1. This is an appeal for setting aside order dated 17.11.2015 passed by the Competition Commission of India (for short, the Commission) in Case No. 16 of 2015, whereby it declined to order an investigation into the allegation of abuse of dominant position by Respondent No. 2 and closed the matter under Section 26(2) of the Competition Act, 2002 (for short, the Act). The appellant has also filed an application for condonation of 165 days delay in filing the appeal.

2. Although, in the application for condonation of delay, the appellant has not mentioned the statutory provision under which the Tribunal can entertain an appeal filed after the expiry of 60 days stipulated in Section 53B(2) as the period of limitation for filing an appeal, the same can be treated as the one filed under proviso to Section 53B(2).

3. The appellant has tried to explain the delay by making the following assertions:

"(i) That she received the impugned order on 21.11.2015 and immediately engaged the advocate who had handled the matter before the Commission.

(ii) That after several sittings with the concerned advocate between 21.11.2015 and 25.11.2015, she was advised to file an appeal.

(iii) That in spite of the repeated requests, the advocate could not file the appeal within the period of limitation i.e. 21.01.2016.

(iv) That from 18th to 25th January, 2016, she had to travel abroad with her husband for donating blood to her sister-in-law, who was suffering from leukaemia. Thereafter, due to demise of a close friend at Bangalore, she had to remain out of Delhi between 28th and 29th January, 2016.

(v) That on her return, the appellant persuaded the advocate to file the appeal but he did not do the needful and, therefore, she disengaged the services of the concerned advocate on 03.02.2016.

(vi) That she engaged another advocate and finalised the terms of engagement with the new advocate on 10.05.2016.

(vii) That she has to take care of her widowed mother aged 83 years, who is completely dependent on her."

4. The period prescribed for filing an appeal under Section 53B(1) is 60 days from the date on which a copy of the direction or decision or order made by the Commission is received by the appellant. In terms of proviso to Section 53B(2) of the Act, the Tribunal is empowered to entertain the appeal after the expiry of 60 days, if it is satisfied that there was sufficient cause for not filing the same within that period. The expression sufficient cause, which appears in proviso to Section 53B(2) also finds place in Section 5 of the Limitation Act, 1963 (hereinafter referred to as the Limitation Act). Though, Section 5 of the Limitation Act has been liberally interpreted in some judgments including the often cited judgement of the Supreme Court in Collector Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. : AIR 1987 SC 1353 , while dealing with an application filed for condonation of delay in filing an appeal under Section 53B(1) of the Act, the Tribunal cannot be guided by the principles laid down in those cases because a special period of limitation has been prescribed under the Act for conducting investigation and also for filing appeals against the direction given or decision or order made by the Commission. The legislative intendment of prescribing a shorter period is in consonance with the object of expeditious disposal of the matters relating to prevention of practices having adverse effect on competition, promotion and sustenance of competition in markets, protection of interests of consumers and ensuring of freedom of trade carried on by other participants in markets in India. If the ratio of the judgments involving the interpretation of the term sufficient cause appearing in Section 5 of the Limitation Act is applied for interpreting proviso to Section 53B(2) of the Act, then the whole purpose of prescribing a different period of limitation would frustrated.

5. We are also of the view that the cause shown by the appellant for delayed filing of the appeal is far from satisfactory and there is no valid ground or justification to overlook the long delay of more than five and a half months. The appellants meeting with the advocate between 21.11.2015 and 25.11.2015 may explain the delay of 5 days but she has not disclosed as to what steps were taken by her between 25.11.2015 and 18.01.2016 i.e. the day on which she is said to have gone abroad in connection with the treatment of her sister-in-law, for filing the appeal. As per the appellants assertion, she had disengaged the services of earlier advocate on 03.02.2016 and formalised the terms of engagement of new advocate on 10.05.2016. However, she has not offered any explanation whatsoever for the intervening period of more than three months. Therefore, vague assertions made in various paragraphs of the application cannot be made basis for exercise of power by the Tribunal under proviso to Section 53B(2) of the Act.

6. Even on merits, we are convinced that the finding and conclusions recorded by the Commission that the appellant has failed to prima-facie establish abuse of dominance by Respondent Nos. 2 and 3 is correct and do not call for interference by the Tribunal.

