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TMI Blog2013 (2) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Municipal Act and Building Bye-laws. Several representations and promises were made by the OP through their Commercial Office Space Buyer's Agreement (the 'agreement'), including completion and possession of the complex within 36 months from the date of execution of the agreement. The informant acted on those representations and deposited the amount of Rs. 7,50,000 as booking amount for provisional allotment of the said office space. Thereafter, the opposite party kept asking the installments from the informant by sending demand notices. However, when the informant went at site of the proposed building in November 2008, he found no sign of construction as against the promises made by the opposite party. 3. The informant alleged that the agreement entered into between him and the OP was a standard agreement applicable to all dealings made by opposite party for its multiple projects and its clauses were arbitrary, unfair and onerous on the other party. He further stated that there was no escape from this one-sided agreement except by way of opting for OP's re-trading scheme introduced in 2009. However, the informant was not allowed to avail that scheme as he had paid less th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi are different relevant geographic markets for the purposes of case at hand. Gurgaon developed in last few years in a major way and various big projects were started by the OP Group in that area. However, in Delhi, opposite party is just one of the real estate developers. There were many other real estate developers in Delhi who offered similar commercial/office space. The informant in the present case was desirous of booking an office space. Therefore, the relevant market in the present case will be market for 'development of commercial/office space in the region of Delhi'. 4.2 Dominance of the enterprise: Having determined the relevant market, next step is to assess whether the opposite party was dominant in the relevant market so determined or not. Section 19(4) of the Act states that the Commission needs to consider various factors stated under that section while assessing whether an enterprise enjoys a dominant position or not. As per the information available in public domain, it is clear that the OP was not the only real estate developer offering commercial office space in Delhi. There are other real estate developers as well e.g. Ansal API, Unitech, BPTP, Omaxe, Pars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose representations and deposited the amount of Rs. 7,50,000 as booking amount for provisional allotment of the said office space. Thereafter, the opposite party kept asking the instalments from the informant by sending demand notices. However, when the informant went at site of the proposed building in November, 2008, he found no sign of construction as against the promises made by the opposite party. 3. The informant alleged that the agreement entered into between him and the OP was a standard agreement applicable to all dealings made by opposite party for its multiple projects and its clauses were arbitrary, unfair and onerous on the other party. He further stated that there was no escape from this one-sided agreement except by way of opting for OP's re-trading scheme introduced in 2009. However, the informant was not allowed to avail that scheme as he had paid less than 35% of the total amount of the agreement which was the eligibility condition to exercise the scheme. The informant therefore alleged that the OP, being a dominant enterprise abused its dominant position by making him sign such one-sided agreement which included clauses like cancellation of allotment on failure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question is that once the customer exercises its choice and pays a hefty sum to the builder/developer can that choice be substitutable or interchangeable? The answer is big "No". That is why the US Supreme court in Kodak case has coined a terminology of "captive consumer". In the case of builder/developer the consumer becomes a captive consumer and cannot even think of substituting or interchanging the products or services because of high switching cost (by forfeiting earnest/advance money or even giving penalty). This is nothing but denial of market access to the customers by builders/developers who have indulged into similar kind of practices. This is a clear cut case of contravention of the provisions as defined under section 4(2)(c) of the Competition Act. 5. As far as relevant geographic market is concerned, Section 2(s) says "the relevant market means a market comprising the area in which the conditions of competition for provision of services or the services are distinctly homogenous and can be distinguished from the conditions prevailing in the neighbouring areas." Further, section 19(6) of the Act prescribes the factors for determining the "relevant geographical market. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geographical market in the present case. 6. Thus, the relevant market in this case, would be "Provision of services for the development and sale of commercial space in Najafgarh area of Delhi." As I have already explained above that the entire Delhi or NCR cannot be treated as relevant market because the characteristics of the products or services, their prices and the intended use are not substitutable or interchangeable by the consumer not only in Najafgarh but anywhere else. Similarly, the areas in which the services are being provided are distinctly homogeneous and easily distinguishable from the conditions prevailing in the neighbouring areas. Homogeneity means uniformity of composition. The factors set out in section 19(6) such as local specification requirements, transport costs and customer preference that would, where they are different, negate homogeneity in conditions of competition. 7. After defining the relevant market, the next issue is to establish whether DLF is a dominant player in that relevant market? As per Explanations to Section 4 "dominant position" means a position of strength, enjoyed by an enterprises, in the relevant market, in India, which enables it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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