TMI Blog2015 (4) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... f owners' association by the Opposite Party, etc. Having examined the clauses of 'the Agreement' it appears that some of them are unilateral, one sided and loaded in favour of the Opposite Party. Based on the above, the Commission is of the view that the above said conduct of DLF Group, emanating from its dominant position in the relevant market, prima facie, amounts to imposition of unfair terms and conditions on the commercial office buyers which is anti-competitive as per the provisions of Section 4(2) (a) (i) of the Act.It is a fit case for investigation by the Director General (DG). - The Commission directs the DG for investigation into the matter. - CASE NO. 24 OF 2014 - - - Dated:- 23-6-2014 - ASHOK CHAWLA, ANURAG GOEL, S.L. BUNKER AND SUDHIR MITAL, JJ. Shyam Vir Singh and Abhijeet Singh for the Informant. ORDER UNDER SECTION 26(1) OF THE COMPETITION ACT, 2002 1. The information in this case has been filed by Mr. Shyam Vir Singh (hereinafter referred to as the 'Informant') on 11.04.2014 under Section 19(1) (a) of the Competition Act, 2002 (hereinafter referred to as the 'Act') against M/s DLF Universal Limited, New Delhi (here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormant, some of the conditions of 'the Agreement' as stated below are unfair and abusive. (i) Para F and R: The Opposite Party may abandon the project without offering any reason and its liability in such case would be limited to refunding the amount of money deposited with simple interest @9% per annum to the buyers: (ii) Para 9.2: In case of major alteration/modification in the plan; the buyer has to file his/her objections/ non-consent within 30 days and the objections/non-consent of the buyer would not in any way ensure a fair hearing/arbitration while, the Opposite Party on receiving such objection has the freedom to cancel 'the Agreement' unilaterally. Thus, the buyer has no recourse if the Opposite Party decides to make major alterations to the plan after signing of 'the Agreement'. (iii) Para 8: The buyers are obliged to pay the sale price and other payments for their booked premises as per the stipulated schedule. However, there is no such obligation on the part of the Opposite Party for giving possession of the commercial units as per the stipulated schedule of 36 months. The Opposite Party has arbitrarily undertaken to pay ₹ 25/- pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd one sided fashion. The buyer is required to pay an interest of 15% - 18% per annum for any delayed payment of instalment at the same time the Opposite Party is required to refund only the amounts received from the buyer without interest or in some cases 9% interest in the event of cancellation of the project and that too after deducting interest received on delayed payments. 2.7 The Informant has also averred that in case of any arbitration, the arbitrator is to be appointed at the sole discretion of the Opposite Party and it may be its own employee and the arbitrator's decision would be binding on both parties. 2.8 The Informant has stated that as per the payment schedule drawn by the Opposite Party, buyer is required to pay 85% cost of the flat till completion of building structure, 5% on installation of MEP equipments, 5% on application of occupation certificate and remaining 5% after possession. As per the Informant, the cost of raising the structure of the building comes to about 40% - 50% of the total cost of the building and not 85% of the total cost of the flat as claimed by the Opposite Party in its payment schedule. Moreover, instalments are drawn not as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nth and to pay interest, at a rate equivalent to that charged from the buyer; (iii) The Opposite Party may be directed to pay interest to the purchaser in the event of cancellation of the project; (iv) The Opposite Party may be restrained from demanding more money from the buyers till they adjust the penalty amount lying with them towards the cost of the commercial space; and (v) Scrutinise all clauses of 'the Agreement' and determine whether the clauses are just and fair. 3. The Commission has perused the information and heard the Informant at length. From the perusal of information and arguments advanced by the Informant before the Commission, it is clear that this case pertains to the alleged infraction of provisions of Section 4 of Act i.e., abuse of dominant position by the Opposite Party. 4. To examine the alleged contravention of the provisions of Section 4 of the Act, the primary requirement is to define the relevant market first and then to examine whether the Opposite Party is in a dominant position in the relevant market as defined and then to examine its alleged conduct. 5. Section 2 (r) of the Act defines the relevant market as the market whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant case may be defined as 'the market for the services of development and sale of commercial space in Gurgaon'. 8. Since Opposite Party is a wholly owned subsidiary of M/s DLF Limited and belongs to the DLF Group, dominance of DLF Group in the relevant market is to be examined. From the Draft Red Herring Prospectus of DLF Limited dated May 16, 2013, the Commission observes that DLF Group had sold 23 commercial shopping complexes until December 31, 2012. Out of those 15 commercial shopping complexes were in Gurgaon alone. Besides this, DLF Group has another prominent commercial space project in Gurgaon known as DLF cybercity, which is stated to be one of the largest self sustainable integrated business district in India comprising of Grade A office building, IT parks and IT SEZs with an operational space of approximately 12 million square feet and additional development potential of 5 million square feet. Further, it is observed that DLF Group has two commercial projects under construction in Gurgaon namely Corporate Green with a saleable area of 1.6 million square feet and Horizon centre with a saleable area of 1.2 million square feet, aggregating to about 2.8 million s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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