Haryana

StateCommission

A/617/2017

GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY - Complainant(s)

Versus

BHAVYA JULKA - Opp.Party(s)

SUMIT BATRA

05 Jul 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                                 

                                                         First Appeal No.617 of 2017

                                                 Date of Institution: 19.05.2017

                                                               Date of Decision: 05.07.2022

 

Guru Gobind Singh Indraprastha University, Sector 16 C, Dwarka, Delhi 110078, through its Registrar.

…..Appellant

Versus

Bhavya Julka D/o ShV.K.Julka, R/o 309-310, Sector-17, HUDA, Jagadhri, Yamuna Nagar, Haryana.

…..Respondent

CORAM:    S.P.Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

                   

Present:-    Mr.Adhivrat Arya proxy counsel for Mr. Sumit K.Batra, Advocate for the appellant.

                   Mr.Arvind Rajotia, Advocate for the respondent.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          There is a total delay of 446 days in filing  of the appeal.  An appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  446 days wherein,  it was alleged that the appellant had never received the copy of order dated 28.01.2016. The appellant came to know about the order dated 28.01.2016 only on 26.08.2016, when they received notice of execution petition.  Thereafter, the appellant filed the application for supply of the certified copies of the order on 19.05.2017.  After receiving the certified copy of the order, the appellant contacted the local counsel at Yamuna Nagar and thereafter contacted the counsels at Delhi in order to finalise the present appeal, so it is clear that this is procedural delay not intentional or with malafide intention. Thus, delay of 446 days in filing  of the present appeal be condoned.

2.         Arguments Heard. File perused.

3.         Learned counsel for the appellants vehemently argued appellant never received the copy of order dated 28.01.2016. The appellant came to know about the order dated 28.01.2016 only on 26.08.2016, when appellant received notice of execution petition.  Thereafter, the appellant filed the application for supply of the certified copies of the order on 19.05.2017 and after receiving the certified copy of the order, the appellant contacted the local counsel at Yamuna Nagar and thereafter contacted the counsels at Delhi in order to finalise the present appeal. Due to the above said reasons, the appeal could not be filed, so the delay may be condoned. 

4.         This argument is not available.  A period of 30 days has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

5.               The inordinate delay of 446 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

               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.”

      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.”

         

6.      There is no such contention the copy of District Commission was sent on some other address different from the one where notices of execution was received. Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 446 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.617 of 2017 is dismissed.  

7.       The brief facts of the case are that complainant applied for admission in BA LLB with the opposite party university.  She deposited a sum of Rs.40,000/- through demand draft with the OP. She attended the first counseling held on 13.07.2013.   After counseling, she was allotted DME College NOIDA for her studies, but, she was not satisfied with her admission there. She appeared for second counseling on 08.08.2013.  She informed the OP university that she was not interested in the admission vide written letter dated 08.08.2013. It was further submitted that she did all this prior to appear before the second conseling and withdrew her right to take admission in DME College Noida.  She requested the OP university to refund the amount of Rs.40,000/-, but to no avail. She served a legal notice dated 23.12.2013, but, OP did not reply. Thus there was deficiency in service on the part of the OP.

8.      Notice being issued, opposite parties appeared and filed written statement of defence raising preliminary objections  about maintainability of complaint, jurisdiction, complainant not consumer  etc. have been raised and requested to dismiss the complaint.

