Majority View - The present matter relates to an information filed by the Owners and Occupants Welfare Association, DLF Towers, Jasola (hereinafter referred to as "the informant") under section 19 of the Competition Act, 2002 (hereinafter referred to as the 'Act') alleging abuse of dominant position by M/s. DLF Commercial Complex Ltd. (hereinafter referred to as DLF).

2. The facts and allegations, in brief, as stated in the information are as under:

2.1 The Informant is a society registered under the Societies Registration Act, 1860 with the allottees of the DLF towers Jasola as its constituent members.

2.2 As per the Informant, DLF has abused its dominant position in the relevant market of high-end commercial space in south west Delhi, more particularly in Jasola District Centre, Jasola. According to the informant, the terms and conditions of the retail/commercial space buyers' agreement are harsh, onerous and burdensome to the allottees. The Informant has stated that taking an undue and unfair advantage of its dominant position, DLF had sought to burden the members of the informant and other allottees with a unilateral imposition of conditions which are one-sided and operate to the extreme prejudice and detriment of the informant.

2.3 The Informant has further stated that Clause 1.5 of the Agreement does not contain the proportionate liability clause to fasten commensurate penalty damages on DLF for breach in discharge of its obligation. Clause 1.5 of the agreement stipulates that due to change in the Layout Building Plan, if any amount was to be refunded to the allottees, DLF would not refund the said amount, but would retain and adjust this amount in the last instalment payable by the allottees.

2.4 Similarly, Clause 2.3 of the Agreement stipulates that the intending allottees shall have the absolute ownership of undivided proportionate share in the land underneath the building commensurate with the allotted super area. But, intending seller can raise finance/loan from any Financial Institution by way of mortgage/charge/securitization etc. subject to the condition that the said premises shall be free from encumbrances at the time of execution of Conveyance Deed or Deed of Apartment and/or Deed of Sub-lease.

2.5 As per the Informant, in terms of para 13.3 of the Agreement, DLF has unilaterally reserved the right to cancel the agreement in the event that the intending allottees fails to execute the Conveyance Deed and/ or Deed of Apartment within a period of 60 days from the date of intimation of receipt of certificate of use and occupation of the building.

2.6 As per the Informant, Clause 35 of the Agreement which purports to be a waiver clause reveals that it is a non-obstante clause, which is beneficial to DLF which may in its sole option and discretion, without prejudice to its rights waive the breach by the intending allottee such that the intending allottee is required to pay interest at the rate of 15% per annum for the first ninety days after the due date and thereafter @ 18% per annum.

2.7 The Informant has also submitted that Clause 3.5 with Clause 11.9 which deals with the corresponding remedy for the default of failure to deliver possession stipulates that if DLF is unable to give possession within (36) months the agreement would render the DLF to refund the amount with simple interest @ 9%, whereas if the agreement is terminated by the DLF then it would be liable to pay compensation @ 25 per square feet for per month delay which works out to 1.87% per annum.

2.8 The Informant has contended that Clause 10.2, wherein DLF contemplates to complete construction of the premises within a period of 36 months, subject to the exceptions stated therein, has been kept wide open to provide for all contingencies so that the conditions are skewed favourably towards DLF and to the prejudice and detriment of the intending allottees.

2.9 The Informant also alleged that the DLF used its position of dominance to impose an unconscionable