BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.214 of 2014

Date of Instt. 2.7.2014

Date of Decision :22.10.2014

Jasbir Kaur aged about 45 years wife of Naresh Kumar R/o 121, Punjabi Bagh, Pathankot Road, Jalandhar.

..........Complainant

Versus

M/s WWICS, 3rd Floor Midland Financial Centre, Plot No.21-22, G.T.Road, Opp.Hotel Kings, Near ICICI Bank, Jalandhar City through its Branch Manager.

.........Opposite party

Complaint Under The Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.SK Chopta Adv., counsel for complainant.

Sh.GPS Rana Adv., counsel for opposite party.

Order

J.S. Bhatia (President)

1. The complainant has filed the present complaint against the opposite party on the averments that the opposite party signed a contract with the complainant on 28.12.2003 to settle herself with her children at Canada vide file No.03-C/300217/25046. The opposite party took Rs.25,000/- from the complainant by way of cheque No.019923 drawn on Bank of Punjab, Jalandhar as agreement fee, it was duly encashed by the opposite party. On 29.8.2004 opposite party received 1600 US Dollars as professional fee from the complainant which was paid for immigration, settlement and placement services. On 29.8.2005 the complainant delivered demand draft of Rs.19,000/- to opposite party as Embassy fee. Opposite party failed to send the complainant to Canada as promised by them and when the complainant demand her lawful amount back from opposite party, in order to repay her payment opposite party paid a demand draft of 499.66 US Dollars on 26.3.2014 by saying refund of Embassy fee but opposite party miserably failed to repay the amount of Rs.25000/- and 1600 US Dollars earlier received by them from the complainant in an illegal manner. Earlier opposite party advised the complainant to clear IELTS and get 5 band accordingly. The complainant underwent IELTS on 17.1.2009 and get 5 band and sent the IELTS certificate to opposite party, the opposite party sent a letter to complainant on 2.3.2009 and cunningly said that 7 bands were needed, then the complainant appeared for IELTS again and got 5 bands. Thereafter the opposite party further apprised the complainant to arrange 10000 US Dollar and pay to opposite party so that they could obtain offer letter for the complainant, she paid 5000 US Dollar to them on 1.6.2009(File No.54884). On 14.6.2009 opposite party arranged an offer letter dated 14.6.2009 which was in the name of Jasvir Kaur Sharma, the complainant objected then opposite party arranged a letter dated 12.6.2009 in the name of Jasbir Kaur and demanded 5000 US Dollars more for approval from HRSDC Department. The complainant paid 5000 US Dollars to opposite party on 16.9.2009. After getting 10000 US Dollars from complainant the opposite party arranged another offer letter on 30.11.2009. In the contract opposite party promised the complainant to arrange offer letter in one year but on 2.8.2010 opposite party sent an E-mail to the complainant to the effect that there was some technical defect in earlier offer letter so that is withdrawn by the employer and arranged new offer letter on 30.8.2010. The complainant kept on making phone calls but opposite party did not care to listen her by making lame excuses and further said by e-mail on 6.2.2012 that this time a new offer letter from very reputed company shall be given, as such on 1.4.2012 the opposite party delivered another offer letter to the complainant by saying that it will be approved very soon. At last after 16 months opposite party refused to arrange any offer letter and proclaimed that the complainant could not get approval in this regard. On 7.8.2013 the complainant sent a letter to opposite party to refund her money. On 24.1.2014 opposite party gave the complainant 7500 US Dollars after 4 years and 7 months by deducting 2500 US Dollars. On such like averments, the complainant has prayed for directing the opposite party to make payment of Rs.25,000/- plus 1600 US Dollars and 2500 US Dollars and further Rs.50,000/- on account of other expenses of IELTS coaching etc. She has also claimed damages and litigation expenses.

