IN THE HIGH COURT OF DELHI AT NEW DELHI
FIITJEE LTD ..... Appellant
Through: Mr. V.D. Costa, Adv.
DN KOCHHAR ..... Respondent
Through: Mr. Dushyant K. Mahant, Adv.
HON'BLE MR. JUSTICE KAILASH GAMBHIR
O R D E R
Allowed, subject to all just exceptions.
Since there is due representation on behalf of the Caveator, notice of caveat stands discharged.
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.
NOVEMBER 21, 2011