PER JUSTICE SHAM SUNDER, PRESIDENT This appeal is directed against the order dated 23.9.2011, passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint and directed Opposite Party No.2 as under ; “Hence, we allow the complaint and direct Opposite Party No.2 to refund the entire amount of fee of Rs.45,980/- after deducting Rs.1000/- i.e. Rs.44,980/- as per the AICTE guidelines. We further burdened Opposite Party No.2 with a consolidated amount of compensation of Rs.10,000/- alongwith Rs.5000/- as costs of litigation. This order be complied with by Opposite Party No.2 within 30 days from the date of receipt of its certified copy, failing which, Opposite Party No.2 shall be liable to pay an interest @ 18% p.a. on the total decretal amount of Rs.59,980/- that stands against him after completion of 30 days, besides the cost of litigation. ” 2. The complainant (now respondent No.1), took admission in the institute of Opposite Parties No.1 & 2 (now appellants) on 1.6.2009, before the actual date of starting the academic session 2009-10 in B.Tech(IT) Course, and deposited a sum of Rs.45,980/-, vide receipt annexure C-1, towards fee. He also obtained the prospectus from Opposite Parties No.1 & 2 at Chandigarh, including the application form. Thereafter, the complainant was successful in getting admission in M.M. Engineering College, Mulana, in B.Tech (Computer Science & Engg.)Ist year Course. He deposited the fee. Roll number was issued to him by the institute. Thereafter, the complainant alongwith his father approached Opposite Parties No.1 & 2, to seek refund of the fees deposited by him. Opposite Parties No.1 & 2 flatly refused to refund the fee. They, however, were rude with the complainant, and his father, and also used abusive words. It was stated that by not refunding the fee, Opposite Party No.2, violated the guidelines annexure C5 of All India Council for Technical Education(for short hereinafter to be called as AICTE). When the fee was not refunded, a legal notice, was served upon the Opposite Parties, but no response was received. It was stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no other alternative, he filed the complaint under Section 12 of the Act. 3. Opposite Party NO.2, put in appearance, and filed written reply, stating therein, that the complaint was not maintainable, as the District Forum, at Chandigarh, had no jurisdiction to entertain and try the aforesaid complaint, as Opposite Party No.1 institute, is situated at Banur, Tehsil Rajpura, District Patiala. It was further stated that the complaint was barred by the act and conduct of the complainant. It was admitted that the complainant took admission in Opposite Party No.1 Institute. It was also admitted that he deposited fee, as mentioned in the complaint. It was, however, stated that the AICTE guidelines, were not applicable to the case of the complainant, as he got admission, in the management quota, and not through centralized counseling. It was further stated that after the complainant left the seat, in the Institute of Opposite Parties No.1 & 2, the same remained vacant for the whole session. It was denied that the complainant and his father met Opposite Party No.2, and he misbehaved with them and used abusive words. It was further stated that initially, the complainant took admission in IT stream. Thereafter he requested for being considered in CSE Course, for which, he moved an application annexure R1. It was further stated that, since the complainant left the institute of Opposite Parties No.1 & 2 of his own accord, and the seat vacated by him, remained vacant, they (Opposite Parties No.1 & 2) were not liable to refund the fee, as they suffered a financial loss, on account of such action of the complainant. It was denied that Opposite Parties No.1 & 2 were deficient, in rendering service, and indulged into unfair trade practice. The remaining averments, were denied, being wrong. 4. Opposite Parties No.1 & 3 were duly served, but they preferred to remain absent, and, accordingly, they were proceeded against ex parte, vide orders dated 9.4.2010 and 9.7.2010 respectively. 5. The parties led evidence, in support of their case. 6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, held that the complainant left the Course, in which, he took admission in the Institute of Opposite Parties No.1 & 2 and after about 1 ½ months of taking the admission he applied for the refund of fees. The District Forum also held that Opposite Party No.2 failed to lead any cogent evidence that the complainant attended the classes or occupied the hostel even for a day and that the seat vacated by him remained vacant. The District Forum, thus, came to the conclusion that since the complainant left the Course in the institute of Opposite Parties No.1 & 2, before the start of the same, Opposite Party No.2 was deficient, in rendering service by not refunding the fee, after deduction of Rs.1,000/-. 6A Ultimately, the complaint was accepted, in the manner, referred to, in the opening para of the instant order, by the District Forum. 7. Feeling aggrieved, the instant appeal, was filed by the appellants/ Opposite Parties No.1 & 2. 8. Alongwith the appeal, an application for condonation of delay of 51 days, in filing the same (appeal) was moved, on the grounds, that the District Forum decided the case on 23.9.2011 and copy of the same was despatched, which was received, in the office of applicant/appellant No.1 on 5.10.2011. It was stated that there was family partition, amongst the partners of the Institute and someone refused to accept the registered A.D., on the ground that the office of the Opposite Parties did not exist any more at the original place and it had been shifted to the College premises. It was further stated that the copy of the order was again received in the office of Opposite Party NO.1, Banur, on 26.10.2011. It was further stated that, due to that reason, the delay of 51 days, in filing the appeal, occurred. It was further stated that the delay was neither intentional, nor willful. 9. We have heard the Counsel for the applicants/appellants, and have gone through the record of the case, carefully. 