, made

submissions on behalf of the second applicant/seventh defendant.

He first submitted that both Apple and Google charge app

developers a service fee. As regards Google, he submitted that

service fees are charged either if the apps are subscription-based or if

goods or services are sold commercially on the app. After referring to

the clause in the contract that enables Google to charge service fees,

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he also pointed out that such charges range between 10% and 30%.

By referring to the order dated 25.10.2022 of the Competition

Commission of India (the CCI) in proceedings initiated by persons

situated similarly as the plaintiff, he pointed out that the CCI did not

impose an embargo on the charging of service fees although the issue

was raised in those proceedings. His next submission was that the

endeavour of the plaintiff to differentiate the present suit from the

earlier suits is liable to be rejected. In order to substantiate this

contention, learned senior counsel referred to paragraph 6(xvi) and

(xvii) of the judgment of the Division Bench wherein the contentions

of the respective plaintiffs on novation and restraint of trade were

noticed. In that context, he submitted that the Division Bench

recorded a categorical finding that the reliefs claimed are not beyond

the realm of the authorities constituted under the Competition Act

and the PSS Act. He also referred to paragraph 31(iii) of the

judgment of the Division Bench wherein it was held that the

jurisdiction of the civil court is barred by implication by the PSS Act.

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Because the plaint, in this case, is substantially similar to the rejected

plaints, learned senior counsel concluded his submissions by

contending that the same result should follow.

7. Mr.Abir Roy, learned counsel, made submissions in response

and to the contrary. His first contention was that the Division Bench

referred to the plaint in C.S.(Comm.Div.) No.109 of 2023, People

Interactive (India) Private Limited v. Alphabet Inc & Others (People

Interactive), but not to any other plaint. Put differently, his contention

was that the comparison between the plaint in this suit and that in

Nasadiya is not appropriate because the comparison made by the

Division Bench was only with the plaint of People Interactive. He

countered the contention that breach of provisions of the ICA was

considered by the Division Bench by referring to the contentions of

the present applicants, as mentioned in the judgment of the Division

Bench. With specific reference to paragraph 7(xii) and (xiv) of the

judgment of the Division Bench, he pointed out that the contention of

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the applicants that the plaints in those suits lack pleadings to the

effect that the introduction of the UCB Policy amounted to novation

of the DDA under Section 62 of the ICA was recorded therein. He

also pointed out that the applicants contended that the ingredients of

Section 16 of the ICA had not been pleaded in those suits. A similar

contention with regard to the lack of pleadings on alleged tortious

interference was also adverted to by him.

8. By contrast, with reference to the pleadings at paragraphs 80,

86, 87 and 93 of the plaint in this suit, learned counsel submitted that

the plaint contains specific pleadings on the violation of various

provisions of the ICA. By referring to paragraphs 28 and 30 of the

judgment of the Division Bench, learned counsel submitted that the

said judgment was in the context of pleadings alleging abuse of

dominant position by Google. Thus, learned counsel contended that

the Division Bench concluded, in light of such pleadings, that the

CCI had exclusive jurisdiction in matters relating to abuse of

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dominant market position as per the Competition Act, but not with

regard to contractual issues.

9. The next contention of Mr.Abir Roy was that the plaintiff has

pleaded waiver at paragraph 87 of the plaint, and that this plea was

not raised, expressly or implicitly, in any of the earlier suits. By

referring to the DDA, learned counsel submitted that clause 15.3

thereof enables Google to impose a service fee. By virtue of not

charging a service fee for several years, learned counsel submitted

that there was an implied waiver. In this connection, by referring to

paragraph 306 of the order of the CCI dated 25.10.2022, learned

counsel submitted that Google had admitted the belated introduction

of the billing rules due to its tardiness. By further submitting that

Section 62 of the ICA deals with waiver, learned counsel contended

that only a civil court and not the CCI can consider the issue of

waiver.

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10. By referring to Section 4(2) read with Explanation (a) thereto

of the Competition Act, learned counsel submitted that the

jurisdiction of the CCI is limited to cases of abuse of dominant

position by an enterprise in the relevant market in India, as defined

therein. By further referring to sub-sections 6 and 7 of Section 19 of

the Competition Act, learned counsel submitted that the CCI is

empowered to conduct an inquiry to determine whether an

enterprise enjoys a dominant position in terms of Section 4 of the

statute and whether it has abused such status. According to him, the

jurisdiction exercisable by the CCI is completely different from that

exercisable by a civil court. Learned counsel referred to paragraphs

25, 66 and 70 of the plaint in the suit filed by People Interactive and

pointed out that abuse of dominant position was pleaded therein. In

that factual context, learned counsel submitted that the Division

Bench concluded that the suits are barred by the Competition Act.

