D. Appa Rao, President:

Oral:

1. This is an appeal preferred by the opposite party against the order of the District Forum-I, East Godavari at Kakinada in C.D. No. 110/2004 in allowing the complaint and directing it to refund the amount paid by the complainant towards the scheme.

2. The case of the complainant in brief is that he joined as a member of the appellant in the venture 'Sree Lalitha Nagar' started by him wherein he had to pay Rs. 1,000 each for 60 months on which an extent of 200 sq. yds. will be allotted. Accordingly he paid the amount regularly. However, he did not pay the 37th instalment due in July, 2001 on the ground that the agent did not come and collect the instalment. Thereupon he issued a legal notice dated 21.7.2003 requesting that he would withdraw the membership and requested the appellant to refund the instalments paid by him with interest at 24% p.a. for which he received a reply with untenable allegations. Therefore, he prayed for refund of the amount paid by him with interest, compensation and costs.

3. The appellant did not choose to contest despite notice served on it.

4. The complainant filed his affidavit in proof of his case besides Exs. A1 to A3 i.e. pass book, notice and reply.

5. The District Forum after considering the evidence on record and in the light of Clause 15, directed the appellant to refund Rs. 36,000 received by him together with interest at 15% p.a. from 1.9.2003 till the date of payment together with costs of Rs. 800.

6. Aggrieved by the said order, opposite party preferred this appeal contending that the District Forum did not appreciate that the complainant himself was at default from 37th instalment, and he voluntarily withdrew from the membership. Therefore, in view of Clause 6, his membership was terminated and he was not entitled to any amount, and at any rate awarding interest was unjust and therefore prayed that the complaint be dismissed.

7. The point for consideration is whether the complainant is entitled for refund of the amount paid by him towards the scheme?

8. It is undisputed fact that the complainant had paid 36 instalments towards the scheme run by the appellant for allotment of a plot. The complainant alleges that as the agent of the appellant did not come for collection of the amounts, he did not pay. The appellant did not choose to controvert the said fact. Clause 15 of the terms and conditions in Ex. A1, pass book, stipulates that the membership will be terminated if he commits consecutive default of three instalments, and if he fails to pay for 10 months consistently, the amount so paid will be refunded after the scheme is over deducting the office expenditure. It is not in dispute that the scheme was closed already. In view of Clause 15, the appellant ought to have returned the amount after deducting whatsoever the amount that has been spent towards office expenditure. Despite the notice issued by the complainant under Ex. A2, the appellant did not pay the amount nor specify as to the exact amount towards office expenses. Undoubtedly it has used the amount of the complainant all through and benefited, utilizing the amount in its busi

ness. When it did not choose to contest nor placed any material for denying its liability, it cannot disown its liability. Considering these facts, we do not see any merits in the appeal. 9. In the result, this appeal fails and is accordingly dismissed, in the circumstances, without costs. Time for compliance four weeks. Appeal dismissed.