JUDGMENT AND ORDER : 1.This appeal is directed against the judgment and decree dated 8.9.2006 passed in Original (Money) Suit No.38/2002/15/2003/14/2005/9/2006 by the Additional District Judge (Fast Track Court, Manipur East, Lamphelpat whereby and whereunder a sum of Rs.1,48,310/- was decreed to be payable to the plaintiff towards compensation by the defendants jointly or severally within six months with a default clause that if defendants fail to pay they shall be liable to pay interest @ 6% p.a. from the date of institution of the Suit till its payment. 2. The case of the plaintiffs is that while the sons and daughter (plaintiffs 2-4) of the plaintiff no.1 were studying in Free Progress Academy Centre No.2 situated at Konthoujam Village, Imphal West, its Principal, defendant no.3 and also the Treasurer, defendant no.4, approached plaintiff no.1 and requested him to get his daughter and son admitted in the Free Progress Academy Centre No.1, Hura, District Purulia in West Bengal, (defendant no.1), established by its Director, the defendant no.2. When the plaintiff no.1 has consented to the said proposal, the daughter and a son (plaintiff nos.2 & 3) were admitted in the school in August 1999. Subsequently, in December, 1999, they also got plaintiff no.4 admitted in that school. The plaintiff no.2 was admitted in Class-IX whereas plaintiff no.3 was admitted in Class-VI and the plaintiff no.4 was admitted in Class-IV. 3. The plaintiff no.1 allowed his sons and daughter to be taken to outside Manipur as he considered that they will be imparted with quality education and as such they will be acquiring good knowledge. At the time of admission, the plaintiffs paid admission fee and hostel as well as mess charges in advance for three months. Thereafter also they paid fees and charges. Further case is that the plaintiff no.2 passed Class-xth examination conducted by Central Board of Secondary Education being a student of Panisheola Indira Smriti Vidyapith, District- Hooghly, West Bengal and got admitted in Class-XI (Science) at Kanan Devi Memorial Senior Secondary School, Pangei, Manipur. Likewise, plaintiff no.3 passed Class-Xth examination from the said Board in the year 2002 being a student of Satyanarayan Academy Ramkrishna Nagar, District Bankura, West Bengal and was admitted to Ghaziabad Public School, Ghaziabad, UP in Class-XI (Science). So far as plaintiff no.4 is concerned, he left the school(defendant no.1) in the month of May, 2002. Likewise, plaintiff no.3 passed Class-Xth examination from the said Board in the year 2002 being a student of Satyanarayan Academy Ramkrishna Nagar, District Bankura, West Bengal and was admitted to Ghaziabad Public School, Ghaziabad, UP in Class-XI (Science). So far as plaintiff no.4 is concerned, he left the school(defendant no.1) in the month of May, 2002. Thereupon when transfer certificate was asked to be issued, it was issued by defendant no.3 in the capacity of Principal of the Free Progress Academy Centre No.2, Konthoujam Village but not by the school (defendant no.1) where the plaintiff no.4 was studying. 4. Further case is that only after the transfer/reading certificate was issued, the plaintiff on making inquiry came to know that the school (defendant no.1) had never been registered or recognized and thereby it had never been a status of any school/institution for giving education to students. Rather, it was meant for imparting private tuition to the inmates by giving boarding and fooding facilities whereof the defendants charged tuition fee and also other charges for the hostel and food exorbitantly and as a result of which the plaintiff had to spend Rs.2.00 lakhs. It is also the case of the plaintiffs that the defendants after admitting the plaintiff nos. 2,3 & 4 sent them without the knowledge of plaintiff no.1 and also the other students to another school. Still the defendants claimed that they are the students of their school and went on charging the fees and thereby the defendants in that manner cheated the plaintiffs. 5. In the context of the aforesaid facts, it has been pleaded by the plaintiff no.1 that he suffered mental agony on account of being ashamed before relatives and persons of locality for not getting his sons and the daughter admitted in a recognized/registered school as the school (defendant no.1), though being called as a school but it had no status of any school and thereby laid claim of compensation of Rs.2,00,000/ 6. Upon appearances of defendants, defendants 1 & 2 did file written statement but on account of it being not filed within time it was not accepted. Upon appearances of defendants, defendants 1 & 2 did file written statement but on account of it being not filed within time it was not accepted. However, defendants 3 & 4 filed written statement wherein it has been pleaded that the institution, the Free Progress Academy Centre No.1, Hura, District - Purulia, West Bengal (defendant no.1) has been recognized by the Government of West Bengal, Kolkata and thereby it has been exempted to pay income tax under section-80-G of Income Tax by the Director of Income Tax, Kolkata and that it is wrong to say on the part of the plaintiff that some of