State Consumer Disputes Redressal Commission
Globsyn Business School vs Sri Aritra Siddhartha Basu on 25 September, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/121/11 (Arising out of Case No. 06/2010 of District Consumer Disputes Redressal Forum, North 24 Parganas, Barasat ) DATE OF FILING : 03.03.11 DATE OF ORDER: 25.09.2012 APPELLANT : 1. Globsyn Business School, Kolkata, Globsyn Crystal-XI-11 & 12 being EC Sector V, Salt Lake Electronics Complex, Kolkata-700 091. RESPONDENT : 1. Sri Aritra Siddhartha Basu, S/O Sri Tapas Kumar Basu, C/O Sri Dilip Kumar Deb Roy, 14/D, Gouri Shankar Ghosal Lane, P.O. Narkel Danga, Kolkata- 700 011. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANTS : Mr. B.N. Joshi, Mr. N.R. Mukherjee., Advocate. FOR THE RESPONDENTS : Mr. Prasanta Banerjee., Advocate. Debasis Bhattacharya, Member.
Being aggrieved by and dissatisfied with the judgment and order dated 28.01.11 in C.C. No. 06/10 as passed by the Ld. District Forum, North 24 Parganas, the O.P. thereof has preferred this appeal.
It has been the contention of the Respondent/Complainant in his petition of complaint that he was selected for Post-graduate Programme in Management for the session 2009-11 at the institution of the O.P. Accordingly, he deposited Rs.90,000/- by two separate demand drafts dated 18.03.09 and 24.4.09. However, soon after, he got another offer from SDM Institute for Management Development, Mysore and he preferred that. To that effect, he contacted the O.P. over telephone and informed the same and requested the O.P. to refund the deposited amount of Rs.90,000/- and he was instructed to make it in writing. So, he sent one e-mail to the O.P. on 16.5.09 explaining his situation and requested for refund of the sum of Rs.90,000/- and again sent another e-mail on 21.5.09 and visited the O.P. institute on 26.5.09 with an application for refund of the amount of Rs. 90,000/-, but he was not entertained by the O.P. and was not allowed and/or permitted to submit the application. Thereafter, in his absence for studying in SDM Institute for Managerment Development at Mysore, his father sent a letter through fax to the Director of the institution on 28.5.09 for refund of the amount and again sent another letter by speed post to the Director on 16.6.09 with the same request. As the O.P. did not respond to all the letters duly received by it, they approached the Asst. Director, Consumer Affairs & Fair Business Practices, Kolkata Eastern Suburban Regional Office by a written complaint on 06.7.09 by his father for redressal for refund of the said amount, who arranged three sittings with the authorities of the O.P. to sort out settlement amicably, but it failed . Thereafter, this case.
On the other hand, the case of the Appellant/O.P. in its w.v. is that the instant petition is not maintainable and misconceived and that the father of the Complainant had filed a complaint before the Assistant Director, Consumer Affairs and Fair Business Practices, Kolkata Eastern Suburban Region, where it was categorically conveyed to him that O.P. was not in a position to refund the admission fee of Rs.90,000/- as the Offer Letter issued to all candidates, including the Complainant categorically mentioned that the same was non-refundable, and the Complainant, therefore, cannot take the plea of ignorance of the fact that the amount of Rs.90,000/- paid by him to the O.P. was non-refundable under any circumstances. By a supplementary w.v, it has been made out that an expenditure of Rs.1,41,667/- was incurred by the O.P. per candidate towards admission process to the PGPM course for the session 2009-11, calculated on the basis of the total expenditure incurred for the course with a capacity of 180 seats out of which only 165 seats were eventually filed up and 15 seats remained vacant, so the O.P. suffered a loss of Rs.1,41,667 x 15 = Rs.21,25,000/- approx. by reason of the said 15 seats of the said course remaining vacant, and in view of the huge loss already suffered by it, the O.P. is not at all in a position to refund the sum of Rs. 90,000/- to the Complainant. In fine, it has prayed for dismissal of the instant petition.
By the impugned judgment and order, the Ld. District Forum has allowed the case on contest in part without any cost directing the O.P. to refund Rs.90,000/- to the Complainant within 30 days from the date of order and to pay Rs.1,000/- to the Complainant towards litigation cost within a period of 30 days from the date (of order), failing which the Complainant is at liberty to file an execution application under the provision of law, which has been assailed by the said O.P. by preferring this appeal.
It is to be considered if the said judgment and order impugned is legally and materially tenable, or not.
