CONSUMER DISPUTES REDRESSAL COMMISSION – X

                           GOVERNMENT OF N.C.T. OF DELHI

                     Udyog Sadan, C – 22 & 23, Institutional Area

                                       (Behind Qutub Hotel)

                                        New Delhi – 110016

  Case No.279/21

Ashish Sadana

S/o Late Sh. S.P. Sadana

R/o C-306, SFS Flats, DivyaJyotiApartments

Sector 19, Rohini,                                                      …..COMPLAINANT

Vs.

1. Abhinav ImmigrationServices Pvt. Ltd

(Formerly known as 

           Abhinav ImmigrationServices Pvt. Ltd

           Flat No.307-A, 3^rd Floor, Devika Tower

          6 Nehru Place, New Delhi-110019.

2. Mr. Ajay Sharma

S/o Mr. Surender Nath Sharma

House No.C-8/8010, Vasant Kunj

New Delhi-110 070.

3. Mrs. Mona Sharma

W/o Mr. Ajay Sharma

House No.C-8/8010, Vasant Kunj

New Delhi-110070.                           …..RESPONDENTS

          Date of Institution-18.11.2021

          Date of Order- 21.06.2024

O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency in service on the part of OP-1 in providing immigration services.

2. Facts as stated in the complaint are that the complainant approached OP-1 for providing guidance for immigration to explore career opportunity outside India in hospitality sector.

3. The complainant has a Bachelor’s degree in hotel management. He underwent his industrial training at the Hotel Hyatt Regency, Delhi in 2004.  He commenced his career as a trainee front office assistant in the year 2005 with Hotel Jaypee Siddharth, New Delhi. Then, he joined the front office department of the Taj Hotels, Resorts and Palaces, in the year 2006.  In 2009, he was employed as a Front Desk Officer with Crowne Plaza, Gurgaon.   By the year 2011, the complainant had progressed to the position of Assistant Manager, front office, Surya hotel, New Delhi. 

4. It is alleged that OP-1 suggested that the complainant should apply through the process of Federal Skilled Worker (Express Entry) and emmigrate to Canada.  A tempting and highly enticing information leaflet was also handed over to the complainant. OP-1 created an impression that it is a complete service provider, who directly represented its clients before the Government authorities and bodies in a hands-on approach.

5. The complainant entered into a Retainer Agreement dated 09.12.2017 with the OP-1.  The complainant availed the immigration services of the OP-1 for himself as well as for his wife and paid a fee of Rs.67,275/- to OP-1.  The complainant provided all the required documentation to OP-1 which included educational documents, WES transcripts, IELTS scores, CV etc.

6. The complainant alleged that India ranked the highest in the number of permanent residents admitted in year 2017.  It is alleged that no progress was being made in the complainant’s case.  He asked for an explanation from OP-1 in November, 2018.  He received an email dated 30.11.2018 assuring that his case was under investigation.  He received another email dated 14.12.2018 stating that the complainant was not reachable.   By another email dated 15.12.2018, OP-1 again sought time.  The complainant on no resolution of his grievances sought refund vide email dated 28.12.2018, 07.01.019 and 09.01.2019.  OP-1 vide email dated 10.01.2019 asserted that it is retaining the amount paid by the complainant for discontinuing with immigration process for personal reasons.  The complainant asked for refund verbally and also vide email dated 23.01.2019.OP-1 vide email dated 25.01.2019 relied on the retainer’s agreement while denying the refund.  The complainant vide email dated 27.03.2019 reiterated OP’s assurance of complainant being eligible as Federal Skilled Worker.  OP-1 vide its email dated 22.02.2019 re-iterated that he was eligible for Federal Skill Worker program for immigration.

7. Thereafter, OP-1 vide email dated 28.02.12019 demanded reference letters of appointment and employment documents. The complainant clarifies that he had already furnished the employment documents in June-July,2018.The complainant further clarifies that OP-1 denied refund firstly on the false ground that the complainant is withdrawing from the immigration process and secondly on the ground that he has been unable to furnish necessary documents.