the defendants did approach to the plaintiff for getting his sons and daughter admitted in the school(defendant no.1). Rather, it was the plaintiff no.1 and his wife who approached to the defendant no.3 for admission of plaintiffs 2 & 3 in the school ( defendant no.1) and on their request plaintiffs 2 & 3 were admitted in the year 1999 in class-IX and VI respectively after filling up forms relating to the admission and also admission to the hostel. Subsequently, plaintiff no.1 and his wife got their other son ( plaintiff no.4) admitted in the said school in the year 2000 in class-IV. It has been, further, pleaded that plaintiffs 2 & 3 passed CBSE Class-X examination conducted by the Central Board of Secondary Education, New Delhi in first division and both of them on the basis of the pass certificates were admitted in Class-XI in other school/college. Till then, the plaintiffs had never raised any objection relating to school being not recognized or registered. However, when the plaintiff withdrew his son (plaintiff no.4) from the school, he asked for issuance of transfer certificate which was issued by the school situated at Konthoujam, Manipur as he was studying in that school before being admitting to the school ( the defendant no.1). Thus no question does arise of defendants cheating the plaintiffs by hatching conspiracy. On such pleadings, following issues were framed: 1. Whether the defendant No.1 institution is an unregistered one? 2. Whether the plaintiff no.1 having full knowledge of the institution and with consent admitted the plaintiff Nos.2 to 4 the said institution? 3. Whether the plaintiff Nos 2-4 had been admitted to the other schools/institutions by the defendants without the knowledge and consent of their guardian/parents? 4. Whether the defendant No.1 institution is an unregistered one? 2. Whether the plaintiff no.1 having full knowledge of the institution and with consent admitted the plaintiff Nos.2 to 4 the said institution? 3. Whether the plaintiff Nos 2-4 had been admitted to the other schools/institutions by the defendants without the knowledge and consent of their guardian/parents? 4. Whether the suit is maintainable in the present form or not? 5. Is there any cause of action? 6. Are the plaintiffs entitled to the reliefs or reliefs claimed? 7. There upon the plaintiffs adduced their oral as well as documentary evidences whereas no witness was examined on behalf of the defendants. However, at the instance of the defendants one document marked as ‘Exbt.-X’ was admitted in evidence when the plaintiff no.1 was confronted with that document during his cross-examination. 8. Upon consideration of the materials the learned trial court recorded the finding that plaintiff nos.2-4, who had been admitted to Free Progress Academy Centre No.1, Hura, Purulia were admitted to other schools/institutions by the defendants without the knowledge and consent of the plaintiffs. Accordingly issue no.3 and the other issues were decided in favour of the plaintiffs and thereby suit was decreed whereby a sum of Rs.1,48,310/- was decreed as a compensation to be paid by the defendants. 9. Being aggrieved with that, this appeal has been preferred. 10. Mr. S. Sachindra, learned counsel appearing for the appellants that the trial court after recording that the defendants by misrepresenting the fact that the school, namely Free Progress Academy Centre No.1, Hura, Purulia (W.B) (defendant no.1) is recognized with CBSE Board impressed upon the plaintiff no.1 to get his sons and daughter (plaintiffs 2 to 4) admitted in that school. Upon consent being given they were admitted but thereafter plaintiff nos.2 and 3 were admitted to other schools, namely Satyanarayan Academy, Bankura District, W.B and Panisheola Indira Smriti Vidyapith, Hooghly District, W.B without the knowledge and consent of the guardian, (the plaintiff no.1), came to the finding that the defendants have cheated the plaintiff no.1 by playing fraud and awarded a sum of Rs.1,48,310 as compensation, which is quite illegal. Both the findings recorded are against the materials brought on record which go to establish that neither the defendant made any misrepresentation nor the plaintiff nos.2 & 3 were admitted to other school without the consent of plaintiff no.1 and that the court did record that the defendants by playing fraud committed breach of contract but both the elements fraud and the then breach of contract never go together hand to hand and thereby the court committed illegality. Further, it was submitted that when the plaintiffs have come with the case of fraud they should have pleaded in terms of ORDER VI RULE 5 about the particulars of the fraud but the plaintiffs are silent over the particulars constituting the elements of fraud and thereby plaintiffs cannot be said to have proved its case. Learned counsel in support of his submission has referred to a decision of the Hon’ble Supreme Court in the case of Varanasaya Sanskrit Vishwavidyalaya & Ant. Vs. Dr. Rajkishore Tripathi & Anr, AIR 1977 SC 615 . 11. Thus it was submitted that the trial court committed illegality in passing decree in favour of the plaintiffs. 