2. Upon notice, the opposite party appeared and filed a written reply pleading that the complainant has not approached this court with cleans hand. In fact the complainant has also suppressed material facts from this court to the effect that the complainant has consented to receive an amount of US $ 7500 towards full and final refund vide consent letter dated 9.9.2013 in respect of her case wherein the complainant had agreed that she will not file any legal case and raise any claim against the answering opposite party after receipt of the above said amount which will be towards the full and final refund of her claim, accordingly the complainant was refunded US $ 7500 vide D.D No.037890 dated 19.1.2014 drawn on Royal Bank of Scotland which has since been encashed by the complainant and even a No Dues Certificate dated 24.1.2014 was also signed by the complainant, thus the matter was settled once for all. The doctrine of "Promissory Estoppel" is fully applicable in the present case as the answering opposite party acting upon the assurance/consent letter and assurance given to it had refunded the above said amount and as such the present complaint of the complainant can not proceed at all as the complainant had agreed in consent letter that she will not file any legal case or raise any claim against the company and the settlement is full and final for all times to come, therefore, the present complaint is liable to be dismissed on this ground alone. It further pleaded that as per clause 7 of the said contract of engagement, it was agreed between the parties that the answering opposite party will not be responsible for any delay occurring due to backlog of cases or for any other reasons at the Visa Post. In the instant case the application of the complainant for immigration and permanent residence for Canada was forwarded to Canadian High Commission, New Delhi and the Canadian High Commission vide letter dated 9.9.2005 acknowledged the receipt of the application. The answering opposite party vide letter dated 9.9.2005, duly informed the complainant about the receipt of her file number, however, before the case of the complainant could be processed by the Canadian High Commission, New Delhi, the Canadian Immigration Authorities on 29.6.2012 changed the immigration rules from a back date whereby all the federal skilled worker applications filed before 27.2.2008 were terminated by way of a new Act namely the Jobs, Growth and Long Term Prosperity Act,2012. Unfortunately the case of the complainant also falls under the same time frame having been received by Canadian High Commission on 9.9.2005 therefore her case was also terminated vide letter dated 24.5.2013 by the Canadian High Commission and the demand draft of US $ 496 which was deposited by the complainant as visa processing fee was returned back on 2.3.2014 which has since been encashed by the complainant. The answering opposite party had already performed their part of the contract by filing the case of the complainant before the Canadian High Commission, however since there was a change in the immigration rules after the filing of the case of the complainant, therefore her case was terminated by the Canadian High Commission for which the answering opposite party can not be held liable. The services given by the answering opposite party are professional in nature and entire fee is non refundable. The answering opposite party had prepared the case of the complainant which is a very lengthy procedure and had filed it before the Canadian High Commission and even the file number was received from the Canadian High Commission, thus the present complaint needs outright dismissal on the ground that the answering opposite party can not be held liable due to change in immigration rules by the Canadian High Commission and more so in view of clause 7 of the contract. The complainant has not impleaded M/s Global Strategic Business Consultancy, Dubai (in short GSBC) with whom the complainant had entered into two separate contract of engagements and had deposited US $ 1160 vide drafts dated 27.2.2004, 1.6.2009, 16.9.2009 out of which US $ 7500 has already been refunded to the complainant. The amount paid to M/s GSBC, Dubai can not be claimed from the opposite party. The complainant is trying to take advantage of her own wrongs. The complainant retained the services of M/S GSBC, Dubai afresh on 1.6.2009 under the Arranged Employment Opinion Category and as per the agreement paid US $ 5000 to the said company, the balance amount of US $ 5000 was to be paid on providing the job letter as per the agreement. The case of the complainant was processed in June, 2009 and for job offers were got arranged by M/s GSBC, Dubai and the complainant paid the remaining US $ 5000 vide draft dated 16.9.2009 however after arranging of the job offer, same was sent for the approval to Human Resources and Skills Development Canada(in short HRSDC), however the same were rejected by HRSDC therefore as per the agreement, after deducting US $ 2500 an amount of US $ 7500 was refunded to the complainant towards the full and final settlement of her claim for which she even signed her consent and no dues certificate, thus the present complaint is liable to be dismissed being an abuse of process of law. It denied other material averments of the complaint.

3. In support of his complaint, the counsel for the complainant has tendered in to evidence affidavit of complainant Ex.CA along with copies of documents Ex.C1 to C26 and closed her evidence.

4. On the other hand, learned counsel for opposite party has tendered affidavit Ex.RA along with copies of documents Ex. R1 to R16 and closed evidence.

