BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 30th October 2009
PRESENT:
1. Smt. Asha Shetty, B.A. L.L.B., President
2.Smt. Sulochana V. Rao, Member
3.Sri. K. Ramachandra, Member
BETWEEN:
Com. No.296/2008 (Restored):
Inayathulaa Ismail Sheikh,
S/o. S. Ismail,
Aged 46 years,
Residing Near Madoor Mosque,
Madoor, Post Kotekar,
Mangalore Taluk. …….. COMPLAINANT
Com. No.6/2009:
Shiraj Saheb,
So. Hussain Sheikh,
Aged 40 years,
Ellur, Udupi Taluk,
Udupi District. …….. COMPLAINANT
Com. No.7/2009:
Abdul Khalid,
Sheikh,
S/o. Mohammed Saheb,
Aged 58 years,
Resident of Kotebagilu,
Moodabidri,
Mangalore Taluk. …….. COMPLAINANT
(Advocate for the Complainants in all the above cases: Sri.K.S.Nambiar).
VERSUS
1. Group Chairman,
Ms. Cambridge Group,
58.2, 58.3, Cambridge Layout,
Sai Baba Temple Road,
Ulsoor, Bangalore 560 008.
(Opposite Party No.1: Exparte).
2. Dr.Uma R.Ullal,
W/o. R.S. Ullal,
Chairman,
Ullal General Hospital,
Sri Nilayam, Kambla,
Mangalore -3. ……. OPPOSITE PARTIES in all
the above three cases.
(Advocate for the O.P.No.2: Sri.Chandrashekhara Holla K.)
***************
COMMON ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
These complaints are filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
Three Complainants have filed separate complaints against the common Opposite Parties contending that Opposite Party No.1 and 2 are jointly carrying on the business of recruiting employees and obtaining visa to willing employees to work abroad. That the Opposite Parties had undertaken to obtain visa to Dubai for the Complainants and for the said purpose the Opposite Parties had taken a sum of Rs.60,000/- from the Complainant on 4.11.2003 in complaint No.296/2008, Rs.40,000/- from the Complainant on 3.11.2003 in complaint No.6/2009 and Rs.50,000/- from the Complainant on 4.11.2003 in complaint No.7/2009. However, the Opposite Parties have failed to obtain a visa for the Complainants as promised by them. Therefore the Complainants sought the refund of the amount from the Opposite Parties. Thereafter the Opposite Parties have paid a sum of Rs.30,000/- to the Complainant in complaint No.296/2008, Rs.25,000/- to the Complainant in complaint No.6/2009 and Rs.30,000/- to the Complainant in complaint No.7/2009 by way of part payment. The balance amount was not paid by the Opposite Parties inspite of repeated requests and reminders made by the Complainants. The failure of the Opposite Parties to refund the balance amount amounts to deficiency in service and hence the above complaints are filed by the Complainants before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to refund the balance amount of Rs.30,000/- in complaint No.296/2008, Rs.15,000/- in complaint No.6/2009 and Rs.20,000/- in complaint No.7/2009 along with interest at the rate of 18% p.a. from the date of payment till the realization and also claimed Rs.50,000/- as compensation and cost of the proceedings.
2. Version notice served to both the parties by RPAD. The notice to the Opposite Party No.1 in all the complaints returned unserved with the postal endorsement ‘left’. Thereafter the paper publication was taken against the Opposite Party No.1 in Kannada Daily Newspaper “Hosadigantha”. Despite of that Opposite Party No.1 neither appeared nor filed version till this date and hence proceeded exparte. The unserved postal cover and the paper publication placed before the FORA marked as court document No.1 and 2.
Opposite Party No.2 appeared through their counsel filed common version in all the complaints. Opposite Party No.2 denied the entire allegations and stated as follows:
One Sri.Sathish T. Muliyil introduced himself to this Opposite Party as Chairman and Managing Director of Rajiv Gandhi Foundation and several other organizations like Cambridge Abroad and also introduced himself as an international businessman, promotion agent and real estate agent. And further stated that his Cambridge Abroad helps all those who aspire to go abroad seeking professional placements. Sri.Sathish T. Muliyil requested this Opposite Party to be his representative at Mangalore to do liaison work and he had issued a letter dated 16.2.2004 to this effect. It is further submitted that he had also appointed M.C. Mohammad Yahya Mangalore as agent at Mangalore and two other agents at Kasaragod. It is stated that Sri.Muliyil sent notices/publications requiring personnel for various gulf countries, Singapore and Australia. This Opposite Party has not given any advertisement in any newspaper, periodicals or magazines and the Complainants were not approached her personally. That the Complainants were not paid any amount to this Opposite Party. There is no valid contract between this Opposite Party and the Complainants and hence this Opposite Party is not responsible.
