1. This is an appeal questioning the order of the West Bengal State Consumer Disputes Redressal Commission in Consumer Complaint No.58 of 2019 dated 31.10.2019. The Complaint was allowed directing the Appellant to refund the entire sum of Rs.22,50,000/- with a cost of Rs.25,000/- and to pay a compensation of Rs.10,00,000/- or else in default pay 9% interest thereon.
2. It appears that there was a reported delay of 24 days in the filing of the appeal. A delay condonation application being IA/20071/2019 was also preferred which does not seem to have been disposed off. In view of the submissions raised and cause shown for condoning the delay, the same appears to be sufficient and therefore the delay condonation application is allowed and the appeal shall be treated to be within time.
3. From the order sheet it appears that without there being any formal admission of the appeal, parties were directed to file their written submissions and orders were passed on 12.05.2023 posting the case for final hearing on 26.10.2023 with further liberty to the parties to file short synopsis of written arguments if not filed earlier. The synopsis/arguments have been filed that are on record.
4. There is yet another aspect which needs to be mentioned at the outset namely that an application for interim relief to stay the impugned order was also moved on which the following order was passed on 19.02.2020.

“ORDER

Counsel appearing alongwith the appellant  on instructions submits that  appellant is challenging the amount of compensation of Rs.10.00 lakh which has been awarded by the State Commission and is ready to comply with all the other directions of the State Commission in the impugned order.  It is also prayed that appellant is ready to deposit the entire decretal amount within four weeks with the State Commission and requests for the stay of the impugned order.

            In view of this submission, notice is issued to the respondent, only on the limited issue of award of compensation of Rs.10.00 lakh. 

IA No. 20070 of 2019 ( stay)

Subject to the appellant depositing the entire decretal amount including the compensation amount within four weeks, operation of the impugned order is hereby, stayed.  The State Commission shall release to the complainant the entire decretal amount except Rs.10.00 lakh which shall not be released and be kept in the Fixed Deposit valid for one year.

List the matter on 19.10.2020.”

5. The aforesaid interim order was not complied with and applications were moved for early hearing on behalf of the Appellant, but the same was rejected on 28.03.2023 as the Complainant had failed to comply with the aforesaid order on the interim application.
6. The said fact was noticed on 12.05.2023 and a direction was issued to the Appellant to deposit the compensation amount of Rs.10,00,000/- within 4 weeks. The order dated 12.05.2023 is extracted hereinunder:-

“ORDER

Counsel for respondent made initial submission that the appellant has not complied with order dated 19.2.2020 with respect to depositing the entire decretal amount including the compensation amount, within four weeks.

To this, counsel for appellant responded that they paid principal amount in the form of DD directly to the respondent instead of depositing the State Commission.  However, when they wanted to deposit the compensation amount in the State Commission, it was not accepted on the ground that decretal amount was also to be deposited in the State Commission and not directly to the respondent.  Hence, it is admitted that till date compensation amount of Rs.10 lakh has not been deposited.  Counsel for respondent admits having received DD for the principal amount from the appellant.

Counsel for appellant is directed to deposit compensation amount of Rs.10 lakh, in the NCDRC Registry, within four weeks of this order. 

List on 26.10.2023 for final hearing.  In the meantime, both parties to file short synopsis of written arguments, if not filed earlier.”

7. It is stated at the bar that the amount of Rs.10,00,000/- has been deposited with this Commission and the order has been complied with.
8. On having considered the nature of the dispute, the following order was passed on 03.10.2023.

“ORDER                   

Heard learned counsel for the appellant and the learned counsel for the respondent.

After having heard learned counsel an interesting question crops up for determination in this appeal namely, as to the nature of the transaction which led to the filing of the complaint before the State Commission by the respondent herein.

From a perusal of the order of the State Commission it appears that the Complainant had hired the services of the opposite party/ appellant herein for securing the admission of her daughter in a medical college. This nature of transaction itself has raised a question which needs to be addressed to, in as much as, can a transaction  of this nature involved for hiring the services of the appellant for the purpose of admission in a medical college be termed as a transaction which is lawful? The issue deserves investigation as to whether there are any statutory rules governing admission in medical colleges including the rules framed by the Medical Council of India as well as several judgments pronounced by the Apex Court permitting any such facility to be deployed on behalf of the institution for facilitating admission?

The aforesaid questions need to be answered for the simple reason that compensation is being claimed with regard to deficiency of service, unfair trade practice and on account of any harassment etc.  To entertain a Consumer complaint of the nature of the transaction presently involved, whether it is lawful or unlawful, needs to be gone into and hence learned counsel for the parties are requested to address the Bench keeping in view the aforesaid legal proposition in order to ascertain as to whether the Consumer Commission under the Consumer Protection Act, 1986 or the 2019 is empowered to grant or extend any such benefit even if it is ultimately found that the nature of transaction is not lawful.

There is yet another issue which the learned counsel may keep in mind that under the Consumer Protection Act, 2019 this Commission has been empowered to declare any contract to be void. With this legal background it would be appropriate to proceed to deal with the matter and it will be open to the learned counsel for the parties to introduce any such pleadings or evidence at this stage of appeal as well.

In order to facilitate further hearing of this matter it is informed that the appellant has complied with the directions as expressed  in the previous order with regard to the deposit and also the payment made to the respondent. Consequently, until further orders further proceedings for execution shall remain stayed.

Learned counsel for the appellant submits that in view of the legal questions so framed the case would need some more time for preparation and therefore they pray for a subsequent date.

 Let the matter be listed on 16.11.2023. The earlier date of 26.10.2023 stands cancelled. 

Order dasti.”

9. It is in the aforesaid context that the matter has been listed today and the learned Counsel for both the parties have addressed the Bench at length.
10. The present case is not only peculiar but is one of those glaring examples of litigation that crop up and are contested passionately before a Forum which may in certain circumstances be unable to exercise powers in disputes that may not fall for consideration as lacking in the very cause itself. Without any further prelude, the Complainant/Opposite Party instituted Consumer Complaint No.58 of 2019 before the State Consumer Disputes Redressal Commission, West Bengal disclosing that the Complainant Smt. Jhuma Mukherjee is the mother of Ms. Adrija Mukherjee who, acting upon the representation of the Appellant that they are an institution catering services regarding admissions to medical colleges in India and abroad, approached the Appellants for the said services in order to secure an admission for her child. Since the Complaint is an interesting disclosure of facts that will have a bearing on the outcome of this Complaint, hence the Complaint is extracted in its entirety.

