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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 ..... jects were started by the OP Group in that area. However, in Delhi, opposite party is just one of the real estate developers. here 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'. 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 and 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, Parsavnath etc. Presence of other real estate developers offering commercial office space also indicates that the informant was not dependent upon the opposite party for provisioning of an office space. None of the factors stated under section 19(4) of the Act seem to support informant's plea of dominance of opposite party. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of the buyer to accept the terms of the agreement within 30 days, forfeiture of earnest money, 'time as essence' of contract applicable only on buyer, obligation to pay and not to OP's obligation to execute its part of the contract, high interest rate on buyers' failure to pay the instalment within stipulated time but no interest on OP's cancellation of contract and refund of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Parsvnath etc. Presence of other real estate developers offering commercial office space also indicates that the informant was not dependent upon the opposite party for provisioning of an office space. None of the factors stated under section 19(4) of the Act seem to support informant's plea of dominance of opposite party. Therefore, the opposite party does not appear to be dominant in the relevant market of 'development of commercial/office space in the region of Delhi'. 4.3 Abuse of dominant position: In view of the above discussion, the Commission need not proceed with the plea regarding abuse of dominance in this case, as the OP was not dominant in the relevant market determined by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 of the buyer to accept the terms of the agreement within 30 days, forfeiture of earnest money, 'time as essence' of contract applicable only on buyer, obligation to pay and not to OP's obligation to execute its part of the contract, high interest rate on buyers' failure to pay the instalment within stipulated time but no interest on OP's cancellation of contract and refund of money. Further the information stated that the OP delayed the project using its dominant position and caused colossal losses to the informant. The informant approached the Commission to get an inquiry instituted into the agreement executed by the OP with the allottees which allegedly contravened the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." There are several factors given in this section and even one factor is sufficient to define a relevant geographical market. However, I will consider four factors, e.g., local specification requirements; transportation costs; consumer preferences and need for secure or regular or rapid after- sales services in order to define the geographical market in the present case. If we take local specification requirements as one of the factors, we find that a customer decides a place/location of the property before making a decision on the basis of several reasons such as affordability, the return on investment, the proximity, the environment, the connectivity and so on. So if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to- (i) Operate independently of competitive forces prevailing in the relevant market; or (ii) Affect its competitor or consumers or the relevant market in its favour. This dominance also has to be seen with reference to the factors mentioned in Section 19(4) of the Act. OP1 has acquired its dominant position for the provision of services to the consumer after the consumer booked the commercial space with it. Consumers are totally dependent on service provider. Also, due to the various obligations cast upon the builder/developer under relevant Acts, rules and regulations of concerned regulatory bodies, OP1 has automatically acquired dominance in comparison to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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