Rajendra Singh, Member.Aggrieved by the Judgment and order passed by the Ld. DCDRF, Mathura , dated 04.07.2015 in complaint case No.303 of 2012, the appellant has preferred the instant appeal under section 15 of the Consumer Protection Act 1986 on the ground that the impugned judgment and order dated 04.07.2015 was passed in an illegal , unjust and arbitrary manner, because the present matter does not fall within the ambit of the Consumer Protection Act.The operative portion of the judgment and order dated 4.7.2015 is reproduced as follow :-“LANGUAGE”In short the Appellants’ case is that, that the present appeal is being filed against the impugned ex parte judgment dated 04.07.2015 passed by the Learned District Forum, Mathura, by which the complaint filed by the respondent/complainant was allowed. The respondent/ complainant filed a false and fictitious complaint case before the Learned District Consumer Forum, Mathura, against the appellants with the allegations that the respondent/complainant took admission in B.Tech (Computer Science) in June, 2011 for the academic session of 2011 – 2012 and deposited fee of Rs. 10,000/– and Rs. 35,000/–, total amount of Rs. 45,000/– but due to certain reasons in September 2011, the respondent/complainant withdrew his admission and demanded his fee back on which the appellant institution refunded only Rs. 10,000/– and withheld Rs. 35,000/–.The notices of the complaint case were never served upon the appellant and without ascertaining the proper service, the learned DCF proceeded ex parte against the appellants and the version/defence of the appellants could not come in the knowledge of the learned DCF. The true and correct facts are that, that the appellant Institute is duly affiliated with Mahamaya Technical University, Noida and the Rules and Regulations of UP Technical University are binding upon the Appellant’s Institute. In June 2011 the respondent/complainant took the admission for the course of B.Tech (Computer Sciences) for the academic session of 2011 – 12 and deposited the fee of Rs. 10,000 on 19 June 2011 and Rs. 35,000 on 27 June 2011 for first semester. The classes were started in July 2011 and the respondent/complainant participated in the study. As per rules the appellant is duty bound to send the list of their students to UPTU. The respondent/complainant participated in the studies and in the month of September 2011 the respondent/ complainant gave application for withdrawal of their admission due to family problem and after considering the application , a sum of Rs. 10,000 was refunded which was duly received by the respondent/ complainant without any protest. There is no deficiency or negligence on the part of the appellant’s Institute rather due to withdraw of admission the appellant’s Institute suffered huge financial loss since they could not take further admission against the vacant seat as per norms of UPTU.The allegations of the respondent/complainant are false and baseless and imaginary and it appears that to give colour, false allegations are alleged. Affiliation and recognition is given by UPTU after fulfilment of necessary conditions and the major part of the fee of the students is to be deposited in the account of UPTU and the UPTU is the governing body of the appellant Institute and no such complaint was ever lodged by any of the candidates.As per the various verdicts of the Hon’ble Supreme Court of India such matters are not cognizable under the provisions of Consumer Protection Act and the learned DCF without considering this fact passed the impugned judgment. The ex parte judgment was passed on 04.07.2015 but it was never communicated by the learned DCF As per the Provisions of Consumer Protection Act and thereafter the Execution Case number 27/2015 was filed by the respondent/complainant and the notice of the Execution Case was served in the second week of November 2016. The appellant appointed their counsel who appeared on 16th November 2016 before the learned DCF and gave an application and obtained the necessary information regarding the ex parte judgment. Thereafter the counsel obtained the first free certified copy of the ex parte judgment which was issued on 7th January 2017 to the appellant. It appears that the learned District Forum without considering the true and correct facts of the case, on the oral averments of the respondent/complainant which was not supported by any documentary proof, passed the impugned orders against the appellants and allowed the complaint in most arbitrary manner and directed to the appellants for refund of Rs. 35,000/– and also awarded a sum of Rs. 5000/– as the cost without any justification as such the impugned ex parte order under this appeal is patently illegal, arbitrary, bad and therefore is liable to be quashed.The main grounds for appeal are that the respondent/ complainant had concealed material facts in the complaint and did not approach the learned forum with the clean hands as such the case of the complainant was liable to be dismissed with costs. The appellant institution is very reputed educational institute and duly recognised by the UPTU as such the appellant Institute is duty bound to follow the norms and rules and regulations of UPTU.The complaint case of respondent/complainant under the provisions of the Consumer Protection Act is not maintainable and it does not fall within the ambit of the Consumer Protection Act and as such it is not maintainable. There is no negligence on the part of the appellant Institute and as such the present appeal is liable to be allowed. The notices of the case were never served upon the appellants and without ascertaining the proper service the learned DCF proceeded ex parte as such true and correct facts could not come in the knowledge of the learned DCF. The learned District Forum passed the impugned orders on the oral averments of the respondent/complainant without verifying the correctness of averments of the respondent/complainant and passed the impugned orders as such the orders are liable to be set aside. The Learned District Forum without ascertaining the documentary evidence relied upon the oral arguments and held appellants guilty without any justification and reasons. The impugned