1.      This appeal has been directed by OP No.2  against order dated 28.1.2008 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District  Forum), vide which complaint of respondent No.1 (complainant) was accepted with costs  and the appellant as well as Sudeep Singh Saharwal, President of Nector Cooperative House Building Society  were directed to refund to Sh. Sukhbir Singh a sum of Rs.2,60,500/- i.e. Rs.10,500/- + Rs.2,50,000/- deposited by him towards membership  and cost of land  respectively vide receipts Annexures C-2 & C-3 along with interest @ 8%  p.a. from 22.4.2006 till payment.  However, refund of rs.50,000/-, which was alleged to have given in cash was not allowed. It was further ordered that the amount be paid within 30 days from the receipt of order, failing which same would be liable to pay with interest @ 12%  since 22.4.2006 till payment.      

2.          Briefly stated the facts are that the Nectar Cooperative House Building Society Ltd. SAS Nagar, Mohali was registered society (for short hereinafter to be referred as ‘the society’) vide registration NO.648 dated 3.7.2007.  It was having its operating office at SCO 208-209, Sector-34A, Chandigarh.  The society floated a project within the Master plan of Sector-74, Mohali  in order to enable its members to get three bed rooms set.  Consequently, respondent No.1 (complainant) paid Rs.10,500/- to the society vide receipt No.109 dated 22.4.2006 towards membership fee.  The society had floated a scheme to provide three bedrooms measuring 1500 sq. ft for a tentative price of Rs.22.00 lacs. He deposited Rs.50,000/- premium in cash and also deposited Rs.2.50 towards cost of land vide cheque dated 6.10.2006.  There is no receipt regarding payment of Rs.50,000/-. The mere assertion of respondent N..1 that he had paid Rs.50,000/- cash as premium cannot be believed without documentary evidence.

3.       It was next averred that at the time of booking, it was promised by the appellant and respondent No.2 that the project would be started within a couple of months after obtaining permission from the requisite authorities but no construction had been started for a long time and ultimately he made application for refund of the amount, which was not allowed.  Alleging the above acts of OPs as deficiency in service on their part, the complaint was filed.

4.          Respondent No.2 - Sudeep Singh Sabharwal did not appear despite service through publication, hence, he was proceeded against ex parte.  Appellant also failed to appear despite service, hence, he was proceeded against ex parte.

6.          Respondent No.1 adduced evidence by way of affidavit and documents. 

7.       After hearing counsel for the respondent No.1, the learned District Forum vide order dated 28.1.2008 accepted the complaint with costs, as stated in the earlier part of the judgment.

8.          Aggrieved by the said order, OP No.2 has filed the present appeal.  The appeal having been taken on board, notices were sent to the respondents and record of complaint case was summoned from the District Forum. Sh. Hitesh Sood, Advocate appeared on behalf of the appellant/OP No.2 whereas Sh. V. K. Chhabra, Advocate for respondent No.1/complainant. Respondent No.2 was proceeded against exparte.

9.                 Sh. Hitesh Sood, Advocate appearing on behalf of the appellant submitted that the complaint was allowed by the learned District Forum in the absence of the appellant/OP No.2 vide the impugned order without giving any chance to the appellant to present his case. The learned counsel emphatically submitted that the appellant/OP No.2 was never served and there was no proof of delivery of the summons to him through the courier and as such, the appellant was not in the knowledge of any legal proceedings going on against him. The next submission of learned counsel was that the Society has not been made a party and therefore, the complaint is not maintainable. Further the submission of the learned counsel was that the money had been misappropriated by Sh. Sudeep Singh, President/OP No.1 and Ms. Kulwinder Kaur etc. and a complaint had been filed against the persons involved before the Senior Superintendent of Police on 16.8.2007 for registering a FIR. The learned counsel also emphatically submitted that as Secretary of the Society, the appellant had no access to the accounts maintained by the Society and he also never received any money from the general public for any purpose connected with the Society or its work. The next submission of the learned counsel was that the Society itself was under liquidation as per order of Registrar, Cooperative Societies, Kharar dated 23.4.2007 and a liquidator had been appointed. The learned counsel emphatically reiterated his pleading that it was the Society, which was liable to pay the complainant and not the Secretary of the President. The learned counsel also submitted that the complainant was a defaulter in the payment of due installments and because of this, the Society could not proceed with its projected complaint of acquisition of land etc. He also submitted that the date of execution of sale of the land in question was set as 30.9.2007 and a total sum of Rs.2,73,34,000/- was paid as per agreement to sell. The learned counsel emphatically brought out that out of 269 members of the Society, only 57 members deposited full amount and the remaining members including the complainant were defaulters. In view of the foregoing submissions, the learned counsel reiterated that there was no liability of the appellant Balkar Singh as a person to pay the complainant and it was only the Society, which was liable to make payment, if any, to the complainant. He, therefore, emphatically prayed that the appeal be dismissed.

