Delhi

North East

CC/127/2017

Harleen Kour - Complainant(s)

Versus

W.W. I.C.S. LTD. - Opp.Party(s)

13 Aug 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 127/17

 

In the matter of:

 

	Ms. Harleen Kaur 172-C, Pocket-A, Mayur Vihar, Phase-2 Delhi 110091	Complainant
	Versus
	M/s. WWICS Ltd. 31/A, 3rd Floor, Rajouri Garden, Near Raja Garden Flyover, Above Yamaha Showroom, New Delhi 110027	Opposite Party

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order

1. The present complaint pertains to the grievance of the complainant wherein she stated that she had given IELTS Exam in November 2014 and visited OP office in December 2014 where officer of OP advised her to apply for PR (Canada) on signing fee agreement. The complainant paid Rs. 1,50,000/- on 03.01.2015 and 23.01.2015 in installment through cheques / NEFT and signed Contract of Agreement dated 07.01.2015 online/mail. Thereafter series of e-mails from February 2015 onwards and documentation were entered into / exchanged between complainant and OP with respect to WES (World Education Service) which was an application for Work Permit under Federal Skilled Worker Category in Canada for which the complainant paid Rs. 75,000/-  as retainer fee to OP on 24.12.2014 (3800/- in cash and Rs. 71,200/- on 01.07.2015 through cheque) in addition to already paid Rs. 1.50 Lacs. However despite submission of all documents viz academic record, job duties, resume, NOC by May 2015 to OP as asked for in emails exchanged between complainant and OP from January 2015 to May 2015, the OP did not process the papers for immigration of the complainant by pointing out some irregularity or the other and in June 2015 asked her to give IELTS Examination again on ground that her score was not sufficient to file for PR in Canada or apply through Manitoba (applicable for only candidate who have relatives in the country for which one is applying). The complainant, therefore, had to give IELTS exam again on 01.08.2015 but did not get the requisite score. Therefore in September 2015, the complainant asked OP for refund of her money paid to the tune of Rs. 1,50,000/- and Rs. 75,000/-  but despite reminders mails in October 2015 to November 2015, OP never responded thereto or refunded the amount except writing an e-mail dated 23.11.2015 stating that refund has been disapproved in accordance with terms of the agreement executed between the complainant and the OP and that the complainant may refer to refund clause of the agreement as she had failed to submit required/mandatory documents for the place processing and applied for refund. The complainant sent a legal notice dated 11.01.2016 to the OP which also went unheeded to. Therefore the complainant was constrained to file the present complaint before this Forum and prayed for directions to OP to refund the sum of                   Rs. 1,50,000/- paid by her with interest @ 24% p.a. thereon alongwith Rs. 50,000/- towards compensation for harassment, mental agony and pain and Rs. 25,000/- towards the cost of litigation to the complainant payable by the OP.
2. However, on scrutiny of complaint it has been noticed that the above complaint was filed in the name of Ms. Harleen Kaur as complainant but  instead has been signed by Ms. Satwant Kaur without any authorization/ power of attorney issued in her favor by the complainant and is also duly counter signed by Shri Rajesh Kumar Sharma, Advocate. In addition to above, the accompanying affidavit is in the name of Ms Harleen Kaur but signed and sworn by Ms. Satwant kaur and such a defective affidavit has been duly attested by the Notary Public, Delhi Shri Dinesh Kumar Kashyap (Regn. No. 67/2010- Govt. of India), in most appropriate / unprofessional manner amounting to misconduct without any observation that Ms Satwant Kaur had signed the affidavit in place of Ms Harleen Kaur.

Complainant has annexed an office copy of the Contract of Engagement, Federal Skilled Worker Category (Express Entry) Canada entailing the detail of payments amounting to Rs. 75,000/- paid in two installments (one by cheque amounting to Rs. 71,200/-and other in cash amounting to Rs. 3,800/-) whereas it is clearly mentioned in the conditions of mode of payment that the company doesn’t accept the cash payment. Nevertheless without going into merits of the case and in view of defective pleadings, the complaint was inadmissible and liable to be dismissed for which the complainant was granted opportunity to remove the defects therein vide order dated 5.7.2017. However, complainant failed to do so for next six months.

