IN THE HIGH COURT OF DELHI AT NEW DELHI
  
  
  
  FAO 490/2011
  
  
  
  FIITJEE LTD ..... Appellant
  
  Through: Mr. V.D. Costa, Adv.
  
  
  
  
versus
  
  
  
  DN KOCHHAR ..... Respondent
  
  Through: Mr. Dushyant K. Mahant, Adv.
  
  
  
  CORAM:
  
   HON'BLE MR. JUSTICE KAILASH GAMBHIR
  
  
  
   O R D E R
  
   21.11.2011
  
  
  
  CM No.20951/2011
  
  
  
  Allowed, subject to all just exceptions.
  
  
  
  Caveat 1034/2011
  
  
  
  
  Since there is due representation on behalf of the Caveator, notice of caveat stands discharged.
  
  FAO No.490/2011
  
  By way of this appeal filed under Section 37 of the Arbitration and
  Conciliation Act, 1996, the appellant seeks to challenge the order dated
  26.8.2011, whereby the learned Additional District Judge has remitted the
  Award to the learned Arbitrator to decide the proportionate amount of fee
  to be refunded to the petitioner, respondent herein, in the light of the
  law laid down in the decisions referred in the said order. Feeling
  aggrieved with the said order, the appellant has preferred the present
  appeal. While arguing the present appeal, Mr. V.D. Costa, leaned counsel
  appearing for the appellant, submits that after the passing of the said
  judgment, the National Commission, in the matter of FIIT JEE Ltd. ?vs-
  Minathi Rath (Dr.), 2007(1) CPC 113 and certain other cases, has taken a
  view that the fee for the First Year will not be refunded and it is only
  for the remaining part of the duration of the course fee can be refunded.
  Learned counsel further submits that the National Commission, while
  applying the said decision, has placed reliance on the decision of the
  Apex court in the case of Islamic Academy of Education ?vs- State of
  Karnataka, 2003(6) SCC 697. Mr.Dushyant K. Mahant, learned counsel
  representing the respondent on Caveat, has strongly opposed the present
  appeal. Learned counsel submits that the appellant is a coaching
  institute and the ratio of the decision, on which learned counsel for the
  appellant has placed reliance, will not be attracted to the facts of the
  present case and the respondent would be entitled to the refund of the
  proportionate fee, as held by the learned Trial Court.
  
  I have heard learned counsel for the parties.
  
  Having considered the arguments on behalf of learned counsel for
  the appellant, one position that clearly emerges is that the appellant is
  no more disputing the fact that any condition in an agreement or
  declaration form can be challenged on the ground that such a condition in
  the agreement is unconscionable and is hit by Section 23 of the Indian
  Contract Act, 1872 besides being in violation of the principles of public
  policy, as envisaged in Section 28 of the Arbitration and Conciliation Act,
  1996. However, the controversy, which has been mainly canvassed before
  this Court, is that the appellant has no liability to pay proportionate
  fee amount to the student, as for no reason, he has voluntarily withdrawn
  from the coaching course. Learned counsel has also taken a position that
  in view of certain recent decisions, the student would not be entitled to
  the refund of the proportionate fee. This position taken by learned
  counsel for the appellant is strongly refuted by learned counsel for the
  respondent who states that the legal position is otherwise, at least in
  respect of the institutes who are only giving coaching classes and are
  not governed by any centralized institutes of education. Be that as it
  may, this Court feels that the matter deserves to be remanded back to the
  learned Arbitrator, as already directed by the learned Additional
  District Judge. However, the learned Arbitrator will be free to take an
  independent view to direct refund of the fee amount, based on the latest
  
  legal position. Parties, through their counsel, shall render effective assistance to the learned Arbitrator. The learned Arbitrator, in his
  Award, shall discuss the latest legal position in his order.
  
  With the above directions, the appeal is disposed of.
  
  
  
  KAILASH GAMBHIR,J
  
  NOVEMBER 21, 2011
  
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