5. We have carefully gone through the record and also heard learned counsel for the parties.

6. Counsel for the opposite party at the out set contended that the complainant has received 7500 US Dollars in full and final settlement of her claim vide Consent letter Ex.R1 and as such the present complaint is not maintainable. He contended that the complainant has even given consent letter after receiving 7500 US Dollars in full and final settlement of her claim. He contended that consent letter was executed by the complainant on her own accord without any coercion or undue influence. He further contended that after receiving of 7500 US Dollars in full and final settlement of her claim, the complainant is estopped from raising any other claim and present complaint is not maintainable. On the other hand, it has been contended by learned counsel for complainant that the admission is not conclusive and what weight is to be attached to the same depends upon the circumstances of each case. He contended that admission can be shown to be erroneous. In support of this contention, he has relied upon Nagubai Ammal & Others Vs. B.Shama Rao & Others 1993(Suppl.) Civil Court Cases 412(S.C). We have considered the contentions advanced by learned counsel for both the parties. The above cited authority relied upon by the learned counsel for complainant is on different facts and in different context. There is no dispute that a party making any admission can show that same was erroneous or untrue. Ex.R1 is consent letter executed by the complainant at the time of receiving 7500 US Dollars from the opposite party. In the consent letter which is signed by the complainant, it is specifically mentioned that she hereby declare and certify that the settlement arrived at between the parties is of free will on both the sides and without there being any element of coercion or undue influence. It is dated 9.9.2013. It is also not disputed that the complainant could show that she executed the consent letter under coercion or undue influence but in the present case neither there are any pleadings to this effect nor any evidence in this regard. In the complaint, the complainant had no where pleaded that she executed the consent letter at the time of receiving 7500 US Dollars under any coercion or undue influence. In the written reply, the opposite party has taken preliminary objections regarding the execution of the consent letter and receiving 7500 US Dollars by the complainant towards the full and final settlement. The complainant filed her affidavit Ex.CA after filing of written reply by opposite party but even in her affidavit the complainant has not alleged that the said consent letter was executed by her under coercion or undue influence.

7. In M/s Tata AIG General Insurance Co.Ltd Vs. M/s Balaji Medicos 2013(4) CLT 99, the Hon'ble National Commission after relying upon two judgments of the Hon'ble Supreme Court has held as under:-

"First question to be decided by this commission is; whether complainant accepted cheque of Rs.6,00,533/- towards full and final settlement of the claim, or not. Complainant in para 10 of the complaint has clearly stated that cheque of Rs.6,00,533/- has been received by the complainant towards full and final settlement of the claim on 26.10.2004. It appears that later on by hand "and was received under protest" has been inserted. Affidavit in support of this complaint has also been filed by the complainant and para 10 of the affidavit does not depict receipt of payment under protest. In such circumstances, it can very well be held that cheque of Rs.6,00,533/- was received by complainant towards full and final settlement to the claim. OP/petitioner has clearly mentioned in paragraph 10 of its reply before District Forum that complainant has received aforesaid amount as full and final settlement of the claim. Thus, it becomes clear that the complainant after receiving Rs.6,00,533/- on 26.10.2004 towards full and final settlement of the claim issued legal notice to the OP for release of rest of the amount and filed complaint No.275/05. Learned counsel for the respondent could not apprise the date, when legal notice was given for release of rest of amount and on which date complaint was filed. Perusal of complaint case number reveals that complaint might have been filed in mid of year 2005, whereas complainant received cheque of Rs.6,00,533/- on 26.10.2004. Filing complaint after many months and that too without pleading, coercion, fraud, undue influence etc, it can not be believed that amount was received under protest. Once the amount is received towards full and final settlement of the claim, complaint for rest of the amount is not maintainable, as held by Hon'ble Apex Court in JT 1999(6) SC23- United Indian Insurance Vs. Ajmer Singh Cotton & Gen.Mills & Ors etc and (2000) SCC 334 - New India Ass.Co.Ltd Vs. Sri Venkata Padmavathi R & B Rice Mill. Ld.State Commission has committed error in allowing complaint, though complainant received amount towards full and final satisfaction of the claim".

8. The ratio of above cited authority is fully applicable on the facts of the present case. In the present case neither there are pleadings regarding coercion, undue influence etc nor any evidence. Consent letter Ex.R1 was executed on 9.9.2013 and whereas the complainant filed the present complaint on 1.7.2014 i.e after about 10 months. In case there was any coercion or undue influence in executing the consent letter Ex.R1, the complainant would have immediately filed the present complaint or initiated any other legal proceedings. Even after execution of the consent letter dated 9.9.2013, the complainant executed no due certificate dated 24.1.2014 Ex.R3 wherein she has declared that settlement arrived at between the parties is of free will and without any element of coercion or undue influence. So once the complainant has received 7500 US Dollars in full and final settlement of her claim from the opposite party, she is estopped from raising any other claim and filing the present complaint.

9. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to costs. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

22.10.2014 Member President