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The Director, Apeejay Institute of Technology AIT School of Management & Computer Science v/s Prashant Bhat

    Revision Petition No. 2269 of 2008
    Decided On, 16 January 2015
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. JUSTICE K.S. CHAUDHARI
    By, PRESIDING MEMBER
    For the Petitioner: H.L. Tiku, Sr. Advocate With K.P.S. Rao, Subhankar Sengupta, Advocates. For the Respondent: Exparte.


Judgment Text
1. This revision petition has been filed by the petitioner against the impugned order dated 03.05.2007 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in Appeal No. 2225 / 2001, 'Apeejay Institute of Management versus Prashant Bhatt' by which appeal was partly allowed.

2. Brief facts of the case are that complainant / respondent in July 2009 submitted application for admission in MCA Course of opposite party / petitioner which was to start in August 2000 and deposited Rs.1,50,000/-. He was given admission as a provisional student with the condition that fee can be increased. On talking opposite party, opposite party assured that admission would be finalised by 1.08.2000 and he was asked to attend classes. Complainant attended classes from 01.08.2000 to 21.08.2000 but opposite party did not make his admission final. Complainant’s father vide letter dated 28.08.2000 requested opposite party to refund fee. Opposite party sent cheque of Rs. 8,000/- towards caution money only. Alleging deficiency in service, complainant filed complaint before District Forum. OP resisted the complaint and submitted that as per prospectus, except caution money, no other amount was refundable because the seat falling vacant would remain vacant for the whole year. It was further submitted that complainant’s father had given undertaking that if his son wants to withdraw from the Institute at any stage he is ready to forego all payments of fees etc. It was further submitted that admission was not given provisional but only fees was provisional subject to increase / decrease as per the Government guidelines and prayed for dismissal of complaint.

3. Learned District Forum after hearing both the parties allowed complaint and directed opposite party to refund Rs. 1,42,000/- with interest @12% p.a. and further allowed Rs.1,000/- as litigation cost. Appeal filed by the opposite party was partly allowed by learned State Commission and order of District Forum was modified and opposite party was directed to refund Rs.1,42,000/- after deducting tuition fees for one month against which this revision petition has been filed along withcondonation of delay.

4. None appeared on behalf of the respondent even after service and he was proceeded exparte.

5. Heard learned counsel for petitioner and perused record.

6. Learned counsel for petitioner submitted that there was no delay in filing revision petition but as abundant caution application for condonation of delay was filed. He submitted that free copy was received on 09.05.2008 and revision petition has been filed on 26.05.2008 which is well in time.

7. Learned counsel for petitioner submitted that complainant fabricated fee receipt and fees deposited by him was not refundable even then learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal, to this extent hence revision petition be allowed and impugned order be set aside.

8. Perusal of record reveals that complainant filed copy of fee receipt showing word ‘Provisional’ at the top whereas document at page 126 which was tallied by me with carbon copy of the receipt book, there was no ‘provisional’ word. Thus, it become clear that complainant inserted word ‘provisional’ on the top of receipt to show that his admission was provisional whereas actually his admission was not provisional at all but fee was deposited subject to increase, which fact has clearly been mentioned on the top of receipt, i.e., ‘subject to increase in fees’.

9. Learned counsel for petitioner placed reliance on judgment of Hon’ble Apex Court in '(1996) 5 SCC 550 Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd.', in which it was observed as under:-

'In smith v. East ElloeRural Distt.Council the House of Lords held that the effect of fraud would normally be to vitiate any act or order. In another case, Lazarus Estates Ltd. v. Beasley (QB at p. 712), Denning, L.J. Said:

'No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything'

10. As complainant has pleaded wrongly that his admission was provisional and fabricated fee receipt by inserting word ‘provisional’ on the top, on the basis of which learned District Forum allowed complaint and learned State Commission upheld order, is liable to set aside in the light of aforesaid judgment.

11. Learned counsel for petitioner further submitted that complainant’s father himself moved application to opposite party and expressed that due to unavoidable circumstances, he was not in a position to continue the studies of his son and, therefore, requested to refund the amount deposited with the Institute. Complainant’s father at the time of admission gave undertaking, which read as under:-

'In case my ward withdraws at any stage of the programme, I am prepared to forego all payments of fee/security and undertake to pay additional fee for the remaining part of the programme to make up the loss caused to the College / Institution by my withdrawal for remaining part of the programme.'

12. By this undertaking, complainant’s father agreed to forego all payment of fee on withdrawal of his son at any stage. Complainant was not withdrawn on the ground of deficient services by the opposite party but was withdrawn voluntarily due to unavoidable circumstances and in such circumstances, complainant was not entitled to refund of Rs.1,42,000/- as allowed by District Forum. This Commission in similar circumstances in 'RP No. 3508 of 2007 Apeejay Institute of Management vs. Shri Prashant Ashok' allowed revision petition and dismissed complaint for refund of fees.

13. In the light of aforesaid discussion and judgment of this Commission it can

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be held that learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal to the extent of refund of Rs.1,42,000/- and revision petition is to be allowed. 14.Consequently, revision petition filed by the petitioner is allowed and impugned order dated 03.05.2007 passed by State Commission in appeal No. 2225 of 2001 'Apeejay Institute of Technology vs. Prashant Bhatt' and order of District Forum dated 22.08.2001 passed in complaint No. 52/2001 'Prashant Bhatt vs. The Director, Apeejay Institute of Technology' are set aside and complaint stands dismissed with no order as to costs.
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