JUSTICE V.K.JAIN (ORAL)

          The petitioner/complainant in RP number 1957 of 2008, namely Mr. Mohan Lal was allotted a kiosk admeasuring 2.75 meters in old Judicial Complex, Gurgaon in an open auction for a consideration of Rs.76,200/-. As per the terms and conditions of allotment 25% of the sale consideration was to be paid within 30 days of acceptance of his bid. An allotment letter was issued the complainant in respect of the said kiosk for which bid was given by him. He was required to deposit  Rs. 11430/- within 30 days of the allotment letter so as to pay 25% of the consideration. The balance amount of Rs. 57150/- was to be paid by him in lump sum within 60 days of the allotment letter or in half yearly installment along with 10% interest on the balance amount. The case of the complainant/petitioner is that though he deposited 25% the sale consideration, only paper possession was given to him without development of the site. The petitioner, therefore, approached the concerned District Forum by way of a consumer complaint seeking actual physical possession of the kiosk along-with interest on the amount paid by him and compensation.

2.      The complaint was resisted by the respondent which, inter alia, stated in its reply that since the  complainant had paid only Rs. 7620/- and had failed to deposit the balance amount the allotment made to him was cancelled and 10% of the consideration was forfeited vide memo dated 25.01.2005.

3.      The complainant in RP No. 2247 of 2010 namely  Darshan Kumar Dhingra also gave bid for a kiosk site No. 26 in old Judicial Complex, Gurgaon for a consideration of Rs.1,52,300/-. According to him he deposited Rs 15,230/- at the time of auction and had deposited Rs.22,845/- on 15.05.1989. The respondent demanded Rs.1,60,500/- from him vide letter dated 25.09.1993, later increased to Rs. 2,29,351/-, vide letter dated 01.01.1996. According to the complainant he did not make the said payments since the area was still lying undeveloped. The complainant, therefore, approached the concerned District Forum seeking possession of the allotted site with compensation etc.

4.      The complaint was resisted by the respondent which admitted the allotment made to the complainant as well as receipt of 25% of the sale consideration by him. It was, however, stated in the reply that the balance 75% of the cost was not deposited by the complainant and therefore show cause notices were issued to him. He having failed to pay the balance amount despite notice and an opportunity of hearing given to him the kiosk was resumed on 25.01.2002 and the 10% of the total cost was forfeited.  It was also stated in the written version filed by  the respondent that the possession of the site was offered to the the complainant and was actually taken over by him.

5.      It is an admitted possession in both the cases that after payment of 25% of the sale consideration the balance amount could either be paid in lump sum or could be paid in installments.

6.      It is an admitted possession that Sh. Darshan Kumar Dhingra had paid 25% of the sale consideration but the balance 75% of the sale consideration  was not paid by him. His case is that there was no development at the site and that is why the payment was not made by him. This is also his case that the possession of the allotted  site was never taken by him. The respondent has placed on record the certificate dated 21.11.2000 whereby the possession was actually taken by him. While taking possession of the site Mr .Darshan Kumar Dhingra did not record that he was taking only paper possession and not actual physical possession of the kiosk. This possession letter  shows that he had taken actual physical possession of the kiosk. Therefore, he was required to pay 75% of the balance calculation either in lump sum or in installments. Admittedly, balance consideration was not paid by him. There is no document on record which would show the complainant Shri Dharshan Kumar Dhingra had written to the respondent stating that only paper possession of the site was given to him and actual physical possession was not given to him on 24.11.2000. Though vide letter dated 17.12.1991, the respondent had informed the complainant Sh. Darshan Kumar Dhingra that development work had not been completed and possessioi would be offered to him after completion of the development, the possession came to be taken by him after almost 9 years on 24.11.2000. There is no evidence of the complainant having written to the respondent after 24.11.2000 that the possession given to him was only a paper possession and actual physical physical possession was not given to him. Having taken physical possession of the kiosk on 24.11.2000 Sh. Darshan Kumar Dhingra was under an obligation to make payment of the balance 75% of the sale consideration. The payment having not been paid by him, the respondent, in my opinion, was just was justified in resuming the kiosk which was allotted to him after for forfeiting 10% of the sale consideration.

7.      As far as Mohan Lal, Petitioner  in RP No. 1957 of 2008 is concerned the case of the respondent in the reply filed with the District Forum was that he had deposited only Rs. 7620/- at the time of auction and had failed to deposit the balance amount. The case of Mohan Lal, on the other hand, is that he had had paid 25% of the sale consideration. Assuming that he had paid 25% of the sale consideration the balance 75% of the sale consideration ought to have been paid by him installments in terms of clause 5 of the allotment letter issued to him. In his case also the possession certificate dated 24.11.2000 filed by the respondent would show that he had taken actual physical possession of the site on that day. Again there is no document to show that after 24.11.2000,  Mohan Lal had ever written to the respondent claiming therein that possession given to him was only a paper possession and the physical possession had not been given. Therefore, this complainant also having committed default in the payment of the balance 75% sale consideration the respondent was justified in cancelling the allotment made to him and forfeiting 10% of the sale consideration.

7.      The learned counsel for the petitioner Mohal Lal submits that the respondent has admitted in its reply that the possession has not been delivered to the complainant. A perusal of the typed copy of the reply does show such a stand having been taken in the said reply but it at the same time the case of the respondent in the reply was  that the complainant Mohan Lal had paid only Rs 7620/- and had not  even paid 25% of the sale consideration. The State Commission noted that there was no proof of Shri Mohan Lal having deposited 25% the sale consideration and it was on his failure to deposit 25% the sale consideration that a memo dated 24.12.2001 was issued to him followed by a forfeiture letter dated 25.01.2002. No proof of paying 25% of the sale consideration was produced by the complainant  Shri Mohan Lal. If he had not paid 25% of the sale consideration, cancellation of the allotment was fully justified and so was the forfeiture of 10% of the sale consideration paid by him to the respondent. [From whatever angle I am a look at it, the order of the State Commission does not call for an interference by this commission in exercise of its revisional jurisdiction.]  If 25% of the sale consideration  was not by him, he had no right to the kiosk and, therefore, the forfeiture would be justified. If he had paid 25% of the sale consideration and had  taken possession but had not paid the balance 75% of  the sale consideration after paying 25% of the said consideration, even then he is not entitled to possession of the kiosk. The forfeiture would in that case be justified, he having not paid 75% of the sale consideration.

7.      For the reasons stated hereinabove both the revision petitions are dismissed with no order as to costs.