The onus to prove the claim lies with the claimant, and adverse inference can be drawn if relevant documents are not produced.

JUDGMENT

V. Kameswar Rao, J. (Oral)

1. The challenge in this petition is to an order dated March 19, 2019 passed by the Delhi Co-operative Tribunal in Appeal No. 196/2018/DCT whereby the Tribunal has disposed of the appeal by stating in paragraphs 14 to 19 as under:

14. In the reply filed before this Tribunal, the R1 has not controverted the pleadings and assertions made by the appellant society. He has also not stated that he has not resigned or has not received the refunded amount of Rs.1100/- vide cheque No. 003852. The impugned award does not disclose about production of relevant documents. The onus to prove the claim was on the claimant. There is no finding of Ld. Arbitrator whether or not the R1 had resigned from the membership nor there is any finding that R1 has not received the refund of Rs.1100/- through cheque no. 003852 Ld. Arbitrator has drawn adverse inference with the observation that the appellant, the defendant therein did not place on record the documents as mentioned in para "A".

15. It is well settled that the onus to prove the claim is on the person who prefers the claim and only when the claimant proves his right, title or interest according to the claim, the onus to disprove shifts on the opposite side. However, Ld. Arbitrator in the present case has drawn adverse inference by recording that Sh. R.K. Gupta, Junior advocate of the society verbally informed that the society had not provided any record in this regard and junior advocate for the society remained absent during the hearings on 14.8,2014 and 25.8.2014. Therefore, Ld. Arbitrator passed the impugned award.

16. It is pertinent to note that the management of the society was under the administration of Administrators during different period, as appointed by Ld. RCS. The advocate for defending the society must have been appointed by the Ld. Arbitrator and if the advocate had not filed the documents or had absented from the proceedings, he could have issued notice to the Administrator asking him to transmit the documents if any, who in turn would have deputed the advocate with instructions. Since there was no M.C. in existence, the claim was not properly defended. The impugned award has been passed by drawing adverse inference against the society for non production of the documents without verifying from the account of the society whether the amount of Rs. 1100/-refunded vide cheque No. 003852 on resignation of the respondent.

17. In our considered view the impugned award has been passed on by drawing adverse inference against the society and is illegal and suffers from impropriety as such is liable to be set aside. The appeal is therefore accepted, impugned award is set aside. The matter is remanded back to the RCS for assignment to new Arbitrator other than who passed the impugned award who shall dispose of the award as per law.

Parties are directed to appear before the RCS on 3.4.2019 at 3.00 p.m

18. The RCS shall allocate the matter to some other arbitrator (other than the one who had passed the impugned award).

19. It goes without saying that the Ld. Arbitrator to whom the matter is allocated shall dispose off the matter within the prescribed time period. The Ld. Arbitrator to whom the matter is allocated should, in its proceedings, specifically mention as to which party is seeking the adjournment. Further the adjournment be not granted on flimsy grounds."

2. The appeal before the Tribunal was filed by the Society challenging the order passed by the learned Arbitrator under Section 71 of the DCS Act dated August 28, 2014. The ground of challenge before the Tribunal was that the award was ex parte allowing the petitioner herein to continue as a member of the Society.

3. The membership was obtained by the petitioner herein by showing an address of a plot which was not a residential address. No document was filed by the petitioner at any stage of the proceedings, such as the copy of the receipt on account of deposit of membership fee and share money or