3. Written statement was filed by the OP wherein OP took the preliminary objection that the complaint in the name of Ms. Harleen Kaur had been signed by one Ms. Satwant Kaur and Ms. Satwant Kaur had neither availed the services of OP nor there was any privity of contract between the complainant and the OP and therefore, the complaint deserves to be dismissed.  Further, it was objected that Ms. Harleen Kaur had availed the services of the OP by entering into a contract of engagement with OP dated 07.01.2015 for filing immigration for Canada and Satwant Kaur was stranger to the complaint and not the aggrieved party to invoke Consumer Protection Act. It has been further objected by OP that the affidavit in support of complaint was in the name of Ms. Harleen Kaur, whereas the same has been signed by Ms. Satwant Kaur in place of Ms. Harleen Kaur thereby misleading this Forum and further that Harleen Kaur breached clause 2(b) of aforementioned contract and also failed to submit complete documents alongwith IELTS score card within 30 days from the date of signing of the contract dated 07.01.2015. Further, the OP urged that complainant appeared again in IELTS exam on 1.8.2015 but admittedly could not clear her IELTS with CLB 9 Bands to qualify. Thus, the present case was a case of failure to clear IELTS or eligible for P.R., non-submission of documents and breach of terms of contract and therefore, the complainant was not entitled to any refund whatsoever.  The OP further contented that the services provided by the OP are professional in nature and the entire fee is non-refundable as per clause 11 (iii) of the contract. It has been further submitted that OP performed its part of the contract by getting the educational credentials of complainant assessed by W.E.S. (Assessing Authority of Canada) and received positive result from W.E.S. vide their letter dated 15.04.2015 “recognizing” complainant education potential However, the complainant failed to submit her IELTS score with CLB 9 to qualify under Express Entry System and instead applied for refund vide Email dated 29.09.2015. Further OP denied having received Rs. 1,50,000/- but acknowledged having Rs. 75,000/- (non-refundable, as per clause (i) & (ii) of contract) from complainant excluding Rs. 9270/- as Service Tax etc. thereon which was also non refundable  as per clause III of contract of engagement dated 7.1.2015. The fact of non-refundable fee was intimated by OP to complainant vide email dated 23.11.2015.  The OP stated that complainant paid US$ 850 to another company namely M/s Global Strategic Business Consultancy, Dubai which is a separate and distinct legal entity for availing their professional services by entering into a contract with it on 7.1.2015 and she cannot claim the said amount of US $850.  OP Further, the present case is a case of breach of terms of contract and as such the present complaint should be dismissed with cost. Amended complaint was filed by the complainant on 25.01.2018 which was titled as Harleen Kaur V/s WWICS Ltd. but yet again was signed by Ms. Satwant Kaur and this time was not even bearing the signature of counsel. The further defect therein was that the attached affidavit was submitted in the name of Ms. Satwant Kaur instead of Ms. Harleen Kaur and was also signed by Ms. Satwant Kaur, where she declared that the deponent is the complainant in the above-noted case despite and contrary to the case title Harleen Kaur (through her mother) V/s WWICS Ltd. The accompanying application signed by Ms. Satwant Kaur stated that in the case of Ms. Harleen Kaur V/s WWICS Ltd., the complainant wants to file amended complaint before this Forum and the complainant is not in India and cannot appear before this Forum and therefore the complainant Ms. Harleen Kaur had authorized her mother Ms. Satwant Kaur to appear before this Forum and pursue the case. However, no authorization / Power of Attorney consularized in the application of Ms. Harleen Kaur was attached therewith in favour of Ms. Satwant Kaur was attached therewith and the authority letter is undated and the place shown is New Delhi but bears the signature of Ms. Satwant Kaur instead of Harleen Kaur. However, none of the above signature is attested by Notary Public/ Oath Commissioner or Consulate General of Canada. Further, a photocopy of Power of Attorney dated 9.05.2018 in the name of Ms. Harleen Kaur, mentioning her address at New Delhi has been submitted which