7. The facts of the case show that Respondent No. 3 DLF Ltd. purchased freehold land from Government of Haryana and others in Villages Chakkarpur, Sikanderpur Ghoshi, Shahpur, Sarhaul, Nathupur etc. and set up a colony known as DLF Qutab Enclave Complex under the Haryana Development of Urban Areas Act, 1975 read with Haryana Development of Urban Areas Rules, 1976. As per the mandate of LC-IV agreement executed between Respondent No. 3 and the Director, Town and Country Planning, Haryana, some parcels of land forming part of the colony were to be earmarked for various amenities and facilities including educational institutions, hospitals and creches. Respondent No. 3 transferred some land to Respondent No. 2 - DLF Qutab Enclave Complex Educational Charitable Trust for developing various facilities. The latter executed lease agreement dated 27.01.1993 with the appellant for developing a Creche in DLF Qutab Enclave Complex on Plot No. 2403 admeasuring 0.29 acres. The relevant portions of that agreement read as under:

"6. THAT the Intending LESSEE doth hereby covenants with the Intending LESSOR that it shall at its own cost construct the requisite buildings for Creche and other Creche Facilities on the Demised Plot and have the requisite Creche Facilities functioning properly in all respects with appointment of staff, adequate buildings, furniture and ancillary facilities as per the time frame given hereunder with a view to have the facilities operational by 26.1.96.

a) To get the building plans approved from the intending LESSOR as also from the concerned Government authority before 26.9.93.

b) To have thereafter the required building constructed before 26.7.95.

c) To have the requisite furniture, fixtures installed and appointment of staff completed before 26.10.95 and

d) Put the constructed building to use and make facilities functional before 26.1.96.

Provided that:--

i) No tented or temporary construction shall be permissible at any stage for starting or running of Creche.

ii) Even if the Creche becomes functional in a partially constructed building, it shall be ensured by the Intending LESSEE that the complete building is constructed in accordance with the sanctioned plans and approved specifications latest by 26.1.98.

7. THAT the building plans for Creche building and other ancillary buildings and the layout of the interior shall be got approved by the Intending LESSEE from the Intending LESSOR and also from the Municipal or any other authority having jurisdiction over the said Colony.

8. THAT the Intending LESSEE shall not construct any buildings on the Demised Plot in contravention of any law, bye-law, or rules and regulation for the time being in force in the said Colony.

9. THAT the Intending LESSEE shall not deviate in any manner from the Layout Plan or alter the size of the plot whether by sub-division, amalgamation or otherwise, unless specifically permitted in writing to do so by the Intending LESSOR.

10. The Intending LESSEE doth hereby further covenants with the Intending LESSOR that it shall reserve 5% of the total number of children admitted the Creche (any fraction to be rounded off to the nearest whole number) for the nominees of the Intending LESSOR. The seats so reserved shall be filled up only by admitting children recommended by the Intending LESSOR provided that such nominees, fulfill the conditions laid down for admission as applicable to others.

11. THAT the Intending LESSEE shall complete the construction of the Building as per the plans within the stipulated period hereinabove. However, in the event there is any delay in the approval of the plans the Intending LESSOR may at its sole discretion grant the extension of time for the period of delay in approval of plans by the Haryana Government. The Intending LESSEE hereby agrees that in the event of its failure to construct the Creche and other ancillary buildings and provide the facilities as mentioned in the paragraphs hereinabove, the Intending LESSOR shall have the right to terminate the Agreement to Lease granted hereby and resume possession of the Demised Plot and the buildings constructed thereon, if any. After resuming possession of the Demised Plot and the buildings or unfinished buildings thereon, the Intending LESSOR shall be free to transfer them to any other person of its choice at such consideration and on such terms and conditions as it may consider appropriate and the premium of Rs. 5,80,000/- (Rupees Five Lac Eighty Thousand only) or such smaller sum as may have been received by the Intending LESSOR from the Intending LESSEE shall be dealt with as under:--

a) If at the time of resumption, the Demised Plot is without any building constructed thereon, the Intending Lessor shall refund to the Intending LESSEE such sum of the premium received by the Intending LESSOR from the Intending LESSEE as is in excess of Rs. 1,45,000/- (Rupees one lac forty five thousand only).

b) If at the time of resumption, the plot is having some building constructed thereon at the cost of the Intending LESSEE, then in addition to the balance premium in excess of Rs. 1,45,000/- (Rupees one lac forty five thousand only) payable under (a) hereinabove, the Intending LESSEE shall be paid for the buildings in the following manner:--

i) If the amount released by the Intending LESSOR in respect of the buildings falls short of the cost incurred by the Intending LESSEE, the entire amount realized in respect of the building shall be refunded by the Intending LESSOR to the Intending LESSEE.

ii) If the amount realized by the Intending LESSOR in respect of the buildings exceeds the cost incurred by the Intending LESSEE, the Intending LESSOR shall pay to the Intending LESSEE an amount equal to the cost incurred by the Intending LESSEE and 50% of the excess also and retain the other 50% of the excess for itself.