Decision with reasons Ld. Advocate for the Appellant has submitted that education is not a trading activity and refund of price does not come under the purview of consumer dispute and there is no deficiency in service of the Appellant and has cited a decision of the Honble Calcutta High Court in the case of Smt.N. Taneja and another vs. Calcutta Distt. Forum and others in C.O. No. 873 (W) of 1991 (downloaded from Manupatra) and two decisions of the Honble National Commission, first, the case of Indian Banks Association/Canara Bank vs. Archana Kamath and Others in Revision Petition Nos. 452/453 of 1993 as reported in (1994) 2 CTJ 695 (CP) (NCDRC) and secondly, the case of Ramdeobaba Engineering College vs. Sushant Yuvraj Rode & Anr. in Revision Petition Nos. 558 & 594 of 1993 as reported in III (1994) CPJ 160 (NC) in these respects. He has further relied upon a decision of the Honble Supreme Court in the case of the Central Bank of India vs. Hartford Fire Insurance Co. Ltd. in Civil Appeal No. 409 of 1961 as reported in AIR 1965 SC 1288 and a decision of the Delhi State Commission in the case of Tata Timken Limited vs. Smt. Veena Gupta in C. No. A-286 of 1995 as reported in II (1996) CPJ 210. He has further made out that no service has been taken, served and utilized by the respective party and there is no deficiency of service on the part of the Appellant. There is no sympathetic jurisdiction in the C.P. Act. There is no harsh clause of the Appellant involved in the matter, though such harsh clause has been dealt favourably by the Honble Supreme Court in the citation referred being AIR 1965 SC 1288. This is a money claim simpliciter and the available forum is the civil court.
Ld. Advocate for the Respondent has submitted that the request for refund has been made when the admission is going on and not in mid-session. He made out that the judgment and order as impugned is just and proper. He has relied upon a decision of the Honble National Commission in the case of COMED-K vs. Smt T. Nagamani in Revision Petition No. 731 of 2009 as reported in 2009 (2) CPR 380 (NC).
In C.O. No. 873 (W) of 1991 (supra), one of the major points of the petitioners was that the Consumer Protection Act has no jurisdiction to enter into the domain of Education and cannot try any proceeding against any teacher on the allegation that a student had not been sent for Madhyamik Examination. But, in this case it is not Education primarily and strictly in dispute and the proceeding is not against any teacher by a student regarding educational matter, but non-refund of admission fees. So also the dispute is not in the realm of pricing and adequacy and reasonableness of the consideration or the price charged for the services rendered or to be rendered, which are not in question, and the decision of the Honble National Commission reported in (1994) 2 CTJ 695 (CP) (NCDRC) (supra) referred to by the Ld. Advocate for the Appellant does not fit into the case. The other relevant judgment in the matter cited by the Ld. Advocate for the Appellant is of the Honble National Commission reported in III (1994) CPJ 160 (NC) (supra) is dated 19.9.94, where the revision petitioner College was prepared to refund the caution money, but it was not agreeable to refund the admission fee of Rs.8,800/- on the ground that under the orders of the Government of Maharashtra promulgated in September, 1988, where a student leaves the institution and applies for refund of the fees after 30 days from the date of admission, no fee is to be refunded . So, it was held that this is a case where there has been no deficiency of service on the part of the revision petitioner Engineering College. But, in this case at hand no such orders of the State Government concerned is produced and also within 30 days from the date of admission, the prayer for refund of fees has been made. Further, in a more recent judgment dated 22.4.09 of the Honble National Commission reported in 2009 (2) CPR 380 (NC) (supra), as referred by the Ld. Advocate for the Respondent, it was held that the University Grants Commission in their Circular dated 23.4.07 has issued a public notice stating that the entire fee collected from the student after deduction of processing fee of not more than Rs.1,000/- shall be refunded to the student withdrawing from the programme and stated therein also that the Honble National Commission in a catena of judgments has directed the educational institutions to refund the fees of students who have left the college and got admission in some other institutions. So, following such judgment of the Honble National Commission, the Appellant is required to refund to the Respondent the admission fees of Rs.90,000/- minus Rs.1,000/-. It is imperative and incumbent upon the Appellant to do so. Accordingly, the impugned order is sustainable, but with some modification regarding deduction of the processing fee of Rs.1,000/- from the admission fees. There is no other ambiguity in the impugned judgment and order to be interfered with.
In the result, the appeal fails.
Hence, Ordered That the appeal be and the same is dismissed on contest without any cost. The impugned judgment and order is affirmed with certain modification.
Accordingly, the Appellant is hereby directed to refund an amount of Rs. 90,000/- minus Rs.1,000/- to the Respondent within 30 days from the date of this order and further directed to pay Rs.1,000/- to the Respondent towards litigation cost within a period of 30 days from this date, failing which the Respondent is at liberty to file an execution application under the provision of law.
Jagannath Bag.
Debasis Bhattacharya (Member) (Member)