10. The Counsel for the appellants, submitted that, no doubt, admission was taken by the complainant, in their institute, in the academic session for the year 2009-10 in B.Tech (IT) Course and deposited Rs.45980/-, vide receipt C1. He further submitted that the complainant obtained admission against management quota and not through centralized counseling, and, as such, the AICTE guidelines were not applicable to his case. He further submitted that the seat, which was vacated by the complainant, remained vacant throughout , as a result whereof, financial loss was caused to the appellants. He further submitted that the complainant was not entitled to the refund of fee. He further submitted that the District Forum was wrong, in accepting the complaint. He further submitted that the order the District Forum, being illegal, is liable to be set aside. 11. First coming to the application, for condonation of delay, it is to be decided, as to whether, there is sufficient cause for condonation of the same(delay). The mere fact that there was alleged family partition amongst the partners, and the office was being shifted, did not constitute a valid ground for not accepting copy of the order, which was sent through registered acknowledgement due cover. No document was placed, on record, that any family partition amongst the partners was being effected. The name of the person, who refused to accept the registered A.D cover, containing copy of the order, on 5.10.11 was also not mentioned. It was held inSmt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court held as under ; “No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.” 12. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under; “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 bonafides 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.” 13. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicants/appellants, have been able to establish that it was, on account of the circumstances, beyond their control, that they could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. The cause, set up by the applicants/appellants, in the application, for condonation of delay, could not be said to be such, as was beyond their control, which prevented them, from filing the appeal in time. The delay, in filing the appeal was, thus, intentional and deliberate. There was complete inaction and lack of bonafides on the part of the applicants/appellants, in filing the appeal in time. The applicants/appellants failed to establish any sufficient cause, in filing the appeal in time. Since, no sufficient cause is constituted, from the averments , contained in the application, the delay of 51 cannot be condoned. The application is, thus, liable to be dismissed. 14. Coming to the merits of appeal, it may be stated here, that undisputedly, the complainant took admission, in the Institute of the appellants in B.Tech (IT) Course, for the academic session 2009-10 and deposited fee of Rs.45980/-. In para-5 of the complaint, it was stated by the complainant, that he handed over the application dated 17.9.2009 annexure C6, to Opposite Party NO.2, for the refund of fee before the counseling session was over. He also stated, in this para, that he did not attend the classes even for a day. In para No.5, on merits of the reply, Opposite Party No.2, admitted that the application for refund of fees on 17.9.2009 was moved by the complainant and that he did not attend the Course/Classes even for a single day. The record, regarding the attendance of the students, in relation to the Course, in question, was available with the Opposite Parties. They could produce the true copies of the attendance register of the students, in respect of the Course, in which the complainant took admission. They, however, did not produce the same. Only R3, a photocopy of the document, which does not bear the signatures of anybody was produced. It is not supported by an affidavit of the official, who prepared the same, that it was correct in all respects, on the basis of original record. Under these circumstances, the District Forum was right, in holding that R3, photocopy of the document, did not depict the clear picture, regarding the number of seats in various Courses, the candidates admitted to the same, the candidates who left the same midway ; and how many seats remained vacant. Had an affidavit of the person, who prepared this document, to vouchsafe with regard to the authenticity of the same, been produced, the matter would have been different. It means that the Opposite parties intentionally and deliberately withheld the material record, from the District Forum. Under these circumstances, the version, which was set up by the complainant, in para NO.5 of the complaint, and was admitted by Opposite Party No.2, in the written statement, was rightly accepted by the District Forum. The District Forum was right, in holding, that the complainant withdrew from the Course, before the start of the same, and, as such, was entitled to the refund of fee, as per the guidelines annexure R2 of AICTE. The findings of the District Forum, in this regard, being correct are affirmed. 15. No doubt, the Counsel for the appellants, submitted that, these guidelines were not applicable to the case of the complainant, because he got admission, in the management quota, and not through centralized counseling. The perusal of R2, does not reveal that the guidelines contained therein, were only applicable to the students, who obtained admission in the Institute, through centralized counseling, and not against the management quota. Had this been the position, clarification, in this regard, must have been made in R2 by AICTE. In this view of the matter, the submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected. 16. No other point, was urged by the Counsel for the appellants. 17. The order impugned, rendered by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. The same deserves to be upheld. 18. For the reasons recorded above, the application for condonation of delay is dismissed, and, consequently, the appeal, being barred by time and on merits, is also dismissed, at the preliminary stage, with no order as to costs. 19. Certified Copies of this order be sent to the parties, free of charge. 20. The file be consigned to the Record Room.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
