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COMPETITION COMMISSION OF INDIA (Combination Registration No.C-2024/01/1099)
13th February 2024
Notice under Section 6(2) of the Competition Act, 2002 filed by Dickey Alternative Investment Trust and Adani Power Limited.
CORAM:
Ms. Ravneet Kaur Chairperson
Mr. Anil Agrawal Member
Ms. Sweta Kakkad Member
Mr. Deepak Anurag Member
Order under Section 31(1) of the Competition Act, 2002
On $01^{\text{st}}$ January 2024, the Competition Commission of India (Commission) received a notice under sub-section (2) of Section 6 of the Competition Act, 2002 (Act) filed by Dickey Alternative Investment Trust (DAIT) and Adani Power Limited (APL), for the proposed acquisition of Coastal Energen Private Limited (CEPL/Target) [Hereinafter, DAIT, APL and Target are collectively referred to as ‘Parties’]. The notice has been filed pursuant to the Resolution Plan dated $28^{\text{th}}$ June, 2023 submitted by the Acquirer to the Resolution Professional in relation to the CIRP of the Target.
The proposed combination envisages an acquisition of 100% of the equity share capital of CEPL by the DAIT and APL in the ratio of 51:49 (DAIT: APL) subject to the terms of the Consortium Agreement under the Resolution Plan [Proposed Combination].
In terms of Regulation 14 of Competition Commission of India (Procedure in regard to the transaction of business relating to Combinations) Regulations, 2011, the Commission, vide communication dated $10^{\text{th}}$ January 2024, sought certain information(s)/ clarification(s), inter alia, relating to the activities of the Parties. The response to the same was received on $17^{\text{th}}$ January 2024.
DAIT is a Category II Alternate Investment Fund (AIF) registered with the Securities and Exchange Board of India (SEBI), and is managed by its investment manager Dickey Asset Management Private Limited, a company incorporated under the laws of India. Currently DAIT houses three separate schemes registered with SEBI - Dickey Vision Fund, Dickey Mudra Fund and Dickey Opportunities Fund.
APL is one of India’s leading private power producers with total installed thermal power capacity of 15,250 MW (of which 1,600 MW is export oriented capacity supplying power to Bangladesh on transnational basis). APL also has a 40MW solar power plant. The APL is a part of the Adani group and the ultimate beneficial ownership of the APL is held by certain members of the Adani family. The promoter and promoter group shareholders of the Adani group’s enterprises are individuals that are part of the Adani family and/or entities ultimately owned and/or controlled by such individuals. Adani Group is an Indian multinational conglomerate.
The Target, is a private limited company, promoted by Coal & Oil Group (C&O) through Mutiara Energy Holdings Limited, Mauritius (MEHL) and Precious Energy Holding Limited, BVI (PHEL). It is engaged in the business of generation and sale of power using coal. It owns and operates a 1200 MW coal fired thermal power plant in the district of Tuticorin in the state of Tamil Nadu. The Target does not have any subsidiary and/or joint venture and/or associate company in India.
It is submitted that there are no horizontal overlaps between the activities of DAIT and and the Target. However, the activities of the APL and the Target exhibit horizontal overlaps in overall market of generation of power in India and narrow market for power generation through thermal source (using coal) in India. Accordingly, the Parties have submitted that relevant markets for horizontal overlaps may be defined as ‘the market for generation of power in India’ (Broad Relevant Market) and ‘the market for generation of power through thermal source (using coal) in India’ (Narrow Relevant Market).
Further, it is stated in the notice that there exist vertical relationships between APL and Target. While Target is present in the market of generation of power in India, the Adani Group through Adani Energy Solutions Limited (AESL), Adani Electricity Mumbai Limited (AEML), MPEZ Utilities Limited (MUL) and Adani Enterprises Limited (AEL), is present in the market for transmission of power in India, distribution of power in India and coal management services in India.
Accordingly, it is submitted that the relevant upstream markets may be delineated as: (a) the market for generation of power in India (Upstream Market I/II) and (b) Provision of coal management services in India (Upstream Market III). [Collectively referred to as Upstream Markets]. Further, the relevant downstream markets may be delineated as: (a) Transmission of Power in India, (Downstream Market I), (b) Distribution of Power in India, (Downstream Market II) and (c) Market for generation of power in India, (Downstream Market III). [Collectively referred to as Downstream Markets].
The Commission decides to leave precise delineation of the relevant market open, as it was observed that because of the reasons stated below, the Proposed Combination is not likely to result in any appreciable adverse effect on competition irrespective of the manner in which the relevant market is delineated.
Based on the submissions, it is noted that the combined market shares of Parties in the Broad and Narrow Relevant Market are in the range of [0-5] % and [5-10] % in terms of volume. Further, there are other players present in the market such as NTPC Limited, Tata Power, Torrent Power, Maharashtra State Power Generation Company Ltd and NLC India Limited who will continue to pose competitive constraints to the Parties post the Proposed Combination.
Further, it is noted that in the Upstream Market I/II, the market share of the Target is in the range of [0-5] % in terms of volume and in the Upstream Market III, the market share of AEL is in the range of [0-5] % in terms of volume. In the Downstream Market I and II, AESL, AEML and MUL have market shares in the range of [0-5] % in terms of volume, while in the Downstream Market III, the Target has market share in the range of [0-5] % in terms of volume.
Considering the material on record, including the details provided in the Notice, the existing regulatory framework in the electricity sector and the assessment of the Proposed Combination based on the factors stated in Section 20(4) of the Act, the Commission is of the opinion that the Proposed Combination is not likely to have any appreciable adverse effect on competition in India. Therefore, the Commission approves the Proposed Combination under Section 31(1) of the Act.
This order may stand revoked if, at any time, the information provided by the Acquirer is found to be incorrect.
The information provided by the Acquirer shall be treated as confidential in terms of and subject to provisions of Section 57 of the Act.
The Secretary is directed to communicate to the Acquirer accordingly.