9.      On merits, it was submitted that complainant after securing rank 1038 in Common entrance Test took admission in BA LLB course under General category Delhi region on 13.07.2013.  The complainant was admitted to DME college Noida for the session 2013-14 and she paid fee of Rs.40,000/- on 13.07.2013. The classes commenced from 01.08.2013. As she was not satisfied and did not wish to continue at DME college Noida,  she appeared for second conseling on 08.08.2013, thereafter she applied for withdrawal of admission on 08.08.2013, however, it was denied that she informed the OP university on 02.08.2013. The OP  university informed the schedule of first counseling alongwith terms and conditions of admission, withdrawal of fees, commencement  of classes etc. in admission brochure as well as notification dated 09.07.2013.  The last date for withdrawal of the admission was 02.08.2013 upto 5.00 p.m. and as per clause C of this notification, no request for withdrawal of admission was supposed to be entertained after 5.00 p.m.  Further mentioned that as per rules  a candidate who has taken admission during the first counseling and then he/she withdraws his/her admission shall not be considered for the admission in second conseling. The complainant applied for withdrawal of the admission/refund of the fee on 08.08.2013 at the time of second counseling, which was beyond the last date. The complainant was not entitled to refund. Thus there was no deficiency in service on the part of the OPs.

10.    After hearing counsel for the parties, the learned District Commission, Yamuna Nagar at Jagadhari has partly allowed the complaint vide order dated 28.01.2016. Relevant portion is reproduced below:-

“Resultantly, we partly allow the complaint of complainant and direct the OP University to refund the fee of Rs.39,000/-[40000-1000 as notified by UGC on 23.04.2007/F No.103/2007 (CPP-II)] to the complainant within a period of 30 days failing which complainant shall be entitled to get interest at the rate of 7% per annum from the date of filing of complaint till its realization. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law.”

11.    Feeling aggrieved therefrom, opposite party-appellant has preferred this appeal.

12.    This argument has been advanced by Sh. Adhirat Arya proxy counsel for Mr. Sumit K. Batra, the learned counsel for the appellant. With his kind assistance the entire record of the appellate file has been properly perused and examined.

13.    Learned counsel for the appellant vehemently argued that last date for withdrawal of the admission was 02.08.2013 upto 5.00 p.m., whereas the complainant applied for refund of the fee on 08.08.2013, hence the complainant is not entitled for the amount as prayed for.

14.   Learned counsel further argued that  a candidate who has taken admission during the first counseling and then he/she withdraws his/her admission shall not be considered for the admission in second counseling. The complainant applied for withdrawal of the admission/refund of the fee on 08.08.2013 at the time of second counseling, which was beyond the last date. The complainant is not entitled to refund.  Learned District commission has wrongly partly allowed the complaint, hence the impugned order be set aside and complaint be dismissed.

15.    On the contrary, learned counsel for the respondent vehemently argued that the complainant be entitled to the refund of Rs.40,000/- as per guidelines of HRD and UGC.   Learned District Forum rightly allowed the complaint and prayed for dismissal of the appeal.

16.    It is not disputed that she obtained admission in OP university  and deposited necessary fee of Rs.40,000/- after first counseling. It is also not disputed that the complainant applied for the refund of fees of Rs.40,000/-, which was deposited. The plea of the appellant was that as per clause C of notification dated 09.07.2013, no request for withdrawal of admission could be entertained   after 5.00 P.M. of 02.08.2013, whereas the complainant applied for refund at the time of second counseling on 08.08.2013 i.e. after due date 02.08.2013.   The above said plea of the appellant is not relevant as  the Ministry of HRD, Government of India and UGC had decided that the fees shall be refunded after deduction of a processing fee of not more than Rs.1000/-, if the seat vacated by a candidate had been filled by another candidate. Since the HRD, Government of India as well as UGC  had already decided that fees shall be refunded after deduction of processing fee of nor more than Rs.1000/-.  Learned counsel for the appellant has not placed on record any record showing that the seat vacated by complainant remained vacant for whole of the session. Well it was not difficult for the appellant university to prove this fact from its own record.  However for want of any such material on record contention put forth by appellant cannot be endorsed. So learned District Commission was fully justified in allowing this complaint and the same does not call for any interference at this end.

17.    Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.  Hence, appeal stands dismissed on both counts delay as well as on merits.

18.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant-respondent against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

05th  July, 2022       Suresh Chander Kaushik                        S. P. Sood                                                    Member                                                         Judicial Member    

S.K

(Pvt. Secy.)