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11. The next contention of learned counsel was that it is

immaterial that the reliefs claimed in the present suit are identical to

those in earlier suits. According to him, the relevant consideration is

whether the cause of action is identical. In this connection, by

referring to paragraph 16 of the judgment of the Hon'ble Supreme

Court in Sopan Sukhdeo Sable and others v. Assistant Charity

Commissioner and Others, (2004) 3 SCC 137, learned counsel submitted

that the Supreme Court categorically held that the reliefs claimed do

not constitute the cause of action. On the contrary, they constitute

the entitlement, if any, on the basis of pleaded facts.

12. By further referring to the judgment of the Hon'ble Supreme

Court in Gas Authority of India Limited v. Indian Petro Chemicals

Corporation Limited and Others, (2023) 3 SCC 629, particularly

paragraph 24 thereof, learned counsel submitted that the Supreme

Court interfered in a contractual dispute on the basis of the unequal

bargaining power of GAIL at the time of signing the contract.

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Learned counsel also referred to the judgment of the Hon'ble

Supreme Court in LIC of India and another v. Consumer Education &

Research Centre and Others, (1995) 5 SCC 482, for the proposition that

the relative bargaining power of the contracting parties may be

examined for the purpose of assessing whether the terms of contract

are unreasonable or unfair.

13. By relying on paragraph 21 of the judgment of the Delhi

High Court in Uttrakhand Agricultural Produce Marketing Board &

Others v. Competition Commission of India & Another, 2017 SCC OnLine

Delhi 10906, learned counsel submitted that recourse to multiple

proceedings on the same set of facts is not barred unless the

proceedings are mutually destructive. Learned counsel relied on the

judgment of the Hon'ble Supreme Court in Kalpraj Dharamshi and

another v. Kotak Investment Advisors Limited and Another, (2021) 10 SCC

401, particularly paragraphs 131 to 148 thereof, with regard to

estoppel and waiver. He also relied upon the order of the CCI in

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C.A.Sreeram Mushty, Chartered Accountant v. Sriram Chits Limited, Case

No.70 of 2013, particularly paragraph 7 thereof, for the proposition

that the CCI does not have the jurisdiction to adjudicate inter se

contractual disputes between parties.

14. Mr.Raman made submissions in rejoinder. By referring to

paragraph 81 of the plaint in the Nasadiya suit, he submitted that

tortious interference was pleaded therein. He also submitted that

tortious interference was pleaded in the suit filed by People

Interactive. As regards novation, by referring to paragraph 6(xvi) of

the judgment of the Division Bench, learned senior counsel

submitted that this aspect was considered therein even though it was

not expressly pleaded in the People Interactive plaint. In that

connection, he also referred to paragraph 80 of the plaint in Nasadiya

as evidence that novation was pleaded therein. As regards the

alleged breach of Section 27 of the ICA, learned senior counsel

submitted that the contract would be rendered void if such

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contention were to be accepted by the Court, thereby bringing the

commercial relationship to an end. By contrast, he submitted that

Section 27(d) of the Competition Act even enables the CCI to modify

a contract.

15. Thus, except for the plea of waiver, learned senior counsel

submitted that all the other contractual pleas were considered in the

Division Bench judgment. Even with regard to waiver, by referring to

paragraph 87 of the plaint, learned senior counsel submitted that the

plea of waiver was made after pleading that Google had provided

free services for several years so as to reap the benefits of a network

effect. In other words, he submitted that the plea of waiver is also

built on alleged abuse of dominant position, albeit described as

superior bargaining power.

16. By referring to paragraphs 25 and 26 of the judgment of the

Supreme Court in Shri Mukund Bhavan Trust and Others v. Shrimant

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Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another, 2024

SCC OnLine 3844, learned senior counsel submitted that the Supreme

Court reversed the judgment of the High Court and rejected the

plaint by holding that the spirit and intention of Order VII Rule 11 (d)

of the CPC is for courts to nip at the bud any litigation which ex facie

appears to be a clear abuse of process. For the same principle, by

relying on paragraphs 16 and 17 of the judgment in The

Correspondent, RBANMS Educational Institution v. B.Gunashekar and

another, 2025 SCC OnLine SC 793, learned senior counsel pointed out

that the Supreme Court concluded that the Court should not shut its

eyes to settled principles of law and direct parties to trial in cases

which are barred by law or where the cause of action is illusory. The

judgment of the Supreme Court in Charu Kishor Mehta v. Prakash Patel

and Others, 2022 SCC OnLine SC 1962, particular paragraph 18

thereof, in the context of the SARFAESI Act, was also relied on.

