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Competition Commission of India (CCI): The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma (Member) and Bhagwant Singh Bishnoi (Member), analysed the dominance of Vatika Limited and held that it has no dominance in the relevant market.

Present information filed by “Informant” under Section 19(1)(a) of Competition Act, 2002 alleging contraventions of the provisions of Sections 3 and 4 of the Act.

Informant approached a property dealer in December, 2012, for the purchase of a residential flat in Gurugram. The property dealer arranged a meeting of the Informant with Vatika officials in the Vatika office. The informant has averred that the sales executive of Vatika informed that ‘Vatika Town Square’, would be situated at the entrance of a large number of residential and commercial complexes in new Gurugram.

Further, it has been stated that, the informant was told by Vatika that Block-D was under construction and would be completed by the end of June 2015. It was stated that by that time the entire Dwarka Express Highway Road would also be complete.

Informant was also told that possession of the property would be given after 2.5 years and in case of delay in construction or any other default by Vatika, the interest of 8% would be payable by Vatika. Along with this, the Informant was told that the stated terms and conditions would be incorporated in the Builder Buyer Agreement (BBA) to be executed by Vatika with the Informant.

Allegations of Informant

Informant alleged that in the BBA there was neither any mention of the construction /completion/ possession date nor of the payment of simple interest to the buyer, for the delay, if any, in completion of construction by Vatika.

On a later date, Informant in a meeting with Vatika was told that leasing / renting / of commercial units in ‘Vatika Town Square’ was already going on in a big way and property may be able to fetch some premium. It has been alleged that on a visit to ‘Vatika Town Square’ there was no activity of leasing/ renting at D Block and the construction was not complete. All floors had only bare columns and bare floors without any partitions for the individual units, except for some activity.

Informant on several occasions requested Vatika to inform him about the refund he would get on terminating the BBA along with deductions that would be involved, but no reply came along.

Informant alleged that Vatika was required to complete construction and offer possession by June 2015. Vatika neither informed about any delay due to force majeure event nor sought an extension of time. He further submitted that, construction activities in Block-D, ‘Vatika Town Square’ are still in progress, although Vatika issued intimation for possession and further kept demanding huge extra amount from buyers for delay in taking possession.

“…BBA was not only one-sided imposing unfair, discriminatory terms and conditions on the buyer, but also covered builder from all foreseeable or un-foreseeable events at the cost of buyers.”

“…there is selling of property through unfair means by nexus between Vatika and property dealers.”

“…Vatika is probably diverting funds collected from Block-D for other projects.”

Decision of the Commission

On perusal of the information stated above, provisions of Section 3 of the Act have no application to the present case as the Informant is a consumer and agreement with a consumer does not fall within the ambit of Section 3 of the Act.

In respect to Section 4 of the Act,

“What is of concern to the Commission in the present case is that the Informant booked a commercial space in Vatika Town Square project at Gurugram.”

Taking into account the factors such as physical characteristics or end-use of goods, price of goods or services, consumer preferences and nature of service offered, the relevant product market for the purposes of the present case is the “provision of services for development and sale of commercial space”.

Thus, the Commission keeping in view the factors held that Vatika has no dominance in the relevant market, no case to examine alleged abuse of dominance by Vatika in the matter, under the provisions of Section 4 of the Act, remains for determination by the Commission.

No prima facie case and the information filed is closed forthwith under Section 26(2) of the Act. [Suresh Chander Gupta v. Vatika Ltd., Case No. 26 of 2019, decided on 03-10-2019]

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Competition Commission of India (CCI): The Coram comprising of Ashok Kumar Gupta (Chairperson) and U.C. Nahta and Sangeeta Verma (Members) dismissed an application filed by a Telugu Film and T.V. Serial Producer and distributor on being not allocated sufficient cinema theaters/screens.

In the present case, Ashok Kumar Vallabhaneni (Informant) filed an application under Section 19 (1) (a) of Competition Act, 2002 against the OPs who are engaged in the business of production and distribution of movies in the States of Andhra Pradesh and Telangana, alleging inter alia contravention of the provisions of Sections 3 and 4 of the Act.

Informant entered into a Theatrical Distribution Agreement with Sun Picture according to which the Informant had purchased the “distribution and exhibition rights” for the dubbed version of the Tamil movie ‘Petta’ in the Telugu language, in the States of Andhra Pradesh and Telangana. Sun Picture decided to release the movie worldwide during the Pongal/Sankranti festival in the month of January, 2019.

Further, it has been stated that, Informant contacted OPs who have control over more than 80% of local movie theatres in the States of Telangana and Andhra Pradesh and requested them to provide a minimum of 400 screens in said states. OPs declined to provide a sufficient number of screens for the said movie due to which Informant immediately approached the ‘Telugu Chamber of Commerce’ and raised the issue of non-allocation of sufficient cinema theatres/screens.

It was alleged that due to cartelization amongst the OPs, the OPs allotted limited screens for screening the Informant’s dubbed movie, thereby,

depriving the right of the Informant from exhibiting the said movie in a sufficient number of screens and causing immense monetary loss.

