R.Vijayakumar, Member

               This is a complaint filed Under Section 12 of the Consumer Protection Act. Complaint is filed seeking direction to refund the complainant an amount of Rs.29,500/- to return 12 numbers of cheque which were retained by opposite parties to restrain the presentation of balance 10 numbers of cheque for collection for compensation Rs.25,000/- and cost.

               The averments in the complaint can be briefly summarized as follows.

               On the basis of the assurance given by IV opposite party that the complainant is eligible to join MBA Programme conducted by ICFAI University, the complainant had taken admission in the said course making an advance payment of Rs.10,000/- and issued 18 post dated signed cheques of Central Bank of India, each valued at 3250/- in favour of HML A/c ICFAI course. The financial facility administered by first opposite party. As a self study course the opposite parties are bound to provide study materials and guidance in time. The programme was going on and the first opposite party had collected from the complainant an amount of Rs.29,500/-. being the value of 6 EMIS. In the meantime the complainant had attended Group A and B examinations having two papers each, conducted by second opposite party.

                     After reading a related news published in the  “Mathrubhumi Thozhil Vartha” on 29/2208, the complainant came to know that MBA is a post graduate degree and minimum qualification for admission for MBA degree in any University is three year degree course. The three year diploma is not treated as equal to degree which is awarded on 10+2+3 pattern. In order to get the doubt cleared and to get some vital information regarding the recognition of MBA degree stated to be offered by ICFAI University to diploma holders, the complainant had sent registered letters to the opposite parties. But no reply received from any of them. The non response of opposite parties leads to the conclusion that the opposite parties were not fair in their dealings. Hence the complainant was constrained to stop payment of EMI’s. The act of opposite party amounts to deficiency in service and hence the complaint.

               The opposite parties 1, 2, and 4 filed separate versions contenting the allegations. Third opposite party had adopted the contentions raised by the first opposite party.  The first opposite party contented that the complaint is not 

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maintainable either in law or on facts. The present complaint is a counter blast against the criminal case filed by the opposite parties at Hyderabad Under Section 138 of Negotiable Instruments Act against the complainant vide PLCSR.No.12836 of 2008 which is pending before the 14^th Additional Chief Metropolitan Magistrate. The opposite parties 1, 2, 3 & 4 are having separate independent legal entity and distinct from each other. The first opposite party is provider of financial assistance to the students who opted installment facility and who are unable to make payment in lumpsum.

               The complainant had given declaration in the fee remittance form and application form stating that he had carefully read and understood the Rules and Regulations and agreed to abide by the same. The complainant is bound to honour all the cheques given towards EMI scheme and to settle the amount with this opposite party whether or not he continues in the program. The complainant had agreed that the jurisdiction for all disputes if any relating to the HIFCO marvel limited is Hyderabad. As the cheques are dishonored, the opposite party is entitled to initiate legal proceedings. Hence opposite party had issued notice Under Section 138 NI Act. Knowing all these facts the complainant filed this complaint with malafide intention. Hence the complaint is liable to be dismissed.

               The second opposite party contented the allegations raised by the complainant and had stated that there is no admission officer to represent the second opposite party. The title is wrongly mentioned and the Registrar is competent to represent the University. As per Arbitration Clause at Page No.12 the complaint is not maintainable. Students under the program are governed by the latest Rules and Regulations applicable to them during the relevant Academic year. The University reserves the right to amend or modify the rules from time to time. The complainant who had signed the declaration had also agreed for jurisdiction of Courts at Agarthala.

               The complainant had approached this opposite party through the 4^th opposite party for enrollment into MBA program by depositing requisite fee of Rs.4,000/- which includes admission fee of Rs.2,000/- and a one time examination fee of RS.2000/-.Hence the complaint had paid only Rs.4,000/- to the University. It is clearly stated in the prospectus that the amount once paid is not refundable under any circumstances except in the case of rejected applications. This opposite party University established in 2004 through an act of State legislature. The University had been approved by the UGC Under Section 2 (f) of the UGC Act. The complainant had attended Group A & B examinations conducted by the opposite party.

