This revision petition has been filed by the petitioner complainant Smt. Krishna against the order dated 24.09.2008 passed by the State Consumer Disputes Redressal Commission, Haryana, (in short ‘the State Commission’) in FA No.198/2007.

2.      Brief facts of the case leading to the present revision petition are that the petitioner complainant purchased a booth in auction from the respondent opposite party for a total consideration of Rs.3,25,000/- (Rupees three lakhs twenty five thousand only) and paid 10% of the total cost as Rs.3,2,500/- at the time of bidding. The opposite party issued a letter of allotment dated 24.4.2002 wherein 15% of the total consideration amount i.e. Rs.48,750/- was demanded from the complainant which was to be paid within 30 days.  The  complainant could not pay this amount within the stipulated time and the opposite party finally cancelled the allotment vide its letter dated 17.02.2003 and forfeited the amount deposited as per the condition of the allotment letter.  The complainant then filed a consumer complaint before the District Consumer Disputes Redressal Forum Rewari, (in short ‘the District Forum’) being complaint No.284 of 2004.  The complaint was resisted by the opposite party on the ground that the complainant did not deposit the 15% of the consideration amount within the stipulated time of 30 days and hence as per the condition of the allotment letter the allotment was cancelled.  However, the District Forum after giving a finding that the booth was still available for allotment passed following order dated 20.09.2005 allowing the complaint:-

“6)       To conclude, the instant complaint is allowed directing the respondents to accept the remaining amount of the site in question from the complainant with penalty or interest, if any, as per rules of HUDA and further the respondents are directed to deliver the possession of the site in question to the complainant.  No order as to costs.  File be consigned.”

3.      Aggrieved with the order of the District Forum, the opposite party preferred an appeal bearing No.198 of 2007 before the State Commission.

4.      State Commission accepted the appeal and set aside the order of the District Forum vide its order dated 24.9.2008.

5.      Hence the present revision petition.

6.      Heard the learned counsel for both the parties and perused the record.

7.      The learned counsel for the petitioner stated that the petitioner could not deposit the 15% of the consideration amount within the stipulated time due to financial constraints and she was ready to deposit all the amounts including the interest and penalties which were required by the opposite party for confirming the allotment of the said booth.  The District Forum had given a clear finding that the said booth was available for allotment to the complainant and that is why the District Forum ordered that the opposite party shall allot the booth to the complainant and the complainant will pay all the amount due along with interest and penalty levied by the opposite party.  In fact there was no ground for the opposite party to have gone in the appeal as they have to allot the booth to some party and if the complainant was ready to pay all the dues along with interest and penalties, being the original allottee, they should have complied with the order of the District Forum.  The State Commission has only relied on the condition of the allotment letter that if the 15% amount is not paid within 30 days the opposite party shall have the right to cancel the allotment.  The State Commission has not kept the interest of the consumer in mind as it has not examined whether the booth was still available for allotment and if the complainant was ready to pay all the dues along with interest and penalty she had the better claim for allotment as she was the original allottee and had already deposited the bid amount of Rs.32,500/-.  Thus the order of the State Commission is totally against the interest of the consumer whereas the whole intention of the Consumer Protection Act, 1986 is to provide better protection to a consumer.

8. It was further pointed out by the learned counsel for the petitioner that the order of the State Commission is totally invalid because against the order of the District Forum the appeal was filed by the opposite party with a delay of 438 days and the matter was decided by a bench consisting of the then President Justice Mr. R.C.Kathuria and Member Mrs. Shakuntala Yadav. Justice Kathuria condoned the delay and allowed the appeal of the opposite party whereas Member Mrs. Shakuntala Yadav dismissed the appeal on the ground of limitation itself.  In such situation the matter should have been referred to the third member under Section 16 of the Consumer Protection Act, 1986, however, the matter was again decided by another bench consisting of the then President Justice R.S.Madan and Member Dr. Rekha Sharma and the bench agreed with the decision of Justice R.C.Kathuria and allowed the appeal of the opposite party after condoning the delay of 438 days without any cost.  Thus, the matter has not been disposed off according to the provisions of the Consumer Protection Act, 1986 and therefore, the order of the State Commission is not a valid and lawful order.

