Chandigarh

StateCommission

A/55/2015

Canasia Immigration Consultancy Services Ltd, - Complainant(s)

Versus

Surya Prakash Saini - Opp.Party(s)

Dalip K. Kataria

10 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                      

First Appeal No.	:	55 of 2015
Date of Institution	:	09.03.2015
Date of Decision	:	10/03/2015

 

Canasia Immigration Consultancy Services Ltd., SCO 425-26-27-28, Sector 35-C, Chandigarh.

……Appellant/Opposite Party

V e r s u s

Surya Prakash Saini s/o Sh. Ram Parkash Saini, H.No.2231, Sector 19-C, Chandigarh 160019.

              ....Respondent/Complainant

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh. Dalip K. Kataria, Advocate for the applicant/                    appellant.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 09.12.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it partly accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Party (now appellant), as under:-

“For the reasons recorded above, we find merit in the complaint and the same is partly allowed. The OP is directed as under :-

 

1. The OP shall refund to the complainant an amount of Rs.1,16,000/- with interest @ 9% per annum from the date of its deposit till realization.
2. The OP shall make payment of an amount of Rs.40,000/- to the complainant towards compensation for harassment and mental agony,
3. The OP shall also pay to the complainant Rs.11,000/- as litigation costs. 

This order shall be complied with by the OP within one month from the date of receipt of its certified copy; thereafter, the OP shall pay the aforesaid amounts at Sr.No.(i) & (ii) above with interest @ 12% per annum from the date of filing of the complaint, till realization, apart from the litigation costs”   

2.       The facts, in brief, are that on the representation made by the representative of the Opposite Party, to the complainant, that it (Opposite Party), would get the approval from the Service Canada within six months, he submitted an application for Permanent Residence (PR) in Canada, under Arranged Employment Opinion, and deposited Rs.28,090/- vide receipt dated 21.06.2013 (Annexure C-1). Thereafter, on depositing a sum of Rs.1,16,000/-, Fee Agreement (Arrange Employment Opinion) was also executed between the parties, on 21.06.2013 (Annexure C-2).  Receipt dated 26.08.2013 (Annexure C-3), in respect of receipt of $2000/-, by Canadian Western Holding Ltd., was also handed over by the Opposite Party, to the complainant. It was stated that vide letter dated 11.09.2013 Annexure C-4, the complainant was informed that the initial approval from the Law Firm of the Opposite Party, in Canada, had been received. Thereafter the Fee Agreement (Annexure C-4 doubly marked) was received  from Planet Placement Ltd., a sister concern of Canadian Western Holding Ltd. It was further stated that the said Agreement was signed by the complainant on 17.09.2013, and sent back to the Opposite Party. It was further stated that, as per the Agreement, executed between the parties, the Opposite Party was to provide the requisite service to locate an employer, in Canada, within 6-8 months, for the complainant, but it failed to do so. In such circumstances, the complainant vide letter dated 19.05.2014 (Annexure C-5) sought refund of the deposited amount of Rs.1,44,090/- alongwith interest, but to no avail. 
3.           It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to refund the amount of Rs.1,44,000/-, alongwith interest @18% P.A., from the respective dates of deposits, till realization; pay compensation, to the tune of Rs.50,000/-, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.20,000/-.
4.       The Opposite Party, in its written version, pleaded that the complaint was liable to be dismissed on the ground that Canadian Western Holding Limited, which had received the fee, and Planet Placement Limited of Canada, with which the Agreement was executed, had not been impleaded as necessary parties to the same (complaint).  It was denied that the Opposite Party, ever promised the complainant, to locate an employer for him, and get the approval for his permanent residence-ship, in Canada, within six months.  It was stated that the complainant submitted an application for permanent residence, in Canada, under arranged employment opinion, and deposited a sum of Rs.28,090/-, with the Opposite Party, towards professional fee, which was non-refundable.  It was further stated that $2000 were received by the Canadian Western Holding Limited, Canada. It was denied that the complainant was entitled to the refund of the amount of Rs.1,44,090/-. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5.        In his rejoinder, filed by the complainant he stated that  he approached the Opposite Party only for the Arranged Employment Opinion (AEO) i.e. to arrange a job offer for him, in Canada, which was proved from the registration fee receipt. It was further stated that the complainant had authorised the Opposite Party to process the case, on his behalf, as per the Fee Agreement (Annexure C-2). It was further stated that the complainant made all the payments directly to the Opposite Party. All other averments contained in the complaint, were reiterated and those contained, in the written version of the Opposite Party, were repudiated.
6.       The Parties led evidence, in support of their case.
7.       After hearing the complainant, in person, Counsel for the Opposite Party, on going through the evidence, and record of the case, the District Forum, partly accepted the complaint, in the manner, referred to, in the opening para of the instant order. 
8.       Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
9.       Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 53 days, as per the applicant/appellant (as per the office report 46 days), was filed by  it (applicant/ appellant). It was stated, in the application, for condonation of delay that the delay, aforesaid, in filing the appeal, occurred on account of the reason that the Managing Director/Proprietor of the  applicant/ appellant/Opposite Party, was out of India, for his business purpose, and, as such, when he came back on 02.03.2015, necessary action was taken and the appeal was filed on 09.03.2015. It was further stated that, on account of the reason, referred to above, there was delay, in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
10.       We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
11.       The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 53 days, as per the applicant/ appellant (as per the office report 46 days), in filing the appeal, under Section 15 of the Act or not. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab and  Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bonafide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court,  it was held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