“Represented by it’s Founder cum Chairman

  Sri Nirmalya Nag

                   --------- Opposite Party

Complaint Valued at Rs.42,00,000/-

The humble Petition on behalf of the Complainant above named:

Most respectfully Sheweth:

1. That the complainant is a Govt. employee, Senior Lecturer of Govt. of Teacher's Training Institute under School Education Department, Govt. of West Bengal and a peace loving and law abiding citizen of India who is residing within the territorial jurisdiction of the Hon'ble Commission.

2. That the opposite party is an institution claiming to cater service regarding arrangement: and/or mediate the students to admit in the various institutions, Medical Colleges in India, Bangladesh, Nepal and China against necessary charges under MCI approved Private Medical Colleges and DCI approved Private Dental Colleges as counseling agent for admission of MBBS course in India.

3. That the opposite party advertized in a daily leading news paper about their study campus and admission in renowned medical colleges and allured the students for their better future and the complainant and her daughter through news papers came to know that the opposite party is going to organize campus Admission fair at Ice Skating Rink and Peerless Inn Kolkata.

4. That daughter of the complainant Miss Adrija Mukherjee passed joint NEET Examination, 2018 successfully and decided to join in medical course and therefore after being convinced the complainant along with her husband and daughter visited the admission fair and met the opposite party Sri Nirmalya Nag who introduced himself as founder and chairman of the institution and assured the complainant about secured admission in a medical colleges at Bangalore.

5. That having full faith and getting assurance from the opposite party the complainant agreed to admit her daughter through the opposite party and accordingly as per instruction of the opposite party an agreement has been executed on 18.07.2018 whereby the opposite party assured to confirm seat in medical colleges in the session 2018 - 2019 with a donation of Rs.27 lakh + colleges fees + hostel fee.

6. That as per the instructions of the opposite party the complainant paid an amount of Rs.5,00,000/- on 18.07.2018 and then paid Rs.10 lakh on 03.08.2018 and Rs. 12 lakh on 11.08.2018 against proper receipts.

7. That subsequently the opposite party registered the student Miss Adrija Mukherjee under Karnataka Admission Authority (KEA) with the registration fee Rs.1,000/- and Miss Adrija Mukherjee attended the Karnataka Admission Authority on 19.07.2018. For the document verification at the last moment and complainant's her husband and daughter had attended the document verification at Maleshwaram, Bangalore and after verification of document the opposite party had also gone to Bangalore and called my husband to meet him where he introduced one person claiming to be a Governing Body Member member of 7 medical colleges of different private colleges at Karnataka.

8. That as per MCI guidelines for Karnataka state date of admission for MBBS course was fixed from 27.08.2018 to 31.08.2018 and accordingly the complainant along with her husband and daughter reached Bangalore on 23.08.2018 to attend Mop-up round fixed on 24.08.2018 as per information given by the Karnataka Admission Authority. The complainant and her daughter attended Mop-up counseling but daughter of the complainant's ranking was not reached as per affordable fee structure. Then on 27.08.2018 the opposite party Sri Nirmalya Nag called my husband at the Park Hotel, Bangalore wherein his another office colleague and his Trustee member was present who assured the complainant about admission in Bangalore at affordable fee structure. As per their assurance the complainant stayed at Bangalore till 02.09.2018 but neither Sri Nirmalya Nag nor his other agents had taken any steps for admission to any medical colleges within 31.08.2018 the ultimate date fixed by the MCI for admission of student in MBBS course at Karnataka state and total admission procedure of all over India has been closed on 31.08.2018. And therefore after losing all faith, hope and with deep anxiety about the future of daughter of the complainant Miss Adrija Mukherjee the complainant left Bangalore on 02.09.2018.

9. That the complainant and her husband repeatedly requested the opposite party either to take necessary steps about admission of their daughter at any medical colleges under Karnataka state or return back the amount paid. The opposite party inspite of false assurances delayed the matter and ultimately after persuasions send four post dated cheques in favour of the complainant dated 24.10.2018, 20.11.2018, 15.12.2018 and 31.12.2018 each amounting to Rs.5,50,000/-, totaling to Rs.22,00,000/- and in a very illegal manner deducted Rs.5,00,000/- claiming to be their service charges. The complainant raised strong objection about the illegal deduction of Rs.5,00,000/- and ultimately the opposite party agreed to return back the said amount of Rs.5,00,000/- after clearance of four cheque amount and if the complainant agreed to admit her daughter either at Nepal or China. The complainant as already lost all faith on the opposite party who violated the terms of agreement, was not interest to admit her daughter either at Nepal or China at it's any medical colleges the complainant did not agree with the proposal and asked for refund the entire amount as the opposite party could not arrange or fail to admit her daughter at any medical colleges at Karnataka.

10. That the complainant as per instruction of the opposite party deposited first cheque for encashment at her bank account at SBI, Belghoria branch on 25.10.2018 but unfortunately the said cheque has been dishonored with the endorsement "Insufficient fund". There after the rest 3 (three) cheques was also dishonored deducting processing from my account. The complainant immediately intimated about the incident to the opposite party and asked for refund by cash but the opposite party assured to pay the money in cash but without any consent or Information from the complainant deposited an amount of Rs.4,50,000/- in the account of the complainant by AUTO-NEFT on different dates like Rs.1,00,000/- on 29.10.2018, Rs.1,00,000/- on 29.10.2018, Rs. 75,000/- on 01.11.2018, Rs. 75,000/- on 09.11.2018, Rs.50,000/- on 24.12.2018 and Rs.50,000/- on 11.01.2019. And thereafter did not pay any amount to the complainant.

11. That the complainant submits that payment of such a huge amount of Rs.27,00,000/- for admission at any medical college at Karnataka has been arranged with great difficulty. Husband of the complainant Sri Anath Bandhu Mukherjee who was a deputy secretary, Higher Education Department, Govt. of West Bengal, retired on 31.10.2017 and the complainant is a Senior Lecturer of Govt. of Teacher's Training Institute under School Education Department, Govt. of West Bengal paid such a huge amount from the retiral benefit of her husband and from her non-refundable advance from GPF account for better future of their daughter but due to unfair trade practice of the opposite party the complainant faced financial hardship and their daughter missed her carrier opportunity.