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               The averment made by complainant that Polytechnic students whether diploma is treated as equal to degree. In this regard, it is submitted that the prospectus of MBA clearly state that the graduate (any discipline) a bachelor level degree or diploma (on 10+2+3 basis) is accepted. The complainant had submitted his eligibility as (1) he had passed the SSLC 11 year program (2) completed two years pre degree examination (3) Completed three years diploma program in Engineering. Hence the complainant fulfills the eligibility criteria for enrollment in MBA program. Therefore the averment made by the complainant are baseless. In fact, the second opposite party is ready to provide service to the extent of conducting examinations to the complainant if he wants to complete the course within the validity of 7 years. There is no deficiency in service from the part of the second opposite party. Therefore the complaint is liable to be dismissed.

               The 4^th opposite party had stated that they are providing only the academic support and placement assistance for the students who had opted and enrolled for MBA program from the second opposite party as a private candidate. The complainant, out of his own volition and after understanding the rules and regulations enrolled in the said course. As per the regulations amounts once paid is not refundable under any circumstances. It is true that the complainant had made the payment of Rs.10000/- . It includes Rs.3250./- to the ICFAI University, Tripura and Rs.6,000/- towards initial payment for the academic support and placement assistance, the service given by the 4^th opposite party. The allegations raised by the complainant that he had not received any study materials and guidelines from opposite party is not true. The courseware check lists were signed by the complainant acknowledging the receipt of courseware. The averments made by the complainant are absolutely false, baseless and concocted and same is denied. The complainant was provided with all details of program in Black and white. The complainant was eligible for admission into MBA programme and accordingly he was admitted. The Forum has no jurisdiction as the complainant had accepted the jurisdiction for any disputes relating to Academic support and placement as Hyderabad. Complainant had received courseware materials including textbooks, workbooks, study guides learning CDs etc and also had attended for examinations Group A & B. The 4^th opposite party incurred expenses for providing these services. There is no deficiency in service on the part of the opposite party. Hence complaint is liable to be dismissed.

               The complainant filed affidavit. He was examined as PW1. Ext.P1 to P15 marked.

                From the side of opposite parties DW1 examined. Ext.D1 to D8 marked.

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The points that would arise for consideration are:

(1)   Whether the Forum has jurisdiction to entertain the complaint?

(2)   Whether there is any deficiency in service from the part of opposite parties?

(3)   Compensation and cost

Point (1)

               The first and third opposite party challenged jurisdiction of the Forum to entertain the complaint as the complainant had already agreed and signed declaration that the jurisdiction of all disputes if any against these opposite parties is Hyderabad. The second opposite party also contented jurisdiction of the Forum on the ground that the complainant had agreed that jurisdiction of Courts against the second opposite party is Agarthala, Tripura. Hence, if any dispute, araised between parties, it can be adjudicated at Hyderabad or Agarthala, Tripura.

The Learned Counsel for the complainant argued that the contention raised by the opposite party that the Forum has no jurisdiction is meaningless in the light of the decision rendered by National Commission in “ Bhandari Interstate Carriers and another vs M/s.A.K.Synthetics” reported in 1997 NCJ 465 (NC) wherein it has been held that condition printed on G.R.that all disputes would be subject to Delhi jurisdiction effect – it does not exclude jurisdiction of Rajasthan State Commission”.

                   We have considered the decision of National Commission in the above said case. It is found by National Commission in Bhandari Interstate Carriers & another Vs. M/s.AK Synthetics that the condition that all disputes would be  subject to Delhi jurisdiction did not exclude the jurisdiction of State Commission which otherwise had.

               We think that this is a case relevant to the present complaint. The present complaint filed by the complainant raising deficiency in service from the part of opposite party. No contention was raised by the opposite party that the cause of action arose outside the jurisdiction of the Forum. Even though the complainant signed the declaration that jurisdiction for litigation of disputed matters relating to the I and III opposite party is at Hyderabad and relating to II opposite party is at Agarthala, Tripura, that agreement is against the prevailing

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law and hence it is not sustainable. This is a complaint regarding deficiency in service and cause of action in the complaint arose within the jurisdiction of the Forum also.