12. As against this, Mr.N. Mohendra, learned counsel appearing for the defendants submits that the plaintiff no.1 got the plaintiffs 2-4, who were reading at Free Progress Academy Centre No.2, Konthoujam, Imphal, Manipur, admitted to Free Progress Academy Centre No.1, Hura, West Bengal at the instance of the defendants but that school was never registered with the CBSE Board which had never been communicated to the plaintiffs by the defendants and thereby the defendants without the knowledge of plaintiff no.1 got them appeared from other Schools for Class-X examination conducted by the CBSE and thereby the defendants certainly played fraud upon the plaintiffs and hence the trial court is absolutely justified in awarding compensation. 13. Having heard learned counsel appearing for the parties and on perusal of the record, I do find that the case which the plaintiffs have made is that the plaintiff no.1 at the instance of defendants got his sons and daughter (Plaintiffs 2 to 4) admitted in Free Progress Academy Centre No.1, Hura, Purulia-District, West Bengal, which was not a recognized school by the CBSE Board but the defendants never disclosed this fact. Further case is that the defendants subsequently got plaintiffs 2 & 3 admitted in other schools from where they appeared in Class-Xth examination conducted by the CBSE and the defendants did so without the consent of the plaintiffs. On this ground, it has been pleaded that plaintiffs were cheated by the defendants by playing fraud. 14. The trial court did find that the plaintiff no.1 got his children admitted in the said school (defendant no.1) on being misrepresented by the defendants that the school is recognized with the CBSE Board. On such finding the court did record that the defendant played fraud with plaintiffs by misrepresenting the fact, still the court taking aid of the provision as contained in Section 73 of the Contract Act dealing with the matter relating to award of compensation for loss and damage on account of breach of contract awarded compensation and thereby the court committed illegality in awarding compensation as the matter relating to fraud and misrepresentation never go hand to hand with the matter relating to breach of contract. On this ground alone, the impugned order suffers from illegality. 15. However, going further in the matter, it be stated that the plaintiffs in their pleadings have never made out a case that plaintiff no.1 got his sons and daughter admitted in the school (defendant no.1) on being misrepresented by the defendants that the said school is a registered and recognized with the CBSE. Rather, the case which has been made out is that the plaintiff no.1 after getting his sons and daughter admitted came to know that the school is not recognized by the CBSE and this fact would be evident from the statement made in para-8 of the plain, which reads as follows: 8. That, taking consideration all these facts and circumstances, the plaintiff no.1 asked/inquired of the defendants Nos.2 to 4 about the nature and administration of the defendant No.1-institution. That, taking consideration all these facts and circumstances, the plaintiff no.1 asked/inquired of the defendants Nos.2 to 4 about the nature and administration of the defendant No.1-institution. From the plaintiffs Nos.2 to 4, and to the personal knowledge of the plaintiff No.1 and from the information of his men, the plaintiff No.1, after getting the transfer/reading certificate of the plaintiff No.4, now comes to know that the defendant no.1 institution is not a registered and recognized one and that the same is not a school/institution for giving education to the so called students as done in other schools/institutions as the defendant No.1-institution is only there to impart/give private tuition only to the inmates by giving boarding and food by taking fees for the same from the inmates under the disposal of the defendants Nos.2 to 4 mainly as there is no proper class rooms and furniture of the so called classes. There is no regular and in order classes such as class-IV, class-V, class-VI, class-VII, class-VIII, class-IX, class-X, etc. though the defendant no.1-institution is allegedly established for class IV to X and also no proper annual examinations of the classes are conducted. The defendant No.2 in consultation with the tutors of the defendant no.1-institution had/have sent the inmates/students to other schools by admitting in the schools as the case may be, as per and in tune of the age of the students, nevertheless, the defendants Nos.2 to 4 still did/do the acts of giving boarding, food, supervision to the students by taking exorbitant fees thereof under the pretext that the students were/are still the students of the defendants No.1institution by throwing ashes in the eyes of the students and their parents/guardians including the plaintiffs. The plaintiffs Nos.2 to 4 never got any academic/educational certificates from the defendant No.1-institution. The defendants by cheating collusively collected exorbitant money from the plaintiff no.1 for the other plaintiffs for doing their said acts complained of in order to get monetary benefit by cheating the plaintiffs. In fact the said defendant No.1-institution is not a school, it is an institution for giving private tuition under the name and style of the defendant no.1-institution. The defendants do the same knowingly and intentionally to cheat the parents/guardians and the students by doing secret things by the defendants. Thus no proper education was given to the students, thereby the students have poor knowledge of education in all respects. The defendants do the same knowingly and intentionally to cheat the parents/guardians and the students by doing secret things by the defendants. Thus no proper education was given to the students, thereby the students have poor knowledge of education in all respects. To recuperate the knowledge, the plaintiffs Nos.2 to 4 are now under high tuition and endeavour.” 