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17. Mr. Sajan Poovayya submitted, in rejoinder, that the waiver

plea of the plaintiff should be examined by looking at the entire

paragraph. By referring to paragraph 87 of the plaint, learned senior

counsel pointed out that it refers to paragraph 306 of the order of the

CCI. By also referring to paragraphs 311, 395 and 396 of the said CCI

order, learned senior counsel submitted that even the plea of waiver,

when examined in context, is entirely based on alleged abuse of

dominant position. In this regard, by also referring to paragraph 65

of the plaint, he contended that it is predicated on abuse of dominant

position and that paragraph 65 is almost identical to paragraph 63 of

the plaint in Nasadiya. On the merits of the waiver plea, by referring

to clauses 3.4 and 16.2 of the DDA, learned senior counsel submitted

that the contract provides that even if there is waiver in one instance,

it should not be construed as a waiver of the relevant provisions or

rights conferred thereby subsequently.

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Discussion, Analysis and Conclusion:

18. The present application has been filed under Order VII Rule

11 (a) and (d) CPC. Therefore, the application should be adjudicated

keeping this statutory context in mind. In relevant part, Order VII

Rule 11 is as under:

“Rejection of Plaint - The plaint shall be

rejected in the following cases:

(a)where it does not disclose a cause of

action;

....

(d) where the suit appears from the

statement in the plaint to be barred by any law;”

19. I first propose to examine whether the suit, on the basis of

statements made in the plaint, appears to be barred by any law. The

contention that the suit is barred by law is made by relying on

Section 61 of the Competition Act. The said provision is set out

below:

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“Exclusion of jurisdiction of civil courts

61. No civil court shall have jurisdiction to

entertain any suit or proceeding in respect of any

matter which the Commission or the Appellate

Tribunal is empowered by or under this Act to

determine and no injunction shall be granted by

any court or other authority in respect of any

action taken or to be taken in pursuance of any

power conferred by or under this Act”

20. The contention of the applicants/6

th

and 7

th

defendants is

that the matters complained of in the suit are matters which the CCI

is empowered to determine under the Competition Act and,

consequently, this Court – being a civil court – is barred from

entertaining the same. In order to determine whether this contention

is liable to be accepted, it becomes necessary to first examine the

plaint and, thereafter, the relevant provisions of the Competition Act

pertaining to the jurisdictional powers of the CCI.

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21. After stating that it is an ed-tech company providing online

coaching for government examinations, the plaintiff has stated the

following with regard to the nature, and downloading, of its apps on

the Google Play Store:

“11. The Plaintiff owns and operates 736

Apps under the brand name “Testbook” on the

Google Play Store for the purpose of online

coaching and catering to different exams

(“Plaintiff's Apps/Apps”). The list of the

Plaintiff's Apps are filed herewith for the kind

reference of this Hon'ble Court. The Plaintiff's

Apps provide subscription-based products and

service offerings and there are more than 44,471

active paid subscribers for the Plaintiff's Apps in

Chennai alone.

12. The Plaintiff's Apps and Website are

accessible across India and is also used extensively

by persons residing in the City of Chennai, Tamil

Nadu, India. The Plaintiff's Apps could be

downloaded from “Google Play Store”, from

where it had recorded 51,71,220 downloads, ever

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since its inception. The total number of customer

base of Testbook all over India is nearly 4 Crore.

Out of this, as accounted, there are about 10 lakh

(from inception to July,2023) just in Chennai.

Further, out of the above Download, the Plaintiff's

Apps have 44,471 active paid subscribers in the

City of Chennai.”