9.      On the other hand the learned counsel for the opposite party stated that as per the condition of the allotment letter dated 24.4.2002 earnest money was to be forfeited and the allotment was to be cancelled if 15% of the consideration amount was not deposited within 30 days from the date of acceptance of the bid.  The counsel contested that this allotment letter was a contract between the complainant and the opposite party and both the parties are bound by the terms and conditions of the contract.  When the complainant made the bid for the booth she should have understood that the remaining money will also be paid as per the conditions of the allotment.  The State Commission has rightly dismissed the complaint as the complainant has violated the conditions of the allotment letter by not paying 15% of the consideration amount within the stipulated period.  As per the condition mentioned in the allotment letter the opposite party was entitled to cancel the allotment and to forfeit the earnest money if the allottee did not deposit 15% of the consideration amount within 30 days.  Thus, clearly there is no deficiency on the part of the opposite party in cancelling the allotment and in forfeiting the earnest money.

10.    I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the material on record.

11.    So far as the legal validity of the order of the State Commission is concerned it is true that after the passing of the order dated 29.4.2008 when the then President of the State Commission and the member who heard the case differed on their views the matter should have been referred to third member but the matter was heard by another bench consisting of the new President of the State Commission and another member and both these members agreed with the judgment of the earlier President of the State Commission who had condoned the delay of 438 days in filing the appeal and who allowed the appeal and dismissed the complaint.  Though third member was not appointed to hear the case, however, two new members heard the case and out of the four members who heard the case three members gave one judgment against the dissenting judgment of a single member.  Thus, the majority judgment of three members as against the minority judgment of only one member shall prevail and that would be considered as the decision of the State Commission.  Thus, the matter cannot be remanded to the State Commission on this ground, as the order dated 29.4.2008 becomes a valid order passed by the State Commission.

12.    Now coming to the merits of the case it is clear that the petitioner complainant did not deposit the 15% of the total consideration amount within the stipulated time and therefore, as per the conditions of the allotment letter the opposite party was entitled to cancel the allotment.  However, it is not clear whether the conditions mentioned in the allotment letter were made known to the complainant at the time of bidding of the booth.  As the complainant has not paid 15% of the consideration amount within the stipulated time it can be implied that the complainant has not given consent to these conditions and in this context it would be deemed that she has not accepted the contract of allotment.  Thus, in a way the response of the complainant can be treated as non-acceptance of the contract rather than violation of the terms of the contract.  Consequently, if the complainant does not accept the contract the complainant would be entitled for the refund of the booking amount.  Moreover, Hon’ble Supreme Court in the matter of M/s. Kailash Nath Associates Vs. Delhi Development Authority & Anr., Civil Appeal No.193 of 2015, decided on January 09, 2015 has held that the opposite party is entitled to forfeit booking amount or the earnest money only if the opposite party has suffered any loss.  In the present case after the order of the District Forum the complainant was ready to pay the total cost along with the interest and penalties and thus, the complainant was ready to compensate for all the losses if any suffered by the opposite party. However, opposite party did not restore allotment in favour of the complainant.  The District Forum has given a finding that the said booth was available for allotment and even then the allotment of the said booth was not made in favour of the complainant.  This clearly means that the opposite party was getting more money by either retaining the said booth or by selling it to some other party as compared to the amount that the opposite party would have got by implementing the order of the District Forum.  It clearly means that the opposite party has not suffered any loss and therefore, in the light of the observation of the Hon’ble Supreme Court in M/s. Kailash Nath Associates Vs. Delhi Development Authority & Anr., (supra) Opposite party was not entitled to forfeit the booking amount.    

13.    Based on the above examination, the revision petition is partly allowed and the opposite party is directed to refund Rs.32,500/- (rupees thirty two thousand five hundred only) along with interest @6% per annum from the date of the order of the District Forum that is from 20.9.2005 till actual payment.  The order of the State Commission dated 24.9.2008 stands set aside.