The civil court retains jurisdiction over contractual disputes involving payment policies challenged by an ed-tech company despite previous similar suits being rejected under the Competition Act.

ORDER :

Senthilkumar Ramamoorthy, J.

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 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.

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.

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 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