Heard. Mr.U.B.Marathe,Advocate for appellant present. The learned counsel for the respondent No.1 is absent. Mr.Rohidas Pawar, Advocate for respondent No.3 present and files vakalatnama on behalf of opposite party No.3. Opposite party No.2 served, but absent.

          It appears that, this appeal takes an exception to an order passed by the District Consumer Disputes Redressal forum, Solapur in Complaint Case No.337/2000. The said complaint was decided on 15/12/2003. By this order, the appellants/original opposite party No.2 and 4 were directed to pay an amount of `20,000/- with interest @ 9% p.a. from 30/06/1994. The appellants were directed to pay an amount of `10,000/- with 9% interest from 20/10/1991. They are further directed to pay an amount of `2000/- by way of mental agony and `500/- by way of cost.

          As against this order the appeal was filed on 01/01/2004. The appellant appeared before the State Commission for admission on 19/01/2004 and the order of notice before admission was issued. After the service of the parties, the appeal was heard for admission on 21/06/2004. It was admitted. The stay in appeal was granted to the execution operation of the order. The appellant is directed to pay `30,000/-. The appellant deposited the said amount in the District Forum, Solapur. Thereafter, the appeal was in sine-die list.

On 08/09/2010 the Advocate for respondent No.1 Mrs.Lata Dhere  was present and filed preceipe along with an application for fixing the matter for early hearing.  Accordingly, by order dt.08/09/2010 the date was granted for hearing the matter and today the case is for hearing. Advocate for appellant and Advocate for respondent No.3 are present. However, Mrs.Lata Dhere, Advocate who had moved the matter is not present nor the respondent No.1 is present. In fact looking to the urgency of respondent, the matter is taken from sine-die list. Today the respondent No.1 is absent for the best reason known to him. Nothing is communicated to the Commission. Under these circumstances we have heard the case.

          The respondent No.1 has filed the complaint No.337/2000 in the District Forum, Solapur. The original opposite party No.1 and 2 are the ex-chairman of “Rajya Sarthi Sahakari Gruha Sanstha” while the original opposite party No.3 and 4 (appellants) are the partners of the “Nirmiti Construction” to whom the opposite party No.2 and 3 have given the work of the building for the society. According to the complainant, the complainant is the member of the said society and he has paid an amount of `1000/- on 20/02/1991 towards contribution and `10,000/- on 20/10/1991 for the plot. He also states that, on 20/12/1992 `260/- was paid for the shares. As far as the opposite party No.3 and 4 are concerned, it is stated by the complainant that, `20,000/- were given to the opposite party No.3 and 4 to work up to the plinth level on 04/11/1993.

          As far as the opposite party No.1 and 2 are concerned, the complaint has been dismissed against the opposite party No.1 and 2. The complainant has alleged that, an amount of `1000/-, `10,000/- and `260 was paid by the complainant to the society i.e to opposite party No.1 and 2. It is not the case of complainant that, the said amount of `10,000/- for the purchase of plot was given to the opposite party No.3 and 4. According to the complainant only an amount of `20,000/- has been paid to opposite party No.3 and 4. The opposite party No.3 and 4 namely the appellant before this Commission, accepted the amount of `20,000/-. But they have contended that, the amount of `10,000/- which the District Forum has directed to pay to complainant was never received by them. Not only that, from the record they have pointed out that, the amount of `260/- towards shares and `1000/- towards contribution have been received by the said society. The complainant has also not produced the receipts to show that the amount of `10000/- was paid by the complainant to the society. We do not go in to the details as to what amount was paid by the complainant to the society and, since, the complaint was dismissed as against the opposite party No.1/society and as against that order the complainant has not filed the appeal before this commission. When the complainant himself states that, these amounts were paid to opposite party No.1 and 2 then in that circumstances the complainant shall lead evidence that the said amount was given to opposite party No.3 and 4. In the absence of evidence the amount of `10,000/- can not be recovered from them. It is interesting to note that, as per version of complaint, the amount of `10,000/- was not paid by the complainant to opposite party No.3 and 4, but on the contrary it was paid to the society. Therefore the order of District Forum to recover the amount of `10,000/- from the appellant/original opposite party No.3 and 4 appears to be illegal one. Even from the judgement of the District Forum, we do not find that, payment of  `10,000/- was made to the original opposite party No.2 and 3. The fact ultimately remains, that there is no material to hold payment of `10,000/- either in favour of society or in favour of the present appellant/the original opposite party No.3 and 4. Therefore, the order could not have been based by the District Forum directing appellant to pay `10,000/-. That part of the order of District Forum is not sustainable in law and requires to quashed and set aside. As far as the amount of `20,000/- is concerned, as per the order of District Forum, the said amount is to be paid by opposite party No.3 and 4 to complainant. It is also admitted that, the society has not allotted plot to the complainant and no work has been carried out by the opposite party No.3 and 4. Therefore, the respondent is entitled to recover the amount of `20,000/- from the opposite party No.3 and 4 and order to that effect requires to be confirmed.

          As far as order of District Forum regarding mental agony amounting to `2000/- and litigation charges `500/- is concerned it is justified and no interference is required. Presently, the appellant has deposited an amount of `30,000/- to the District Forum and the said amount is pending in the District Forum. We have directed the District Forum that, the said amount be deposited in the Nationalized Bank till date. The respondent was not paid said amount. Therefore, we partly allow the appeal and order that, the amount of `10,000/- with interest @ 9% from 20/10/1991 paid to respondent No.3 and 4 is hereby quashed and set aside. The order that, the appellant shall pay `20,000/- with 9% interest from 30/06/1994 is hereby confirmed. The order of payment of `2000/- by the appellant to complainant is confirmed. The order of `500/- is also confirmed. Since when we heard the matter, the respondent was not present and Advocate is also not present. Therefore we do not grant the cost of this appeal to the respondent. We direct that, out of the amounts which were deposited in the Nationalized Bank by the District Forum, the District Forum shall pay the said amount to the respondent No.1. If the said amount is less than the amount payable to the complainant, the remaining amount shall be paid to the complainant. If the appellant failed to comply the said order, the respondent by filing an application u/s 25 and/or u/s 27 can recover the remaining amount. Appeal stand disposed off.