12. That complainant also submits that initially the opposite party carried their business from the address at Chatterjee International Centre, Suite-A-2, 14th. Floor at 33A, J L Nehru Road, Kolkata-700071 but subsequently the opposite party shifted their address at the present address mentioned in the cause title of this complaint.

13. That the acts and conduct of the opposite party is deceptive in nature. Initially the opposite party allured and assured the students and their parents with lucrative feature about better prospect and future of students in medical course but after receipt of huge amount they did not take any initiative to arrange for admission in the assured medical colleges at Karnataka. The opposite party though admitted their fault and inactive conduct but failed to return back the received amount and in an illegal manner withhold the hard earns money of the complainant which also amounts to gross deficiency in service in the matter.

14. That the complainant is in great hardship as huge amount has been deposited to the opposite party from her husband's retirement benefit and also from non-refundable GPF accounts which was their saving for their rest of life. The opposite party knew that the complainant in a great difficulty arranged money and therefore knowing the hardship of the complainant in a very deceptive manner withhold the money for which the opposite party is liable to refund along with interest @12% p.a. from the date of receipt till payment.

15. That the cause of action of the complaint case arose on 18.07.2018 being the date of execution of agreement for admission of their daughter at any medical colleges at Karnataka, Bangalore and the same is continuing till date as the opposite party failed to admit the daughter of the complainant at any medical colleges at Bangalore and also failed to return back the deposited amount.

16. That it is pertinent to be mentioned that in the agreement dated 18.07.2018 at clause no.5 the opposite party agreed as follows: 'If you are unable to fulfill the criteria's as per the MCI or the respective medical council of the country as well as college norms or if we are unable to do the admission the entire money will be refunded'. And therefore from such terms of agreement the opposite party is liable to refund the entire money paid to them but the opposite party himself violated their own terms and conditions.

17. That the pecuniary value of the instant case is Rs.27,00,000/- being cost of admission charges already paid along with compensation to the tune of Rs. 15,00,000/- for harassment, mental agony and financial loss, total Rs.42,00,000/- and interest @12% against the deposited amount from the date of deposit till payment.

18. That the complainant thus has to come up before the Hon'ble Commission for getting necessary orders to direct the opposite party to pay Rs.27,00,000/- - Rs.4,50,000/- = Rs.22,50,000/- and compensation to the tune of Rs.15,00,000/- for harassment, financial loss and mental agony and interest @12% p.a. against total deposit amount Rs 27,00,000/- from the date of deposit till payment.

19. That the application is bonafide and made for the ends of justice.

It is therefore prayed that your lordship would be graciously pleased to admit this complaint and the complainant prays the following orders:-

a) To directing the opposite party to pay Rs.22,50,000/- being the balance money along with interest @12% p.a. from the date of deposit against total payment Rs.27,00,000/- till payment;

b) to pay compensation to the tune of Rs.15,00,000/- for physical harassment, financial loss and mental agony;

c) to pay punitive damages Rs.5,00,000/- to the State Commission Welfare fund;

d) Rs. 50,000/- for litigation cost;

e) For any other relief or relieves as your Honour may deem fit and proper;

And for this your petitioner as in duty bound shall ever pray”

11.  A perusal of the description in the Complaint indicates that the Complainant herself is a senior lecturer of the Government Teachers Training Institute responsible for training teachers for various Government Institutions. It has also been stated that the husband of the Appellant was also Deputy Secretary, Higher Education Department Government of West Bengal to emphasize that they were well read and were fully informed about the services that were offered by the Appellant.
12. On the strength of such allegations, the Complaint was entertained to which no reply or written version was filed by the Appellant. As a consequence thereof, it is recorded in the impugned order that the matter proceeded ex-parte as no written version had been filed within the time prescribed. The State Commission also noted that IA/589/2019 was filed by the Appellant that was allowed and the Appellant’s Counsel was heard in response to the arguments advanced on behalf of the Complainant.
13. In the backdrop above what is worth noting is that the State Commission came to the Conclusion that a huge amount of Rs.27,00,000/-  had been paid to the Appellant for facilitating the admission of the Complainant’s child and therefore in its considered opinion, the dispute between the parties revolved not around education, rather over the alleged deficiency in service/unfair trade practice on the part of the Appellant and consequently the Complaint was held to be maintainable.
14. It was also observed by the State Commission that since the payments had been extended through cheques issued to the Complainant that were dishonoured, and therefore she had every right to initiate the Complaint.
15. It is unusual to extract impugned orders as they already form part of the record, but in order to maintain the continuity of the narrative, I find it apt to quote the entire impugned order which runs in about 3 pages. The same is extracted for convenience.

“ORDER

Succinctly put, the case of the Complainant remains that, she hired the services of the OP to facilitate the admission of her daughter in a medical college in India.  For this purpose, she, together with her husband, with great difficulty, made an advance payment of Rs. 27,00,000/- to the OP.  As the OP not only reneged on its promise, but insisted on coughing up more money, out of sheer disguise and frustration, she asked it to refund the entire money and after lot of persuasion though the OP issued four cheques worth Rs. 22,00,000/- instead of Rs. 27,00,000/-, the same too got dishonoured. Subsequently, though the OP deposited Rs. 4,50,000/- to her bank account on different dates, the remaining sum still remains unpaid. In such circumstances, she filed the instant case.

Be it mentioned here that, as the OP did not file WV within the statutory period, the case was set ex parte against it.  However, subsequently, it turned up before this Commission and moved one IA bearing No. 589/2019 in order to articulate its version in respect of the complaint of the Complainant.  In such circumstances, relying upon the decision of the Hon’ble Supreme Court in Modula India v. Kamakhya Singh Deo, (1988) 4 SCC 619, we allowed the OP to remain present at the time of hearing and communicative its view before the Bench.  Accordingly, both sides were heard and documents on record gone through carefully.