It is further submitted that at any point of time this Opposite Party did not promise the Complainants to get visa to Dubai and not running any agency or organization providing visa to any person. The organization Cambridge abroad Bangalore and its proprietor/owner Sri.Sathish T. Muliyil who has received the amount from the Complainants. It is submitted that this Opposite Party was cheated by the above said proprietor of Cambridge abroad. This Opposite Party along with the other persons lodged a police complaint to take appropriate action against Mr.Muliyil proprietor/owner, Cambridge Abroad and stated that the above stated person duped about 600 people in Bangalore, Mangalore and Kerala and has collected Rs.6 crores promising them with visas to various countries and it has come in the newspaper and stated that this Opposite Party is not responsible for the fraud committed by the above person and the matter being in a criminal in nature this complaint is not maintainable before this FORA and also contended that the Complainants are not consumers and further stated that the complaints are barred by limitation. This Opposite Party has not committed any deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainants are consumers?
- Whether the complaints are barred by limitation?
- Whether the Complainants prove that the Opposite Parties committed deficiency in service?
- If so, whether the Complainants are entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Inayathulla Ismail Sheikh (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. One Sri.Krishnappa Nayak M (CW2) – Branch Manager at Andhra Bank – summoned witness for the Complainant was examined and cross-examined by the learned counsel for the parties. Ex C1 to C7 were marked for the Complainant as listed in the annexure (in complaint No.296/2008).
One Mr.Shiraj Saheb (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. One Sri.Praveen Ullal (CW2) – Officer in Corporation Bank and one Sri.Prashanth K.K (CW3) – Assistant Manager in ICICI Bank – summoned witnesses for the Complainant were examined and cross-examined by the learned counsel for the parties. Ex C1 to C12 were marked for the Complainant as listed in the annexure (in complaint No.6/09).
In complaint No.7/09 one Mr.Abdul Khalid Sheikh (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. One Sri.Praveen Ullal (CW2) – Officer in Corporation Bank – summoned witness for the Complainant was examined and cross-examined by the learned counsel for the parties. Ex C1 to C6 were marked for the Complainant as listed in the annexure.
In all the above three cases, one Mrs.Uma R. Ullal (RW1) – Opposite Party No.2 filed counter affidavit and answered the interrogatories served on her and one Dr.Mahendra Ullal (RW2) – witness/son of Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him. Ex R1 to R11 were marked for the Opposite Party No.2 as listed in the annexure. The Opposite Party No.2 filed written arguments along with citations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:
Point No.(i) and (ii): Affirmative.
Point No.(iii) to (v): As per the final order.
Reasons
5. Point No. (i) and (ii):
In all the complaints the Complainants have produced the copies of the demand draft by which amounts were paid by them and the receipts were issued by the 1st Opposite Party. The Opposite Party No.1 not appeared before the FORA nor contradicted the evidence of the Complainants. The entire evidence placed by the Complainants in all the cases show that the Complainants paid the above said amount believing the Opposite Parties that they provide employment visa for the Complainants to work in abroad. That means the Opposite Party No.1 as a principal and the Opposite Party No.2 is an agent received the consideration promising the Complainants to provide visa to work abroad, the service undertaken by the Opposite Parties falls within the purview of Section 2(1)(o) of the Consumer Protection Act and hence the Complainants are consumers.
The Opposite Party No.1 received the amount of Rs.60,000/-, 40,000/- and Rs.50,000/- respectively from the Complainants out of the said amount the part payments were made and rest of the payments were due from the Opposite Parties hence the cause of action continues until and unless the entire amount has been paid to the Complainants. The question of limitation does not arise in the present case on hand. In view of the above, the point No.(i) and (ii) held in favour of the Complainants.