Adding to the above allegation, the conduct of OPs not only adversely affected the competition at the distributor level but also had an appreciable adverse effect on the consumers/viewers. All of the stated allegations are said to be in violation of the provision of Section 3(3)(b) of the Act.

Another allegation added to the list was that the sole object of OPs was to monopolise the film industry with a view to preventing the entry of new producers and due to which Informant’s suffered a loss of about Rs 7 Crores. Therefore it has been stated that OPs were “Limiting or restricting the Telugu film industry” and thus violating the provisions of Section 4 of the Act.

Conclusion

Commission noted that,

“What the Act under Section 4 contemplates is the abuse of dominant position by an enterprise or a group rather than abuse of a dominant position of collective dominance by more than one entity.”

Thus, the commission stated that abuse on account of collective dominance is a concept not recognised by the Indian Competition regime so far. In the present case, Informant averred the presence of multiple players in the market. When the market is dynamic and is characterized by the presence of multiple players, no single player can be said to be in a position to affect the competitors or consumers or the market in its favour.

Regarding the allegation of cartelization, there was no material furnished or indicating collusion amongst OPs, thus no interference is warranted in that regard.

In view of the above facts and circumstances of the case, no case of contravention of the provisions of Sections 3 and 4 of the Act is made out against the OPs. [Ashok Kumar Vallabhaneni v. Geetha SP Entertainment LLP, 2019 SCC OnLine CCI 27, decided on 01-08-2019]

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Competition Commission of India (CCI): The Three-Member Bench comprising of Ashok Kumar Gupta, Chairperson and Augustine Peter and U.C. Nahta as members dismissed a case for anti-competitive practices for lack of merits.

This petition has been filed under Section 19 (1)(a) of the Competition Act, 2002 by informant against the opposite party alleging contravention of the provisions of Sections 3 and 4 of the Act for controlling horse racing activity and imposing unfair and discriminatory conditions for getting results in their favour. It has been further alleged that the opposite party were either race horse owners and stud farm owners or breeders having a direct interest in the horse races and also betting activities were independently performed, profit of which went to the party which further explains their vested interest in the same.

The opposite party argued that the game/ sport of horse racing is primarily governed by the Bombay Race Course Licensing Act, 1912, Section 3 of which provides that “no horse race can be held save and except on a race course for which license for racing is granted in accordance with the provisions of this Act.” Also, any objections regarding any race event takes place under a close public vigil and there was no scope for foul play or mischief. With regard to the betting allegations, the case K.R. Lakshmanan v. State of T.N., (1996) 2 SCC 226 was quoted which clarified that betting for horse racing was legalized in India which was being performed after obtaining a license under the above act. Coming to the abuse of dominance under Section 4 it stated that it was involved in only 23% of the events.

The Commission observed that not only were the allegations vague and without substance but the informant also has not been able to demonstrate as to how the allegations attract the provisions of Section 3 of the Act and accordingly there was no case of contravention. [Habib Rajmohamad Patel v. Royal Western (India) Turf Club Ltd., 2019 SCC OnLine CCI 3, order dated 15-01-2019]

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Competition Commission of India (CCI): This information was filed before Ashok Kumar Gupta, Chairperson; Augustine Peter and U.C. Nahta, Members under Section 19(1)(a) of the Competition Act received by informant who is an advocate alleging National Stock Exchange of India Ltd. for abuse of dominance under Section 4 of the Act.

The informant had come with a prayer that the case of ‘NSE Co-location Case’ which is being investigated by SEBI, CBI and ITD should also be investigated by Competition Commission for abuse of dominance. Informant had submitted that by giving unfair preferential access to some trading members of its co-location services the NSE had abused its dominance. And that NSE is dominant in its field having greater market power than Bombay Stock Exchange.

The Commission observed that NSE had limited and restricted the provisions of its services to other trading members availing the co-location service which resulted in ‘denial of market access’ to others to whom such unfair access was not given. Thus, the informant has alleged contravention of Section 4(2) (b) (ii) and Section 4(2) (c) of the Act. Commission was of the view that it could independently take the present matter but, the allegations were yet to be established through appropriate proceedings. Therefore, the Commission ordered the matter to be closed in terms of the provisions of Section 26(2) of the Act.[Jitesh Maheshwari v. National Stock Exchange of India Ltd., Case No. 47 of 2018, Order dated 07-01-2019]

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Competition Commission of India (CCI): The 3-Member Bench comprising of Sudhir Mital (Chairperson), Augustine Peter and U.C. Nahta (Members), while pronouncing an order under Section 26(2) of the Competition Act, 2002, dismissed the case in light of no contravention being found as alleged of the provisions of Sections 3 and 4 of the Competition Act, 2002.

The facts of the case are that the Informant had filed the present information under Section 19(1) (a) against OP-1, i.e. Vatika Ltd. and OP-2, i.e. Confederation of Real Estate Developers’ Associations of India (CREDAI) for contravention of Sections 3 and 4 of Competition Act, 2002. The informant had purchased a plot in a township being developed by OP-1 in Gurugram, Haryana. Informant had opted for a “construction linked payment plan” in which he had to pay the total amount within a span of 3 years. Once the initial payment was duly paid a plot was allotted to the informant and further, the agent asked the Informant to sign the buyer’s agreement which was jointly signed by the Informant and his son.