               It is further contented by the opposite party that the cause of action is civil in nature and hence the litigation can be conducted only in a Civil Court. The learned counsel for the opposite parties argued that the Universities such as the opposite parties will not come within the ambit of Consumer Protection Act, 1986. The opposite party ICFAI University was established in the year 2004 and it has an independent legal entity and has been approved by the UGC Under Section 2 (f) of the UGC Act. In support of his argument he had furnished a copy of the judgment of Supreme Court in Maharshi Dayanand University vs. Surjet Kaur in Civil Appeal No.6807 of 2008 by Dr.B.S.Chauhan and Swantanter Kumar JJ on 19/07/2010. Similarly in Bihar School exam Board vs Suresh Prasad Sinha          ( 2008 SCC 483) held that as when the Examination Board conducts an examination in discharge of its statutory function,  it does not offer its services to any candidate the process is not therefore availment of a service by a student. Board is not a service provider and a student who takes an examination is not a consumer and consequently the complainant under the act will not be maintainable against the Board”.

               In our opinion these cited cases has no relevance in the present complaint. The facts and circumstances of the present complaint is entirely different. In view of aforesaid discussion we find that the Forum has amble jurisdction to entertain the matter.

Point No.(ii) and (iii)

          Admittedly the complainant was enrolled for the MBA course conducted by the opposite parties and the complainant had attended Group A and B Examinations. Study materials for Group A and B Examinations also was received by the complainant. Receipt of Rs.10,000/- and Rs.29,500/- being the value of  6 EMIS also admitted.

          The case of the complainant is that misguiding the complainant that the three year Polytechnic Diploma holder is eligible for MBA course he was enrolled by the opposite parties as a private student of MBA course and thereby committed deficiency in service. The serious and genuine doubt about the validity and

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universal acceptance of MBA degree proposed to be awarded by ICFAI University was not cleared by the opposite parties. Even though notices were repeated to the opposite parties all of them remained non responsive. The complainant had attended Group A and B examinations and became eligible for Group C examination. But he was not supplied with study materials for the preparation for further examinations. The act of opposite party amounts to deficiency in service.

The contention of opposite party is that the question of eligibility was clearly explained in the prospectus (D2) itself. Graduates (any discipline) a Bachelor level degree / diploma (on 10+2+3 basis) is acceptable. The complainant passed SSLC (10 year program), Pre – degree (two year program) and completed three year Diploma in Engineering technology. According to ICFAI, University Tripura, the complainant meets the eligibility criteria for enrollment into the MBA Programme as a private candidate. There is a list of international organizations with which 2^nd opposite party has networking relationship. Institutions like Association of Advance, Collegiate schools of business, USA, European Foundation for Management Development, Belgium, Association of Asia Pacific Business Schools, Korea. European case clean house UK and USA, Asian Securities, Analysts Federation, Australia etc are some of them.

          The second opposite party is an autonomous body and they are free to conduct courses under flexible learning programme. The programme is based on selfstudy with study materials provided by the 4^th opposite party. The validity of the course is 7 years. Admittedly the complainant in this case had attended Group A and B examinations. The complainant voluntarily discontinued from pursuing the course after failing the Group A and B examinations. Only the students, who successfully complete all groups of the MBA program, will be awarded with the Master of Business Administration through self study and examinations subject to the University regulations. The University reserves all rights to change the body of knowledge, prescribed books, the curricula governed by latest regulations, examinations pattern, evaluation system rules etc. Therefore the University amended the criteria for admission to MBA course at present.

          The complainant agreed to abide with the rules and regulations of ICFAI University, Tripura including the clause “ No refund “ mentioned in Ext.D2 and had signed the Declaration Ext.D1 (a) which states that in the case of withdrawal from the program he would not be entitled to claim any refund of the deposited amount. The complainant was also supplied with the study materials for Group A and B examinations. By signing Ext.D1 (a) he had undertaken the liability to

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honour all cheques submitted towards EMI Scheme whether or not he continues the study program. The complainant had committed breach of trust by dishonoring cheques. The intention of present complaint is only to defeat the criminal case initiated by first opposite party at Hyderabad. The complaint is liable to be dismissed with compensatory cost.