Point No.(iii) to (v):
As far as point No.(iii) to (v) are concerned, three complaints have been filed against the common Opposite Parties contending that the Opposite Parties carrying on the business of recruiting employees and obtaining VISA to the willing employees to work abroad. The Complainants in the above cases approached the Opposite Parties which they came to know through the advertisement that the Opposite Parties provide employment VISA for people to work in abroad. Believing the Opposite Parties, the Complainants paid Rs.60,000/-, Rs.40,000/- and 50,000/- respectively to the Opposite Parties in the above cases. The receipt of the amount was not disputed by the Opposite Parties. The Complainants contend that the Opposite Parties promised that they will provide VISA and later on did not get the visa as promised and thereafter the Complainants approached the Opposite Parties and sought refund of the aforesaid amount. The Opposite Parties have paid a sum of Rs.30,000/- to the Complainant in complaint No.296/2008, Rs.25,000/- to the Complainant in complaint No.6/09 and Rs.30,000/- to the Complainant in complaint No.7/09 and rest of the amount were not paid nor issued the VISA as promised, hence came up with these complaints.
The facts which are not in dispute is that the Complainants have produced the copies of the receipt issued by the 1st Opposite Party and the cheques dated 10.2.2005, 9.10.2004, and 26.4.2004 showing the part payment received from the Opposite Parties. And further it is not disputed that the Opposite Parties received the above said amount in order to provide VISA to work in abroad to the Complainants in these cases.
Now the point in dispute before the FORA is that the Opposite Party No.1 inspite of receiving version notice not appeared nor contested the case till this date. The Opposite Party No.2 appeared through their counsel and contested the case stating that she was appointed as an agent by one Sathish T.Muliyil who introduced himself as Chairman and Managing Director of Rajiv Gandhi Foundation and several other organizations like Cambridge Abroad. The Opposite Party No.1 had requested this Opposite Party to do liaison work in Mangalore and to do function as his agent. The Opposite Party admitted the amounts paid by the Complainants by demand draft and the said demand draft were made payable to Cambridge Aboard and denies that Opposite Party No.2 has received any amount on her own. Further contends that the demand draft amount was received by the Opposite Party No.1 and she later came to know that Mr.Muliyil made himself good with the money collected from several people like the Complainants and she has filed police complaint against the above said person at Indira Nagar Police Station at Bangalore. The Opposite Party No.2 denied that except as collecting agent she has anything to do personally with the transaction. Opposite Party No.2 denies that she made any promise personally or received any amount personally. On account of threats from people like the Complainants, her sons have paid the amount to each of the Complainants to avoid any unhappy incidents and contends that she is not personally liable for the same and produced Ex R1 to R11 in order to substantiate her contention.
On careful scrutiny of the documents as well as the oral evidence placed before us, the Ex R1 i.e the letter dated 16.2.2004 issued by the Opposite Party No.1 i.e Group Chairman – Muliyil T Sathishan for Cambridge
Group reads thus:-
Dear Madam,
We have immense pleasure in appointing you as our representative at Mangalore to do liaison work. Kindly note that you have to collect only Demand Drafts favouring M/s.Cambridge Group, payable at Bangalore and issue receipt for the same and send the demand draft’s to Bangalore for realization at our end.
Assuring you of our best co-operation and guidance.
For CAMBRIDGE GROUP
Sd/-
MULIYIL T. SATHEESAN
Group Chairman
The above said letter is not disputed by the Opposite Party No.1 or the Complainants. The above said letter clearly reveals that as per the direction given by the Opposite Party No.1, Opposite Party No.2 only acting as a representative to collect the demand drafts and send the same to the M/s.Cambridge Group. Except the above stated work no other responsibility was given to the Opposite Party No.2 on record. There is no documents available on record to show that the Opposite Party No.2 promised the Complainants to provide VISA. But on the other hand, the Complainants contended that the Opposite Party No.2 had a joint account with the Opposite Party No.1 and she is a partner of the Opposite Party No.1 and produced Ex C7 is the partnership letter signed by the Opposite Party No.1 and 2 to show that the Opposite Party No.2 also has personal interest. Basing on the above letter we cannot conclude that the Opposite Party No.2 has personal interest because the subsequent letter i.e., Ex R1 dated 16.02.2004 supra issued by the very same Opposite Party No.1 reveals that she is appointed only as a representative and not otherwise. If at all the Opposite Party No.2 is the partner of the above Cambridge Group the issuance of Ex R1 by the Opposite Party No.1 does not arise. Further the police complaint lodged by the Opposite Party No.2 i.e Ex R7 also clearly establishes that the Opposite Party No.1 misled the Opposite Party No.2 and after she came to know that the Opposite Party No.1 collecting amount from the public and cheating the public she has rightly lodged a complaint against the Opposite Party No.1 which clearly shows the innocents of the Opposite Party No.2 for some extent. That means she has no personal interest or gain from the above contract entered between the Complainants and the Opposite Party No.1. The entire amount was paid by the Complainants to the Cambridge Abroad represented by its Chairman one Mr.Muliyil received the amount and receipt was issued by him. That itself shows that Opposite Party No.2 personally had anything to do with the organization called Cambridge Aboard except as its agent. And further the Complainants have failed to produce any material documents to show that they have entered into a contract with the Opposite Party No.2. It is a settled position of law that, the Section 230 of the Indian contract Act says that, in the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal nor is he personally bound by them subject to three exceptions mentioned in the said section. The Complainants have no case that their cases fall within any of the exceptions. Indian Contract Act and Specific Relief Act, 11th edition Volume 2 by Pollack and Mulla published by N.M. Tripati Private Limited. The learned author writes “when in making a contract no credit is given to himself as agent, but credit is exclusively given to his principal, he is not personally liable thereon”. Further below in the same page the learned author further writes “even in that case he cannot be sued on that contract if it is professedly made by him merely in his capacity as agent”.