22. The plaintiff has also dealt with Google Play Services.

Paragraphs 13 and 23, which deal with the above, are as under:

“13. The Plaintiff further humbly submits that

there are presently two major Mobile Phone

Operating Systems in the global market, namely,

“Android (owned, operated, developed and

distributed by the Defendants)” and “iOS(owned

and operated by Apple Inc.)”. As of 2022 the

percentage of mobile phones running on the

Android Operating System in India is 96%

(approx.). Since a vast majority of the Plaintiff's

customers use mobile phones which run Android

Operating System, approximately 64% of the

overall subscription revenue for the Financial

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Year 2022-2023 were generated from the

Plaintiff's Apps through subscribers, who have

downloaded the App from Google Play Store. It is

on record that as on date, the Plaintiff's customers

make payment for subscription services, being

provided by the Plaintiff, through Debit

Cards/Credit Cards/Net-Banking / UPI/ UPI QR

Code and a very nominal and a mutually agreed

fee aggregating to 0.4% is paid to the System

Providers/Payment Processors (viz., Razorpay,

PayTM, PayU, Juspay) offering the above

Payment Methods.

23. The Plaintiff humbly states that it is common

knowledge that any mobile phone that runs on

Android Operating System would have “Google

Play Services” for its operations and will by

extension, have “Google Play Store” pre-installed.

As stated above, Android mobile phones constitute

a majority of the total devices used not only in

India but across the Globe. Google Play Store is,

therefore, an unavoidable and indispensable

trading partner for an App Developer,

particularly, in India. The fact that a mobile

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application is one of the most essential business

models for a business, more specifically an e-

commerce business, can neither be denied nor be

disputed.”

In substance, the two paragraphs extracted above refer to Google's

dominant position by virtue of approximately 96% of mobile phones

running on the Android operating system in India and, consequently,

having the Google Play Store pre-installed on the devices.

23. In paragraph 26, the plaintiff has set out a few paragraphs

of the order dated 25.10.2022 of the CCI. Thereafter, in paragraph 27,

it is stated that the proceedings before the CCI are not essential to the

present suit. The decision taken by Google after the above mentioned

order of the CCI are dealt with in the subsequent paragraphs. After

setting out relevant clauses from the Service-Seller Agreement at

paragraph 39, the plaintiff has pleaded as under in paragraph 40

with regard to alleged novation:

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“40. Based on the above definition of Service fee

appearing in the Service-Seller Agreement, it can

be clearly seen that the service fees are just for

payment processing purpose. However, Google

has surreptitiously altered the scope and ambit of

service fee and stated in the amended Payments

Policy of April 2023 and as clarified in one of its

FAQs (as discussed supra) that “The service fee

supports our investments across Android and

Google Play, reflects the value provided by

Android and Google Play, enables us to deliver an

affordable and innovative user experience, helps

developers reach users and build sustainable

businesses, and keeps the platform safe and

secure”. This on the very face of it is without any

mutual consent, amounts to novation by changing

the substratum of the contract unilaterally, is

arbitrary and unconscionable. Google does all this

by being conscious of the fact that it can unduly

influence Plaintiff to accept these one-sided terms

since Google is an indispensable trading partner.”

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24. Thereafter, by asserting that the charging of 4% or more

towards payment processing is both unconscionable and an abuse of

the superior bargaining position, the plaintiff has alleged special

damage, tortious interference, undue influence, novation and waiver

in paragraphs 82 to 87, which are set out below:

“83. The said conduct of Google is causing

'special damage' to the Plaintiff, which is more

than mere nominal damage where Google is

effectively asking the Plaintiff to make its business

unviable. That such commission would cause

economic duress to the Plaintiff. The said conduct

of Google is a direct interference with the business

of the Plaintiff and the same amounts to tortious

interference.

84. Apart from the above, the Defendants

had introduced, among other things, Clause 15.3

in its DDA, which stipulates:

“15.3 If You do not agree with

the modifications to the Agreement,

You may terminate Your use of Google

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Play, which will be Your sole and

exclusive remedy. You agree that Your

continued use of Google Play

constitutes your agreement to the

modified terms of this Agreement.”

85. As alluded hereinabove, the Defendants

continue to adopt “Take-it or Leave-it” approach,

which would be amply clear from a plain reading

of the above Clause, without any elaboration. As

such, the said Clause and the Definition of

“Authorized Provider” along with all payment

Policies, Policies relating Service Fee and also the

Service-Seller Agreement, deserves to be declared

as Illegal and Unenforceable. The Plaintiff also

apprehends that the Defendants would impose its

will and dominant position to delist the Plaintiff's

Apps, by inducing the Plaintiff to terminate the

DDA, as could be gathered from the terms of the

said DDA. Such an approach in entirety is

arbitrary, unconscionable and against the vires of

Section 16 of the Indian Contract Act, 1872,

wherein Google operates as an indispensable

trading partner.

