R.S. Sharma, President:
1. This appeal is directed against the order dated 17.12.2013, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"), in Execution Case No.47/2010 "Smt. Ramkunwar Maheshwari v. Om Grih Nirman Sahakari Samiti Maryadit, Raipur (C.G.)". By the impugned order, learned District Forum, has directed to issue non bailable warrant against the appellant herein.
2. Brief facts of the complaint filed by the respondent /complainant are : that the respondent/complainant became member of O.P./Om Grih Nirman Sahakari Samiti Maryadit. The appellant Ramkhilawan Sharma was president of that Housing Society at the relevant time. The respondent/complainant paid two instalments of Rs.2,500/- each on 29.04.1984 and 01.05.1984 towards allotment of plot but plot was not allotted in her favour. The respondent/complainant made repeated efforts and contacted the authorities for allotment of plot, but she was told that the layout was not approved and further that as soon as the plots are started to be allotted, she will be informed accordingly. The respondent/complainant waited for allotment of plot till 09.06.2004, then she again requested the Chairman of the Housing Society to allot the plot. She was again informed that the work of allotment is in progress. Yet no plot was allotted in favour of the respondent/complainant. The respondent/complainant sent legal notice to the O.P./Housing Society on 23.07.2006 and filed consumer complaint before the District Forum.
3. The O.P. / Housing Society filed its written version and denied the allegation levelled in the complaint and pleaded that the price of the land was not fixed as layout was not approved, plots could not be allotted. There were several other members of the society but due to aforesaid reason, the plot could not be allotted to any of them. It was stated in the written version that the respondent/complainant failed to fulfil necessary requirements. It was also averred that the respondent/complainant could not file any affidavit to the effect that the respondent/complainant or her husband or children do not have any other house or plot in the State. Such affidavit was essential, while opting for membership but the respondent/complainant has not furnished till the date, therefore, the respondent/complainant is not entitled to get any relief and the complaint is liable to be dismissed.
4. Learned District Forum, after consideration the material placed before it observed that no deficiency in service was committed by the O.P./Housing Society and the respondent/complainant is free to take back the deposited amount and dismissed the complaint vide order dated 12.06.2008.
5. The respondent/complainant filed Appeal No.406/2008 before this Commission and appeal was allowed by this Commission vide order dated 17.03.2009 and the matter was remanded back to the District Forum, with the direction to consider newly produced documentary evidence, and then after providing opportunity of hearing to both parties decide the matter afresh.
6. Learned District Forum, allowed the complaint vide order dated 08.12.2009 and directed the O.P./Housing Society to allot the plot to the respondent/complainant as per prevailing rules and condition after depositing the present value of the plot by the respondent/complainant and to pay cost of litigation Rs.700/-.
7. The respondent / complainant again filed appeal No. 04/2010 before this Commission against order dated 08.12.2009, passed by the District Forum. The appeal of the respondent/complainant was partly allowed by this Commission vide order dated 02.06.2010 and it modified the order of the District Forum and directed that "the O.P. shall allot the plot in favour of the complainant at the same rate as has been paid by other members detailed in Audit Report 01.04.2004 to 31.03.2005 and 01.04.2005 to 31.05.2006. Besides this, the O.P. shall also pay a sum of Rs.5,000/- towards compensation for mental harassment and Rs.2,000/- towards cost of proceedings."
8. Being aggrieved by the order passed by this Commission in Appeal No.04/2010 on 02.06.2010, O.P. / Om Housing Cooperative Society, filed Revision Petition No.3054 of 2010 before Hon'ble National Consumer Disputes Redressal Commission, New Delhi and the Revision Petition No.3054 of 2010 was dismissed vide order dated 10.09.2010. Hon'ble National Commission has held that "it is noted from the evidence on record that the Petitioner never informed the complainant that the reasons for not allotting the plot to her was because of her failure to submit the affidavit. On the other hand, it is in evidence that every time she approached the Petitioner she was told that the delay in allotment of a plot to her was because lay out plans were not ready. Thus, the Petitioner's plea that it was complainant's failure to provide the affidavit which resulted in non allotment of a plot to her is not tenable. The contention of the Petitioner that the case is barred by limitation is also not acceptable because right from 1984 the complainant/Respondent had been regularly taking up the matter for allotment of the plot with the Petitioner including with the President of the Petitioner “ Society. It was only when all efforts failed that she took recourse to legal action."
9. O.P. / Om Housing Co-operative Society Limited filed W.P. (C) No.7573 of 2010 before the Hon'ble High Court of Chhattisgarh at Bilaspur (C.G.). Vide order dated 03.04.2013, the Writ Petition filed by the O.P./Om Housing Co-operative Society Limited, has been dismissed and it has been held that Writ Petition is dismissed as not maintainable.
10. Looking to the above facts and circumstances of the case, it appears that this Commission vide order dated 02.06.2010 passed in Appeal No.04/2010 directed the O.P./Om Grih Nirman Sahkari Samiti Maryadit that O.P. shall allot the plot in favour of the complainant at the same rate as has been paid by other members detailed in Audit Report 01.04.2004 to 31.03.2005 and 01.04.2005 to 31.05.2006 and this order was upheld by Hon'ble National Commission, even by High Court, therefore, the order passed by this Commission has attended finality.