order of the Learned District Forum is illegal, arbitrary, discriminatory, magnified and bad in the eyes of law. The impugned ex parte orders of the Learned District Forum is not tenable in the eyes of law. The Learned Forum exercised jurisdiction illegally and committed material irregularity and the impugned orders are based on conjectures and surmises as such is liable to be set aside.The Respondent has submitted in his objection that the present appeal has been filed on the wrong facts. The appellant took admission in the respondent’s Institute on 16 September 2011 in B.Tech (Computer Science) and on the same day his father deposited Rs. 10,000 with the appellant’s Institute and took time for depositing rest amount of Rs. 35,000 for which he was given one week time. The respondent has taken fee for his admission therefore he is consumer of respondent. The rest amount of Rs. 35,000 has been deposited by respondent’s father on 26 June 2011 with the office of the appellant and the appellant has given an assurance that there is hostel in Agra for the students. The breakfast and lunch will be provided there and the Institute bus will bring the students for which minimum amount will be charged from the students. On 4 September 2011 the respondent came to the Institute of appellant at Farah with his father and his father talked about the hostel but he was told that the hostel in Agra has been given to the girls and now the respondent will have to stay in the temporary hostel situated behind the Institute at Farah. When the respondent came to know about this fact, he became very upset. On 7 September 2011 the respondent went to the office of appellant with his father and submitted an application for cancelling his admission and asked to refund the fee Rs. 4500, the appellant has given an assurance that after debiting process fee of Rs. 2000 – 2500/–, rest fee shall be refunded. When the fee was not refunded by 28 September 2011, the respondent with his father and grand father and advocate Vidyaram reached the appellant office and moved an application for the refund of the fee but the appellant did not refund the fee on the date but gave assurance to refund. After that the fee was not refunded and only assurance was given. On third October 2011 the appellant gave a cheque of Rs. 10,000 while earlier it was said that a cheque of Rs. 20,000/– will be given. For refund of the rest amount the respondent and his father met the appellant on first number 2011, he was asked to contact appellant number one but appellant number one switched his phone off. After this the respondent again with his father and grandfather went to the appellant’s other Institute at Sanjay Place, Agra and tried to contact the appellant but he did not talk with them. The respondent and his father suffered a lot by this attitude. After this the respondent and his father again met with the appellant for the refund of his rest amount Rs. 35,000 but the appellant refused to refund the amount. By this act of appellant the respondent and his guardians suffered mental agony and they spent huge amount in travelling.At last the respondent sent a notice to the appellant on 10 July 2012 and 31 July 2012 by registered post for refunding his rest fee amount but the appellant did not respond to any notice and also did not refund the fee. After this respondent/complainant filed the petition before the District Consumer Forum, Mathura through his counsel. The District Forum, Mathura sent registered notice to the appellant many times but the appellant did not appear before the district Forum intentionally and also did not file the written statement. At last on 4 July 2015, the District Forum, Mathura delivered the questioned judgment/order. The appellant tried his best to stop/differ the execution proceeding of the said judgment/order of the District Forum. They also tried to enter into a compromise but later on the matter did not materialize. Thereafter the appellant preferred the present appeal before this Commission. This appeal has been filed at a delayed stage and is liable to be dismissed. No reason has been shown by the appellant for presenting the appeal as such a delayed stage.The District Consumer Forum has passed the judgment/order after going through the oral and documentary evidence filed by the respondent/complainant and it cannot be said ex-parte. There is no error in the said judgment. After the said judgment/order, the appellant did not either contact the respondent or return the rest amount of the fee. This appeal has not been filed with clean hands and the object of this appeal is not to refund the money of the respondent. The Respondent got the notice of this appeal on 6 September 2017 and as he was to move some other place for his work, he sent his reply through registered post. The present appeal is liable to be dismissed and the said judgment/order of the Consumer Forum, Mathura dated 04.07.2015 is liable to be upheld.We have seen and went through the pleadings evidences and documents filed by the parties. The Learned District Forum/Commission, Mathura vide its judgement/order dated 04.07.2015, directed the opposite party to pay Rs. 35,000/– with 9% simple interest per annum from the date of filing of this complaint, within 45 days. The opposite party was also directed to pay Rs. 5000/– mental agony and Rs. 2500/– cost of the suit .We have seen the registration form dated 19.06.2011 of Vipul Dixit and also seen the fee receipt dated 19.06.2011 which is of Rs. 10,000/– and another fee receipt of Rs. 3,500.00 dated 27.6.2011.We have seen the judgment and order of the ld. District Commission.The learned District Commission has stated that opposite parties were served but they did not appear and hence, the case was proceeded exparte against them on 23.2.2013.The main question is that, that the respondent/complainant was assured to provide the hostel but later on it was not provided. For this reason, it was not possible for the respondent to continue with his studies and he applied for refund of his fees.Before the ld. District Commission the complainant in his affidavit dated 16.4.2013 has stated that he deposited Rs.35,000.00 to the opposite parties/appellant on their assurance