The relevant facts, as seen from the record, are that the revision petitioner/B.S. Anangpuria Institute of Technology & Management (hereinafter referred to as the Institute) had admitted the respondent complainant to MCA (First Year) Course on 7.9.2009. A week later, on 15.9.2009, the complainant opted out of the course. The Institute refunded Rs. 20,640/- out of the total of Rs. 55,640/- received from the complainant. In the consumer complaint filed with District Consumer Disputes Redressal Forum, Faridabad, the complainant sought refund of the balance amount of Rs. 35,000/- together with 18% interest and Rs.50,000/- as compensation.
2. The District Forum allowed the complaint holding that the Institute was entitled to retain only 25% of the total fee charged i.e. Rs. 13,910/- only. The order of the District Forum has been confirmed by the Haryana State Consumer Disputes Redressal Commission in First Appeal No. 509 of 2012.
3. We have heard Mr. K.P. Sundar Rao, Advocate for the revision petitioner and Mr. Ajit Kumar Pande, Advocate for the respondent/complainant. We have also carefully perused the records produced on behalf of the parties.
4. It has been very strongly urged by Mr. K.P. Sundar Rao that the last date for admission to this Course being 10.09.2009, there was no opportunity for the Institute to fill up the seat vacated by the complainant on 15.09.2009. Hence, the complainant was not eligible for any refund. He further pointed out that in all 37 candidates were admitted to this course. After withdrawal by the Complainant/respondent, only 36 had remained to take the examination at the end of the academic session.
5. We find that the above question has been addressed by the State Commission in the impugned order. The Commission has observed—
“On our asking, learned counsel for the appellant has miserably failed to produce on record any document showing that after withdrawal of the admission by the complainant, his seat was remained vacant. In this regard we find strength from the case titled “G.G.S. Indraprastha University Vs. Viabhav, reported in 2010 (1) CPC 142” wherein it has been observed by the Hon’ble National Commission that in case it is proved that seat of the complainant remained vacant, in that event university is not entitled to refund any fees to the complainant. The ration of the Viabhav case (supra) is fully applicable to the facts and circumstances of the case.”
6. However, the above observation appears to be in direct conflict with the written response of the petitioner/OP before the District Forum. In para 5 the written response clearly states that: “It is also submitted that there is clear cut provision in the admission brochure that after the final cut of date the refund application will not be entertained and since the complainant submitted his application for cancellation of his admission only on 15.9.2009 i.e. after the final cut of date of 10.9.2009 as fixed by the admission making authority i.e. Haryana State Counseling Society and one seat in MCA Course fell vacant and it was not filled because of the facts that the last cut of date was already over on 10.9.2009 and this seat is still lying vacant and will remain vacant for all the three years i.e. duration of MCA Course and it is also submitted that the Hon’ble Supreme Court of India has held that the in such like cases, where the student may leave in mid-stream, the Institute may require such student to give a bond/bank guarantee that the balance fee for the whole course would be received by the Institute even if the student left the student in mid-stream.”
7. In the light of this categorical position taken by the RP/OP before the District Forum, the finding of the State Commission on the question whether the seat vacated by the Complainant had remained vacant, becomes factually incorrect and cannot be sustained. Therefore, the matter is remanded back to the State Commission for fresh consideration and decision on the basis of the pleadings, evidence and records before the fora below. | 