As we already stated above, the Complainants were aware at the time when they made the payments that the Opposite Party No.2 was functioning only as an agent for Cambridge Abroad. Demand draft was issued in favour of the Cambridge Abroad, receipts for payment was issued in favour of the Complainants by the Chairman Cambridge abroad one Mr.Sathish T. Muliyil as the Group chairman of the Cambridge Abroad. There is no evidence to show that any amount was taken by the Opposite Party No.2 for her personal gain. On the other hand, the Opposite Party No.1 inspite of paper publication not appeared nor contradicted the evidence of the Complainants as well as Opposite Party No.2. The entire evidence of the Complainants and the Opposite Party No.2 not challenged by the Opposite Party No.1. Where a party inspite of receiving notice/paper publication does not appear and states his case on oath or offer himself to be cross-examined or affidavit of the evidence filed by the parties unless controverted or contradicted has to be acted upon. In the given case, the Opposite Party No.1 not appeared nor contradicted the evidence of Complainants and Opposite Party No.2 in all the cases. Hence the service rendered by the Opposite Party No.1 amounts to deficiency for non-refunding of the amount or providing the visa to the Complainants within reasonable time or thereafter till this date.
In view of the above discussions, we are of the considered opinion that in the given case, the Opposite Party No.1 is solely responsible as a principal who has promised to the Complainants for providing visa. Under such circumstances, Opposite Party No.1 is hereby directed to refund the balance amount of Rs.30,000/- to the Complainant in complaint No.296/2008, Rs.15,000/- to the Complainant in complaint No.6/2009 and Rs.20,000/- to the Complainant in complaint No.7/2009 along with interest at 12% p.a. from the date of receipt of the amount till the date of payment. And further Rs.1,000/- each i.e., Rs.3,000/- (Rupees three thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
As far as Opposite Party No.2 is concerned, as we discussed herein above, since there is no contractual relation between the Complainants and the Opposite Party No.2 to provide visa, the complaints against the Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
COMMON ORDER
The complaints are allowed. Opposite Party No.1 is hereby directed to refund the balance amount of Rs.30,000/- to the Complainant in complaint No.296/2008, Rs.15,000/- to the Complainant in complaint No.6/2009 and Rs.20,000/- to the Complainant in complaint No.7/2009 along with interest at 12% p.a. from the date of receipt of the amount till the date of payment. And further Rs.1,000/- each i.e., Rs.3,000/- (Rupees three thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Complaint against Opposite Party No.2 is hereby dismissed.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 30th day of October 2009.)
PRESIDENT
(SMT. ASHA SHETTY)
MEMBER MEMBER
(SMT.SULOCHANA V.RAO) (SRI. K.RAMACHANDRA)
In complaint No.296/2008:
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Inayathulla Ismail Sheikh – Complainant.
CW2 – Sri.Krishnappa Nayak M – Branch Manager at Andhra Bank – summoned witness for the Complainant.
Documents marked on behalf of the Complainant:
Ex C1 – 04.11.2003: Receipt issued by the Opposite Party towards receipt of Rs.60,000/- through DD No.283851, State Bank of India with endorsement dated 2.2.2005.
Ex C2 – 28.03.2009: Paper publication advertisement bill for Rs.400/-.
Ex C3 – 26.03.2009: Paper cuttings of Hosadigantha Newspaper.