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86. Moreover, Google unilaterally decides

the terms of the Agreement between the parties by

putting the App Developers like the Plaintiff

under ”duress”. App developers have no

alternative but to deal with the Defendants, which

hold an unfair bargaining position. The entire

DDA and corresponding agreements have been

offered on a “Take It or Leave It” proposition.

App Developers have no meaningful choice but to

give assent to the contract imposed by the

Defendants, the terms of which are clearly unfair,

unreasonable and unconscionable. Although the

Defendants themselves defined 'services' as

payment processing, they subsequently alter the

understanding of 'services' and make the payment

of service fees mandatory and making App

Developers pay an unconscionable amount of 15

to 30%, effectively resulting in novation of the

contract. Google has changed the substratum of

the entire agreement unilaterally. It is essential to

note that any app developer in India, who wishes

to be enlisted in the Google Play Store is required

(without even a pretence of choice, negotiation or

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mutuality) to accept all the conditions set out in

the DDA and the only remedy which an app

developer has is to terminate the contract (Clause

15.3 of the DDA), which is impossible as Google is

an indispensable trading partner having a market

presence of over 96%. Thus, clause 15.3 of the

DDA (which provides that in case an app

Developer does not agree with any modification

to the Agreement, the sole remedy for the App

developer is to terminate their usage of Play Store)

is in stark violation of Section 62 of the of Indian

Contract Act.

87. It is pertinent to note that an app

developer pays 25 USD to get listed on the Play

Store. Google's business model since inception has

been such. To bring facts on record before the

court, it is not the case that the Plaintiff want to

avail all the services of Play Store by just paying

25 USD fees. The business structure of Google is

such that on the top it appears to be simple and

fair, however, in practice its intertwined and a

hoodwink. A majority of the revenue generated by

defendants is through advertisements and for that

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Google offers majority of its services for free and

churn out data secretively. That's been the

business model of Google since inception, and it is

not the case that Google is doing any charity. The

Plaintiff pays a substantial amount of

advertisement expenses on a monthly basis to

Google to effectively host and distribute their

apps. In the last three financial years, Plaintiff has

paid more than 33 crore rupees to Google on ad-

spend. As also noticed by the Hon'ble CCI in

Paragraph 306 of the order, Google by offering

the Play Store, ostensibly for free, built the

network effect. It didn't enforce the service fee

for long to augment the network. This also has a

self-serving motive as found by the Hon'ble CCI.

When all the app developers and users were part

of Google's network it is now asking for a high

service fee which is devoid of any commercial

logic. The Plaintiff is a start-up and is loss-

making who is operating its business by taking

money from investors. If Google continues to take

a cut of 26% in the revenue which almost equates

to 15.5 Crore Rupees for the preceding financial

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year 2022-2023, the Plaintiff will be faced with

severe financial distress. This hits at the very core

of unconscionability in contractual terms wherein

Google knows that it is an indispensable trading

partner. Furthermore, by not enforcing the service

fees for long, although it existed, effectively

Google has waived its right to enforce it.”

25. In the backdrop of these pleadings, the contention of the

applicants - on the basis of the judgment of the Division Bench that

the plaintiff does not deserve to be treated differently and that this

plaint is also liable to be rejected in terms of the judgment of the

Division Bench - falls for consideration first. From paragraph 16.1 of

the judgment of the Division Bench, it is evident that the plaint in

C.S.(Comm.Div) No.109 of 2023, which was filed by People Interactive,

was used as the basis to determine whether the plaints are liable to

be rejected. The agreed position, however, is that all the plaints under

consideration by the Division Bench, including the plaint filed by

Nasadiya, were rejected. The applicants have also submitted a

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comparative chart to substantiate the contention that there is more

than substantial similarity between the plaint in this case and the

plaint in the suit filed by Nasadiya.

26. From paragraph 6 (xvi) and (xii) of the judgment of the

Division Bench, it is noticeable that some of the parties had pleaded

novation and restraint of trade. Likewise, it is noticeable from

paragraph 7 (xii) and (xxiv) of the judgment of the Division Bench

that the applicants' contentions that the allegations of breach of

Sections 16, 62 and other provisions of the ICA were bereft of

pleadings were recorded. A similar contention with regard to alleged

lack of pleadings on tortious interference was also recorded in the

judgment of the Division Bench. In that factual context, the Division

Bench concluded that the grievance raised by the plaintiffs therein

could be dealt with by the CCI under the Competition Act. The

Division Bench also took note of Sections 61 and 62 of the

Competition Act and concluded that Section 61 cannot be interpreted

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to mean that an individual can institute proceedings in a commercial

court alleging abuse of dominant position by disregarding Section 61.