12 to 23 *** *** ***

24. Soon after the payment of final instalment due on account of premium as per the schedule together with all other charges of whatsoever nature due from the Intending LESSEE, the Intending LESSOR shall execute the Lease Deed of the Demised Plot in favour of the Intending LESSEE on the terms and conditions stated in this Agreement to Lease.

It is clearly understood by the Intending LESSEE that all expenses pertaining to this Agreement as well as the Lease Deed such as Stamp Duty, Registration Fee and other Municipal/Govt. levies, if any, in this regard shall be borne by the Intending LESSEE.

*** *** ***"

8. The appellant claims to have paid premium of Rs. 5,80,000/- and an yearly lease rent @ Rs. 5,800/- and submitted building plan, but the same was not sanctioned by the Competent Authority apparently because the Zoning Plan had not been approved.

9. After about 11 years of the execution of the lease agreement, Respondent No. 2 forwarded draft lease deed dated 04.11.2004 to the appellant, but she declined to sign the same on the ground that the terms embodied therein were arbitrary and were at variance with lease agreement dated 27.01.1993. Another draft lease deed was sent by Respondent No. 2 to the appellant on 05.10.2007. This time the appellant again refused to sign the deed on the ground that the same was not in consonance with the terms and conditions embodied in lease agreement dated 27.01.1993.

10. After three years and two months of sending the second draft lease deed, Respondent No. 2 served notice dated 08.01.2011 on the appellant for termination of lease agreement dated 27.01.1993 and indicated that if lease deed is not executed within 30 days and the dues are not paid, lease agreement dated 27.01.1993 shall stand terminated without any further notice. In that notice, it was also mentioned that the factum of approval of Zoning Plan was conveyed to the appellant way back in 2005, but she did not get the building plan sanctioned (This has been contested by the appellant). The appellant sent detailed reply dated 05.02.2011 and controverted the assertions/averments/allegations contained in the notice. After four months, she sent letter dated 13.06.2011 conveying her willingness to sign the lease deed and pay the outstanding dues as per the rules. That letter reads as under:

"To

The Managing Trustee

DLF QECECT

DLF Center

1 Parliament Street

New Delhi - 110001.

13 Jun 2011

Subject:-- Plot 2403 DLF Phase II

Dear Sir or Madam,

This is in response to letter dated 08 Jan 2011 on the above-mentioned subject.

With regards to the subject plot I wish to state that I am willing to sign the lease and pay up all the dues that are required as per the rules. Also I wish to state that I shall complete the construction within the stipulated period, which as I understand is 1 1/2 years from the time the building plans are passed. In addition as per the laid down rules if there is anything else required of me I shall be more than happy to address them.

I look forward for an early and positive response from

your office.

Regards,

Geeta Kapoor

Flat 42

Sector A, Pocket C

Vasant Kunj,

New Delhi - 110070."

11. However, Respondent No. 2 did not take cognizance of the aforesaid letter and sent communication dated 03.05.2013 stating that the lease agreement executed in 1993 stood cancelled in terms of notice dated 08.01.2011 because the appellant did not execute the lease deed within 30 days of the receipt of notice.

12. The appellant did not challenge the automatic cancellation of lease agreement by filing a suit for declaration and did not apply for temporary injunction. Instead, after a period of more than two years, she filed an information under Section 19(1)(a) of the Act alleging abuse of dominant position by Respondent No. 2. She alleged that even though she had paid premium of Rs. 5,80,000/- and yearly rent @ Rs. 5,800/-, Respondent No. 2 did not take steps for obtaining approval of the Zoning Plan resulting in non-sanction of the building plan and did not execute the lease deed as per Clause 24 of lease agreement dated 27.01.1993. She further alleged that two draft lease deeds forwarded by Respondent No. 2 in 2004 and 2007 contained wholly arbitrary and one sided conditions and were substantially different from the terms and conditions contained in lease agreement dated 27.01.1993. The appellant pleaded that by taking advantage of its dominant position at the relevant market, Respondent No. 2 had deliberately overlooked the terms and conditions of lease agreement dated 27.01.1993 and tried to coerce her to execute the lease deed, which contained several unwarranted and onerous stipulations.

13. The Commission considered the matter in its ordinary meeting held on 15.04.2015 and invited the appellant for preliminary hearing. The appellant filed amended information dated 22.06.2015, which was followed by corrections dated 24.06.2015. The appellants advocate was heard by the Commission on 21.05.2015. Thereafter, he filed additional submission dated 23.07.2015, 24.07.2015, 30.10.2015, 07.11.2015, 11.11.2015 and 26.11.2015.