At the time of hearing, Ld. Advocate for the OP submitted that as per its commitment, the OP arranged for medical entrance examination of the daughter of the Complainant in Karnataka.  However, she failed to secure decent rank in the merit list.  Thereafter, the OP took necessary steps to secure her admission in the medical colleges abroad subject to payment of additional sum of money.  However, the Complainant did not agree to the same and ask for refund of the deposited sum.  So, the OP vide its letter dated 22-09-2018 refunded the money to her.  However, as the cheques got dishonoured, she filed this case. It is further submitted by the Ld. Advocate that due payment was made by Miss Adrija Mukherjee and therefore, the complaint case ought to be filed by her and not by the present Complainant.  It is also submitted that the present dispute being related to ‘education’, is not disputable in this Commission.  Further case of the OP is that, as the Complainant’s daughter failed to secure higher rank in the Karnataka Medical Admission Test, 2018, she needed to pay more donation to get admission in some other medical college.  Claiming that the OP took necessary steps to secure Adrija’s admission in a foreign medical college; which entailed incurring considerable expenditure, the OP decided to refund the residual amount after deducting Rs. 5,00,000/-.  However, the Complainant was adamant to get back the entire sum of money.  Since the Complainant took exception to the fact that the cheques issued by the OP got dishoured, according to the Ld. Advocate, the Complainant needed to initiate proceedings under the N.I. Act before the appropriate Court of Law and not before this Commission.  For all these reasons, he prayed for dismissal of the case.

Undisputedly, the Complainant paid Rs. 27,00,000/- to the OP for facilitating the admission of her daughter in a Medical College in India.  It is not the case of the Complainant that there was any imperfection/shortcoming in rendering education on the part of the OP to the Complainant.  Accordingly, in our considered opinion, the dispute between the parties does not revolve around ‘education’; rather, over alleged deficiency in service and/or unfair trade practice on the part of the OP and for this simple reason, we do not think that by filing this case, the Complainant committed any legal infirmity.

It appears from the photocopies of cheques that the same were issued by the Complainant herself and therefore, she had every right to initiate the complaint case.  The objection raised from the side of the OP is not at all tenable.

The present case is filed alleging unfair trade practice/deficiency in service on the part of the OP.  Complainant has not moved this Commission merely for getting back the amount of dishonoured cheques; she has done so in view of the harassment, mental pain/stress and agony that she and other members of her family has had been subjected to at the hands of the OP. On due consideration of the facts and circumstances of the case, we find that every essential ingredients of a consumer dispute is present here.  Therefore, initiation of this complaint case cannot be termed unwise under any circumstances.

Now, let us delve into the merit of the case.

Clause No. 5 of the agreement dated 18-07-2018 executed between the parties runs as under:

“If you are unable to fulfill the criteria’s as per the MCI or the respective medical council of the country, as well as College norms or if we are unable to do the admission the entire money will be refund.” (sic)   

While the agreement contained such clause, the OP had no right whatsoever to withhold a single penny, let alone the whooping sum of Rs. 5,00,000/-,  from the money advanced by the Complainant as service charge. No such documentary proof is advanced from the end of the OP that the Complainant ever expressed her desire to get her daughter admitted in a Medical College either in China or Nepal.  Therefore, it was totally uncalled for on the part of the OP to proceed an inch in that direction.   

Not only the OP faltered in keeping its promise of securing admission of Complainant’s daughter in a Medical College in India; what is worse, all the cheques issued by it got bounced for want of sufficient fund.  Such unethical business practices cannot be let off lightly. 

The OP though attributed it to the incompetence of the Complainant’s daughter; it conveniently forgot that, had she secured higher rank in the Joint Entrance examination, it would not require her to hire the services of the OP burning a deep hole in Complainant’s pocket.

We were taken aback listening to the harrowing experience of the Complainant, as enumerated by the Ld. Advocate for the Complainant in course of hearing. The Complainant took non-refundable advance from her GPF account and her husband also contributed considerable sum of money from his retiral benefit. Besides the sum of Rs. 27,00,000/- that was paid as advance to the OP, the Complainant had to incur considerable sum of money towards air fare, lodging & boarding at a hotel in Bengaluru for more than a week. Presumably, like any other concerned parents, Complainant and her husband took so much pain and put their life savings at stake in order to christen the future prospect of their daughter.   As ill luck would have it, they fall prey to the sinister designs of the OP instead. The manner, in which the Complainant and her husband were harassed/humiliated, as explained to us by the Ld. Advocate, surpasses all norms of civic decency. They certainly did not deserve all these ordeals.

Considering all these aspects, we have no qualms allowing this case with a cost of Rs. 25,000/-.  OP shall refund the entire sum of Rs. 22,50,000/- to the Complainant along with compensation for a sum of Rs. 10,00,000/- within 40 days from this day, i.d., OP shall be liable to pay simple interest @ 9% p.a. over the sum of Rs. 22,50,000/- for the entire period of default.”   

16. A perusal of the facts above is slightly bewildering but while delving into the depth of the matter there are some documents which also need to be reproduced and are on record.
17. By now it is clear that the Complainant wanted her daughter to be admitted in the medical college in some medical college for which they had also advanced a sum of Rs.27,00,000/-.
18. The first document which deserves mention is the letter dated 18.07.2018 issued by the Appellant to the daughter of the Complainant. The same is extracted hereinunder.

“To,                                                                Date 18/07/2018

Adrija Mukherjee

D/o Sh. Anath Bandhu Mukherjee

Residing at 60/2, Priyanath Middya Road, Kamarhati, Belgharia, North 24, Pgs. West Bengal-70056

Sub: Letter of Agreement

Dear Adrija

This is to inform you that your seat has been confirmed from our end in MBBS 2018-2019. Total package would be Rs.55,73,500 lac’s (Donation Rs.25,00,000 lac'’ and Fees Rs.6.83 lac x 4.5 years.) exclusive of Registration and Hostel (food and lodging) charges.

You paid us Rs.5,00,000/- on 18/07/2018 via cheque. Cheque details State Bank of India vide Chq. No. 361922

Rest of the Donation amount and 1^st year fee need to be paid by August,2018.

Service Charges (non-refundable): Rs.2,00,000/-

Please read the following terms and condition before signing the agreement:

1.         Candidates are required to accept the institute options provided by Infinity.

2.         Candidate must fulfill the basic eligibility criteria given by MCI or DCI or NMC (in case of Nepal)

3. Candidates will have to appear for entrance examination as per notified by Infinity.

4.         In case candidate got selected in any of the entrance examination on his own general merit, the amount deposited for provisional admission will be refunded (excluding service charges)

5. If you are unable to fulfill the criteria’s as per the MCI or the respective medical council of the country, as well as College norms or if we are unable to do the admission the entire money will be refund.

