National Consumer Disputes Redressal
Anupama College Of Engineering vs Amit Ahlawat & Anr. on 26 May, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 807 OF 2017 (Against the Order dated 05/09/2016 in Appeal No. 67/2016 of the State Commission Haryana) 1. ANUPAMA COLLEGE OF ENGINEERING THROUGH ITS CHAIRMAN D.K. GUPTA, BHORA KALAN NEAR BILASPUR CHOWK, PATAUDI ROAD, DELHI JAIPUR ROAD, N.H. NO. 8, GURGAON-122413 HARYANA ...........Petitioner(s) Versus 1. AMIT AHLAWAT & ANR. S/O. SHRI JAI PAL SINGH HOUSE NO. 44, HOUSING BOARD COLONY, KANHELI ROAD, ROHTAK HARYANA 2. HARYANA STATE COUNSELLING SOCIETY, THROUGH ITS CHAIRMAN, BAYS NO. 7-12, SECTOR 4 DISTRICT-PANCHKULA HARYANA ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER
For the Petitioner : MR. ASEEM MEHROTRA For the Respondent :
Dated : 26 May 2017 ORDER
REKHA GUPTA, PRESIDING MEMBER
The present revision petition has been filed against the judgment dated 05.09.2016 of the Haryana State Consumer Disputes Redressal Commission, Panchkula ('the State Commission') in First Appeal no. 67 of 2016.
2. The facts of the case are that Amit Ahlawat - respondent/ complainant filed a complaint before the District Forum with the averments that he took admission in the college of the petitioner and deposited Rs.54,000/-. Thereafter, the respondent on the basis of the rank in AIEEE 2008 got admission in Maharishi Dayanand University, Rohtak. The respondent did not attend even a single class in the institute of the petitioner. The respondent requested the petitioner to refund the amount paid but to no avail.
3. The petitioner was proceeded ex parte before the District Forum.
4. The District Consumer Disputes Redressal Forum, Panchkula ('the District Forum') vide its order dated 27.05.2009 while allowing the complaint observed as under:
"8. .......................The complainant contended that the date of starting courses/ last date of admission as 28.08.2008. In present case we find that the complainant after getting admission in the institute of OP no. 2 deposited the fee on 18.08.2008 and withdrew from the institution within one week on 26.08.2008, i.e., prior to last date of admission. In support of his contention, the complainant placed on record the fees receipt to the effect that he had got admission in MDU and deposited fees on 26.08.2008. There is no evidence that OP no. 2 started courses and that the complainant attended any class in their institution and further that admission were over prior to withdrawal of the complainant. Thus we find that the complainant had withdrawn from the institution of OPs on 26.08.2008 before the last date of admission without attending any class.
9. Now the next question arose and whether the OP no. 2 suffered any loss due to withdrawal of complainant from their institution. In the regard we find that OP no. 2 did not appear before this Forum or led any evidence to prove that due to withdrawal of the complainant the seat left by him remained vacant throughout the session and suffered loss of tuition fees of entire season. We find that the complainant left the seat before the last date of admission and OP was liberty to fulfil the seat provided that they had any waiting list on that date. The OP no. 2 neither appeared nor led any cogent evidence to this effect. Thus we find the OP no. 2 failed to prove that seat left by the complainant remained vacant and that they suffered any loss due to withdrawal of the complaint from their institution.
10. As far as demand raised by the complainant for refund of fees of Rs.54,000/- deposited him, we find that the complainant did not attend the institution of OP no. 2 for a single day as per instructions and advertisement/ public notice the college authorities is only entitled to retain the fees only for the period for which the complainant attended the college after deducting processing charges. In this regard we also find support from ruling titled as Sehgal School of Competition vs Dalbir Singh CPJ 2005 (Vol III) NC 33 decided by NCDRC, New Delhi. In view of the aforesaid instructions after deducting Rs.1000/- the complainant is entitled for refund of Rs.53,000/-. Thus we hold that act and conduct of the opposite party no. 2 in not refunding the fees to the complainant amounts to deficiency in service. It is necessary to mention here that since there is no evidence against OP 1 as such no liability is fastened upon him.
