DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.202/15

Mr. Yunus S/o Mr. Liyakat Ali

R/o House No.3777

Jawahar Colony

NIT Faridabad.                                                               .…Complainant

                                                VERSUS

Fashionista

The School of Fashion Technology

C-102/103, Ist Floor, Ansal Plaza

Khelgaon Marg, New Delhi.

Through its MD Mrs. Neetu Pavan Manikatalia

Fashionista

The School of Fashion Technology

2^nd Floor, SCR-43, Sector-15 Main Market

Faridabad. 

Manikatalia Education Pvt. Ltd.

C-102/103 Ist Floor, Ansal Plaza

Khelgaon Marg, New Delhi.

Through its MD/Director/Authorised Signatory.           ….Opposite Parties

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Date of Institution:31.07.2015

Date of Order       : 18.05.2023

Member: Shri U.K.Tyagi

Complainant has requested to pass an award directing the M/s Fashionista at Ansal Plaza, Fashionista at Faridabad and Manikataliya Education Pvt. Ltd. (hereinafter referred to as OP-1 to OP-3 respectively) (i) to refund an amount of Rs.1,74,084/- alongwith interest @24% from the date of payment (ii) to pay Rs.5,00,000/- as compensation towards mental agony etc.; (iii) Rs. 11,000/- as litigation expenses etc.

Brief facts of the case are as under:-

          The complainant, upon believing the facts of approval of Govt. for the institute and have legal and validity to run the courses and the said institute was well-equipped with Studio, Laboratories, Library and also having well-qualified staff, got admission for MA FD for two year course.  The course fee was told Rs.2,00,000/-.  Accordingly, he paid Rs.39,826/- on 20.12.2012 vide receipt No.5522 and further paid Rs.16,293/- on 14.01.2013 vide receipt No.5571.  The complainant further alleged that he was shocked to see the institute as nothing was available.  He was assured by Incharge of Centre that the work was in progress. 

          Believing his words, the complainant started attending the classes and paid the further monthly fee as under:-

OPs failed to provide the necessary facilities such as library, studio, laboratories etc. and had wasted valuable period of complainant.  As such, OPs had usurped the hard earned money of the complainant. The OPs had also violated the UGC guidelines.  The complainant also got the legal notice dated 03.03.2015 served on the OPs. Despite this, OPs also failed to refund the amount of Rs.1,70,084/-.  The complainant thought it a waste of time in the absence of facilities and left the course.

          OPs on the other hand, submitted their replies stating that OP-1 & OP-2 are the one and same. They alongwith OP-3 are responsible for running the School of fashion Technology, Fashionista.  The School offers various programme and courses in Fashion Design, Textile Design and Interior Design.  The overall success of the institute is evident from exemplary student testimonials/reviews which are enclosed here as Annexures R-2 (Colly).

          The complainant had opted for two year certificate course in Fashion Designing for the period 2012-14.  The application Form clearly stipulates that Fees is non-refundable and certificate would be awarded only on successful completion of Course.  The same is enclosed as Annexure R-4.  The complainant voluntarily sought admission.  He also requested for additional registration with Mahatma Gandhi University for additional degree.  Later on, he showed his unwillingness to continue with MGU. The application and discontinuance letter are attached as Annexure R-6.

          The Institute wrote e-mail to complainant for attending the class and to pay his fees.  The complainant sent a letter apologising for his absence due to ‘Eid’   festivities and rain. The Institute also sent email requesting his parents to meet as complainant continued to skip his class and also did not clear all his examinations.  Various emails were sent to him. The complainant resumed the class and completed the course syllabus.   The complainant completed his earlier examinations.  But he failed to appear in final examinations held in March, 2014.  He was granted one opportunity for re-examination on 17.04.2014, thereafter the letter dated 30.04.2014 was sent to appear for re-examination in order to complete his course.  True copies of email and letter dated 17.04.2014, 29.04.2014 and 30.04.2014 are enclosed as Annexure R-12.  Again e-mail dated 05.04.2014 was sent asking him to prepare himself for forthcoming examination.  The complainant did not even appear for final examination and misbehaved with staff and teachers.  He continued to pressurise the Institute to give Certificate otherwise he shall ruin the reputation of the Institute. The Institute Lodged a complaint/FIR No.223 dated 21.08.2014 at PS Defence Colony.  The copy of FIR is enclosed at R-15.  The said FIR find mention of Younus Malik alongwith Neeraj Paul against whom the complaint/FIR was lodged.  It is further alleged that the complainant had attended classes and same is reflected in Faculty Log Book maintained by the Institute.  The same is enclosed as Annexure R-16.  The instant complaint is nothing but a counter blast to FIR registered by Institute against complainant.