8. The complainant had also stated that one of the OP1’s consultant, Mr.Yvon Guerin, was proceeded under a disciplinary complaint by Canada Regulatory Council.  A penalty was imposed by the said committee on Mr. Yvon Guerin.

9. The complainant prays for refund of Rs.67,275/- with 8% interest, and 2,50,000/- towards compensation for damages.

10. OP-1 in its reply, states that the complainant is not entitled to refund under page15, clause D, point 3 of the Retainer’s agreement.  The said clause disallows any refund in cases of withdrawal by the applicant.  OP-1 clarified that out of total retainership fees of Rs.90,000/-, a sum of Rs.55,000/- was paid by the complainant initially.

11. OP-1 alleges that it provided a checklist of the documents required, and no   reference letter from the employer of the complainant was provided.  It is alleged that the Agreement mentions the details required in the reference letter and a format was shared with the complainant on 21.08.2018.  It is further alleged that the complainant did not proceed with the filing of immigration application as he was not able to procure the reference letter.OP-1 has admitted that the complainant paid a fee of Rs.67,275/- as a matter of record.  OP-1 prays for dismissal of complaint.

12. The complainant in its rejoinder has reiterated the averments made in the complaint.

13. Complainant has filed its evidence by way of affidavit and exhibited the following documents:-

1. Copy of  documents of employment are exhibited as CW-1/1
2. Copy of certificate of incorporation is exhibited as CW-1/2.
3. Copy of Memorandum of Association is exhibited as CW-1/3.

1. Copy of register of directors is exhibited as CW-1/4 & 1/5
2. Copy of shareholders is exhibited as CW-1/6 & 7.
3. Copy of financial statement is exhibited as CW-1/8.
4. Copy of information leaflet is exhibited as CW-1/9.
5. Copy of Retainer Agreement is exhibited as CW-1/10.
6. Copy of account statement is exhibited as CW-1/11.
7. Copy of Annual Report on Immigration is exhibited as CW-1/12.
8. Copy of Report by JRoss Hospitality Recruiters is exhibited as CW-1/13.
9. Copy of emails are exhibited as CW-1/14.
10. Copy of legal notice is exhibited as CW-1/15.
11. Copy of replyto legal notice is exhibited as CW-1/16.
12. Copy of decision of Immigration Consultants of Canada Regulatory council Vs Yvon Guerin is exhibited as CW-1/17.
13. Copy of employment figures from Glassdoor Canada (www.glassdoor.ca) and Talent.com is exhibited as CW-1/A.

14. OPW-1 has filed evidence by way of affidavit wherein it is following documents are exhibited:-

1. Copy of Retainer Agreement is exhibited as Exh.OPW-1/1.
2. Copy of email is exhibited as Exh.OPW-1/2.
3. Copy of Reprimand order of Mr. Guerin exhibited as Exh.OPW-1/3.

However no documents have been placed on record by OP-1.

15. The Commission has considered the material and documents on record.  It is undisputed that an Agreement dated 09.12.2017 was entered between the parties which indicates that the complainant has paid Rs.55,000/-+taxes @18%. OP-1 has admitted in its reply filed before this Commission that the complainant has paid a fee of Rs.67,275/-.

16. We have perused the emails between the party. OP-1 vide email dated 30.11.2018 requested the complainant to give them some time for investigation and assured him of a response by 03.12.2018.  OP-1 vide email dated 14.12.2018 stated that the complainant is unreachable.OP-1 vide another email dated 15.12.2018 again requested time for investigation. Complainant vide email dated 28.12.2018 requested OP-1 for a response.  The complainant vide email dated 07.01.2019 requested for refund as the application process had not even started.  The complainant vide email dated 09.01.2019 again asked for a response.  OP-1 vide email dated 10.01.2019 communicated with complainant that refund is not possible as the process could not start due to lack of documentation.  The complainant vide email date 23.01.2019 requested the OP-1 to provide the clause of the contract under which refund was denied. 