14. The Commission considered the allegations contained in the information and additional information, but declined to order an investigation by observing that no prima facie case of violation of Section 4 is made out. The reasons assigned by the Commission for refusing to order an investigation into the allegations levelled by the appellant are extracted below:

"16. The Commission is, however, of the view that for developing/running of a creche, the potential developer does not necessarily require to develop/run the same within the residential colony only. Buying plots from the area earmarked for developing amenities as per the Rules within the residential colony is one of the many alternatives available. Apart from that, there are other alternatives in the form of plots/units where the potential purchaser can develop creche/play school. Therefore, the Commission is of the opinion that the relevant product market in the present case would be market for lease/sale of plots/units for development and running of creches/play schools. With regard to the relevant geographic market, it is observed that the conditions of competition are distinctly homogenous in Gurgaon and can be distinguished from the conditions prevailing in the neighbouring areas. Therefore, the relevant geographic market in the instant case is Gurgaon. Accordingly, the relevant market to be considered in this case is the market for lease/sale of plots/units for development and running of creches/play schools in Gurgaon.

17. With regard to dominance, the Commission observes that dominance of OP1 needs to be seen in context of the present conduct. Undoubtedly, the Informant and OP 1 entered into the Lease Agreement in 1993 for the first time and there were successive draft lease agreements proposed to be executed between them in 2004 and 2007. The Commission does not have the mandate to look into such agreements and the position of OP 1 during those periods. The only conduct that occurred post 20.05.2009 was during 2011 to 2013 i.e., from the time when the legal notice was served by OP 1 to the Informant till the termination of the Lease Agreement. For analysing the dominance of OP 1, the Commission took into account the assets and resources of the DLF Group as a whole. It may be noted that the OP 1 and OP 2 are part of the DLF group. In many previous cases, the Commission has held group entities belonging to DLF group qualifying the definition of group as provided under section 5 of the Act.

18. As noted above, the potential developer of a creche/play school does not necessarily require to develop/run the same within the residential colony/complex only. Therefore, considering that the relevant product market is not restricted to the plots earmarked for amenities in the residential colonies, the Commission does not find OP 1/DLF Group to be dominant. The Informant and other developers have several alternatives in the form of plots/units where they can develop creche/play school. Therefore, the Commission is of the opinion that prima facie OP 1/DLF Group is not dominant in the relevant market as defined above.

19. Even otherwise, the conduct of OP 1 also does not seem to be arbitrary in nature. The letters/emails exchanged between OP1 and Informant which are placed on record reveal that there were certain disputes between them since 1993 regarding the zoning approval which OP 1 was supposed to obtain from the Competent Authority. Thereafter, as per the Informant, OP 1 sent her the first draft (2004) and the second draft of lease agreement (2007), the terms of which were alleged to be one sided and in contradistinction to the Lease Agreement entered into between them in 1993. However, the Commission notes that the first draft (2004) and the second draft of lease agreements (2007) were only drafts which were shared by OP 1 with the Informant and the same were open to discussion as per the letter sent by OP 1 to the Informant on 08.04.2005. Thereafter, OP 1 sent a legal notice to the Informant in 2011 and the contents of the same highlight the failure on the part of the Informant to initiate construction in spite of the zoning approval from the Competent Authority. The Lease Agreement was then terminated in 2013. The Commission is of the view that the matter does not raise any competition concern."

15. In our considered view, the appellants grievance about the terms and conditions embodied in the draft lease deeds dated 04.11.2004 and 05.10.2007 could not have been made subject matter of investigation because the provisions under which the Commission could order an investigation were enforced only with effect from 20th May, 2009 and prior to that date the Commission did not have the jurisdiction to order an investigation into the allegations of abuse of dominant position as defined under Section 4(2) of the Act. That apart, if the appellant felt that she has been treated unfairly, then she ought to have availed remedy by filing a complaint under the Monopolies and Restrictive Trade Practices Act, 1969 and there was absolutely no valid ground for her to have waited till 2016 for filing an information under Section 19(1)(a) of the Act.

16. We are also satisfied that the remedy, if any, available to the appellant against the draft lease deeds sent by Respondent No. 2 in 2004 and 2007 was to file a suit for declaration, injunction and specific performance of lease agreement dated 27.01.1993. Having failed to avail that remedy within the period of limitation, the appellant could not have invoked the provisions of the Act in 2016 on the pretext that lease agreement dated 27.01.1993 was cancelled in 2013, though as a matter of fact that agreement stood cancelled automatically in terms of notice dated 08.01.2011 because the appellant failed to execute the lease deed within 30 days of the receipt of the notice.

17. In the result, the appeal is dismissed as barred by time and also on merits. However, it is made clear that the orders passed by the Commission and the Tribunal shall not preclude the appellant from availing any other legal remedy which may be available to her.