The main legal point established in the judgment is that the remedy for seeking a declaration of invalidity of the agreement for sale is by way of a civil suit and not by invoking the provisions of the Competition Act.

ORDER :

1. Feeling aggrieved by order dated 19.5.2015 passed by the Competition Commission of India (for short ‘the Commission’) in Case No. 10 of 2015, the appellants have filed this appeal under Section 53 B of the Competition Act, 2002 (for short, ‘the Act’).

2. In 2006, Respondent No. 2-Bombay Dyeing and Manufacturing Company Limited launched a Residential Apartment Scheme under the name and style of ‘ICC Springs’. Respondent No. 2 sent a special invitation dated 25.9.2006 to some individuals including the appellants and offered them flats of different sizes in the scheme. On the next day, Appellant No. 1 sent the letter of confirmation and deposited 10% of the total cost.

3. After four months, Respondent No. 2 sent communication dated 21.1.2007 to the appellants requiring them to pay Rs. 42,00,565.50 (Rupees forty two lacs five hundred sixty five and fifty paise only] on or before 31.1.2007.According to the appellants, this amount represented 10% of the total cost and was in addition to 10% already paid by them and in this manner they paid 20% of the sale price as earnest money.

4. On 23.5.2008, the parties executed an agreement for sale, which has been described in the pleadings of the appellants as Apartment Buyers’ Agreement in respect of Apartment No. 2104 with parking spaces.

5. Vide letter dated 5.10.2011, the representative of Respondent No. 2 informed the appellants that they had received ‘Occupation Certificate’ and are giving possession of residential apartment together with parking spaces subject to successful completion of pending formalities. The relevant portions of that letter are extracted below:

“To

Shri Nitin Radheshyam Agarwal

Mrs. Nikita Nitin Agarwal

602, Shubh Kamna Building,

88/II, T.H. Kataria Marg,

Mahim,

Mumbai 400 016

Ref. Apartment No. 2104 and Car Parking spaces No. F-60 and G-56 and G-57 at “Sprints”, Dadar (East), Mumbai

Sub: Intimation and Demand letter for completion of entire formalities to receive vacant and peaceful possession.

Dear Sir/Madam,

We are happy to inform you that we have received Occupation Certificate and we are giving possession of your premium residential Apartment and Car parking spaces in ‘springs’, subject to you successfully completing the pending formalities.

As per the terms and conditions of your Agreement for Sale dated 23 May, 8, as part of the possession procedure, you are requested to comply with the necessary financial and legal formalities, as enclosed as Annexure A, to enable us to handover to you vacant and peaceful possession of your Apartment and Car parking spaces. We are attaching the Membership Form for “Club One” and the rules and regulations governing the Club House. You are requested to kindly fill in the details as mentioned therein and forward us the duly completed form with three passport sized colour photographs of each member.

You are requested to make payments towards all your financial dues and complete legal formalities in the format as provided to you, as enclosed hereto, within 15 (fifteen) days of this notice. Upon completion of all formalities, we will intimate the date of handover of keys and occupation of the Apartment. The possession of the Apartments will be given in phases.

This payment is due and payable on or before 20 October, 2011. Request you to please note that all delayed payments is attracting interest @ 18% p.a. from the due date of payment until payment and/or realization thereof, whichever is earlier.

Kindly note that the maintenance charges of the building, car parking spaces and club house shall commence from the 1st November, 2011.”

6. After one year, the parties executed agreement dated 21.11.2009 for sale of parking space. The possession of the apartment together with the parking spaces was delivered to the appellants on 28.1.2012.

7. It appears from the record that the appellants filed a complaint under the Consumer Protection Act, 1986 (for short ‘the 1986 Act’) for adjudication of their grievance. This is evident from the declaration