N. ARJUNAN vs DEAN, MERIT SWISS ASIAN SCHOOL OF HOTEL MANAGEMENT

-THE complainants are the appellants herein. THE complainants have laid the complaint pleading as follows: THE second complainant is the son of the first complainant. THE first complainant admitted his son, the second complainant, in the course run by the opposite party known as Hotel Management Course. A sum of Rs. 30,000/- was paid as Registration Fees at the time of admission along with a sum of Rs. 27,000/- as term fees and Rs. 7,000/- as uniform fees and Rs. 250/- as fine, totalling Rs. 73,500/-. THE complainant thereafter paid another sum of Rs. 57,000/- on 29.12.1997 for the second term. THE 1st complainant''s son, the second complainant, had to enter on medical leave before paying the amount and, therefore, he could not attend the college even for a day during the second term commencing from January, 1998. THE first complainant''s son had to thus discontinue his studies. THE local guardian of the second complainant wrote several letters to the opposite party requesting for the refund of Rs. 57,000/- paid in advance for the second term. On 2.3.1998 the 1st complainant was shocked to receive a letter from the opposite party stating that he must pay the fees for all the three yeas, otherwise his certificate will not be returned. THE 2nd complainant has given his original mark sheets of the 10th and 12th standard as well as the conduct certificate and transfer certificate issued by the school at the time of admission in the opposite party. THE opposite party is now refusing to return the certificates stating that unless the amounts are paid, the certificate will not be returned. THE original certificates are necessary for the second complainant to pursue his studies in any other institution of his choice as advised by the doctor. On account of the complainant''s inability to get back the original certificates, the complainants are put to much mental hardship. THE complainants issued a legal notice to the opposite party. Instead of complying with the same, the opposite party replied claiming Rs. 1 lakh as a condition precedent for giving the certificates. THE opposite party had failed to render service. THEy have acted in a negligent manner and their conduct is unbecoming of an institution and amounts to unfair trade practice. THErefore, the complaint was laid.

THE opposite party contended that even at the time of admission it had been stated clearly that fees once paid cannot be refunded under any circumstances and in case of any discontinuance. THE application has been duly signed by the student as well as the parent/guardian. THE registration fee of Rs. 30,000/- has been remitted by the student and in turn the opposite party remitted the entire registration fees of Rs. 1,68,000/- for and on behalf of the student for the various diplomas and degrees. THE amount is collected from the student in instalments over a period of three years. THE allegation that the second complainant had to enter on medical leave is not admitted. THE complainants having specifically agreed to pay the complete fees prescribed for the rest of the period till the third years in the event of discontinuance, have no right to insist return of the amount paid. It is true that a letter was written on 2.3.1998 demanding the entire fees for three years and the said demand is legal and valid. THE complainants are under obligations to pay the entire fees. THE complainants are estopped from demanding the return of the amount paid. THE complainants were directed to go over to the office of the opposite party before returning the certificates. THE opposite party never refused to return the original marks sheets of 10th and 12th standard, conduct certificate and transfer certificate. When a student discontinues, the seat goes vacant for the remaining year resulting in financial loss of more than Rs. 5 lakh to the opposite party. Though the opposite party was well within right to refuse to return the certificates, however, took a lenient and sympatheic consideration and offered to return the same if the student remits the balance of Rs. 1 lakh. THE other allegations in the complaint are denied. The lower Forum dismissed the complaint without costs stating that the Forum has no jurisdiction. Hence, the present appeal.