12.       In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.

13.          In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

14.       In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-

“The party should show that besides acting bona fide, it had taken all possible steps within its  power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”

15.       In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”

16.         In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”

17.         A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. The ground taken up by the applicant/appellant/Opposite Party, in the application for condonation of delay, that its Managing Director/Proprietor, was out of India, for his business purpose, and, as such, when he came back on 02.03.2015, only thereafter, the appeal was filed, is not prima facie established, in the absence of any cogent and convincing material having been placed, on record. Even this much has not been mentioned, in the application for condonation of delay, as to which Country, and on which date, the Managing Director/ Proprietor, of the applicant/appellant/ Opposite Party, went for his business purpose and came back. No air ticket(s), in the shape of documentary evidence, have been placed on record, to establish, as to which Country and on which date,  the Managing Director/Proprietor, of the applicant/appellant/ Opposite Party, went for the alleged business purpose. Thus, the stand taken by the applicant/ appellant, in the application for condonation of delay, remains unsubstantiated.
18.       It may be stated here, that once certified copy of the impugned order, was received in the office of  the applicant/appellant, it was the bounden duty of the concerned Official(s), to take decision, within maximum five to six days, and forward the relevant file/ documents, to the Counsel concerned, for filing the appeal. The Official(s) of the applicant/appellant, instead of challenging the order dated 09.12.2014, within 30 days, by way of filing an appeal, slept over the matter, and, ultimately, woke up after 53 days (as per the office report 46 days). There was complete inaction and lack of bonafides, on the part of the applicant/appellant/Opposite Party, in filing the appeal after a delay of 53 days (as per the office report 46 days).  The applicant/appellant did not act, with due diligence, resulting into delay of 53 days, (as per the office report 46 days), in filing the appeal, which is much, beyond the prescribed period of limitation. The cause set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be plausible. The mere fact that the Officials of the applicant/appellant, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of an appeal, within the period prescribed, under Section 15 of the Act, does not mean that the applicant/appellant could be shown undue diligence. The delay, in filing the appeal was, thus, intentional, wilful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 53 days, as per the applicant/appellant (as per the office report 46 days), cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
19.            The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In  Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under:-

