DURGA PARSHAD Vs. GHAZIABAD DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THIS second appeal has impugned the judgment and decree dated 29.3.2010 which had endorsed the finding of the trial judge dated 25.7.2009 thereby dismissing the suit of the plaintiff. The plaintiff Durga Parshad had filed a suit for recovery of Rs. 36,000/ -. It was alleged that a scheme had been floated by the Defendant i.e. Ghaziabad Development Authority (GDA) in the year 1989; plaintiff applied for a plot on 28.07.1989; in terms thereof he deposited a sum of Rs. 11,220/ -; he was declared an unsuccessful allotee; he was assured that a new scheme will be floated as such he deposited another sum of Rs. 1140/ - under the new scheme on 24.07.1990. On 18.4.2002 he addressed a letter to the Defendant seeking refund of his money; on 25.4.2002 this demand was reiterated. He thereafter approached the District Consumer Forum who vide its communication dated 16.11.2005 advised him to approach the civil court. Thereafter, suit was filed.

(2.) DEFENDANT contested the suit. Written statement was filed wherein it was stated that the unsuccessful candidates were required to contact the Oriental Bank of Commerce (OBC) for their refund. Proceedings before the District Consumer Forum had been dismissed for want of jurisdiction.

(3.) THE first appellate court endorsed the finding of the trial judge i.e. of dismissal of the suit but for different reasons. Applying the provisions of Article 22 of the Indian Limitation Act, 1963 (hereinafter referred to as 'the said Act') it was held that the suit was within time. Para 9 of the impugned judgment stated that the amount had been deposited by the plaintiff as per his case on 24.7.1990; he had however not filed any documentary proof to substantiate this averment .Clause 9.60 of the Application Form/Brochure had also been adverted to which clearly stated that unsuccessful candidates like the complainant should contact the Manager of the OBC personally or by post for refund of their registration amount and not the GDA.