TMI Blog2014 (4) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, when the applicant approached COMPAT with an application seeking stay on the impugned demands, COMPAT requested the Commission to dispose of the said application instead. Opposite party No. 1 had contravened the order of the Commission dated 31.01.2012 by issuing the impugned demand letters dated 28.11.2012. The opposite party No. 1 has failed to show any cause, much less any reasonable cause, for non-compliance of the aforesaid order. It is made clear that order passed by the Commission need to be complied with by the parties and the same cannot be permitted to be opted out by the parties through negotiations. No stay on the cease and desist order passed by the Commission was operating when the non-compliance occurred. The said demand letter has not been withdrawn till date - opposite party No. 1 is directed to pay the fine accordingly - Decided in favour of appellant. - Case No. 67 of 2010 - - - Dated:- 26-3-2014 - Mr. Ashok Chawla, Dr. Geeta Gouri, Mr. Anurag Goel, Mr. M. L. Tayal, Mr. Justice (retd.) S.N. Dhingra and Mr. S. L. Bunker, JJ. Order under section 42 of the Competition Act, 2002 This order shall dispose of the application filed under section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al with an application for stay on these exorbitant demands being made by the opposite party No. 1 upon the applicant herein and the amounts originally due from them. However, it is stated that the Tribunal instructed the applicant to approach the Commission for grant of relief prayed. It is also averred that keeping in mind the urgency of the matter and the immediate need for grant of the prayer, the Tribunal vide its order dated 09.01.2013 in Appeal No. 19 of 2012 instructed the Commission to dispose of such application as early as possible. For felicity of reference, the said order is quoted below: O R D E R 9th January, 2013 The learned counsel seeks to withdraw I.A. No. 02/2013. Learned counsel further says that instead he would make an application before the CCI. If the application is made to the CCI, the CCI is requested to dispose of that application as early as possible. List the matter on 7.2.2013. 8. It is alleged by the applicant that inspite of the cease and desist order passed by the Commission, the opposite party No. 1 is imposing abusive clauses of the agreement upon the allottees which is clearly in contravention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Both in the case of the Belaire case and the DLF Park Place case, upon issuing the said notices of demand, applications similar to the present application, were filed by the respective association of apartment allottees under section 42 of the Act before the Commission for alleged contravention of the aforesaid order passed under section 27 of the Act. Similar application has now been filed in the present matter relating to the Magnolias case in respect of the letter of demand dated 28.11.2012. 15. It is also highlighted that during the pendency of the above appeals before the Tribunal, suggestions regarding modifications of the terms of the agreements were invited from the parties without prejudice to their respective contentions and the same were forwarded to the Commission for its suggestions, which were then to be sent to the Tribunal for its consideration in the appeals. Accordingly, the Commission passed an order in the Belaire case and appeal (Case No. 19 of 2010- Appeal No. 20 of 2011) as supplementary order under section 27 dated 03.01.2013 incorporating its suggestions regarding the proposed modifications. The said order was followed in the DLF Park Place case and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the allotment in favour of the proposed flat owners at least till the final results of the main appeal This is undoubtedly a fair statement... However, Shri Salve and Shri Narain, pointed out that if the payments as demanded are made, those payments could be without prejudice to the rights of those persons who wanted to take possession after making the payments in terms of the letter dated 31.01.2012. We, therefore, clarify that if the proposed owners choose to make the payments as demanded by the DLF and get the possession, then those payments would be without prejudice to their rights in the main appeal. We hope that these orders would allay the woes of the proposed flat owners to some extent 17. It has been contended that the present application dated 17.01.2013 under section 42 of the Act has been filed on similar lines in respect of notice of demand dated 28.11.2012 in relation to the Magnolias case whereas the notice of demand in the Belaire case dated 31.01.2012 and that in the DLF Park Place case dated 27.02.2012 have been dealt with by the Tribunal, as detailed above. In these circumstances, it has been pointed out that the Tribunal has already clarified the positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 27 of the Act, the inquiry conducted by the Commission comes to an end. However, the proceedings contemplated under section 42 of the Act, by very nature, will arise post passing of the orders by the Commission. The inquiry envisaged under section 42 of the Act may be initiated by the Commission either suo moto or on an application moved by any member of the public bringing to the notice of the Commission the alleged contravention by a party against whom an order was issued by the Commissions. 23. Much was made by the counsel appearing for the opposite party No. 1 based upon the proceedings pending before COMPAT and emanating out of the orders passed by the Commission, contravention whereof is alleged and is the subject matter of the present proceedings. The Commission has noticed the various orders passed by COMPAT in those proceedings. No stay on the cease and desist order passed by the Commission has been granted by COMPAT. In fact, when the applicant approached COMPAT with an application seeking stay on the impugned demands, COMPAT requested the Commission to dispose of the said application instead. In these circumstances, nothing turns upon the preliminary submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n observed that the opposite party No. 1 pursuant to the inquiry conducted by the Commission furnished some information which is clearly demonstrative of the contravention of the order of the Commission. The relevant para of the composite reply of the opposite party No. 1 dated 15.01.2014 is instructing and revealing and the same is noted below: It may be mentioned here that such substantial increase in Super Areas of about 36% was only in respect of 6 apartments out of which the matter is already resolved and the terrace area has been taken by the allottees of 4 such apartments. It is expected that the matter would also be resolved with the remaining 2 allottees. 29. Furthermore, the Commission in its order dated 01.08.2013 noted the facts placed before it regarding additional super area. It was noticed therein that charges for additional super area were claimed by the opposite party No. 1 from the flat owners. Furthermore, it was observed therein that the additional super area in this case was around 36% of the initial super area shown in the agreement. It transpired that the opposite party No. 1 had increased the size of entrance to the building block. The roo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2012 and the same continues till date. Accordingly, considering the totality of the facts and circumstances of the case, the Commission deems it appropriate to impose a fine of Rs. 50,000/- upon the opposite party No. 1 for each day of non-compliance which period is to be reckoned from 28.11.2012 till today (i.e. the date of passing of this order) totalling to Rs. 2,41,50,000/- (Rupees Two Crore Forty One Lakh Fifty Thousand), which the opposite party No.1 is directed to pay within a period of 60 days from today. If the non-compliance continues even beyond today, the opposite party No. 1 shall be further saddled with a fine of Rs. 1 Lakh per day for each day of non-compliance beyond today till the time the opposite party No. 1 purges itself of non-compliance or till the time the total fine reaches to the maximum statutory limit of Rs. 10 crores, whichever is earlier. 33. The opposite party No. 1 is directed to pay the fine accordingly. 34. In addition to imposition of fine upon the opposite party No. 1 for the non-compliance of the order, the Commission is of further opinion that the order dated 10.01.2013 passed by the Commission under section 42 of the Act in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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