16. However, the court accepted the plea of misrepresentation on the part of the defendant on the basis of the evidence of PW-1 testifying that the defendants 3 & 4 came to him in the month of August, 1999 and stated that there is a good recognized and registered educational institution, namely the Free Progress Academy Centre No.1, Hura, Purulia-District, West Bengal, which fact the court should have ignored it as it was beyond the pleading. The court at the same time also accepted the case of misrepresentation as in the prospectus (Ext.A/45) it had been scribed that the school is recognized and registered educational institution. It be noted that in the prospectus (Ext.A/45) it was never there that the school is registered with the CBSE. Assuming even if it would have been there it would hardly make any difference as it had never been the case of the plaintiff no.1 that upon going through the prospectus he could know that the school is recognized with the CBSE and then got his sons and daughter admitted in the school. In such a situation I do find that the court came to the wrong conclusion that this happens to be a case of misrepresentation and fraud. Misrepresentation has been defined in section 18 of the Contract Act, which reads as follows: 18. “Misrepresentation” defined- “Misrepresentation” means and includes (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; (2) any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; (3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.” 17. On perusal of the said provision one would find that the instant case would never fall within the category of misrepresentation as nowhere it is the case of the plaintiffs that there was positive assertion on the part of the defendants that the school was recognized with the CBSE Board. At the same time it never happens to be a case of fraud. The principal difference between fraud and misrepresentation is that in one case the person making the suggestion does not believe it to be true and in the other he believes it to be true though in both the case it is the misstatement of fact which misleads the promisor. 18. Coming to the other aspect of the matter it be stated that the plaintiffs have also made out the case that the plaintiffs 2 & 3 were admitted first to the school, namely Free Progress Academy Centre No.1 Hura, (defendant no.1) but subsequently the defendants without the knowledge of plaintiff no.1 got them admitted to another school from where they appeared in class-Xth examination but the plaintiffs have failed to establish even this fact as the material which has come on the record does suggest that the plaintiffs 2 & 3 were admitted in other schools with the consent of plaintiff no.1. In this regard it be stated that one document, a register containing resolutions of the school has been adduced in evidence as Ext.’X’ when PW-1 in his cross-examination was confronted by that register. The fourth resolution which has been noted by the trial court reads as follows: “Agreed that the guardian shall bear all the expenditure of the student of class-IX and X, who are residing at the Hostel of FPA, Hura for appearance of examination arranged by the Director S.Sen to the nearest C.B.S.E. school.” Over that register the signature of the plaintiff no.1 happens to be there below the resolution. However, the plaintiff no.1 in his evidence denied that such signature was there over the resolution. Rather the signature was there in other context. If the plaintiff had taken that plea he was required to prove that but he has failed to discharge his burden. In spite of that the court ignored the said resolution which clearly goes to indicate that plaintiffs 2 & 3 had been admitted to other schools with the consent of the plaintiffs. If the plaintiff had taken that plea he was required to prove that but he has failed to discharge his burden. In spite of that the court ignored the said resolution which clearly goes to indicate that plaintiffs 2 & 3 had been admitted to other schools with the consent of the plaintiffs. In that view of the matter, any finding recorded by the learned trial court in respect of issue nos.2 &3 is wrong and thereby plaintiffs are not entitled to have any compensation from the defendants. Thus the impugned judgment and decree passed by the trial court is set aside and consequently the suit is dismissed. 19. In the result this appeal stands allowed.