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

20.       It is evident, from the principle of law, laid down in Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into  consideration all the  relevant  factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the part of the applicant/appellant, to take immediate steps to ensure that the appeal was filed within the prescribed period, as envisaged by Section 15 of the Act. However, the Officials of the applicant/appellant, just slept over the matter, and did not take the requisite steps, to file the appeal, in time.  It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicant/appellant. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.
21.       Now coming to the merits of the case, the Counsel for the appellant, submitted that according to the Agreement executed between the parties, the Opposite Party had to locate an employer, for the complainant, in Canada, which was to take minimum six to eight months and get the approval from the Service Canada. He further submitted that the appellant/Opposite Party was making all out efforts, to locate an employer for the complainant. He further submitted that the Opposite Party was ready to refund the amount of Rs.1,16,000/-, paid by the complainant, to it, for rendering service, but immediately after issuance of notice to it, he (complainant) came rushing to the District Forum, for filing the consumer complaint. He further submitted that the District Forum was wrong, in coming to the conclusion that the complainant was entitled to interest, on the amount of refund. He further submitted that even the District Forum erred in coming to the conclusion that the complainant was entitled to compensation. In the alternative, he submitted that the compensation awarded by the District Forum, is on the higher side. He further submitted that there was no deficiency, in rendering service, on the part of the Opposite Party. He further submitted that, as such, the order of the District Forum, being illegal and invalid, is liable to be set aside.
22.       It may be stated here, that even on merits, the appeal deserves to be dismissed, for the reasons, as would be discussed hereafter. Admittedly, the complainant submitted an application to the Opposite Party, for his permanent residence, in Canada, under Arrange Employment Opinion.  It is also admitted  that the Opposite Party, agreed to process the case, on behalf of the complainant, as per the Fee Agreement dated 21.06.2013 (Annexure C-2). It is also admitted that the Opposite Party received an amount of Rs.25,000/- towards registration fee and Rs.3,090/- towards service tax etc. totaling Rs.28,090/- vide bill/cash memo, copy whereof is Annexure C-1.  It is also admitted that the complainant deposited a sum of Rs.1,16,000/- equivalent to 2000 dollars, vide receipt dated 26.08.2013 (Annexure C-3) allegedly issued by the Canadian Western Holding Ltd.  There is also no dispute, with regard to the factum that the Opposite  Party informed the complainant vide letter dated 11.09.2013 (Annexure C-4) that it had received initial approval for him, from its Law Firm in Canada.  The complainant entered into Fee Agreement (Annexure C-4) with Planet Placement Ltd. It may be stated here that copy of the receipt dated 12.7.2013 (at page 7 of the rejoinder filed by the complainant) reveals that the Opposite Party, received a sum of Rs.1,16,000/- equivalent to 2000 dollars, from the complainant, on account of initial approval AEO case, on behalf of M/s Canadian Western Holding Ltd.  However, later on, the Opposite Party, provided the receipt dated 26.08.2013 (Annexure C-3) of 2000 dollars, aforesaid, issued by the Canadian Western Holding Ltd., Canada, in favour of complainant, as consultancy fee (initial approval).
23.        The question that arises, for consideration, is, as to whether, the Opposite Party, made any efforts, to locate any employer for the complainant, in Canada or not. It may be stated here that the Opposite Party, failed to produce on record, even a single document, to prove, as to what efforts were made by it, to locate an employer for the complainant, in Canada, and for getting approval from Service Canada, within six months, for permanent residence of the complainant, there (Canada), despite receiving fee of Rs.28,090/-. Since the amounts of Rs.28,090/-, and Rs.1,16,000/- equivalent to 2000 dollars, were paid by the complainant to the Opposite Party, on 12.07.2013 vide receipt (at page 7 of the rejoinder, of the District Forum file), it was its bounden duty, to render proper service to him. On the other hand, copy of the email message at page 8/31 of the rejoinder shows that one Kamaljeet Kaur, Official of the Opposite Party, after receiving the letter from the complainant regarding the refund of amount deposited by him, sent an intimation to him on 23.05.2014, whereby he (complainant) was given the option for filing his case, under the Federal Skilled Worker Category. This act of the Opposite Party, made it crystal clear that it failed to provide professional services, for which the complainant submitted his application for permanent residence in Canada, under the Arrange Employment Opinion, which involved obtaining offer of employment for continuous full time work, for at least one year, as per the Fee Agreement (Annexure C-2).  Thus, the Opposite Party was deficient, in rendering service to the complainant, and, as such, it had no right to retain the amount of Rs.1,16,000/-, obtained from him. The District Forum was also right, in holding so. The findings of the District Forum, in this regard, being correct, are affirmed.
