Chandigarh

StateCommission

A/164/2015

M/s Worldwide Immigration Consultancy Services Ltd., - Complainant(s)

Versus

Karnail Singh Saini - Opp.Party(s)

Raman Walia, Adv.

14 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

              UNION TERRITORY, CHANDIGARH

 

First Appeal No.	164 of 2015
Date of Institution	14.07.2015
Date of Decision	14.08.2015

 

M/s Worldwide Immigration Consultancy Services Ltd. (WWICS), SCO No.2415-16, Sector 22-C, Chandigarh through its Director.

 

                                          ….Appellant/Opposite Party.

                           Versus

Karnail Singh Saini r/o Flat No.20, Guru Nanak Enclave, Mundi Kharar, District Mohali (Earlier resident of #74, Phase 11, Mohali and 113/8, Cinema Gali, Paonta Sahib, District Sirmour (H.P.).

                                            ….Respondent/Complainant.

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

Argued by:

Sh.Raman Walia, Advocate for the appellant.

Sh.Gaurav Bhardwaj, Advocate for the respondent.

 

PER PADMA PANDEY, MEMBER         

                       

                        This appeal is directed against the order dated 08.06.2015, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed Consumer Complaint bearing No.403 of 2014, filed by the complainant, with the following directions:-

“12.     In view of the above discussion, we are of the opinion that the present complaint should succeed. The same is accordingly, allowed. The Opposite Party is directed to:-

                        [a]  To refund USD 1600 to the Complainant;

 [b]  To pay Rs.25,000/- on account of deficiency in service and causing mental and physical harassment to the Complainant; 

 

                        [c] To pay Rs.10,000/- as costs of litigation;

13.     The above said order shall be complied within 30 days of its receipt by the Opposite Party; thereafter, they shall be liable for an interest @12% per annum on the amount mentioned in per sub-para [a] & [b] above, apart from paying costs of litigation of Rs.10,000/-, from the date of institution of this complaint, till it is paid.”

2.             The facts, in brief, are that the complainant hired the services of the Opposite Party for consultancy, pre-landing and post-landing services (Gold Package) for skilled worker program for immigration to Canada, apart from other assistances and services for immigration on 04.11.2003 and, as such, he (complainant) deposited a sum of Rs.25,000/- with the Opposite Party vide receipt dated 04.11.2003 and also signed the Contract of Engagement on the same date (Annexure C-1 & C-2 (Colly)). It was stated that the complainant was also asked to sign a Contract of Engagement (Skilled Category) (Annexure C-5 colly.) with Global Strategic Business Consultancy Corporation on 04.11.2003. It was further stated that within one month, the complainant was asked to deposit $1600 (U.S) as professional fee for post landing services, which was deposited by him vide cheque No. 017578 dated 12.12.2003 (Annexure C-3, C-4 & C-5 (Colly)). It was further stated that the complainant was asked to wait, as the process would take some time, which he patiently did.  It was further stated that the Opposite Party also handed over a letter (Annexure C-6) to the complainant, received from the Canadian High Commission, mentioning therein that the applications received 33 months ago were being assessed and it would take time to assess his application. It was further stated that the file number of complainant was mentioned as B047031541 and the file number given by the Opposite Party was 24403. It was further stated that a fee of Rs.38,000/- and Rs.10,400/- was also deposited by the complainant with the Canadian High Commission on 09.08.2004 and 23.11.2004 (Annexure C-6 (colly), C-7 and C-8). Thereafter, the complainant waited for a few days and then approached the Opposite Party to enquire about the status of his case and immigration, but he was told that the said process, being a long one, would take time. It was further stated that the complainant again waited patiently for the same, but nothing concrete happened and, thereafter, he again approached the Opposite Party, but was sent back with the same answer as on the earlier occasion.

3.             It was further stated that the Opposite Party advised him to continue his case, as there was possibility of being successful in the time to come and the complainant agreed for the same, as it (Opposite Party) was not ready to refund the amount paid by him, if he withdrew his case. It was further stated that during all this process, the complainant came to know in the month of July, 2013 that the Canadian Immigration cancelled the backlog cases of pre-February, 2008 and, as such, he immediately wrote a letter to the Opposite Party for cancellation of his authorization and refund the fee of post-landing services to him on 19.07.2013 (Annexure C-9). It was further stated that the complainant also approached the Canadian Immigration Department and they gave some printouts of the notices of the Canadian Immigration with regard to the cancelling of the pre-February, 2008 cases (Annexure C-10 to C-13). It was further stated that the complainant communicated with the Customer Care of the Opposite Party through a lot of e-mails regarding the refund of the post landing professional fee of $1600 (U.S) but the Opposite Party informed that only $ 600 (U.S.) could be refunded and that too had not been refunded to him (Annexure C-14 Colly.). Ultimately, the complainant duly served upon the Opposite Party a legal notice dated 19.05.2014 (Annexure C-15 & C-16). It was further stated that the Embassy refunded the fee $1286.06 (U.S.) to the complainant.   It was further stated that  the complainant was not demanding refund of the professional fee for consultation i.e. Rs.25,000/- and the amount of Rs.48,400/- paid to the embassy but he was only demanding the U.S.$ 1600 paid to the Opposite Party for post landing services. It was further stated that the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 11 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act" only), was filed.