11. For the reasons stated above, we hereby allow the instant case and direct the OPs 2 to refund the amount of Rs.53,000/- along with interest @ 7% with effect from the date of filing of complaint till its payment. Besides OPs are also directed to return to the complainant all the original documents submitted by him at the time of admission in case not returned so far. However, the parties are left to bear their own costs".
5. The petitioner/ OP no. 2 did not challenge the aforesaid order of the District Forum. The complainant filed an execution application before the District Forum. The District Forum vide order dated 27.05.2010 while allowing the execution application and dismissing the objections filed by OP 2 observed that:
"3. Shri S K Bishnoi, Advocate appeared on behalf of OP no. 2 and also filed objections on 14.12.2005 wherein it has been submitted that OP no. 2 was not aware of the passing of the above order and the college was lying closed for more than 4 years on account of withdrawal of AICTE or non-extension of approval. It has been further submitted that in many judgments passed by the Hon'ble Apex Courts the students are not to be considered a consumer and the decree obtained by a fraud is a nullity and its validity can be set aside at any stage and the order dated 27.05.2010 passed by this forum cannot be put to execution. Lastly prayer for dismissal of the execution petition is made.
5. Present revision petition has been filed on 19.07.2010 and almost 5 years and 10 months have passed but the order passed by this Forum has not been executed by OP No. 2. It is worthwhile to mention here that the CP Act has been enacted for the benefit of the consumer. In case an order of the Commission/ Forum is not executed for a long time, the purpose of the Act stands frustrated. It has been seen time and again that the real trouble of a plaintiff starts after the decree has been passed in his favour, as the judgment debtor in execution proceedings, raise all types of frivolous objections in order to delay the execution of the decree. Section 27 of the CP Act has been enacted with the purpose that the complainant (DH) should be able to reap the fruits of the decree without much difficulty and the opposite party should not be allowed to delay the execution by raising frivolous objections. On this point reliance can also be taken from case law titled as Mrs Suman Lata vs M/s Anand Construction (Delhi) Pvt. Limited and Another II - 1993 (1) CPC page 352.
6. Aggrieved by the order of the District Forum in EA No. 66 of 2010 the petitioner/ OP 2 filed a revision petition before the State Commission. The State Commission while dismissing the appeal observed as under:
"The petitioner did not challenge the aforesaid order of the District Forum.
The complainant filed execution application before the District Forum.
The petitioner appeared and filed objections before the District Forum inter alia stating that college was closed on account of withdrawal of permission by AICTE or non-extension of approval. The District Forum dismissed the objections vide impugned order.
Against the aforesaid order, the petitioner filed the present revision petition.
It is not in dispute that the order dated 27.05.2009 passed by the District Forum has not been challenged till date by the petitioner and has attained finality. That being the position, the District Forum rightly dismissed the objections in the execution application. There is no illegality or irregularity in the impugned order. Thus, the revision petition is dismissed."
7. Hence, the present revision petition.
8. I have heard the learned counsel for the petitioner. He contended that on 5th April 2017 a similar matter regarding the institution was heard by Bench no. 2 and the order had been reserved. He further contended that the decree which was put up for execution was not executable in view of the law declared by the Hon'ble Supreme Court in SLP ( c) no. 22532 of 2012 decided on 09.08.2012. The Hon'ble Supreme Court while upholding the order passed by this Hon'ble Commission in a matter arising from proceedings arising under the Consumer Protection Act, 1986 had held as under:
In view of the judgment of this Court in Maharshi Dayanant University vs Surjeet Kaur 2010 (11) SCC 159 wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
9. The State Commission, Haryana at Panchkula in First Appeal no. 360 of 2013 decided on 12.07.2013 which pertained to the petitioner - college following the Hon'ble Supreme Court had decided that the complainant does not fall within the definition of consumer and the college cannot be termed as service provider.