          In this case the complainant was examined as PW1. The complainant would swear before the Forum in tune with the allegations raised by the complainant in the complaint. Nothing was brought out from him in cross examination to disprove the allegations raised by the complainant in his complaint.

          The 4^th opposite party was examined as DW1. He had admitted that the branch office working at Kadappakkada is the admission office of ICFAI University. While in cross-examination, the learned Council for the complainant put the question that     “ ±—¡Õ¢›® ©ˆñø Šóÿ¨»üú¢©üú©ð¡,    ð¥.¢.ö¢.ð¤¨Ð©ð¡ •›¤»Ä¢ ƒ©Ù¡? (a) ±—¡Õ¢›® •›¤»Ä¢ ƒ©Ù¡ …¼® ¨….ö¢.…‌®.….¨….»¡©›®¨»üú¢©›¡Ð® ©¡™¢µ¤ »¡±Ä©» œúð¡ü ˆù¢ð¥. —¡µ¢òû ¨òó‎ý °¢±Š¢´® œˆñ« +2 ˆù¢º® 3 óûõ« …Õ¢›¢ðú¢«Š® œ¡ö¡ðóû´® ¨….ö¢.…‌®.….¨… ð¥Ã¢©óù®ö¢×¢ð¢‎‎ý …«.—¢.….ð®´® •›¤»Ä¢ ›‎ýˆ¤¼ ñ£Ä¢ ‚©¸¡‏þ ‚¿. °¢œ®©ø¡»´¡û ‚©¸¡‏þ eligible •¿. While in cross examination a pertinent question put by the learned counsel for the complainant that diploma •Ð¢ö®˜¡› ©ð¡Š¬Äð¡ð¢ •«Š£ˆñ¢µ¢¶¤©Ù¡? DW1 answered that “‚¿”.  7 ö®©×פˆø¢‎ý •«Š£ˆñ¢µ¢¶¤Ù®. •Ä¢¨üú ©ñ‰ ÷¡ñ¡´¢ð¢¶¢¿. He had also admitted that no reply was sent to the complainant to clear the doubt raised by him in his letters to all opposite parties.

The Learned Counsel for the opposite parties argued that according to the ICFAI University the complainant is eligible for enrollment in MBA course. The ICFAI University is an autonomous body with whole powers to conduct course under flexible learning programme. The University had also reserves the right to change body of knowledge, curriculum etc. The students are governed by the latest regulations relevant to that period. The University altered criteria of admission to MBA at present. The University is answerable only to the UGC. The opposite party further argued that the cock and bull story of the complainant whether diploma holders are eligible for MBA admission is only a pretext for withdrawing from the course study as he could not cope with the subjects merely by self-study materials. The complainant after failing A & B Groups voluntarily discontinued from pursuing the course and filed this case to get refund of fee

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remitted by him. It is further argued that in Ext.D1, there is a list of international organizations with which the second opposite party had net work relationship.

                    It is further argued that no refund can be effected by the opposite parties as they had already incurred expenses for the complainant’s registration, supply of study materials and conduct of examinations. The Learned Counsel for the complainant argued that the endeavor on the part of opposite party to make engineering diploma holders eligible for MBA course which is quite contrary to the academic ethics and professional competence. Even though the opposite party had stated in the version that MBA degree offered to the students by ICFAI University is recognized by seven States in India, they had not produced any evidence to that effect. Even the States were not mentioned.

          We have perused the documents and entire evidence in detail and considered the point of arguments by the learned counsels. The opposite parties had stated in their version that ICFAI University had network relationship with some of the international Universities; but they have not produced any evidence to prove that the MBA degree of ICFAI University is recognized by those Universities. DW1 has already admitted in cross-examination that the University has altered the criteria of admission to MBA at present. But he had deposed that he is not known the reason why the University has dispensed with such an MBA degree. It is also admitted that Kerala University has not recognized MBA degree of ICFAI University. The contention raised by the complainant that Division Bench of Madras, High Court stayed the operation of ICFAI University in the State of Madras as it found functioning without prior approval of UGC and State was not challenged by the opposite parties. Considering these circumstances we came to the conclusion that the enrolment of Engineering Diploma holder to MBA course is quite contrary to the academic ethics and professional competency and the ICFAI University had violated the governing Principles of higher education which they bound to follow.