Ex C4 – 04.11.2003: Receipt for Rs.60,000/- issued by the Chairman of Cambridge Group.
Ex C5 – 25.11.2003: Application for opening current account.
Ex C6 - : Statement of account issued by Andhra Bank.
Ex C7 – 25.11.2003: Partnership letter.
In complaint No.6/2009:
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Shiraj Saheb – Complainant.
CW2 – Sri.Praveen Ullal – Officer in Corporation Bank – summoned witnesses for the Complainant.
CW3 – Sri.Prashanth K.K – Assistant Manager in ICICI Bank – summoned witnesses for the Complainant.
Documents marked on behalf of the Complainant:
Ex C1 – 03.11.2003: Receipt issued by the Opposite Party towards receipt of Rs.40,000/- through DD No.559463 dated 3.11.2004, State Bank of India with endorsement dated 10.03.2005.
Ex C2 – 26.04.2004: Cheque No. 598954 for Rs.5,000/- drawn on ICICI Bank.
Ex C3 – 09.10.2004: Cheque No.073339 for Rs.14,000/- drawn on Corporation Bank, Car Street Branch.
Ex C4 – 10.02.2005: Cheque No.073340 for Rs.6,000/- drawn on Corporation Bank, Car Street Branch.
Ex C5 – 13.08.2009: Authorization letter issued by the Corporation Bank in favour of Mr.Praveen Ullal.
Ex C6 – 12.02.1998: Account opening form relating to account No.13456 in Corporation Bank.
Ex C7 & C7(a) to (e) – Account opening form pertaining to account maintained by Mr.Mahendra Ullal at ICICI Bank, Mangalore.
Ex C8 – 23.02.2004: Cheque for Rs.4,00,000/- drawn on Indian Bank.
Ex C9 - : Copy of the PAN card relating to Mahendra R. Ullal.
Ex C10 – 07.12.2003: Telephone bill of Dr.Mahendra Ullal.
Ex C11 – 14.02.2004: Letter of offer issued by ICICI Bank Limited.
Ex C12 – 20.08.2009: Certificate issued by ICICI Bank Limited in favour of Mr.Prashantha Prasada K.K.
In complaint No.7/2009:
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Abdul Khalid Sheikh – Complainant.
CW2 – Sri.Praveen Ullal – Officer in Corporation Bank – summoned witnesses for the Complainant.
Documents marked on behalf of the Complainant:
Ex C1 – 03.11.2003: Receipt issued by the Opposite Party towards receipt of Rs.50,000/- and endorsement made therein regarding repayment of Rs.30,000/-.
Ex C2 – 10.02.2005: Cheque No.054108 for Rs.7,500/- drawn on Corporation Bank.
Ex C3 – 09.10.2004: Cheque No.054107 for Rs.17,500/- drawn on Corporation Bank, Car Street Branch.
Ex C4 – 26.04.2004: Cheque No.598953 for Rs.5,000/- drawn on ICICI Bank.
Ex C5 – 13.08.2009: Authorization letter issued by the Corporation Bank in favour of Mr.Praveen Ullal (in complaint No.6/2009).
Ex C6 – 12.02.1998: Account opening form relating to account No.13456 in Corporation Bank.
In all the above three cases:
Witnesses examined on behalf of the Opposite Parties:
RW1 – Mrs.Uma R. Ullal – Opposite Party No.2.
RW2 – Dr.Mahendra Ullal – witness/son of Opposite Party No.2.
Documents marked on behalf of the Opposite Party No.2:
Ex R1 – 16.02.2004: Copy of the letter from Muliyil.
Ex R2 - : Copy of the brochure of the Cambridge Group.
Ex R3 - : Copy of the list of employments in gulf countries.
Ex R4 – 15.12.2003: Copy of the letter from Muliyil.
Ex R5 - : Copy of the order of the Karnataka Home Secretary to entrust the cases of Muliyil to CCB.
Ex R6 - : Photos of Muliyil and his visiting card.
Ex R7 – 03.01.2005: Copy of the complaint by the Opposite Party No.2.
Ex R8 - : Copy of the FIR.
Ex R9 – 22.03.2004: Copy of the complaint.
Ex R10 – 16.02.2004: Copy of the letter issued to Mrs.Uma Ullal by Mr.Muliyil.
Ex R11 – 28.11.2005: Copy of the order of this Hon’ble Court.
Dated:30.10.2009 PRESIDENT