27. While the Division Bench noticed contentions regarding

breach of Sections 16 and 27 of the ICA, it is common ground that

waiver was not raised in any of the earlier suits. In paragraph 87 of

the plaint in this suit, the plaintiff has raised waiver on account of

Google not charging service fees for a considerable number of years.

Especially in the context of Clause 16.2 of the DDA, the sustainability

of the waiver argument is prima facie, at a minimum, debatable and

contentious. It should also be noticed that the plea of waiver was

raised after pleading that no service fee was charged for many years

so as to create a network effect. At this juncture, however, the merits

of the assertions are not material. The only question that warrants

decision is whether the suit is barred on the basis of statements made

in the plaint. This question, in my view, cannot be decided on the

basis of the judgment of the Division Bench, but must be determined

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with reference to the specific pleadings in this plaint and the relevant

provisions of the Competition Act. I deal with the latter next.

28. The Competition Act replaced the Monopolies and

Restrictive Trade Practices Act, 1969. The statute was later amended

by Act 39 of 2007. Chapter II of the statute provides a clear indication

of the scope of the statute. Section 3 thereof prohibits enterprises or

associations of enterprises, or persons or associations of persons from

entering into agreements which cause or are likely to cause an

appreciable adverse effect on competition within India. Section 4

prohibits the abuse of dominant position, as defined therein.

Sections 5 and 6 deal with the regulation of combinations.

29. The power of the CCI in relation to the above mentioned

matters is evident from Chapter IV. Section 18, which deals with

duties and functions of the Commission, prescribes as under:

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“Duties and functions of Commission

18. Subject to the provisions of this Act, it shall be

the duty of the Commission to eliminate practices

having adverse effect on competition, promote and

sustain competition, protect the interests of

consumers and ensure freedom of trade carried on

by other participants, in markets in India:”

Section 19 enables the Commission to inquire into any alleged

contravention of sub-section 1 of Section 3 or sub-section 1 of Section

4, either on its own motion, or on receipt of information from any

person, Central Government, state governments or statutory

authorities. Section 20 empowers the Commission to inquire into

combinations.

30. On the facts of this case, it is evident that combinations are

not relevant. The application of the Competition Act in the factual

context of this case would be confined to Sections 3 and 4 read with

Section 19. In relevant part, Section 3 is as under:

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“Anti-competitive agreements

3. (1) No enterprise or association of enterprises

or person or association of persons shall enter into

any agreement in respect of production, supply,

distribution, storage, acquisition or control of

goods or provision of services, which causes or is

likely to cause an appreciable adverse effect on

competition within India.

(2) Any agreement entered into in

contravention of the provisions contained in sub-

section (1) shall be void.

(3) Any agreement entered into between

enterprises or associations of enterprises or

persons or associations of persons or between any

person and enterprise or practice carried on, or

decision taken by, any association of enterprises or

association of persons, including cartels, engaged

in identical or similar trade of goods or provision

of services, which-

(a) directly or indirectly determines

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purchase or sale prices;

(b)limits or controls production,

supply, markets, technical development,

investment or provision of services;s

(c) shares the market or source of

production or provision of services by way of

allocation of geographical area of market, or type

of goods or services, or number of customers in

the market or any other similar way;

(d) directly or indirectly results in

bid rigging or collusive bidding, shall be

presumed to have an appreciable adverse effect on

competition:”

As is evident from the text of the extract from Section 3, the critical

question would be whether the agreement that forms the subject of

proceedings before the CCI causes or is likely to cause an appreciable

adverse effect on competition as defined in sub-section 3 of Section 3.

31. Section 4, which deals with prohibition of abuse of

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dominant position reads, in relevant part, as under:

“Abuse of dominant position

4. [(1) No enterprise or group shall abuse its

dominant position.]

(2) There shall be an abuse of dominant position

[under sub-section (1), if an enterprise or a

group].—

(a) directly or indirectly, imposes unfair or

discriminatory—

(i) condition in purchase or sale of goods or

service; or

(ii) price in purchase or sale (including

predatory price) of goods or service.

