FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the complainants, in brief, is that, complainants intended to shift Canada for their livelihood purpose and for that reason, being allured by the representation of the OPs who proclaimed themselves as a consultancy firm and as per their advertisement they helped people for immigration in foreign countries and helpthem to secure job over there with permanent residential status, complainants entered into an agreement vide Contract No.LAK/784/12 and as per contract made an initial token advance on 05.03.2012 of Rs.33,190. Thereafter till 2018 complainants made several payments through cheque and cash amounting to about Rs10,38,982/- and several MOU and agreements were signed between the parties. On November complainants were asked by the OPs to pay Rs.10,00,000/- otherwise the entire amount will be forfeited. Thereafter the complainant tried to contact the OPs over telephone, personal visits and through SMS but all were in vain. At last OPs assured to reply and give positive answer by 20.12.2018 but did nothing. In the meantime complainants came to know that the OPs have siphoned money of various parties and cheated people to the tune of Crores of Rupees. Complainants lodged an FIR against the OPs at Shakespeare Sarani P.S. vide Case No.319 dated 18/12/2018 U/S 420, 406  and 120B IPC and to that effect OPs had been taken into the Police as well as Judicial Custody and have been released on bail. Complainants sent a Legal Demand Notice dated 13.03.2019 to the OPs. Finding No other option complainants are compelled to knock the door of this Commission.

Upon notice of the complaint, OPs1 & 2 did not appear and file WV denying the allegations made in the complaint. Vide order dated 01.11.2021 this Commission has closed the right of the OP to file WV and the case has proceeded ex parte against the OPs 1 & 2.

OP3 has contested the case by filing WV and denying the allegations made in the complaint petition. The contention of the OP3 is that being an unemployed educated person OP3 had applied for a job to the OP1 and got the job in the said firm as ‘Human Resource & Client Relationship Executive’ by an ‘Offer of Employment’ letter dated 14.05.2014 and appointed in Kolkata Office. Complainant No1 has applied for arrangement for her overseas employment in Canada and for thesaid purpose entered into an MOU with the OP1 much before the OP3 joined the office of the OP1. OP3 was neither a signatory of the said MOU nor entrusted to deal with the matter of the complainants herein. Moreover OP3 has resigned from the service by submitting ‘Resignation Letter’ dated 15.11.2018 which was accepted by the employer on 16.11.2018. OP3 was engaged as an employee of the OP1 and as per service condition OP3 has to obey the instruction of the employer and nothing has been done by OP3 in personal capacity nor the OP3 has offered to provide service of any kind to the complainants. Therefore no relationship between the complainants and the OP3 as ‘Consumer’ and ‘Service Provider’. On the basis of false statements an FIR U/S 420/406 and 120B of IPC vide Case No. 3019 dated 18.12.2018 was lodged by the complainants against the OP3 at Shakespeare Sarani P.S. Apprehending the arrest in the aforesaid case the OP3 filed an application U/S 438 of CPC before the LD. Chief Judge , City Session Court, Calcutta for anticipatory bail and by an order dated 27.05.2019 the Ld. Chief Judge, City Session Court was pleased to allow the application and direct to release the Op3 on bail. Further, by filing the present complaint the complainants have claimed refund of money which was never received by the OP3 either as an employee or in her personal capacity. Thus the complainants have failed to establish any negligence or unfair trade practice against the OP3.

In support of their claim, both the parties have tendered evidence and also relied documents annexed with their petitions. Complainant has also filed BNA. OP3 has failed to file questionnaire and E/chief in spite of getting several opportunities. We have heard argument on merit and have also perused the record.

Evidently the complainants have paid Rs.8,93,120 in total through cheques on several dates to the OP1 & 2 for getting job and permanent residential status at Canada. Documents on record show that for that purpose several MOU and agreements were signed between the parties. There is no doubt that the OPs 1& 2 have failed provide service to the complainants for which they have received a huge amount of consideration. It is also found from the material documents that OPs 2 & 3 were arrested for running false job racket and a case of cheating forgery has been recorded against them. The OP2 was released on interim bail on 16.02.2019 and the OP3 was granted bail on 27.05.2019.

Ld. Advocate for the OP3 argued that the OP3 was a mere employee of the OPs 1 & 2 and as per service condition the OP3 carried the instruction of the employer. Further, OP3 did not offer any kind of serviceto the complainants. Therefore there is no relationship between the complainants and the OP3 as ‘Consumer’ and ‘Service Provider’. Moreover the MOU dated 24.05.2013 was signed between the OP1 and the complainants much before the OP3 joined the office of the OP1. Photocopy of the Offer of Employment dated 14.05.2014 support this contention. Material document furnished by the OP3 goes to show that the OP3 has resigned from the said job on 15.11.2018. It is also admitted fact that an FIR was lodged and registered u/s 420/406 and 120B of IPC vide case No. 319 against the OPs at Shakespeare Sarani P.S. on 18.12.2019. In view of above facts it appears before us that the OP3 is neither the proprietor of the Company nor the decision maker. Therefore we are of the opinion that OP3 has no liabilities towards the complainants.

Evidently OP2 is the proprietor of the M/s Link Abroad Communication Centre i.e. OP1 and engaged in business of providing assistance and/or advice to it’s clients for the purpose of admission/compiling/visa processing/getting a decision for the concerned visa from the respective High Commission Office, arrangement employment in overseas company and offers a wide range professional consultancy and immigration services to the clients who want to immigrate with overseas education, permanent residence and immigration Service. But the Shakespeare Sarani Police led by then DC Aparajita Rai raided the said Office at Chatterjee International and found that the said Company is a fake one and duped many people, complainants are amongst them.

It is true that that no WV has been filed by the OPs 1 & 2 though several opportunities were given to them for filing WV but they have failed to file the same as such the allegation stated in the complaint petition remains unchallenged. Regarding this matter, we can safely state that on failure to file WV by the OPs 1 & 2 tantamount to admission of the allegations stated in the complaint petition.

In the light of the above discussion, we find both deficiency in service within the meaning of Section 2(11) and unfair trade practice within the meaning of section 2(47) of the Consumer Protection Act,  2019 to be well and truly evident on the part of the OPs 1 & 2. It is the company and the proprietor upon whom the liability can be fixed at all.

In remedy, it would be just and equitable to direct the OPs 1& 2 severally and jointly

(a)        To refund the Rs.8,93,120/- to the complainants with 8% interest p.a. from the date of payments respectively.

(b)        OPs 1& 2 is also directed to pay compensation to the tune of Rs.20,000/- for mental agony and harassment to the complainant together with litigation costs of Rs.10,000/-.

(c)        The aforesaid direction shall be complied with within a period of six weeks from today, failing which the amount shall carry interest @ 12% per annum till its realization. 

A copy of the judgment be supplied to the parties as per rules. Upload this order on the website of this Commission immediately for perusal of the parties.