6.         if in case candidate in not qualified in the given entrance examination then the agreement can further be upgraded to other quota (NRI/Management/international) or course or country subjected to the discussion between guardian and the management.

7.         In case of stop payment/dishonored cheques given by the candidates or guardian; Infinity will claim Rs.1 lac as breach of contract.

Wish you all the best for your future.

Best wishes”

19. The narrative of the letter unravels the commencement of an unholy transaction bereft of any legal foundation. This comment is being made with a sense of responsibility as it is no longer Res Integra that admissions in medical colleges are governed by the regulations framed by the then Medical Council Of India, now the Medical Commission, and being monitored by the Supreme Court time and again as well as through various judicial pronouncements through the All India NEET examinations in order to facilitate admissions in Government as well as private medical colleges throughout the country. All such regulations are available online and all judicial pronouncements are also well-known but to mention just some of them reference be had to the decisions in the case of Modern Dental College And Research Centre & Ors Vs. State of Madhya Pradesh & Ors (2016) 7 SCC 353, Sankalp charitable Trust & Anr. Vs. Union of India & Ors. (2016) 7 SCC 487, Medical Council of India Vs. Christian Medical College Vellore Assn. (2016) 4 SCC 342 as well as the decision rendered thereafter in Christian Medical College Vellore Assn. Vs. Union of India & Ors. (2020) 8 SCC 705.
20.  Throwing overboard the mandate of law, the transaction by the Appellant as offered by the letter dated 18.07.2018 raises eyebrows. It demands a package of Rs.55,73,500/- including a donation of Rs.25,00,000/- and a fee of Rs.6.83 lacs for each consecutive year for four and a half years. It also acknowledges the receipt of Rs.5,00,000/- by cheque with a further indication that a non-refundable service charge of Rs.2,00,000/- would also be payable. Clause 3 and 4 of the said letter are also relevant in the background that the Appellant’s Counsel has maintained that the Appellant does not facilitate a guaranteed admission and rather it only counsel’s and extends consultation for the candidates as to how to seek admission. In effect the services of the Appellant according to the learned Counsel are only consultancy services and not for anything further. However, Clause 3 of the said letter states that the candidate will have to appear for Entrance Examination as notified by the Appellant. It is not understood that with NEET in place, what purpose of any Entrance Examination conducted by the Appellant would serve for an admission in a medical college. Surprisingly the very next Clause 4 states that if a candidate gets selected in any of the Entrance Examination on his own general merit then the amount deposited for provisional admission shall be refunded.
21. Going further Clause 5 states that if the candidate is unable to fulfill the criteria as per the Medical Council Norms in India or abroad or if the Appellants are unable to secure the admission the entire money will be refunded. Further promises are made in paragraph 6. The document is signed by Mr. Nirmalya Nag the Director of the Appellant.
22. Then comes the next letter dated 03.08.2018 which is captioned as a letter of agreement and a confirmation of seat allotment. Since this document also makes a very interesting read the same is extracted hereinunder:-

“To,                                                                Date 03/08/2018

Adrija Mukherjee

D/o Sh. Anath Bandhu Mukherjee

Residing at 60/2, Priyanath Middya Road, Kamarhati, Belgharia, North 24, Pgs. West Bengal-70056

Sub: Letter of Agreement

Dear Adrija

This is to inform you that your seat has been confirmed from our end in MBBS 2018-2019.

You paid us Rs.10,00,000/- on 03/08/2018 via cheque. Cheque Chq. No. 820776-PNB-Balgharia; Chq No.361923-SBI Balgharia

Rest of the Donation amount and 1^st year fee need to be paid by August,2018.

Service Charges (non-refundable): Rs.2,00,000/-

Please read the following terms and condition before signing the agreement:

1.         Candidates are required to accept the institute options provided by Infinity.

2.         Candidate must fulfill the basic eligibility criteria given by MCI or DCI

3. Candidates will have to appear for entrance examination as per notified by Infinity.

4.         In case candidate got selected in any of the entrance examination on his own general merit, the amount deposited for provisional admission will be refunded (excluding service charges)

5. If you are unable to fulfill the criteria’s as per the MCI or the respective medical council of the country, as well as College norms or if we are unable to do the admission the entire money will be refund.

6.  If in case candidate in not qualified in the given entrance examination then the agreement can further be upgraded to other quota (NRI/Management/international) or course or country subjected to the discussion between guardian and the management.

Wish you all the best for your future.

Best wishes”

23. A perusal of this letter is yet another feat performed by the Appellant, as, at its own end it confirms an MBBS seat to the candidate. It acknowledges a further receipt of Rs.10,00,000/- by cheque and reiterates the payment of the donation as well as the non-refundable service charges of Rs.2,00,000/-. The conditions entail at item no.1 that the candidates are required to accept the institute options provided by the Appellant. The said document bears the signature of the Director as well as the candidate. The third letter dated 11.08.2018 which is yet another eye opener acknowledges a further receipt of Rs.12,00,000/- and reiterates the terms and conditions referred to earlier. The said document is also countersigned by the candidate.
24. This alluring adventure of the offer made by the Appellant and the response shown by the Complainant not only being remarkable seemed to have ventured into some rough weather and then another letter is dispatched by the Appellant on 22.09.2018 which is extracted hereinuder:

“Subject: Admission status and Full and final settlement

Dear Sir,

This is further to our agreement for your daughter's admission in MBBS for the session 2018-19 in India. Till date you have paid Rs.2700000/- (Rupees Twenty Seven lacs only) for the same. We had committed you to get the seat at certain package which we tried to get in various colleges in South India. But due to sudden increase of the package it seems impossible to get you the seat within your budget. We got various rates from various mediums, but we couldn't rely on any source and couldn't risk your hard earned money. In the mean while, you decided to participate in the counseling and didn't listen to our instruction. On your consent and our wife's recommendation, we processed her admission in Nepal and China also in order to save her precious academic year. We got you admission letter for both China and Nepal. Inspite of all these cooperations and assistance from our side you misbehaved with us over the phone and your attitude and way of approach was not appropriate. Management is too annoyed with this kind of behavior of yours and have decided to initiate your refund process.