Explanation.— For the purposes of this

clause, the unfair or discriminatory condition in

purchase or sale of goods or service referred to in

sub-clause (i) and unfair or discriminatory price

in purchase or sale of goods (including predatory

price) or service referred to in sub-clause (ii) shall

not include such discriminatory condition or price

which may be adopted to meet the competition; or

(b) limits or restricts—

(i) production of goods or provision of

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services or market therefor; or

(ii) technical or scientific development

relating to goods or services to the prejudice of

consumers; or

(c) indulges in practice or practices

resulting in denial of market access [in any

manner]; or

(d) makes conclusion of contracts subject to

acceptance by other parties of supplementary

obligations which, by their nature or according to

commercial usage, have no connection with the

subject of such contracts; or

(e) uses its dominant position in one

relevant market to enter into, or protect, other

relevant market.

Explanation.—For the purposes of this

section, the expression—

(a) “dominant position” means a position of

strength, enjoyed by an enterprise, in the relevant

market, in India, which enables it to—

(i) operate independently of competitive

forces prevailing in the relevant market; or

(ii) affect its competitors or consumers or

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the relevant market in its favour.

(b) “predatory price” means the sale of goods or

provision of services, at a price which is below the

cost, as may be determined by regulations, of

production of the goods or provision of services,

with a view to reduce competition or eliminate the

competitors.

[(c)“group” shall have the same meaning as

assigned to it in clause (b) of the Explanation to

section 5. “

32. As stated earlier, if a case were to fall within the scope of

Section 3 or 4, the CCI is empowered to conduct an inquiry under

Section 19 to ascertain whether the agreement is anti-competitive or

whether an enterprise has abused its dominant position. It is also

evident that the determination under Section 19 is on the basis of an

inquiry entailing inter alia consideration of the market share, size and

resources of the enterprise, the size and importance of competitors,

dependence of consumers on the enterprise, whether such enterprise

is a monopoly or is otherwise in a dominant position, and entry

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barriers. The entire exercise is, thus, required to be undertaken by

taking into consideration the position of the enterprise vis-a-vis the

relevant market as a whole, and not by examining the position of the

enterprise vis-a-vis the counter party to a particular contract(s). By

contrast, whether the plaintiff before a civil court alleges abuse of

dominant position or superior bargaining power, the specific words

not being dispositive, the jurisdiction of the civil court would be

restricted to the contract between the parties to the dispute. The

proceedings would, therefore, be in personam and the adjudication

would be confined to the parties before the Court. Put differently, the

scope of inquiry would be limited to whether the defendant is in a

dominant or unequal bargaining position vis-a-vis the plaintiff and

not whether the defendant is in a dominant position vis-a-vis the

relevant market.

33. In the specific context of the service fee charged by Google

either under GPBS or UCB, especially in view of the assertion that

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96% of mobile phones in India run on the Android operating system

and have Google Play Store pre-installed on such devices, it certainly

would have been possible for the plaintiff to approach the CCI

seeking relief for alleged violation of Sections 3 and 4. The agreed

factual position is that the plaintiff has not adopted this course of

action. If such complaint had been made by the plaintiff, the CCI

would have conducted an inquiry under Section 19. The focus of

inquiry would have been on whether the agreement causes or is

likely to cause an appreciable adverse effect on competition and

whether Google is in a dominant position and, if so, whether such

dominant position has been abused. For such purpose, the

determination as to whether Google is in a dominant position could

only be undertaken by the CCI in the context of the relevant market,

i.e. by considering Google's position relative to other players

providing similar services in the market, particularly in relation to

the hosting of apps for use on mobile phones. In effect, the

proceedings before the CCI are proceedings in rem and the decisions

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of the CCI would therefore be applicable to and binding on all

stakeholders. Pursuant to such inquiry, the CCI is also empowered to

grant remedies under Section 27, including interim orders under

Section 33.

34. Hence, notwithstanding the conclusion that the plaintiff

could have approached the CCI seeking relief, the critical issue is not

whether the plaintiff could have approached the CCI, but whether

the plaintiff is barred under Section 61 of the Competition Act from

approaching this Court either because of the availability of the option

of approaching the CCI or for any other reason. It is pertinent to

mention, in this regard, that a civil court provides private law

remedies that are typically non-discretionary with a few exceptions

such as interlocutory remedies. Ouster of jurisdiction is, therefore,

not inferred lightly as held in Dhulabhai v. The State of Madhya Pradesh

and another, AIR 1969 SC 78.

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35. As noticed earlier, the plaintiff has raised several pleas

relating to the alleged violation of provisions of the ICA. By way of

reiteration, the plaintiff has alleged that clause 15.3 of the DDA is in

stark violation of Section 62 of the ICA; that Google's conduct is

causing special damage; that Google has imposed its will and is

inducing termination thereby violating Section 16 of the Contract

Act; and that Google has waived its right to charge a service fee by

not doing so for a considerable period of time. Although the plaintiff

makes reference to the superior bargaining position of Google, all

these assertions are in respect of the bilateral contract(s) between the

plaintiff and Google.