10. A coordinate Bench of this Commission in RP No. 3571 of 2013 in the matter of Gulshan Kumar vs Anupama College of Engineering and 3 Others decided on 9th May 2017 while remanding the matter back to the State Commission has observed as under:
"Perusal of complaint reveals that complainant was seeking refund of fee deposited by him for taking admission in opposite party no. 1 institute on account of taking admission in other college. He was claiming refund as per fee refund scheme introduced by Haryana State Counseling Society. Complainant has not claimed refund of fee on account of any deficiency in providing education to the complainant but has claimed refund on account of getting admission in other college. Learned State Commission in the light of judgment of Hon'ble Apex Court in 2012 (3) CPC 615 (S.C.) - P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors. allowed appeal and dismissed complaint whereas aforesaid order was passed against order dated 19/04/2012 passed by this Commission in Revision Petition No. 605 of 2012 in which it was observed that interim order passed by State Commission is very innocuous meaning thereby Hon'ble Apex Court upheld order of this Commission dismissing revision petition against interim order of the State Commission. No doubt Hon'ble Apex Court while deciding SLP No. 22532 of 2012 - P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors. observed that education is not a commodity and educational institutions are not providing any kind of service, therefore, matter of admission, fee, etc. cannot be question of deficiency of service. This observation has been made on the basis of judgment of Hon'ble Apex Court in (2010) 11 SCC 159 - Maharashi Dayanand University Vs. Surjeet Kaur. Perusal of Maharashi Dayanand's case reveals that in that case complainant's complaint for award of B.Ed. degree was found to be contrary to rules and it was observed that student who takes examination is not a consumer. In the case in hand complainant is seeking refund of fee as per fee refund scheme as he got admission in other college. He has not filed complaint regarding deficiency in imparting education in the college and in such circumstances his complaint for refund of fee was maintainable before Consumer Forum and learned State Commission committed error in allowing appeal and dismissing complaint by observing that complainant does not fall within purview of consumer".
11. In view of the above, it is an admitted fact that the revision petition against the impugned order is not sustainable as the facts of the case are similar to RP no. 3571 of 2013 and it has been held that in such similar circumstances, that the respondent no. 1 is a consumer and the petitioner is a service provider and hence, the complainant is maintainable.
12. Further, the petitioner had not filed an appeal against the order of the District Forum dated 27.05.2010 and has correctly observed by the State Commission in their order dated 05.09.2016, the said order of the District Forum has attained finality and has to be executed.
13. The revision petition has also been filed with a delay of 100 days. The reasons given in the application for condonation of delay are as under:
"It is stated that the impugned order was passed on 05.09.2016 and the free copy was supplied on 21.09.2016.
The petitioner states that the local Advocate did not inform the dismissal of the revision petition by the State Commission till the second week of January 2017.
Upon getting information from the local Advocate at Panchkula the papers were collected from him in the last week of January 2017.
The Chairman of the college got busy in connection with other college matter for which he had to travel to Lucknow and Agra frequently.
In the first week of March 2017, the papers were supplied to the present advocate for preparing the petition".
14. The petitioner admitted that the free copy was supplied on 21.09.2016 and has failed to explain the day today delay of 100 days. At the same time, it is also well settled that "sufficient cause" with regard to condonation of delay in each case, is a question of fact.
15. The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:
"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras".
16. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:
"The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]".
17. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
"It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant."
18. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR & 1994 Punjab and Haryana 45, it has been laid down that;
"There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence."
19. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:
"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition."
20. Accordingly, we find that there is no 'sufficient cause' to condone the delay of 100 days in filing the present revision petitions. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation is dismissed both on limitation and merit.
...................... REKHA GUPTA PRESIDING MEMBER