          It is an admitted fact that the complainant was not served with the study materials after A and B examinations. The contention of opposite party is that the study materials were not given because he had not passed A & B Group examinations. The opposite party had already admitted that no information regarding the result of examination was given to the complainant. In cross examination DW1 has stated that “result publish  ¨ð®Ä¢¶¤Ù®. Students •Ä® ©›¡´Ã«.” In our verification it is found that even without giving the study materials they have already presented and honoured 6 numbers of EMI cheques.

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Actually the complainant was constrained to withdraw from the course due to the deception and unfair trade practice from the part of opposite parties.

          The complainant had taken admission for MBA course believing that he was eligible for the study of MBA course. Still now the opposite parties were raising contention that the complainant was eligible for MBA at that time. But the opposite parties fail to prove that MBA course conducted by ICFAI University was recognized by UGC. They have not produced even a single paper to prove that the course was recognized by UGC, that seven states in India had recognized MBA degree of ICFAI University as they had contented, that the ICFAI University had network relationship with some International level Universities. It is admitted by opposite parties that Kerala University has never recognized MBA degree of ICFAI University.

                   The oral testimony of DW1 in cross examination itself defeated the contention of opposite parties. He had admitted that he is conducting the Branch of ICFAI University without clear knowledge whether the Branch office is recognized by UGC. He had also admitted that diploma holders are not eligible for MBA course at present as the University had amended the criteria of admission. Even then quite contrary to this statement they are raising contention that the second opposite party is ready to provide service to the complainant if he wants to complete the course. The statement that University is answerable to UGC only reveals the defiant attitude of second opposite party. The University is bound to abide the strict rules, basic principles and criterians and bound to keep the standards of higher education.

          The opposite parties are also duty bound to clear the genuine doubts of a student. It is quite natural to raise anxiety and confusion in the mind of a student, who had remitted huge amount as fee and attended parts of examination if he had got information by any means whether it is authentic or not that the course he had admitted is unauthorized and non recognized.

Considering the facts and circumstances of the case and aforementioned discussions we came to the conclusion that there is deficiency in service from the part of opposite party. The points found accordingly.

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In the result, the complaint is allowed directing the opposite parties to refund Rs.29,500/- and the balance 12 numbers of cheque retained by them under EMI scheme. The opposite parties are restrained from presenting balance 10 Nos. of cheques for collection and directed to pay compensation Rs.25,000/- along with cost of Rs.2,000/-.The order is to be complied with within one month from today, in default it will carry interest at the rate of 7.5% per annum from the date of petition.

                                                                        Dated this the 31^st day of December 2011.

G.Vasanthakumari         :Sd/-

R.Vijayakumar               :Sd/-

INDEX

List of witness for the complainant

PW1                      - Arun

List of documents for the complainant

P1                         - Application form

P2                         - Enrollment Letter

P3                         - Fee Remittance Form

P4                         - Receipt dtd: 06/12/07

P5                         - Page 5 of the prospectus\

P6                         - Mathrubhumi thozhilvartha dtd: 20/09/08

P7                         - Copy of letter dtd : 19/09/08

P8                         - Postal Receipt

P9                         - Reminder letter dtd :04/11/08

P10                       - Stock payment letter dtd :08/11/08

P11                       - Reply from Kerala University

P12                       - Hindu Daily Report dtd :16/06/09

P13                       - Report in Mathurbhumi Daily (Page 11) dtd :12/10/09

P14                       - Notification in website of Hyderabad University

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List of witness for the opposite party

DW1                     - S.Babu

List of documents for the opposite party

D1                        - Prospectus of MBA Program

D1 (a)                             - Application form for enrollment

D1 (b)                             - Fee remittance form

D1  ( c )                 - Legal aspects and financial responsibilities

D 2                       - Prospectus

D2 ( a)                  - Admission policies

D3                        - Photocopy of candidate’s SSLC Book

D4                        - Mark list of candidates second year pre-degree

D5                        - Mark list of candidates Engineering Diploma

D6                        - Certificate of Mechanical Engineering Diploma

D7                        - Check list of courseware for group A & B examination

D8                        - Receipt of courseware materials