4.             In     its     written         statement, the Opposite Party,  admitted that the complainant hired its services for consultancy for skilled worker program for immigration to Canada on 04.11.2003 and, as such, he (complainant) deposited a sum of Rs.25,000/- in its favour, against which, a receipt was issued to him (Annexure R-4). The said payment was made as per the Contract of Engagement (Annexure R-3), which was signed by the complainant with M/s WWICS Limited. It was further stated that the complainant signed another Contract of Engagement (Annexure R-2) with M/s Global Strategic Business Consultancy Corporation on 04.11.2003 and paid USD 1600 in favour of said M/s Global Strategic Business Consultancy Corporation, which was a separate legal entity. It was admitted that the fee of Rs.38,000/- and Rs.10,400/- was paid by the complainant to Canadian High Commission, as Visa Processing Fee (VPF). It was further stated that the complete case of the complainant was filed before the Canadian High Commission and the same was acknowledged by them stating that they received the application for permanent residence in Canada and had created a file number and further stated that they were assessing the applications received 33 months ago and it would take time to assess the application of the complainant (Annexure R-5). It was further stated that the complainant was clearly informed that as per Clause 8 of the Agreement, “time shall not be the essence of the contract” (Annexure R-3). It was further stated that the Canadian High Commission terminated all the applications for Federal Skilled Worker filed prior to February, 2008 on account of operation of new law in force (Annexure R-6). It was further stated that the Opposite Party fully provided its services to the complainant and, therefore, was not liable to refund the professional fee, which was non-refundable. It was only on account of termination of backlog cases filed prior to February, 2008 by the Canadian High Commission, the case of the complainant got terminated. It was further stated that the Opposite Party was not liable to refund the post landing fee, as the USD amount was paid vide demand draft in the name of M/s Global Strategic Business Consultancy Corporation, which was a separate legal entity and the same could not be claimed from the Opposite Party. It was further stated that the Opposite Party was not to provide post landing services to the complainant. It was further stated that if the complainant intended to claim USD 1600, he could claim from M/s GSBC, which was not made a party. It was denied that the Opposite Party ever informed the complainant that USD 600 could be refunded. It was further stated that the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

5.             The complainant, filed replication to the written reply of the Opposite Party, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Party. 

6.             The parties led evidence, in support of their case.

7.             After   hearing   the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above.

8.                     Feeling aggrieved, the     instant appeal, has been filed by the appellant/Opposite Party.

9.             We have heard the   Counsel for the parties, and have gone through the evidence and record of the case, carefully.

10.            The Counsel for the appellant/ Opposite Party, submitted that the District Forum while passing the impugned order ignored the terms of the Contract of Engagement and allowed the complaint, even though the appellant had duly performed its part of the contract. He further submitted that the Canadian Government, Ministry of Citizenship and Immigration Canada had enacted a new law, under which, the applications made before 27.02.2008 were terminated by operation of law. He further submitted that the case of the complainant was also effected by this law and his application was terminated by law and intimation whereof was sent to him (complainant) by the Canadian High Commission and, thus, the appellant had no control over it. He further submitted that the amount of US $ 1600 was paid by the complainant directly to M/s GSBC, Dubai, as is clearly from Annexure C-4, which was totally a separate legal entity and as per Clause 7 of the Contract of Engagement (Annexure R-2) executed between the complainant and the said Company, the said dollar payment was non-refundable, if the case of the complainant is rejected, due to change in Immigration Rules and Regulations, due to which, he would no longer qualify for immigration to destination country. He further submitted that the impugned order passed by the District Forum was totally silent with regard to the payment of Rs.48,000/- paid by the appellant to the complainant on 13.02.2015 by way of cheque No.426903 dated 04.02.2015 drawn on ICICI Bank, Mohali, during the proceedings and, therefore, prayed for setting aside the impugned order.

11.            The Counsel for the respondent/complainant submitted that the complainant hired the services of the Opposite Party for consultancy, pre-landing and post-landing services (Gold Package) for skilled worker program for immigration to Canada and paid a requisite fee, as demanded by the Opposite Party. He further submitted that both the Contract of Engagements were signed at Chandigarh on 04.11.2003, as is evident from Annexure C-2 (Colly.) and Annexure C-5 (Colly.) and the same authorised person of the Opposite Party signed the contract on behalf of WWICS and M/s GSBC, Dubai and now the Opposite Party was taking the defence that the same (M/s GSBC) was a separate legal entity. He further submitted that the Embassy already refunded the fee charged by them to the complainant i.e. $1286.06 (U.S).  He further submitted that the complainant never demanded the professional fee from the Opposite Party but only demanded refund of fee for post landing services, because such a service was never provided to him, as the occasion for the same never arose. He further submitted that the Opposite Party failed to pay the full amount i.e. USD 1600 to the complainant and only paid the amount of Rs.48,000/-, before the District Forum, on 13.02.2015. He prayed for dismissal of the appeal, filed by the Opposite Party. 