36. In view of the nature of jurisdiction exercised by a civil

court, in contrast to the in rem proceedings before the CCI, in the

present suit, the plaintiff has only requested for relief in relation to

the specific bilateral contract(s) between the parties to the suit. Such

in personam disputes cannot be adjudicated by the CCI, which is

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statutorily empowered to examine whether an enterprise has abused

its dominant position in the relevant market and not whether one

party to a contract is in a dominant position vis-a-vis the counter

party and whether, in that context, the relevant contract was entered

into without the free consent of the aggrieved counter party or is

otherwise in violation of public policy because it is unconscionable

on account of the abuse of the unfair bargaining power. The above

discussion leads to the conclusion that the present suit is not barred

by Section 61 of the Competition Act.

37. In inter alia paragraphs 45 to 51 and 66 of the plaint, the

plaintiff has alleged that the PSS Act has been violated by the

defendants. The plaintiff also asserts that the defendants have

violated RBI guidelines on settlement and escrow account

management. The applicants herein state that the Reserve Bank of

India (the RBI) is the sole authority empowered to deal with

violations of the PSS Act. It is further stated that the PSS Act is a

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complete code and that only the RBI is empowered by this statute to

issue directions or lodge a written complaint under Section 28

thereof. Therefore, it is contended that the suit is implicitly barred by

the PSS Act.

38. Perusal of the PSS Act reveals that it does not contain any

provision that expressly bars the exercise of jurisdiction by a civil

court. Section 28 thereof deals with the lodging of criminal

complaints for offences under the statute, but not with civil disputes.

While Section 24 thereof provides for a mechanism for settlement of

disputes relating to the operation of the payment system by a panel

of system participants and for reference of such dispute to the RBI if

parties are not satisfied with the panel's decision, the statute does not

prescribe the powers of the panel or even of the RBI while dealing

with such disputes. With reference to the facts of this case, it does not

appear that either the panel or the RBI can determine the dispute

relating to the contractual terms being allegedly in violation of the

PSS Act and, therefore, invalid. Additionally, without doubt, neither

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the panel nor the RBI can adjudicate the primary grievance regarding

alleged breach of provisions of the ICA and alleged tortious

interference. In the absence of any explicit or implicit indication that

the dispute settlement mechanism in respect of civil disputes is

comprehensive, as per settled principles relating to the ouster of a

civil court's jurisdiction, I conclude that the plaint is not liable to be

rejected as barred under the PSS Act.

39. By citing the exclusive jurisdiction clause of the DDA, the

applicants contended that this is an additional reason to reject the

plaint. The plaintiff stated in response that a plaint cannot be rejected

on this basis when the cause of action has arisen partly within

jurisdiction. Under Order VII Rule 11(d) of the CPC, a plaint can only

be rejected, if barred by any law. An exclusive jurisdiction clause in a

private contract does not qualify as law. For the same reason, an

application for rejection of plaint under Order VII Rule 11(d) cannot

be filed on the basis of an arbitration clause. In view of Sections 8 and

45 of the Arbitration and Conciliation Act, 1996, an application for

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reference of the dispute to arbitration may, however, be filed. Hence,

the plaint cannot be rejected on this ground.

40. The application was also filed on the basis that the plaint

does not disclose a cause of action. While deciding whether a plaint

discloses a cause of action, it is unnecessary to examine whether the

plaintiff would be in a position to establish all elements of the cause

of action so as to obtain the relief sought in the suit. It is sufficient if

the averments in the plaint disclose a cause of action and the

sustainability thereof is not germane at this stage. The relevant

averments in the plaint have been set out fairly extensively earlier.

On perusal thereof, irrespective of the merits of the assertions, on

which no opinion is being expressed at this juncture, it certainly

cannot be concluded that no cause of action is disclosed in the plaint.

41. Therefore, the application to reject the plaint is dismissed

without any order as to costs.

11.06.2025

Index : Yes/No

Internet : Yes/No

Neutral Citation : Yes/ No

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kal

SENTHILKUMAR RAMAMOORTHY J.

kal

Pre-delivery order made in

A.No.4193 of 2023

in

C.S.(Comm Div) No.186 of 2023

11.06.2025

(½)

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