Mr. Jitendra P. Agarwal vs M/s. Macrotech Constructions Pvt. Ltd.
- Citation77/2012
Ratio decidendi
The rule this decision rests on
Dominance under the Competition Act, 2002 is assessed by reference to the relevant market, not by the relationship between the enterprise and an individual consumer. An allegation of dominance framed solely as the opposite party's dominance over the informant himself is therefore misconceived. Where the information raises no averment of an anti-competitive agreement under section 3, and its only contention is abuse of dominance, the Commission confines its inquiry to the section 4 allegation. Where the material shows that the relevant market, residential apartments in Mumbai, has several competing developers and the informant had the option of booking with any of them, there is no basis to hold that the opposite party is dominant in that market, and no prima facie case of abuse of dominance under section 4 arises. A claim for liquidated damages or interest for delay in delivery of possession under a flat purchase agreement does not fall within the ambit of the Competition Act, and such a claim must be pursued before the appropriate forum. Where no prima facie case for investigation exists, the Commission may close the matter under section 26(2) of the Act.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Order under Section 26(2) of the Competition Act, 2002 Mr. Jitendra P. Agarwal, informant in this case alleged that he had booked a flat with the Opposite Party and entered into an agreement with the Opposite Party. As per clause 23 of the Agreement, the tentative date of delivery of possession was 31st March, 2010. A six months grace period was also provided, which expired on 30th September, 2010. However, the possession was not given as per the agreement and the possession was delivered to him only on 8th September, 2011. The informant submitted that post 30th September, 2010, the opposite party was liable to pay interest @ 12% per annum for the delayed period of handing over of possession. The interest was not payable by the opposite party only if the possession had not been handed over for the reasons beyond the control of the opposite party, in completing the project. However, no communication was sent to the informant about the reasons due to which possession could not be handed over to the informant.
2. The informant claimed that the opposite party was in a dominant position vis.-a-vis. him in the project. Before handing over possession, he was asked to sign a letter that he would not make a claim against the opposite party regarding delayed possession. He had no option but to sign this letter since the possession was not being handed over without signing the letter.
3. The informant claimed that he was entitled to interest of Rs.81,72,801/- on the amount paid by him of Rs.4,80,75,300/-, at 12% from 1st April, 2010 to 31st August, 2011 and after 31.8.2011 he was entitled to interest @ 18% from 1.9.2011 to 31.10.2012. He claimed total interest of Rs.98,89,089/- and made a prayer that the Commission should pass an order against the opposite party to this effect and give directions to the opposite party to pay this amount to him. He also prayed for an interim relief for compensation of Rs.50 lakhs till the case was decided.
4. The informant alleged violation of section 3 & 4 of the Competition Act by the opposite party. However, in the information, no averment has been made either in respect of violation of section 3 of the Competition Act or in respect of dominance of the opposite party. A perusal of the information and material placed on record shows that there was no contention regarding violation of section 3 of the Competition Act and only contention was about abuse of dominance by opposite party. The dominance was alleged on the ground that despite the informant having paid the entire cost of flat, there was a considerable delay in delivering possession on the part of the opposite party and the opposite party compelled the informant to sign a letter of waiving of the claim in respect of delay in possession.
5. The dominance under Competition Act is not to be seen as dominance of an enterprise vis-à-vis an individual consumer. The dominance of an enterprise under Competition Act is to be considered in the relevant market. The informant has alleged in this application the dominance of the opposite party vis.-a.-vis himself. In any case, the relevant market in this case would be the market of providing residential apartments in Mumbai. Opposite party was not the only player in the relevant product market of residential flats in the geographic market of Mumbai. There were many players in the market of providing residential flats e.g. HIRCO, Orbit Corporation, DLF etc. The informant had option to book flat with any one of the several builders/developers. There is no material to hold that the opposite party was a dominant player in the relevant market of providing residential apartments in Mumbai.
6. The information application given by the informant is in the form of a claim of liquidated damages against the opposite party, for delay in delivery of the possession of residential apartment. This kind of claim does not fall within the ambit of Competition Act and the appropriate forum for claiming liquidated damages is elsewhere.
7. In view of the above discussion, Commission finds that there does not exist a prima facie case for investigation. The matter is liable to be closed under section 26(2) of the Competition Act and is hereby closed.
8. The Secretary is directed to inform the parties accordingly.
Sd/- Sd/- (H.C. Gupta) (Geeta Gouri) Member Member
Sd/- Sd/- Sd/- (Anurag Goel) (M.L. Tayal) (Justice S.N. Dhingra {Retd.}) Member Member Member Sd/- (Ashok Chawla) Chairperson
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