Pramod Jain & Anr. vs Brainware Computer Academy & Ors
2011 Latest Caselaw 4533 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI
                              Date of decision: 15th September, 2011
+                              W.P.(C) 1470/2008

         PRAMOD JAIN & ANR.                                  ..... Petitioners
                     Through:             Mr. Yashodhar Jain, Father of the
                                          petitioners.
                                      versus
    BRAINWARE COMPUTER ACADEMY & ORS... Respondents
                 Through: Mr.    Sandeep    Mahapatra      &
                           Mr. M.K. Begg, Advocates for R-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may        Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?       Not necessary

3.       Whether the judgment should be reported            Not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition (amended) was originally filed by Shri Pramod and Shri

Gulshan, both sons of Shri Yashodhar Jain, claiming that their father had

consulted with the respondent no.2 (described in the memo of parties as

Nobel Institution of Professional Studies Franchise of respondent no.1)

regarding the IT courses i.e. computer courses of Multimedia and Software

Engineering for the petitioner no.1 Shri Pramod in the month of March,

2006 and paid up admission fees in advance and education fee, on the basis

of the representations contained in the brochures, prospectus and in the

personal meetings; that the respondent no.1 (described in the memo of

parties as affiliated by Jadavpur University [West Bengal]) and respondent

no.2 however failed to arrange faculty of Software Engineering and

therefore permitted the petitioner no.1 Shri Pramod to shift to Multimedia

Animation (2D Animation); that after one year, the father of the petitioners

was told that the petitioner no.1 had passed the 2D Animation course and

was required to join the extended courses for 3D Animation and the result

would be declared of both the courses together and the petitioner no.1 will

be awarded diploma from Jadavpur University; that however subsequently

the petitioner no.1 realized that the study of Multimedia 3D Animation

course was impossible without deep study of Multimedia 2D Animation

which had not been taught to him; that subsequently the petitioner no.2

Shri Gulshan was also admitted for courses of Hardware and Networking

and fee demanded therefor also paid.

2. The petitioners claim that the respondents no.1&2 did not teach

what they had promised to and had represented, leading the petitioners to

believe that the only attempt of the respondents no.1&2 was to fleece

money from the petitioners. Alleging such illegalities on the part of the

respondents no.1&2, the reliefs of, directing the respondents no.1&2 as

well as the respondent no.3 Jadavpur University, Kolkatta to provide

appropriate educational atmosphere as represented in the brochure, to

disclose the relationship of the institute with the respondent no.4

(Secretary, Ministry of Information Technology, Union of India),

respondent no.5 (Secretary, Ministry of Education & Human Resources),

respondent no.6 (Swiso (India) Pvt. Ltd.) & respondent no.7 DOEACC are

claimed.

3. Notice of the petition was issued. Counter affidavits have been filed

by the respondent no.1 & respondent no. 4 & 7 DOEACC and to which

rejoinders have been filed by the petitioners.

4. CM No.4004/2010 has been filed for substitution of the father Shri

Yashodhar Jain and mother Smt. Madhudevi Jain as legal heirs of the

petitioner no.1 who died on 17th September, 2009. The respondent no.1 has

filed a reply opposing the said application contending that the same is

highly belated.

5. Mr. Yashodhar Jain appears in person. He states that written

arguments have been filed on the main petition and he has nothing further

to add. The written arguments have been perused.

6. None appears for the respondent no.7 DOEACC. The counsel for the

respondent no.1 has been heard in opposition to the application for

substitution as well as on the writ petition.

7. Though no application for condonation of delay in seeking

substitution is filed but Mr. Yashodhar Jain appearing in person has

explained the reasons for which the application for substitution could not

be filed within the prescribed time. I am satisfied with the said reasons.

The delay in seeking substitution is condoned and the substitution is

allowed. The parents of the petitioner no.1 Shri Pramod Jain are

accordingly substituted in his place.

8. The grievance of the petitioners is of the respondents no.1&2 having

misled and cheated the petitioners; the courses offered by the respondent

no.1 turning out to be not what was promised, thereby causing not only

monetary loss to the petitioners but also affecting the future prospects of

the petitioners.

9. The counsel for the respondent no.1 has stated that the respondent

no.1 offers a number of courses and of which some are certified by the

respondent no.7 DOEACC and one is under affiliation from the respondent

no.3 Jadavpur University; however the petitioners had not joined the said

courses and had joined the courses run/operated by the respondent no.1

itself and without any affiliation or recognition certification from any

authority whatsoever. On enquiry, it is further stated that there is no bar to

running the said courses and no law requiring the said courses to be

recognized by anybody. It is denied that any misrepresentation has been

practiced or that the petitioners have been cheated.

10. The respondent no.1 however has not filed the admission forms of

the petitioners and which would have disclosed as to in which course the

petitioners were admitted to. The counsel for the respondent no.1has

however contended that the writ petition against the respondent no.1 does

not lie and is misconceived. It is further contended that the claims as of

misrepresentation and cheating cannot be even otherwise adjudicated

without evidence and in writ jurisdiction. Reliance is placed on DLF

Housing Construction (P). Ltd. v. Delhi Municipal Corporation AIR

1976 SC 386.

11. Though my sympathies are with the petitioners who have

undoubtedly suffered, but the remedy adopted by them is undoubtedly

misconceived, perhaps for the reason of their having not availed of any

legal help at any stage. No writ lies for redressal of the claims as made by

the petitioners against the respondent no.1. No case for issuance of writ

against the Jadavpur University or against the Ministries or the DOEACC

is also made out. The petition has to thus necessarily fail.

12. I find from the record that the petitioners have also filed a consumer

complaint regarding the same transaction. It is clarified that the dismissal

of the writ petition shall not affect the adjudication of the said consumer

complaint, the dismissal being on technical grounds.

13. Since the writ petition was entertained by this Court and has

remained pending in this Court and a perusal of the order sheet shows that

the petitioners were bona fide pursuing the same before this Court, it is

also deemed expedient to direct that subject to the petitioners preferring

alternative remedies on or before 31st December, 2011 the same shall be

entertained and dealt with on merits and without any objection as to

limitation.

14. The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 15 , 2011 pp.

(corrected and released on 14.10.2011)