As per our observation and research this year, we have found that admission in India is becoming too difficult for a normal family unless the student is having remarkably good marks in NEET or the guardian is having capacity to pay huge tuition fees and donation. The same situation will be carried forwarded next year also, and thus it's advisable to get your child admitted this year in abroad, preferably in Nepal or China. It will not only save your child's precious academic year but also will prevent you and your family from the unnecessary anxiety and uncertainty.

According to the payment schedule as stated, the entire money paid by you would be settled out. The total amount of Rs. 2200000/- (Rupees Twenty Two lacs only) will be sent to you via cheques. An amount of Rs. 200000/- (Rupees Two Lacs only) and Rs. 300000/- ( Rupees Three lacs only) will in deducted as service charge for India and Nepal respectively. The cheques shall be honoured according to the payment schedule covering the said cheques and you are entitled to get refund of said sum only, by deposition of those cheques and not by any other means or modes. However, the deducted amount can be compensated if you wish to go ahead with the admissions in Nepal or China with us.

Regards

Nirmala Nag

Director

Infinity”

25.  Having offered the refund and also admission prospects in Nepal and China, what appears is that the Complainant, feeling dissatisfied, filed the Complaint extracted hereinabove. The averments therein clearly indicate that the Complainant alleges that since the Opposite Party failed to get the daughter of the Complainant admitted at any of the medical colleges at Bangalore or near abouts, and since they failed to refund the deposited amount, therefore the sum of Rs.27,00,000/- should be refunded with Rs.15,00,000/- as compensation for harassment together with 12% interest against the deposited amount from the date of deposit till payment. The Complainant also stated that since a sum of Rs.4,50,000/- had been refunded therefore the amount of Rs.27,00,000/- stands reduced to RS.22,50,000/- and a further Rs.50,000/- has been claimed as litigation cost. The Complaint was filed in January 2019 and therefore is a Complaint under the old Act that is the Consumer Protection Act, 1986.
26. The 1986 Act defines “Service” under Section 2(o) of the Act reproduced hereindunder:-

"2. Definitions:        

         (o) "Service" means service of any description which is made available to potential [users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

27. Further unfair trade practice has been defined under Section 2(r)(1) reproduced hereinunder:-

"2. Definitions:       

          (r) "Unfair Trade Practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely;-

                                                   (1) the practice of making any statement, whether orally or in writing or by visible representation which,-

(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

(ii) falsely represents that the services are of a particular standard, quality or grade;

(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;

(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;

(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;

(vi)makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof:

          Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;

(viii) makes to the public a representation in a form that purports to be-

(i) a warranty or guarantee of a product or of any goods or services; or

(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result,

          if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;

(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or 'are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally. in the relevant market unless it is clearly specified to be .the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;

(x) gives false or misleading facts disparaging the goods, services or trade of another person.

Explanation.-For the purposes of clause (1), a statement that is-

 (a) expressed on an article offered or displayed for sale, or on its wrapper or container; or

(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or

(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;”

28.  The issue to be considered is as to whether the stated consultancy and facilitation services provided by the Appellant for admission in a medical course in the manner it which has been projected by the Appellant and understood by the Opposite Party can be treated to be services that can be lawfully protected. The Appellant submits that these consultancy and facilitating services do not in any way intend or even offer services so as to guarantee admission in a medical course. The services are only to guide admission seekers for the purpose of securing admissions through various resources offered under the scheme of admissions. The contention is that such consultancy is confined only to provide information as to seek guidance in the manner in which the best possible medical seats can be secured.
29. On the other hand the recitals in the Complaint which went uncontroverted before the State Government clearly demonstrate that the hiring of the services of the Appellant by the Complainant was to secure admission which had been promised and had gone to the extent of confirming a seat as is evident from the documents that have been placed on record and extracted hereinabove. It also goes on to offer services to secure admission abroad in China and Nepal. However, the Complainant was insisting on admission in some medical college at Bangalore for which the packages were offered through the letters extracted hereinabove.
30. What is more revealing is the memo of appeal along with the synopsis and the brief facts stated therein. The statement of facts made in the synopsis gives an interesting read and the same is extracted hereinunder:-

          “That the brief facts germane to the filing of the instant Appeal are that the Respondent/Complainant along with her husband approached the Appellant/Opposite party for getting their daughter’s (Ms. Adrija Mukherjee) Admission into MBBS college for the session 2018-19 in India. It is pertinent to mention that the scope of work of the Appellant/Opposite Party was to prepare the daughter of the Respondent/Complainant for the medical entrance examination and to get admission in medical college in Southern India. It is submitted that the Respondent/Complainant paid a total sum of RS.27,00,000/- to the Appellant/Opposite Party. It is pertinent to mention that as per the letter of agreement issued in the name of Adrija Mukherjee it has been clearly mentioned that Rs.2,00,000 is charged towards service charge which is non-refundable.

          That daughter of the Respondent/Complainant failed to secure requisite marks in the entrance examination. The Appellant/Opposite party made efforts to get daughter of the Respondent/Complainant in any medical college in South India but due to lower marks and increased rates of donation all the efforts failed.

          That the Appellant/Opposite Party informed the Respondent/Complainant about the increased market rate and advised to proceed with admission in Nepal and China. It is submitted that initially the Respondent/Complainant agreed to the new offer however later for reasons best known to her, the Respondent/Complainant started misbehaving and seeking for refund. The Respondent/Complainant in an entirely illegal and unlawful manner sought for refund of the entire amount paid to the Appellant/Opposite Party without any deduction whatsoever.

          That the Appellant/Opposite Party agreed to refund the amount paid by the Respondent/Complainant after deducting an amount of Rs. 5,00,000/- towards service charge. The Appellant/Opposite Party has already paid Rs. 5,00,000/- to the Respondent/Complainant and is ready and willing to pay the remaining amount with a deduction of Rs. 5,00,000/- towards the service charge. However, the Respondent/Complainant is not ready to accept the payment.”