10.               On the other hand, Sh. V. K. Chhabra, Advocate appearing on behalf of respondent No.1/complainant submitted that the impugned order was well reasoned and justified. He also submitted that the liquidation proceedings now referred to were never before the learned District Forum. He also drew the attention of the Bench to the letter of Assistant Registrar, Cooperative Societies, Kharar, which had been placed on file and a translation of which has also been placed on file along with the same. He pointed out to the Bench that as per this letter, as per bye laws, the area of operation of the concerned Society is limited to “Block Majri” only hence, there was no question of conducting work by the concerned Society in the Circle of Mohali. It has also been stated in this letter that the concerned Society is under winding up and Mr. Mukhtiar Singh, Inspector is appointed as the liquidator. It has also been stated in the same letter that there is no possibility of the Society being revived or conducting its normal work and finally, it has been stated that since, the Society is under winding up and the liquidator has been appointed, no office of the Society is existing in Chandigarh.

11.               We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties.

12.               The case of the complainant is that he had become a member of Nector Cooperative House Building Society, SAS Nagar, Mohali having its office at SCO No.2008-2009, Top Floor, Sector 34A, Chandigarh and OPs No.1 and 2 were its President and Secretary respectively. It is further the case of the complainant that the complainant had initially paid a sum of Rs.50,000/- as cash as premium and thereafter, paid another sum of Rs.2,50,000/- towards the cost of the land vide cheque dated 6.10.2006. It has been further averred by the complainant that since, the construction work was not starting for a long time, he lost faith in the Society and sought refund of his amount. Admittedly, no amount has been refunded to the Society. Both the OPs were proceeded against exparte before the learned District Forum. The case of the appellant is that he was never served and therefore, he was never given the chance to defend himself. His further case is that he had nothing to do with the collection of the cash or its expenditure and therefore, no liability for the refund of the amount paid by the complainant could be fastened on him. It is also the case of the appellant that the Society has gone into liquidation because members like the complainant had not paid their required dues and hence, the purchase of the land could not be done inspite of the fact that all negotiations for the same had been done and a sum of Rs.2,73,34,000/- had also been paid for the purchase of the said land. The main argument for the appellant is that the liability, if any, to refund the amount of the complainant is that of the Society and he as an individual has no liability to pay the same.

13.               From perusal of the record as well as that of the impugned order, it becomes clear that there is no force in the pleading of the appellant that the proceedings before the learned District Forum were conducted behind his back as he was not served. This contention is clearly belied by the receipt of the courier, which is on file confirming the serving of notice to the appellant. We find no reason for the courier agency to give a false report in this context. Thus, it is apparent that the appellant/complainant had full opportunity to project his case before the learned District Forum, if he so desired but he, for the reasons best known to him, chose to remain away from the proceedings before the learned District Forum. From the facts and circumstances of the case, even though the appellant contents that a sum of Rs.2,73,34,000/- has been paid for the cost of the land, there is no evidence on record to prove this payment having been made for the sale of any land in the Society and neither is there any evidence on record to prove that the Society owns the land so purchased by this amount. We also do not find any merit in the contention of the appellant that he, as the Secretary of the Society, was not involved in the financial dealings of the Society. It is an admitted fact that the appellant/OP No.2 was the Secretary of the Society in question and thus, he was an important member of the governing body of the Society and therefore, he was entrusted with responsibility of safeguarding the amounts paid by the members of the Society as well as their interests qua the purchase of the land and construction of flats. Apparently, the funds received by the Society have been misappropriated because as of now, neither there is any land on the name of the Society nor has any construction being done. Furthermore, admittedly, there are no assets now available with the Society. We are of the considered view that the appellant/OP No.2 in the complaint totally failed to perform his duties as Secretary of the Society and was thus was clearly deficient in service and in this view of the matter, we find no infirmity with the impugned order.

14.               Consequently, the appeal filed by the appellant/OP No.2 is dismissed with costs which we quantify as Rs.2,100/- and the impugned order is upheld being just, fair and legal.

15.               Copies of this order be sent to the parties free of charge.

Pronounced.

16^th February 2010.