As per the payment plan, the Informant had deposited the second installment and was asked to make the third installment within 15 days when initially at the time of making application for the plot it was decided that the third installment would be payable in 8 to 9 months from the date of booking. For the payment of the third installment, demand letter from OP-1 started to flow and on being asked about the same by informant it was reasoned that because of the construction work had been completed upto the 5th installment plan.

The Informant further stated that, on mailing several queries due to being aggrieved by the above stated circumstances and seeking clarifications on the same, but no reply being received in this regard, the Informant had to send out a legal notice to OP-1 reiterating the details of the one-sided communication to which the response was that the Informant had defaulted in payment of installment and as a consequence the amount already paid by the informant had been forfeited, therefore the Informant was not liable to any refund.

Allegations by the Informant:

  • OP-1 abused its dominant position; by refusing to visit the site, unfair terms of the Buyer’s Agreement, unreasonable demand of instalment payments and not responding to queries which ultimately places the OP-1 in the position of abuse of dominance in the relevant market of residential plots by violating Section 4(2)(a)(i) of the Competition Act, 2002
  • Cartelisation: OP-2 and its members including OP-1 have indulged in common practices by incorporating standard clauses in their agreements.

The Commission on perusal of the information and submissions of the parties has stated that it disagrees with the Informant’s submission that the relevant geographic market should be delineated as “Northern Peripheral Road Corridor.” There are various residential projects in Gurugram other than the projects in Northern Peripheral Road Corridor which could have been considered by consumers desirous of purchasing a residential plot. It is noted that the Informant has assessed the dominance of OP-1 as per the relevant geographic market defined by him. “The Commission notes that OP-1 faces sufficient competitive constraints from various other competitors and would not be able to operate independently of the competitive forces prevailing.”

Therefore, in view of the above-stated allegations and Commission’s view in that respect, no case of contravention of the provisions of Section 3 and 4 arise against the OP. [Ranjit Singh Gujral v. Vatika Ltd., 2018 SCC OnLine CCI 84, dated 16-10-2018]

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Competition Commission of India (CCI): The four-member bench comprising of Devender Kumar Sikri, Chairperson and Sudhir Mital, U.C. Nahta, and G.P. Mittal, Members, ordered closure of the matter filed against BMW India Private Limited (OP-1) under Section 19(1)(a) of the Competition Act, 2002 alleging ‘abuse of dominance’.

The brief facts of the matter state that ‘Informant’ was a dealer for selling BMW cars in the State of Gujarat and was continuing to be one for almost 9 years. The primary allegation which in accordance to the ‘Informant’ constitutes to ‘abuse of dominant position’ is that OP-1 abused their dominant position by selling their cars through dealers outside Gujarat to the customers based in the State of Gujarat. Another averment was that BMW India seems to have been carrying out a fraudulent/illegal arrangement as no ‘entry tax’ is being paid on entering of the cars in the State of Gujarat from outside the State.

Therefore, the Commission on noting the stated allegations and facts, analysed the issue placed by the ‘Informant’ and concluded by stating that, BMW India had in advance, before the renewal of the agreement of dealership between the parties, sent a notice of ‘non-renewal’ which made the ‘Informant’ well aware of the expiry of the agreement and the fact that BMW India has negligible share in the passenger car segment in India clearly leads to BMW India not being a dominant player. Hence the Commission opined that nowhere OP-1 contravened Section 4 i.e ‘abuse of dominant position’  and pronounced an order of closure under the provisions of Section 26(2) of the Competition Act, 2002. [Prasoli Motor Works (P) Ltd. v. BMW India (P) Ltd.,2018 SCC OnLine CCI 39, dated 30-05-2018]

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Competition Commission of India (CCI): Competition watchdog ordered to close a case filed against Facebook, Google and some online portals (“opposite parties”) for alleged abuse of dominant position and anti-competitive conducts. The informant in this case was aggrieved by complaints filed on online electronic public fora by persons with whom the informant has ongoing disputes. Informant alleged that these persons had also published defamatory material against the Informant on online platforms such as Google and Facebook. The Informant has also claimed that because of the wide outreach of these websites publication of false/ defamatory statements/ adverse remarks have tarnished its reputation and it has suffered reputational and monetary damage. Informant contended that Facebook and Google enjoy dominant position on the internet as the information contained in these websites can be viewed worldwide and hence they have violated the provisions of section 4 of the Competition Act, 2002.

The CCI observed that the Informant failed to make out a case against Facebook and Google for abuse of dominance under the provisions of section 4 of the Act. CCI closed the case with the view that the general averments made by the Informant against the opposite parties including publication of defamatory materials on certain websites allegedly maligning the Informant’s reputation, do not raise any competition concern. [In Re: Taj Pharmaceuticals Ltd and Facebook , [2015] CCI 158, decided on 07.10.2015]