UNDER SECTION 26(2) OF THE COMPETITION ACT

1. The present information has been filed under section 19(1)(a) of the Competition Act, 2002 ('the Act') by M/s Silarpuri Colonizers Private Limited ('the informant') against M/s The Emaar MGF Land Limited ('the opposite party') seeking inter alia an investigation into the alleged abuse of dominance by the latter in contravention of the provisions of section 4 of the Act.

2. Briefly stated, the information inter alia engaged in real estate business and investment activities in real estate the major real estate projects in India. The opposite party is described as a joint venture between M/s. Emaar, Dubai and M/s MGF, India.

3. It is averred in the information that at the end of year 2007, the informant was approached by the marketing executives of the opposite party with respect to its upcoming residential project viz. Palm Drive in Sector -66, Gurgaon, Haryana. The informant was also shown a sample flat of the project constructed by The Leighton-described as the world's leading and reputed construction company. It is averred in the information that in view of the above facts/assurances/promises of the opposite party, the informant booked 90 units in the project. An understanding was arrived at between the parties with regard to various aspects pertaining to the said project such as pricing, locations, construction and designing specifications. Further, various concessions were also assured by the opposite party to the informant due to bulk booking.

4. The informant stated that between November, 2007 to August, 2008 a sum of Rs. 9 crores was paid by the informant to the opposite party. No construction was started before receipt of the aforesaid sum and the same started only in November, 2008.

5. The informant levelled various allegations against the opposite party. It alleged that terms of the Buyer's Agreement ('the Agreement') dated 01.07.2008 were varied from what was agreed upon and undertaken to be complied with by the opposite party. The assurance that the project would be undertaken by The Leightor turned out to be false and an alluring tactics in letting initial investments/bookings to be carried.

6. Making a detailed reference to the clauses of the Agreement, it is contended that the same were anti-competitive and in abuse of dominance. Objection is taken to clause 1.2(b) of the Agreement which provided that the allottee had to pay a booking amount of Rs. 10 lacs at the time of registration/ provisional allotment. It is alleged that no unit, either provisionally or otherwise was allotted to the informant till after six months of the payments. Without allotting any unit, no advance or booking amount could have been collected by the opposite party.

7. Referring to clause 1.2(d) of the Agreement, it is alleged that the same was highly anti-competitive in nature and in abuse of dominance in as much as it provided for the right of the opposite party to adjust/ appropriate instalment amount first towards interest and other sums and the balance towards the sale price and such adjustment/ appropriation to be done at the sole discretion of the company and the allottee not to object, protest or direct the company to adjust payments in any other manner.

8. It is alleged that under clause of the Agreement in case of delay in making payments by the allottee, the company and a right to terminate the Agreement and forfeit the earnest money. Besides the company was entitled to charge interest @15% p.a. compounded at the time of every succeeding instalment from the due date of instalment till the date of payment. On the other hand, under clause 14(b)(i) of the Agreement, if the completion of the project was delayed for the reasons stated therein, the company was to be entitled to the extension of time for handing over of the possession of the apartment. Further, under clause 14(b)(ii), the company reserved the right to suspend construction and the allottee was not to claim compensation of any