The complainant was admitted in the college run by the opposite party in Hotel Management Courts. It is not disputed that he paid a sum of Rs. 73,500/- at the time of admission. The breakup of the same being Rs. 30,000/- towards registration fees, Rs. 27,000/- as term fees, Rs. 7,000/- as uniform fees and Rs. 250/- as fine and thus totalling to Rs. 73,500/-. Further for the second term, Rs. 57,000/- were paid by the complainants on 29.12.1997. Of Rs. 57,000/-, Rs. 30,000/- represented the registration fees and Rs. 27,000/- towards the term fees. The complainant was unable to pursue the studies, which, according to the second complainant, is on account of his ill-health. The complainants, therefore, while informing about the inability of the student to continue, have asked for only the return of Rs. 57,000/- paid as fees in advance for the second term. It is not disputed that the second complainant did not even attend a day the course during the second term. It is also not disputed that at the time of admission, the original certificates such as 10th, 12th marks sheets, conduct certificate and transfer certificates, were handed over by the second complainant to the opposite party and are being retained by them. In such circumstances, the first complainant issued a notice through his lawyer on 4.9.1998 stating that as the second complainant could not pursue his studies owing to his health problem and had not attended even for a day during the second term, they have requested the opposite party to return the sum of Rs. 57,000/- paid for the second term and also return of all the original certificates. The opposite party has replied stating that the complainants have to remit the balance of Rs. 1 lakh and only on receipt of Rs. 1 lakh, the certificates can be collected. Ex. A is the brochure or the prospectus issued by the opposite party. It is stated that the college is approved by All India Council for Technical Education, a statutory body of the Government of India. It also mentions the structure of course. It refers to the nature of education and training and the admission procedure. It further says that the fees indicated in the enclosure have to be paid on or before the due dates failing which the students will not be permitted to attend the class and fees once paid will not be refunded and that the Management reserves the right to modify the fees structure without prior intimation. The opposite party, therefore, relying upon this would submit that the fees once paid cannot be refunded. The fees structure mentions about the nature of the fees to be paid. It also says that if the fees is not paid on 31st of May, 31st of October and 31st of December, fine of Rs. 250/- per day delay is imposed and fee could be paid with fine within 15 days thereafter. On the 16th day, it is assumed that the student has discontinued the course without intimation. It also provides that the students who wish to discontinue the course or who are dismissed on disciplinary grounds have to pay the complete fee prescribed for the rest of the period till the third year of the course.

NOW it has to be seen whether the opposite parties is justified in insisting upon a payment of Rs. 1 lakh and refusing to part with the original certificates submitted by the second complainant and whether they are bound to refund the fees paid for the 2nd term. The National Commission has held in 2000 (3) CPR 49 (NC), that imparting of education by an educational institution for consideration falls within the ambit of service as defined under the Consumer Protection Act. In view of the above decision of the National Commission, the finding of the Lower Forum that the complainants are not consumers and this Forum has no jurisdiction to try the case cannot be held to be correct in law. Here owing to the reasons beyond his control, the second complainant could not pursue his studies. He definitely did the first term and, therefore, he was prepared and was anxious to study the second term as well and the fees were paid in advance. But on account of his ill-health, he could not prosecute his studies further with the result that he declared his intention well in advance. NOW he is only claiming the refund of the fees paid by him in advance viz. Rs. 57,000/- and the return of the originals produced by him. It is no doubt true that both in the brochure (prospectus) as well as in the fees structure, it is stated that fees paid cannot be refunded. What we find in this case is that a definite stand in para 4 was taken by the opposite party. The opposite party has taken the stand that at the time of obtaining the application, it was clearly agreed that the fees once paid is not refundable under any circumstances and in case of any discontinuance of the course, the complete fees has to be remitted for the rest of the period till the third year and the application was duly signed by the student as well as the parent/guardian. Therefore, the opposite party only relies upon the application form signed by the complainants which contains such a term. Therefore, whatever that is stated in the brochure or in the fees structure pamphlets or prospectus, by whatever name we call it, can hardly be relevant because it is stated that there has been a specific agreement in writing in the application form where it is specifically mentioned that the fees cannot be refunded. But for the reasons best known to the opposite party, they have not chosen to produce the said application form. Further if one is to go by what is stated in the prospectus, it is stated that there is an approval by All India Council for Technical Education for the course. But no such approval is now produced before the Court. Therefore, when the opposite party takes the definite stand in their version that there is a written contract between the parties in the shape of application form signed by the second complainant/guardian binding themselves to a contract to the effect that under no circumstances the fees would be returned and when they have failed to substantiate the stand by producing the necessary document which is in their custody, the only conclusion that would follow is that there is no such material and, therefore, it is that the opposite party has not produced the same. Thus it is clear that there is no written agreement between the parties forbidding the complainants from seeking the refund of the fees paid. In such circumstances, what is stated in the prospectus cannot take the form of contract between the parties. It is at best an information and nothing more. The decision relied on by the lower Forum reported in 1998 (1) CPR 111, is not applicable to the facts of this case since it is a matter where the student of 10th standard failed to appear in the examination and was granted only about 3 days time before the starting of examination. Hence on facts it is thoroughly a different case. The other decisions reported in III (1998) CPJ 339, is a case where the complainant''s son undertook to pay the remaining fee within a month and was given time to produce original certificate. But he attended the classes for about three months and requested for refund of part fee as original certificates could not be produced. Hence in such circumstances it was held that there was no deficiency in service. Similarly the decision relied upon in I (1998) CPJ 229, 1997 (3) CPR 527, 1996 (1) CPR 269 and III (1999) CPJ 339, are all cases which arise on different sets of facts. Those cases can hardly be made applicable to the case on hand where the facts are quite different. Here, there is yet another circumstance to be pointed out. Even assuming that the opposite party has got the right to insist upon the payment of lakh of rupees or entitled to say that the amount paid cannot be refunded, there is no justification at all for them to hold back the original certificates with them. That amounts to clear blackmail. They are acting like shylocks. One can understand their anxiety if they confine themselves to stating that they are not in a position to refund the amount already paid. But one can never understand or appreciate the logic behind their stand that they cannot refund and return the original certificates unless the amount is paid. That amounts nothing but a blackmail pure and simple and a brazen act of arm twisting. They cannot assume any such lien. It is horrendous. The institution which is founded to impart education should become so mean as to stick to such a stand would itself show that the motto of the institution is not to impart education but to make hay while the sun is shining. It is nearly an ignorable act on the part of the opposite party to stoop to such level to refuse to hand over the documents/certificates of original thereby jeopardizing the future of the young man. One can appreciate if they had offered to return the certificates and later on requested them to pay the amounts due. But to insist upon a payment of Rs. 1 lakh with a rider that otherwise the originals will not be returned is the most unkindest cut of all. Therefore, we are unable to agree with that conclusion of the lower Forum when it held that there is no deficiency in service. There is definitely a deficiency in service and an unfair trade practice. Section 2 of the Consumer Protection Act while defining service makes it clear that it engulfs service of any description. While defining ''deficiency'', it mentions any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force. "Unfair trade practice" is described as 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.