12.                   After giving our thoughtful consideration, to the submissions, raised by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons, to be recorded, hereinafter.

13.            The core question, that falls for consideration, is, as to whether, the Opposite Party was liable to refund the amount to the complainant. The answer, to this, is in the affirmative. Annexure C-1 is a copy of receipt dated 04.11.2003 for a sum of Rs.25,000/-. From this document, it is proved that the complainant hired the services of the Opposite Party for consultancy, pre-landing and post-landing services (Gold Package) for skilled worker program for immigration to Canada and paid the aforesaid amount of Rs.25,000/- to the Opposite Party and for processing his case, Contract of Engagement was executed between the complainant and the Opposite Party on 04.11.2003 (Annexure C-2 Colly.) and on the same date i.e. 04.11.2003, another Contract of Engagement was executed between the complainant and Global Strategic Business Consultancy Corporation (Annexure C-5 Colly.). It is an admitted fact that the complainant also paid the amount of $1600  to Global Strategic Business Consultancy Corporation vide receipt Annexure C-3. Annexure C-17 is a copy of the cheque of the refund of fee of USD 1286.06. From this document, it is proved that the Canadian High Commission already refunded the fee of USD 1286.06 to the complainant on 14.05.2014. It is also evident that the complainant sent a letter dated 19.07.2013 (Annexure C-9) to the Opposite Party for refund of fees (Post – Landing Services) Gold Package.  The plea of the appellant/Opposite Party was that Global Strategic Business Consultancy Corporation is a separate independent Company having a separate legal entity and, as such, it (Opposite Party) was not liable for refund of the fee with regard to Post – Landing Services, paid by the complainant to Global Strategic Business Consultancy Corporation, as he failed to make the same as a party, before the District Forum. The appellant/Opposite Party further submitted that its role was limited to preparing, filing and submitting the application of the complainant before the Canadian High Commission, which was duly prepared and submitted by it (Opposite Party) before the Canadian High Commission and the Opposite Party duly performed its part of the contract but his case was terminated by the Canadian High Commission, due to change in law. It is, no doubt, true that Global Strategic Business Consultancy Corporation was a separate independent Company and the complainant had not made the same as a party but apparently money was sent to the Company in Dubai through intervention of appellant/Opposite Party. We are, therefore, of the considered opinion that the District Forum rightly held that the complainant did not go to Dubai himself for getting the Contract entered into with the said Global Strategic Business Consultancy Corporation. It is pertinent to note that a cheque of Rs.48,000/- was handed over by the Counsel for the Opposite Party to the Counsel for the complainant, without prejudice to the rights of the complainant in the complaint, as is evident from the zimini order dated 13.02.2015 of the District Forum but the District Forum, while passing the impugned order, failed to mention this fact. The appellant/Opposite Party further took a plea that as the complainant had signed the Contract of Engagement, which was executed between the complainant and Global Strategic Business Consultancy Corporation and as per Clause 7 of the said Contract of Engagement, he was not entitled to refund of the amount. However, the said Clause, at page No.21 of the Contract of Engagement, was not signed by the complainant, as such, the same was not binding upon him. A bare perusal of both the contracts showed that the Opposite Party failed to get it signed from the complainant on each and every page of both the contracts. It is important to mention here that both the Contract of Engagements, Annexure C-2 (Colly.) & Annexure C-5 (Colly.), were signed on 04.11.2003 and the same authorized person of the Opposite Party signed the contract on behalf of WWICS and Global Strategic Business Consultancy Corporation. The District Forum rightly held that if the Opposite Party itself was not competent enough to process the case of the complainant to the Canadian High Commission, then there was no reason for it to get into any kind of contract/ agreement with the complainant and this act of involving its innocent clients unnecessarily into Agreement with unknown parties for its own selfish motive, by extorting exorbitant amount clearly amounted to deficiency in service and indulgence into unfair trade practice.  It is true that when the Canadian High Commission itself rejected the case of the complainant then there was no occasion for him to get the post landing services. Moreover, the appellant/Opposite Party failed to pay the full amount i.e. USD 1600 to the complainant and only paid an amount of Rs.48,000/-, before the District Forum. We are of the view that if the Canadian Embassy, being a Government Agency had already refunded the amount charged by them to the complainant, then why the appellant/Opposite Party had not refunded the full amount to the complainant, as he did not avail the post landing services.  We are of the considered opinion that the impugned order passed by the District Forum is liable to be upheld.   

14.            Keeping in view the facts and circumstances of the case, we are of the considered view that the District Forum was right, in allowing the complaint, as stated above.   Hence, the order passed by the District Forum, being based on correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

15.            For the reasons recorded above, the appeal, filed by the appellant/Opposite Party, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the District Forum is upheld. Since, the appellant/Opposite Party had handed over cheque in the sum of Rs.48,000/- to the Counsel for the complainant, as is evident from the zimini order dated 13.02.2015, the payable amount shall be, after reducing the amount, aforesaid, already received by the respondent/complainant.

16.            Certified Copies of this order be sent to the parties, free of charge.

17.            The file be consigned to Record Room, after completion.

Pronounced.

14.08.2015                                                         Sd/-        

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

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