24.       The next question, that falls for consideration, is, as to whether, the complainant was entitled to interest @9% P.A., on the amount of Rs.1,16,000/-, as awarded by the District Forum. It may be stated here, that ‘Interest’, in general terms, is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another.  In its narrow sense, ‘interest’ is understood to mean the amount, which one has contracted to pay for use of borrowed money.  In whatever category ‘interest’ in a particular case may be put, it is a consideration, paid either for the use of money, or for forbearance in demanding it, after it has fallen due, and, thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by the parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable. The interest is granted, for improper and illegal retention of the amount deposited by the complainant, with the Opposite Parties, by the latter, for a long time. In the instant case, the amount of Rs.1,16,000/-, alongwith other charges, was deposited by the complainant, with the Opposite Party, for providing him services with regard to his permanent residence, in Canada, under Arrange Employment Opinion. However, as held above, the Opposite Party, miserably failed to provide the said services, to the complainant. The complainant was deprived of his hard earned money, to the tune of Rs.1,16,000/-, on the basis of misleading information, given by the Opposite Party, that an employer in Canada would be found for him, within the period of six to eight months, under Arrange Employment Opinion, but it failed to do so. The complainant was, thus, caused financial loss.  Hard earned money, deposited by the complainant, towards the said services, was utilized by the Opposite Party, and, thus, it earned handsome returns thereon, without providing any services to him. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. It is, therefore, held that the Opposite Party, by neither providing the said services, nor refunding the amount of Rs.1,16,000/-, to the complainant, was not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant, was, thus, certainly entitled to the refund of Rs.1,16,000/- alongwith interest, from the respective date(s) of deposit(s). In our considered opinion,  the District Forum was right, in awarding interest on the amount of Rs.1,16,000/- @9% P.A., from the respective date(s) of deposit(s), till realization. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
25.       The next question, that falls for consideration, is, as to whether, the compensation granted by the District Forum, to the tune of Rs.40,000/-, for causing mental agony and physical harassment, to the complainant, at the hands of the Opposite Party, was excessive or, on the other hand, adequate, fair and reasonable. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant. The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award value of the goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is, otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainants. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65.  As stated above, the hard money of the complainant was retained by the Opposite Party, on the basis of misleading information, given by it (Opposite Party), that an employer would be found for him, in Canada, within the period of six to eight months, under Arrange Employment Opinion, but it failed to do so. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Party. The condition of a person, from whom the huge amount, referred to above, was obtained, on account of misleading information, given by the Opposite Party, that an employer would be found for him, in Canada, within the period of six to eight months, under Arrange Employment Opinion, but was actually not provided with the same, could be very well perceived. It is settled principle of law, that the compensation should be granted, keeping in view the facts and circumstances of the case, injury suffered by the consumer, deficiency, in rendering service and indulgence into unfair trade practice, on the part of the Opposite Party(s). The compensation should neither be too high, nor too meagre. It must be adequate, so as to meet the ends of justice. For mental agony and physical harassment, injury suffered by the complainant, and   deficiency, in rendering service, as also indulgence into unfair trade practice on the part of the Opposite Party, in our considered opinion, compensation in the sum of Rs.40,000/-, awarded by the District Forum, could not be said to be on the higher side, but, on the other hand, it could be said to be adequate and reasonable. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
26.       No other point, was urged, by the Counsel for the appellant.
27.       For the reasons recorded above, the application for condonation of delay, is dismissed. Consequently, the appeal, filed by the appellant, is also dismissed, being  barred by time, as also on merits, at the preliminary stage, with no order to costs.
28.       Certified copies of this order, be sent to the parties, free of charge.
29.       The file be consigned to Record Room, after completion.

Pronounced.

10.03.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg