GANESH GRIH NIRMAN SAHAKARI SAMITI vs C G DONGRE

-BOTH these appeals arising out of the same order have been heard as connected matters by this Single Bench constituted specially by the President of this Commission to hear appeals arising out of order passed by the District Forum, Bhopal in which member of this Commission, Mrs. Neerja Singh has participated in the proceedings as Member of the District Forum (as she then was ).

BY the order impugned the Forum below has directed opposite party-Shri Ganesh Grih Nirman Sahakari Sanstha to pay to complainant Rs. 1,33,405 with interest at the rate admissible under the regulations of the society with the condition that if the amount is not paid within one month it shall carry interest @ 18% p. a. from the date of complaint. A sum of Rs. 1,000 is awarded as cost of litigation. Admittedly the complainant was member of the opposite party-society and had deposited a sum of Rs. 1,08,305 on different dates (during the years from 1990 to 1999) towards cost of a plot proposed to be allotted by the society to the former. According to the complainant he had also deposited a sum of Rs. 25,000 in cash on 26. 2. 1990 with the erstwhile President of the Society namely Mr. Ram Khare, but no receipt was passed for the said payment. He further contented that his allotment of plot was wrongly cancelled and that demand for additional development charges was wholly unjustified. As against it, the contention of the opposite party-society that the cost of development was calculated as per actual expenses and since the complainant failed to deposit the said additional development charges, his allotment was cancelled and that now no plot is available with the society for allotment to the complainant. The society also denied payment of any cash amount of Rs. 25,000.

The Forum below while upheld the contention of the complainant about payment of said cash amount of Rs. 25,000, declined to make order for allotment of the plot on the findings that the complainant himself was a defaulter and that now no plot is available with the society for allotment to the complainant. With these findings order for payment as aforesaid has been passed.

I have heard learned Counsel for both the parties. As regards the defaults on the part of complainant, there is overwhelming documentary evidence available on record to show that the society after approval of the development charges by the members of the society vide letters dated 28. 9. 1998 and 20. 11. 1998 had demanded the additional development charges @ Rs. 47 per sq. ft. from the complainant, who however defaulted in making the payments in time. Although he made certain deposits later on, but the same were accepted by the society conditionally that plot may be allotted to him, if available. However, in the lottery no plot could be allotted to the complainant and on the date of complaint which was filed as late as on 17th December, 2003 no plot was available with the society for allotment to the complainant. The Forum below was, therefore, right in declining complainant''s prayer for allotment of plot.

AS regards the said payment of Rs. 25,000, admittedly no receipt of payment could be filed or proved in evidence by the complainant, who as per his own admission made the said payment in cash without obtaining any receipt. The Forum below has relied heavily on an assessment order passed by the Assistant Commissioner of Income Tax, Bhopal against the society. In the said order dated 11. 10. 2002 certain observations have been made that the President of Society has collected some unaccounted money to meet some unaccounted expenses. It was on the basis of this observation that the Forum below inferred rather conjected that the said amount of Rs. 25,000 might have been paid by the complainant to the President of the Society to meet the said expenses. It is however, pertinent to note that the appeal filed by the society against the said additions has been allowed by the Appellate Authority and the additions have been deleted. The order passed in appeal was produced today before me and which leaves no manner of doubt that additions made on account of said unaccounted collections have been deleted. Even otherwise, the assessment order by itself, was not sufficient to hold that the said payment of Rs. 25,000 was made by the complainant to the society. In any case, the amount said to have been collected illegally by the then President of the Society was never credited in the account of the society and that being so, the society cannot be held responsible for refund of the said amount to the complainant. From the foregoing discussion, it, therefore, inevitable follows that the society had received a sum of Rs. 1,08,305 only from the complainant which the society is liable to refund to the latter with interest. Needless to say that the interest would be payable from the date of last deposit. Interest of justice would be served by allowing interest @ 12% p. a. In the result, both the appeals are allowed in part and to the extent indicated above. The opposite party-society is directed to pay to complainant Rs. 1,08,305 with interest @ 12% p. a. from the date of last deposit i. e. , 18. 6. 1999. The order of the District Forum shall stand modified accordingly. Order for payment of cost Rs. 1,000 shall however, remain unaltered. No order is made as to the cost of these appeals.

THIS order be retained in Appeal No. 1467/2005 and copy be placed in the record of Appeal No. 1485/2005. Appeals partly allowed.