          The OPs have denied the fee of Rs.2,00,000/- as contended in its averment by the complainant.  It is further exphasised that no case is made out by the complainant whatsoever for damages/compensation.

          Both the parties have filed written submissions and evidence in affidavit. Written statements are on record so is rejoinder.  Oral arguments  were heard and concluded.

          This Commission has gone into the entire material placed on record.  Due consideration was given to the arguments.  It is noticed that complainant had deposited the fees for the course of many months together.  After some time, he did not deposit the fees despite reminder from the Institute.  One of the allegations of the complainant for not pursuing the course was that the Institute is not equipped with necessary facilities such as library, Laboratories, Studio etc. which were assured at the time of admission.  He was disillusioned only after attending the classes for many months. He attended the classes in 2^nd year also but did not appear final examination despite many opportunities to re-appear in the said examination were provided.  Secondly, the complainant alleged that the courses are being run contrary to the guidelines of UGC and directions of various Hon’ble High Courts.  This Commission also looked into the prospectus Fashionista placed before us, nowhere, the Institute had mentioned that the prog./courses are approved by UGC.  The Institute also placed the copy of Faculty Log Book at Annexure R-16, indicating that complainant had been attending the classes in these two years.

          The complainant is clearly barred by the “Doctrine of Election” as complainant had voluntarily accepted the facilities and services of Institute.  It is trite that a party cannot approbate and reprobate at the same time and is bound by the doctrine of election.  The Apex Court in Karom Kapahi Vs. Lal Chand Public Charitable Trust (2010)4 SCC 753 shed light on this doctrine and its applicability in the instant case:-

          “The doctrine of election is not however confined to instruments.  A person cannot say at time that a transaction valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid and then turn round and say it is void for purpose of securing some other advantage.  That is to approbate and reprobate the transaction.”

          The said doctrine has been discussed extensively in Landmark judgment of Apex Court in R.N. Gosain Vs. Yash Pal Dhir (1992) 4SCC683

“Law does not permit a person to both approbate and reprobate.  This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that “as person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.” [See: Verschures Creameries Ltd. V. Hull and Netherlands steamship Co. Ltd., (1921) 2 R.B. 608, at Pg.612, Scrutton, L.J].  According to Halbury’s Laws of England, 4^th Edn., Vol. 16, “after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside.” (para 1508)”

          The OPs also referred the case of National Consumer Disputes Redressal Commission in Brilliant Classes Vs. Ashbel Sam (2010) NCDRC 25.

          The complainant had also mentioned the catena of judgments.  The facts of these judgments are different with the contents of instant case as the complainant had attended the classes for pretty long period.  The complainant also mentioned the notification of UGC for restructuring the affiliation beyond the territory of State.  The Mahatma Gandhi University (MGU) in the said Institute does not have authority in view of the said notification.  But it is noticed that the complainant withdrew his additional degree course and same is on record.  Hence this aspect is not examined further.

          After considering the facts and circumstances and discussion held above, this Commission is of the view that the complainant is not entitled for refund of fees but certainly he can claim security amount deposited with Institute.  However, no mention of amount either by complainant or OPs was made.  Whatever the amount in the form of security may be refunded within 3 months.  OPs are not found deficient in service.  The complaint fails and prayer therein is rejected.

          No order as to the costs.

File be consigned to the record room after giving copy of the order to the parties as per rules.