9911796707
TMI Blog2024 (11) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... ; selling joint common areas without consent of the shop owners. The Commission also notes that the Informants have claimed the Mall to be a relevant market and the conduct of OPs causing AAEC in such market - The Informants have already filed a civil suit against OPs claiming permanent injunction against OPs. The Commission notes from the information available in public domain that Metropolitan Mall is not the only mall situated in Gurugram and there are other malls situated in Gurugram and nearby areas. Thus, the Commission is of the view that the case does not merit any narrow delineation of relevant market for the purposes of Section 4 of the Act. As far as the alleged abuse is concerned, the Commission is of the view that the grievances of the Informants like payment of maintenance and electricity charges, rights and entitlement to joint common areas etc. are in the nature of contractual/civil issues/disputes - The Commission also does not find any merit in the case for its examination under Section 3(4) of the Act. Thus, the Commission is of the view that no competition concerns seem to arise in the present matter given the nature of allegations and the alleged conduct of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices of the Mall be handed over by OP- 7 (partner companies of OP-1) to OP-2 which shall be solely responsible for providing maintenance services to the said Mall including supply of electricity. It is alleged that OPs are in dominant position/dominant enterprise with respect to the Mall (relevant market) as per the Act. 4. OP-1 is the enterprise having control over the Mall and has appointed OP-2 as its sole agent for maintenance of the Mall. It is averred that OP-4 and OP-5 are brothers and that OP-1 and OP-2 are being run by OP-4 and OP-5, respectively. OP-5 got the business of OP-2 (maintenance of the Mall) under family Settlement in clandestine manner and in contrary to the stipulation in the conveyance deed and deed of declaration dated 06.05.2003. It is alleged that OP-2 runs the maintenance of the Mall including the illegal supply/sale of electricity and charging illegal exorbitant electricity charges (contrary to the provisions of the Electricity Supply Act) and maintenance charges from the owners of the Mall. OPs were responsible for the construction of the Mall. OP-11 is the Director, Town and Country Planning of the Government of Haryana which had given the approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint common areas of the Mall. This took place in 2018/2019 in a meeting between the Informants and OP-1 and OP-2. 8. The Informants have stated that OPs had sent a legal notice dated 21.09.2021 for default of monthly maintenance charges, electricity consumption charges and other charges when the Informants had requested for measurements. The Informants averred that till the time the issue of illegal sale or putting on rent of joint common areas are settled, the Informants cannot be forced to pay the maintenance for the joint common areas to their prejudice. Further, the electricity charges are far beyond the rates fixed by OP-12 to the detriment of healthy competition or the consumers who visit the Mall and thus, actions of OPs are violative of the Act. Nevertheless, the Informants made the payment of the entire electricity charges demanded by OP-1 and OP-2 on 01.10.2021 in terms of the legal notice dated 21.09.2021. 9. OPs have been harassing the Informants, their officers, employees as well as the general public who visit the shop purchased by the Informants in the Mall by threatening to disconnect the electricity supply. On some occasions, the OPs using their dominant position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid agreement allegedly gives unfettered and unqualified right of lease or permit the use of kiosk to any person and the shop owner is not entitled to raise any grievance or claim on any ground. The Informant refused to sign the same since maintenance agency cannot dictate such terms to the occupants/owners of shops in the Mall. This agreement alleged to have the support of OP-1 and OP-3 to OP-10. 11. The Informants approached the District Court, Gurugram (Suit No. 2993 of 2022) for grant of relief of permanent injunction against OP-1 and OP-2 for their conduct of disconnecting electricity, restraining ingress/egress or installing security guards in front of shops. This was filed without prejudice to their rights to approach the Commission under the Act. The Informants were forced to pay 25% of the total amount under protest to get an interim injunction. 12. The Informants have sought to rely upon various applications and documents including videography of joint common areas filed by it before the civil court. 13. The Informants have alleged that there is huge discrepancy between the Builders Buyers Agreement entered into between the parties for the purchase of shops in the Mall an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OPs. 15. The Informants have alleged that OPs from the inception of the Mall have defrauded the genuine owners/occupiers of the Mall a sum of ₹51 crores for 20 years on account of excess inflated and illegal trading in electricity charges. All in all, OP-2 at the behest of OP-1 and OP-3 to OP-10 are misusing their dominant position charging exorbitantly high maintenance, inflated charges of electricity etc. They have allegedly formed a cartel to limit or control of services of the Mall to the detriment of the legitimate owners of the Mall like the Informant. According to the Informants, there has been a total fraud of approximately ₹23,896.11 crores. 16. Thus, OPs have created a dominant position causing appreciable adverse effect on competition (AAEC) under Section 4 of the Act resulting in denial of market access to the owners/occupiers of the Mall and are also violative of Section 3(3)(a) to Section 3(3)(c) of the Act and can only be investigated under the Act. 17. The Informants have, inter alia, prayed for the following reliefs under Section 33 of the Act: 17.1. Pass an order in favour of the Informants and against OPs whereby restraining the OPs not to take any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng/renting/occupying joint common areas of the Mall belonging to all the actual owners and to duly refund the said amount received by OPs for the past 20 years amounting to over ₹23896.11 Crores; 18.5. Direct OPs to vacate all the illegally encroached joint common areas (sold/put on rent) in order to restore the rights of all the shop owners/occupiers/visitors to the joint common area of the Mall; 18.6. Direct OPs to restore all the benefits derived out of illegal sale of joint common areas, other spaces in the Mall and illegal/inflated charges (electricity charges, maintenance charges, service charges along with contingency fund) running into more than Rs. 23896.11 Crores along with punitive interests to the legitimate buyers including the Informants at the rate of 24% per annum. 18.7. Impose such penalty as contemplated under Section 27 of the Act for the abuse of the dominant position under Section 4 as well as for contravention of Section 3 of the Act in favour of the Informants/Complainants and against OPs; 18.8. Allow costs including exemplary costs in favour of the Informants and against the OPs for dragging the Informants into unwanted litigation; and 18.9. Pass such ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