A reading of the facts of this case would show that the second complainant joined the institution run by the opposite party and paid the necessary fees. As held by the National Commission in a decision reported in 2000 (3) CPR 49 (NC) (supra), imparting of education by the educational institution for consideration falls within the ambit of service as defined under Consumer Protection Act. The opposite party also published a brochure/prospectus stating that it got the approval of All India Council for Technical Education. This is a false representation expressed in an article offered or displayed and circulated to the public and thus an unfair trade practice has been committed. Without any justification or without any valid reason and without any authority, the opposite party has refused to return the original certificates submitted by the second complainant and which are now in the custody of the opposite party and when demanded by the complainants. It amounts to deceptive practices and a blackmailing action for which the opposite party is squarely responsible. Coming to the question of refund of the amount, statement made in the brochure/prospectus will not amount to a concluded contract between the parties, more so, when the opposite party has taken a specific stand that there is such a clause in the application form and which has been accepted and signed by the second complainant and the guardian of the second complainant. Therefore, when it is stated that on the basis of such a written contract between the parties, they are not bound to refund the amount and when the steps are not taken by the opposite party to produce that evidence, it follows that they are bound to refund the sum of Rs. 57,000/-, more so, when the complainant has not even attended a single day in the second term and could not continue owing to his ill-health which fact has been duly and properly had been intimated to the opposite party by the complainants. The opposite party cannot put pistol at the head of the complainants to stifle them from claiming back the original submitted by the second complainant. Therefore, in such circumstances, we are satisfied that it is a fit case where the order of the lower Forum has to be set aside. We hold that there is deficiency in service, unfair trade practice and deceptive practice as well on the part of the opposite party and, therefore, they are bound to pay compensation to the complainants accordingly. In the view we have taken, it follows that the opposite party is liable to refund the sum of Rs. 57,000/-. As regards the sum of Rs. 50,000/- claimed towards mental agony, the act of the opposite party in retaining the originals and refusing to part with the same thereby putting the future of the young man at stake would have definitely caused the greatest of agony and, therefore, in such circumstances, we hold that a sum of Rs. 25,000/- if awarded as compensation for mental agony would meet the ends of justice. It also becomes necessary to direct the opposite party to return the original marks sheets of 10th and 12th standard, the original transfer certificate and the original conduct certificate relating to the second complainant, A. Ratnagar and which are in their custody. In the circumstances, we also direct the opposite party to pay a cost of Rs. 2,500/- to the complainant.

IN the result, the appeal is allowed reversing the order passed by the Lower Forum. A direction is issued to the opposite party to refund the sum of Rs. 57,000/- along with a sum of Rs. 25,000/- as compensation for mental agony and Rs. 2,500/- towards costs. The opposite party is also directed to return the original marks sheets of 10th and 12th standard, the original transfer certificate and the original conduct certificate submitted by the second complainant. Time for compliance: Two months. Appeal allowed.