that a suitable hostel with fooding and lodging will be provided in Agra and also a vehicle will be provided for transportation of the hostel to residents to and fro.The ld. District Commission decreed the complaint exparte against the opposite parties/appellants and directed them to pay Rs.35,000.00 with 9% simple interest from the date of filing the complaint till date of payment and also granted Rs.5,000.00 for mental agony land Rs.2,500.000 for cost.Aggrieved by this order this, appeal has been preferred by the appellant.The appellants’ main version is that this matter is between the student and institution regarding their studies. The appellants filed a judgment of the Hon’ble NCDRC which is as follows:I(2020) CPJ 210 (NC), Manu Solanki & ors. vs. Vinayaka Mission University and alongwith this petition and number of petitions of such nature were decided by the Hon’ble NCDRC on 20.1.2020.The Hon’ble NCDRC has said that education is not a commodity and they are not providing any kind of service, therefore, in the matter of admission, fees etc there can not be a question of deficiency of service. Post admission and having attended college for some period of time if student leaves college within his own volition and seat falls vacant, which may or may not be filled by another candidate, fees can not be refundable as issue of is of ‘post admission’ and student had left seat ‘during course of imparting education’. Any defect/deficiency in conferring of a degree/diploma, marks, certificates which may arise ‘during course of imparting of education does not fall within purview of Consumer Protection Act.Further Hon’ble NCDRC also said that school buses are vehicle hired by institutions and in most schools is made compulsory with prescribed fees including cost of transportation. Any defect or deficiency in transporting children to school does fall within definition of ‘imparting knowledge’ and consumer Fora has no jurisdiction to entertain such complaint arising out of these issues.Hon’ble Supreme Court vide its order dated 15.10.2020 admitted Civil Appeal Diary No.(s) 12901/2020 an appeal filed by Manu Solanki & ors. vs. Vinayaka Mission University & ors. against the said judgment and order of Hon’ble NCDRC dated 20.1.2020. Hon’ble Supreme Court has said that:“Delay condoned.Since there are divergent views of this Court bearing on the subject as to whether an education institution or University would be subject to the provisions of the Consumer Protection Act, 1986, the appeal would require admission.Admit.Mr. Soumyajit, learned counsel appearing on behalf of the caveator, states that the counter affidavit would be filed within six weeks from today.Service on the second proforma respondent is dispensed with.The Supreme Court has agreed to examine the question as to whether an educational institution or university can be sued under the consumer protection law for deficiency in services, saying there have been “divergent views” of the top court on the issue.It asked lawyer Soumyajit, appearing on behalf of caveator university, to file the response within six weeks to the appeal filed against a decision of the National Consumer Disputes Redressal Commission (NCDRC).”Thus, it is clear that this verdict of the Hon’ble NCDRC is not final and an appeal has already been filed before the Hon’ble Supreme Court which has been already admitted for hearing.Now, we come to the point of exparte judgment. The ld. District Commission has specifically written in its judgment that the notice has been issued to opposite parties and has been served on them but they did not appear, clearly indicates that even after the knowledge of complaint case before the ld. District Commission, the opposite parties did not appear intentionally and now they say that they had no knowledge of the said complaint and they came to know about it when an execution case no.27 of 2015 was filed by the respondent/ complainant and notice of the execution case was served upon them in second week of November, 2016. Thereafter, they appointed their counsel and got the first free certified copy of exparte judgment on 7.1.2017.The present appeal has been filed with delay and the appellants have moved an application dated 10.3.2017 for condonation of delay which has not yet been disposed of.We have perused the
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application for condonation of delay alongwith affidavit of Shailendra Agarwal.He has written in his affidavit that free certified copy of the impugned judgment and order was received by the local counsel of the deponent on 7.1.2017 who advised to file the present appeal. The Deponent requested to his counsel to prepare the appeal and made arrangement to file it but the local counsel was reluctant to perform his duties and as and when the deponent contacted him he gave reply that he is preparing the appeal. At last, in the last week of February, 2017 the deponent took certified copy of the impugned order and contacted the present counsel, who demanded certain documents which were not available at that time, so the deponent came back to Mathura and again contacted his local counsel and after collecting the documents, he came to Lucknow on 8.3.2017 and got the appeal prepared. In these circumstances, there is a delay of 33 days. It has already been discussed that as per judgment of ld. District Commission the opposite parties/appellants were served but they did not appear before the ld. District Commission. It shows that the appellants had full knowledge of the complaint case pending in the ld. District Commission but he did not put his appearance. Again, he filed appeal after prescribed period.In the facts and circumstances discussed above, we find no ground in appeal as it is delayed, appellant did not present themselves before the District Commission in spite of service of notice and the assurance given to the students for the hostel and at last, pending appeal before the Hon’ble Supreme Court, we are of the view that this appeal has no force and is liable to be dismissed.ORDERAppeal is dismissed. The judgment and order of the District Commission passed in complaint case no.303 of 2012 dated 4.7.2015 is up held.Cost of appeal on the parties.