31.  Coming to the narration of brief facts in paragraph 3 of memo of appeal, it is evident that in Paragraph 3(i) the scope of work of the Appellant has been explained as preparing the candidate for medical entrance examination “and to get admission in Southern India”. This is followed by the admission of receiving Rs.27,00,000/- and also the letter of agreement that has been extracted hereinabove.
32. It is then stated in Paragraph 3(ii) that the candidate failed to secure requisite marks in the entrance examination and therefore due to her lower marks the Appellant in spite of best efforts could not get her admitted which was also due to increased rates of donation. In Paragraph 3(iii) and (iv) the following averments have been made.

“iii)     That the Appellant/Opposite informed Party the Respondent/Complainant about the increased market rate and advised to proceed with admission in Nepal and China. It is submitted that initially the Respondent/Complainant agreed to the new offer however later for reasons best known to her, the Respondent/Complainant started misbehaving and seeking for refund. The Respondent/Complainant in an entirely illegal and unlawful manner sought for refund of the entire amount paid to the Appellant/Opposite Party without any deduction whatsoever. A copy of the letter dated 22.09.2018 issued by the Appellant/Opposite Party is annexed as Annexure –C.

iv)      That the Appellant/Opposite Party agreed to refund the amount paid by the Respondent/Complainant after deducting an amount of Rs. 5,00,000/- towards service charge. The Appellant/Opposite Party has already paid Rs. 5,00,000/- to the Respondent/Complainant and is ready and willing to pay the remaining amount with a deduction of Rs. 5,00,000/- towards the service charge. However, the Respondent/Complainant is not ready to accept the payment.”

33.  One of the grounds taken by the Appellant is that in view of the orders of this Commission in the case of M.J.P. Rohailkhand University & Anr. vs Ravindra Kumar Jaiswal (2019) 1 CPR 695, education is not a commodity and therefore outside the purview of the Consumer Protection Act 1986. The maintainability of the Complaint has also been raised as an issue. Suffice to say that in the present case, even though medical education seems to have been treated by both the parties as a saleable commodity, yet this Commission needs to decide as to whether such a commodity can at all be entertained for adjudication. Under the Consumer Protection Act or for that matter before any other Forum.
34. It has also been pointed out that since the candidate had scored only 263/720 marks in NEET 2018 and since her All India NEET Rank was 235991, it was impossible to get her admitted in any college in South India.
35. The Appellant also took a plea that since the Appellant had offered to refund the entire amount, there was no occasion for the State Commission to have proceeded further. There was neither any deficiency nor any unfair trade practice could be established and hence the order dated 31.10.2019 deserves to be set aside.
36. The State Commission has recorded that the Appellants somehow returned a sum of Rs.4,50,000/- by directly depositing in the Bank Account of the Complainant and then held that this was an unfair trade practice therefore the Complaint was maintainable. It was also held that the dispute did not revolve around education and was rather concerning the alleged deficiency in service by the Appellant that violated Clause 5 of the agreement dated 18.07.2018.  It was also held that the Complainant had never expressed any desire to get her daughter admitted in China or Nepal which recitals in the communication by the Appellant were unwarranted but the Appellant faltered in keeping in view its promise of securing admission of the Complainant’s daughter in a medical college in India. The State Commission also came to the Conclusion that the conduct of the Appellant was unethical as all the cheques that had been issued earlier for refund had bounced which cannot be taken lightly. This amounted to burning a deep hole in the Complainant’s pocket.
37.  The State Commission also noted that the Complainant had taken an unrefundable advance from her GPF Account and her husband had also contributed a considerable sum of his retiral benefits coupled with the expenses borne by them in traveling to Bangalore suffering humiliation and harassment. Consequently, Rs.25,000/- costs were awarded with a compensation of Rs.10,00,000/- and the direction for refund of the balance of Rs.22,50,000/-. In the event of default, interest at 9% would be payable till the date of actual payment.
38.  Mr. Ray learned Counsel for the Complainant urged that the manner in which the Appellant dealt with the Complainant, even though has refunded the balance amount Rs.22,50,000/-, during this period, the compensation awarded to the tune of Rs.10,00,000/- which has been deposited with this Commission has been rightly awarded by the State Commission together with the costs imposed. Mr. Ray further submits that even otherwise observations should be made so that no entity in future like the Appellant is able to dupe people at large in the name of securing admissions.
39. Having heard learned Counsel for the parties, one of the primary concerns that needs to be addressed is as to whether the Complaint is in respect of the subject matter of education so as to exclude its maintainability. From the averments made in the Complaint and in this appeal, even though the target was getting an admission in a medical course yet the nature of the services was nether relating to a genuine admission in a medical course nor any bonafide effort towards any educational pursuit.
40. The attempt of the candidate was to seek admission through the services of the Appellant throwing overboard all rules and regulations pertaining to medical admissions that are regulated and governed by rules and regulations framed by the Medical Council of India/ now the Medical Commission of India and the various judicial orders passed from time to time as referred to above. Learned Counsel for the Appellant as well as the Opposite Party/Complainant have failed to demonstrate as to how the activity of the Complainant for facilitating a medical course admission was protected or was authorized under any law through the Appellant. To the Contrary it appears that the entire exercise by both the parties was an unlawful attempt of negotiating through the alleged consultancy and facilitation services of the Appellant for getting admission either in Southern India, or as indicated in the pleadings, in China or Nepal. There is nothing on record to indicate that any institution of China or Nepal or any of the Governments of these two countries have sought the services of the Appellant for facilitating admissions in any medical colleges in the two countries. Thus, this entire activity camouflaged as a facilitation service was clearly deceptive and unlawful. Any offer made or promise by the Appellant invited through the advertisements or the letters on record do not appear to be either a lawful offer or promise and consequently any act or omission of the Complainant in furtherance of the said offer made by the Appellant, cannot be said to be a lawful act of acceptance.
41.  It needs to be pointed out that even under the Indian Contract Act 1878 it is only an agreement enforceable in law which is recognized as a contract. The agreement between the parties in the present case can in no way be defined or be comprehended as a lawful activity. The securing of admissions in medical courses cannot be facilitated or guaranteed or offered by a private agency like the Appellant which has no authority in law to do so. The letters extracted hereinabove leave no room for doubt that the Appellant realized money promising admissions through donations which is nothing else but a capitation fee that has been held to be unlawful in the various pronouncements of the Apex Court referred to above. It is for this reason that regulating methods have been adopted by the MCI/Medical Commission as per the guidelines laid by the Apex Court in which there is no room for any private player to introduce itself as a consultant or facilitator for securing admissions in medical colleges. The overt and covert acts of the Appellant as is evident from the documents on record were clearly designed to offer a confirmed admission against a seat in a medical course not only in Southern India but even abroad in Nepal and China. It is surprising as to how the Complainant who is a well ordained teacher in a Government College and her husband who was a Deputy Secretary in the Education Department of West Bengal, reposed faith and confidence and also seem to have offered their hard earned money to the Appellant for securing such admission. The Complainant is no laywoman, and understandably an attempt was made to secure an admission through a conscious intendment to have a medical course seat for the candidate. It was neither coincidence nor was it an undisclosed sort of transaction that can be inferred from the conscious efforts made by both sides to come together for the purpose of admission in a medical course. 
42.  The Complainant cannot be said to be ignorant of the rules and regulations of the NEET Exams regulating admissions as her daughter appeared as a candidate in the 2018 Exams. In spite of this to negotiate with the appellant for securing admission was to attain a benefit which was otherwise almost impossible to achieve. The Appellant and the Complainant commenced their journey for a destiny that was nothing short of an assured disappointment for the Complainant and may be a ladder for unjust enrichment for the Appellant.
43. As observed above, the very offer of securing the benefit of admission in a medical course is in teeth of all regulations, provisions as well as the pronouncements of the Apex Court that govern the process of medical admissions through NEET. The entire exercise and the activity undertaken by the Appellant as sought to be availed of by the Complainant seeking admission in a medical course is sheer indulgence for an unlawful benefit. There is no legal sanctity for such a transaction. The Appellant was clearly negotiating with the Complainant a shady deal for which a huge amount of money was demanded and almost half of it was paid by the Complainant. The same stands certified and verified by the admitted position that the entire principal amount of Rs.27,00,000/- has uptil now been already returned to the Complainant. The transaction itself being not lawful, the claim of deficiency in services of such an activity cannot be a matter of receiving judicial or adjudicatory approval either by this Commission or even by any Court of law established under the authority of the Constitution and the laws framed thereunder. The Complainant did not have either any legal or fundamental right to enforce in order to seek an admission in a medical course through such means. The services to be availed cannot be founded on some act or omission, as in the present case, which is illegal and unlawful on the part of both transacting parties. The State Commission does not appear to have reflected on this aspect of the matter. In my humble opinion, the attempt was an invitation to a gamble and the hope expressed by the complainant was a mere speculation that was not supported by law. The activity for getting an admission in a medical course evidenced by the documents and the admitted transaction of money could not have been subject matter of a consumer complaint on the ground of deficiency of service or an unfairness in a recognized trade practice. To the Contrary the entire transaction was unfair from inception and the Consumer Forum was invited to pronounce on the same. The forum is not a destination for obtaining a confimatory seal for this sort of adventurous legal picnic.
44. In my opinion, the State Commission should have carefully treaded these waters, as at first flush it does appear that the Complainant was duped, but on deeper considerations it is evident that the complainant and her husband who are well-educated and well-placed in life should not have allowed themselves to have opted for such speculative journey, which is now clearly established as an attempt that was aimed at securing admission in a medical course through dubious methods.
45. In the opinion of this Commission, in the absence of any enforceable legal right or obligation, there was no element of any cause much less a deficiency in service so as to maintain a consumer complaint by the Complainant. The entire design of the whole transaction was based on deception and deceit by the Appellant and coupled by an ill advised attempt by the Complainant. Consequently, the provisions of the 1986 Act could not have been invoked for putting a seal to such a transaction.
46. Nonetheless, it is evident that the entire principal amount transacted has been returned to the Complainant but that does not absolve the Appellant as the activity was unlawful. It was open to the Complainant to have availed of any other remedy if available in law, but certainly not a consumer complaint before a Consumer Forum. This was not a case of any deficiency as understood in law and to the contrary was a completely misguided invoking of the due process of law.
47.  It is evident that the Complaint was not maintainable yet what has transpired clearly demonstrates that legal forums are being utilized for confirming such dubious transactions as well.
48. Section 14 of the 1986 Act gives indicators as to what findings can be recorded by the Forum in respect of any deficiency of services if proved and it includes under Clause 14(1)(f) as follows:

