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935WP7390.12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 7390 OF 2012

Pravara Institute of Medical Science

(Deemed University)

At Loni, Tq. Rahata,

District Ahmednagar

Through its Registrar.

...Petitioner.

Versus

1.

The Director General

(Investigation and Registration)

Bikaner House,

Barrack Sahajan Road,

New Delhi – 110 011.

2.

Shri Javris R. Pareira,

Age. 22 years, Occ. Medical Practitioner,

R/o. 44, harmonty,

35, Nehru Road, Vakola,

Santacruz (East)

Mumbai – 400 055.

...Respondents.

Advocate for Petitioner : Senior Counsel Mr. V.D. Hon.

Advocate for Respondent No. 1 : Mr. D.G. Nagode.

Advocate for Respondent No. 2 : Mr. P.G. Paithankar.

CORAM : NITIN B. SURYAWANSHI, J.

DATE : 28.09.2021.

JUDGMENT :

1.

Rule. Rule made returnable forthwith. Heard finally with the

consent of the parties.

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935WP7390.12

2.

This petition takes exception to the order passed by the Competition

Appellate Tribunal, New Delhi, dated 13.03.2012 in Unfair Trade Practices

Enquiry No. 82 of 2007, thereby, allowing the complaint of respondent

No. 2 and directing the petitioner to refund the fees deposited by

respondent No. 2.

3.

The petitioner is a Deemed University, which conducts MBBS, BDS,

BPTh, etc, courses which are recognized. After publishing a prospectus

wherein, rules and regulations for admission, cancellation for admission

and refund of fees are mentioned, the petitioner conducted entrance

examination (PIMS – AICTE 2005). The respondent No. 2 collected the

prospectus and appeared for the entrance examination of the petitioner.

Since he secured 146 marks and stood at Serial No. 172, in the merit list,

after appearing for counseling he was admitted to MBBS course. He

deposited Rs. 2,15,000/- towards the tuition fees and Rs. 5,000/- towards

deposit on 21.06.2005. According to the petitioner, the respondent No. 2

cancelled his admission on 02.08.2005. He was refunded an amount of

Rs. 5,000/- in terms of clause No. 19 of the prospectus.

4.

The respondent No. 2, thereafter, approached the Monopolies and

Restrictive Trade Practices Commission, claiming refund of fees

contending that after taking admission with the petitioner on 21.06.2005,

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935WP7390.12

he secured admission on 30.07.2005, at St. John, Medical College,

Bangalore and hence, he sought for cancellation for admission with

petitioner on 02.08.2005 and also sought for refund of fees. However,

petitioner did not refund the fees.

5.

Pursuant to the notice from the Commission, the petitioner

appeared in the said matter and resisted the claim by respondent No. 2.

The petitioner contended that the Commission had no jurisdiction to

entertain the complaint of respondent No. 2. By relying on Clause No. 19

of the prospectus, the petitioner claimed that respondent No. 2 is not

entitled to claim refund, save and except the amount of deposit of Rs.

5,000/-, which was already refunded on 05.09.2005. The petitioner,

therefore, claimed dismissal of the complaint. Thereafter, the petitioner

also filed written arguments wherein also the maintainability of the

complaint before the Commission was questioned.

Thereafter, additional say was filed by the petitioner. By

relying on Section 33 B, 36 D and the definition of services under Section

2 (r) of the Monopolies and Restrictive Trade Practices Act, 1969 ( In short

‘

the Act of 1969’), the petitioner contended that the complaint of

respondent No. 2 is not maintainable.

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935WP7390.12

6.

The Appellate Tribunal allowed the complaint and directed the

petitioner to refund the fees to respondent No. 2 within a period of two

months. This order is impugned in the present petition.

7.

H