I.A. No. 24/2017 in Appeal No. 09/2017 and I.A. No. 25/2017 in Appeal No. 10/2017. Case: DLF Home Developers Limited and Ors Vs The Competition Commission of India and Ors.. COMPAT (Competition Appellate Tribunal)

Case NumberI.A. No. 24/2017 in Appeal No. 09/2017 and I.A. No. 25/2017 in Appeal No. 10/2017
CounselFor Appellant: Ramji Srinivasan, Senior Advocate assisted by Kanika Chaudhary Nayar, Nidhi Singh, Modhulika Bose and Tushar Bhardwaj, Advocates
JudgesRajeev Kher and Anita Kapur, Members
IssueCompetition Act, 2002 - Sections 19(1)(a), 26(1), 27, 4, 4(2)(a)(i), 53B, 53T
Judgement DateApril 10, 2017
CourtCOMPAT (Competition Appellate Tribunal)

Order:

  1. These appeals are directed against the order of the Competition Commission of India ('the Commission') passed in Case No. 01/2014, Shri Ashutosh Bhardwaj vs. M/s. DLF Limited and others and Case No. 93/2015, Shri Lalit Babu and others Vs. M/s. DLF New Gurgaon Homes Developers Pvt. Ltd.

  2. The Respondents Shri Ashutosh Bhardwaj and Shri Lalit Babu and others filed information with the Commission alleging abuse of dominance on the part of the present Appellants under Section 4 of the Competition Act, 2002 ('the Act'). Very briefly, the facts relate to the sale of residential apartments by the Appellants to the Respondents and the alleged anti-competitive provisions of the Apartment Buyers' Agreement (ABA) executed between the parties. According to the allegations, the Appellants enjoy a dominant position in the relevant market and have abused their dominant position by incorporating anti-competitive conditions in the ABA. The Commission ordered investigation by the Director General ('the DG') into the allegations and on the basis of DG's report determined the relevant product and geographical market. They also found Appellants' dominant in the relevant market and determined that the terms of the ABA were abusive in nature. We quote from paragraphs 10 to 24 from the appeal memo to briefly describe the facts and chronology of events in these cases in order to explain that several matters relating to the same Appellants have been addressed by the Commission and this Tribunal earlier and are pending in the Supreme Court for final adjudication:-

    "10. The Appellant No. 1 planned and launched construction of a multi-storeyed residential apartments building complex known as 'New Town Heights' (Project) in Sectors 86, 90 and 91 Gurgaon, (Haryana) in the year 2008. The Applications for booking apartments in the aforesaid building complex were received from February, 2008 onwards from various allottees together with the booking amounts. The said booking application is referred to in Annexure-A5.

  3. Upon receipt of the booking application together with the booking amounts, receipts of payments of the booking amounts were issued to the respective allottees from time to time. The allotment letters were sent to the respective allottees along with the schedule of payment.

  4. An Apartment Buyers Agreement (hereinafter referred to as the 'ABA/Agreement') was entered into with the allottees. The ABA was the agreement to sell/purchase the apartment, and the allottees were required to make payments of instalments under the schedule of payment. The ABA is referred to in Annexure-A5.

  5. The ABA sets out briefly the payments schedule and cost structure (Clause 3); earnest money (Clause 4); mode of payment in time (Clause 5); alterations and modifications to the construction (Clause 10); schedule for possession (Clause 11); delay due to reasons beyond the control of the Appellant No. 1 and remedies to the allottee (Clause 14); events of defaults and consequences (Clause 60) and maintenance of the buildings/complex/apartment (Clause 19).

  6. By way of background, it is pertinent to submit that Respondent No. 1 has previously considered the ABA and Appellant No. 1's conduct in the Project, in Case Nos. 13 and 21 of 2010, and Case No. 55 of 2012. It is submitted Respondent No. 1 had clubbed the investigation in Case No. 13 of 2010 and Case No. 21 of 2010. The Director General (DG) then submitted its investigation Report dated 18 October 2010 (the First DG Report) where DHDL was found to have contravened Section 4 of the Competition Act, 2002. The relevant market defined by the DG in the First DG Report is "high end residential units which are developed and sold to...

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