17. OP-1 replied that the complainant application cannot be filed due to lack of required documents and no refund is possible as per, clause B, Point No.3.  The said clause is as follows: 

“After signing of contract, where the client application has still not been filed or has been filed but cannot be processed or is refused on account of following, no refund will be applicable under any of the following circumstances:

The Clientdecides not to proceed ahead with filing of the applicatio – at any of the application process stages, after signing this contract, for any reason whatsoever:”

18. The complainant vide email dated 27.01.2019 asked for refund of fees paid to OP-1 as no progress was being made. OP vide email dated 22.02.2019 again asked for documents.  OP-1 vide another email requested for drafted reference letter.

19. The Agreement between the parties emulate the condition in which refund is not possible. They are as follows:

“1. The member comes to the opinion that somebody other than the client is making efforts to gain access to the services for his personal or professional gains.

2. The member forms the views that clients has furnished bogus or confusing details/particulars.

3.  A time frame of three (3) months comes to an end during which the client falls to respond to a communication, in any form, to the member or any of his employees.

4.  Clients, on his own or through others, behaves in such a violent and abusive manner with the member or any of his employees.

5.  Where the client (and if married spouse as well) does not apply for, at his costs, and provides the ECA report within 60 days of signing of the agreement.

6. The client and (and if married spouse as well) does not undergo IELTS test and gets the desired band which will make place in merit in the express entry pool, within 3 months of signing this agreement.”

20. The said Agreement also states that reference letters are needed.  Relevant portion is as follows:  The client must provide employment reference letters, from employers with clear mention of duties and responsibilities performed by him/her with various employers – for the claimed years of experience.Client has been informed that he can claim points for experience during last 10 years prior to filing of application only for the employment for which he has provided employment reference letter.The employment reference letter

•  Should be on letterhead;
• Should be dated;
• Should carry full name of the employee (our client)
• Should carry full name of the signing executive
• Should carry designation of the signing executive;
• Should carry dates of related experience (from when to when)
• Should confirm that the employee is working full time;
• Should confirm the designation or designations held by the executive while being in employment of the company;
• Should confirm the duties and responsibilities performed by the employee (our client);
• Should carry the contract details (phone number and email ID of the signing executive.

21. The complainant has provided employment letter and contract of employment from

1. Taj Palace Hotel, New Delhi
2. Crown Plaza
3. Galaxy Hotel
4. The Surya, New Delhi
5. Roots Corporation Ltd.
6. The Golkonda Resorts & Spa, Hyderabad
7. Country Inn & Suites
8. The Holiday Inn Resorts, Kolkata

22. All the reference letters are on letter head, dated, carries the name, designation of the employees, name and date of signing executive, and the details of the contract of employment.   OP-1 has stated that the complainant has not provided the reference letters.  OP-1 also stated that a format of reference letter was sent to complainant, but no such format has been placed on record.  

23. The trail mail between the parties demonstrate that lack of documentation was cited by OP-1 only when the complainant asked for refund.  There has been neither demand of drafted reference letter before request for refund nor any format provided for drafted reference letter.  OP-1 has failed to file any drafted reference letter in their reply before the Commission. Hence, we find OP-1 guilty of deficiency in service in not processing the application of the complainant after receiving consideration. We also find OP-1 guilty of unfair trade practice in asking for reference letters already provided by the complainant.  We, therefore,  direct OP-1  to pay:

1. Rs.67,275/- with interest @9% from date of payment till realization.
2. Rs.20,000/- as compensation for harassment and mental agony
3. Rs.5,000/- towards litigation expense.

24.  Order to be uploaded and complied within 30 days.  File to be consigned to record room.