11. The respondent/complainant has filed an application under Order 41 Rule 27 CPC along with information obtained by her through Right to Information Act, 2005 from Deputy Registrar, So-operative Society, Raipur (C.G.). Firstly we have examined whether application filed under Order 41 Rule 27 CPC by the respondent/complainant, deserves to be allowed.
12. The respondent/complainant sought permission to file documents obtained by her through Right to Information Act, 2005 obtained by her from the Deputy Registrar, Co-operative Society, Raipur (C.G.). The document is relevant and essential for proper adjudication of the case, therefore, the application filed by the respondent/complainant under Order 41 Rule 27 CPC is allowed and the document is taken on record as additional evidence at the appellate stage.
13. Learned counsel for the appellant Shri Basant Mishra, argued that the appellant herein, Ramkhilawan Sharma was not the President of the Society and District Forum or State Commission, has not directed the O.P. / Housing Society that the land of 4000 sq ft. be allotted to the respondent/complainant. He further argued that business of the O.P./Housing Society was vested with Liquidator and the appellant herein is not in picture and he had handed over the charge to the Liquidator and he is not President of the O.P. / Housing Society from 02.09.2010, therefore the execution proceeding cannot be executed against the appellant herein and the non-bailable warrant issued by the District Forum against the appellant is unwarranted and the order passed by the District Forum, is liable to be set aside.
14. Shri R.K. Bhawnani, learned counsel for the respondent/complainant submitted that the appellant herein, Ramkhilavan Sharma had not handed over the charge to the Liquidator and he is responsible for disobeying the orders of this Commission, as well as Hon'ble National Commission and High Court of Chhattisgarh. He further submitted that Lal Bahadur Sharma, was appointed as Liquidator of the said Housing Society, but he has not received charge of the record and documents of the O.P./Housing Society from the appellant herein. Shri Bhawnani, supported the impugned order.
15. We have heard arguments of learned counsel for the parties and have perused the record of the District Forum.
16. The respondent / complainant filed documents obtained by her through Right to Information Act, 2005 from the Deputy Registrar, Co-operative Society, Raipur (C.G.). The Deputy Registrar, Co-operative Society, Raipur gave information to the respondent/complainant regarding Om Sahakari Grih Nirman Sahkari Samiti Maryadit. In the said letter, it is mentioned that œHINDI?
17. Section 70 of C.G. Co-operative Societies Act, 1960 reads thus :-
"70. Appointment of Liquidator. (1) Where the Registrar has made an order under section 69 for the winding up of a society, he may appoint a liquidator for the purpose and fix his remuneration and may also remove at any time any person appointed as liquidator and appoint another instead;
Provided that in respect of a co-operative bank ordered to be wound up on requisition from the Reserve Bank, the liquidator shall not be appointed or removed without the previous sanction of Reserve Bank.
(2) A liquidator shall, on appointment, takes into his custody or under his control all the property, effects and actionable claims to which the society is or appears to be entitled and shall take such steps as he may deem necessary or expedient, to prevent loss deterioration of, or damage to such, property, effects and claims.
(3) Where an appeal is preferred under Section 78 an order of winding up of a society made under Section 69 shall not be operated thereafter until the order is confirmed in appeal:
Provided that the liquidator shall continue to have custody of or control over the property, effects and actionable claims mentioned in sub-section (2) and have authority to take the steps referred to in that sub-section.
4. Where an order of winding up of a society is set aside in appeal, the property, effects and actionable claims of the society shall revest in the society.
70-A. Control of liquidator. “ After the appointment of the liquidator, all powers of the Committee of a Society, whether elected or nominated, shall cease and the employees of the Society shall thereafter work under the control and supervision of the liquidator".
18. Looking to the information given by the Deputy Registrar, Co-operative Society, Raipur (C.G.), it appears that the Deputy Registrar, Co-operative Society, Raipur also wrote a letter to Sub Divisional Officer (Revenue) and intimated him that Ramkhilavan Sharma, (appellant herein), had not handed over charge of record and documents of the O.P./Housing Society.
19. The orders passed by the District Forum and this Commission were upheld by the Hon'ble National Commission. Even Writ Petition (C) No.7573 of 2010 filed by the O.P. / Om Housing Co-operative Society Limited was also dismissed by High Court of Chhattisgarh. Therefore, the order passed by the District Forum, has attended finality. Looking to the documents and evidence, it appears that when the complaint was filed by the respondent/complainant before the District Forum, the appellant herein, was President of the O.P./ Housing Society. The orders passed by the District Forum and this Commission were against the O.P. / Housing Society and when these orders were passed, the appellant herein, was President of the O.P. / Housing Society, therefore, the appellant herein, Ramkhilavan Sharma, was the responsible officer to allot the plot to the respondent/complainant. As the order of the District Forum, which was upheld by Hon'ble National Commission, was not complied with by the appellant herein, therefore, the District Forum issued non-bailable warrant against him and therefore, the appeal of the appellant herein, is not maintainable and is liable to be dismissed.
20. We are of the firm view that the execution proceeding pending before the District Forum is maintainable against the appellant herein, Ramkhilavan Sharma, and the impugned order dated 17.12.2013, does not suffer from any illegality or infirmity.
21. Therefore, the appeal filed by the appellant herein, Ramkhilavan Sharma, being devoid of any merits, is liable to be and is hereby dismissed. No order as to the cost of this appeal.