"14. Finding of the District Forum.                   

              (1)(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;”

49. And then also to provide for corrective measures in order to neutralize the impact of any misleading misrepresentation and to provide adequate costs to parties.
50.  In this scenario, in order to undertake any corrective measures let a copy of this order be dispatched to the Medical Commission of India for information. A copy of the same be also dispatched to the Secretary, Department of Consumer Affairs, Government of India for perusal and information to be forwarded to the concerned government authorities including State Governments so that necessary steps may be taken by the Competent authorities in future for preventing such speculative entrepreneurship by organizations like the Appellant.
51. This is a piquant situation where allowing of the Appeal is likely to send an incorrect message of creating an untenable precedent and at the same time if the Appeal is dismissed, the same may amount to recognizing the availability of the Consumer Forum for such reliefs.
52.  Accordingly, it is held in view of what has been reasoned out hereinabove, that the Complaint itself was not maintainable and hence the relief granted by the State Commission in an incompetent Complaint cannot be sustained. It is therefore held that the Complaint for the cause pleaded was not entertainable nor any relief be granted by the State Commission. However the refund of Rs.27 lacs received by the Complainant shall not be affected by this order.
53. At the same time, under directions of this Commission, the amount of Rs.10,00,000/- which was awarded as compensation to the Complainant cannot be released in her favour in the background above where the Complainant was also sailing in the same boat. The Complainant should therefore be satisfied with the return of their amount which they had tendered to the Appellant and thank her stars for it. The costs of Rs.25,000/- awarded to the Complainant is set aside.
54. Therefore, the amount of Rs.10,00,000/- deposited before this Commission is withheld and directed to be retained in the Consumer Welfare Fund Account under the Consumer Protection Act and be accordingly remitted to the Central Government as per the rules framed under the Act for being utilized for Consumer Welfare. With the aforesaid observations and directions, the order of the State Commission stands modified with no further relief to the Complainant or the Appellant.
54. The appeal stands disposed off accordingly. Cost on parties.