has her signature dated 9.5.18 and is also signed by the Assistant Consular Officer, Chicago, USA dated 19.03.2018. However, the Power of Attorney states that the sign of Ms. Satwant Kaur has been attested by Ms. Harleen Kaur and states that the photo of Ms. Satwant Kaur pasted thereon to whom Ms. Harleen Kaur is transferring full power and authority but Power of Attorney submitted before this Forum does not bear the photograph of Ms. Satwant Kaur. Further, it is only a Photostat copy and the original document bearing clear and legible seal of office of Consulate General has not been submitted to this Forum. It was also not clarified by Counsel or complainant as to how the complainant was getting the power of attorney executed / signed by Asstt. Consular Officer, Chicago, USA when she had submitted the address of New Delhi in the power of attorney.
4. Reply on behalf of OP against the amended memo of parties application has been filed objection was raised by OP that neither no appropriate and proper application has been filed by the complainant nor any affidavit in support of the complaint has been filed and therefore the same is not in accordance with law and as such is liable to be dismissed. In addition to above, the present application was not filed by the complainant and the same had been filed by one Ms. Satwant Kaur on the basis of some authorization but no copy of any authorization in proper form has been filed with the application. It has been further submitted that the affidavit in support of complaint is dated 01.04.2017 in the name of Ms. Harleen Kaur but the same has been purportedly signed by Ms. Satwant Kaur. And as such the such affidavit was false and fabricated and was not tenable in eyes of law. Moreover, the above affidavit had been attested by Notary on 25.01.2018. Therefore, it had been submitted by OP that the application for amendment is not maintainable and deserves to be dismissed with heavy cost.
5. Keeping in view all the above factors, we are of the considered view that the complaint made in this matter by another person on behalf of complainant without any authority / Power of Attorney and the affidavit signed by another person instead of complainant on behalf of complainant gives the effect of rendering it null and void and as such the complaint is not mainitainable. Moreover, we observed that the accompanying affidavit with the complaint, which is in the name of Ms. Harleen Kaur but is signed Ms. Satwant Kaur had been attested by Dinesh Kumar Kashyap, Notary Public Delhi Regn. No. 67/2010, Govt of India on 12.04.2017, which is unlawful, non permissible and amounts to cheating and violates the terms and conditions of licence, issued to the above notary public by the competent authorities and invites penal action against the licensee.  A complaint against the said Notary has already been marked to Hon’ble Distt Judge, KKD in an earlier case titled Jitender V/s Wizard before this Forum for attesting unsigned affidavit. Let the present affidavit in the given complaint be also tagged and sent to Hon’ble Distt. Judge KKD for appropriate disciplinary action against him. This Forum vide observation in hearing on 17.4.2018 has taken serious note of the glaring informatics and material irregularities in the present complaint as also strong objection regarding maintainability of the same raised by counsel for OP and directed the complainant to argue on admissibility of complaint on 25.05.2018. However, on the given date the counsel for complainant appeared and argued that he had placed on record Mother-Daughter relationship proof and copy of POA by Harleen Kaur in favour of her mother Satwant Kaur to justify maintainability of complaint which shall not suffice in our judicial view .
6. We have applied our judicial mind after thorough perusal of documentary evidence on record and our of the considered opinion that serious defects in the pleadings are fatal to admissibility of the complaint and we are , therefore, no inclined to entertain present complaint and therefore, dismiss the same without going into the merits of the case and strictly on the basis of improper and incorrect pleadings / error apparent, unsupported by proper affidavit with liberty to the complainant to file a fresh complaint in accordance with law and established procedure of law
7. File be consigned to record room. No order as to costs.

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member