This complaint has been filed by Bhawna Mittal complainant under Section 12 of the consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Worldwide Immigration Consultancy Service Limited and another (here-in-after referred to as 'opposite parties').
Briefly stated, the case of the complainant is that she contacted opposite party No. 2 as she was willing to apply as skilled worker category for Canada Federal in August, 2006 (File No. 37921). The opposite party No. 1 had assured that they will arrange for her job as skilled category as they have tie up with Global Strategic Business Consultancy in Dubai and they will arrange a job for her in Canada Federal. She opted for Gold pack and made payment at the spot as they demanded Rs. 50,000/- and besides this they also received US$ 1200. The complainant completed all the formalities/requirements in time as demanded by the opposite parties. She also assisted them as per their terms.
It is further pleaded that as per terms of agreement, if the case was rejected by Canadian Embassy, the opposite parties will refund Rs. 25,000/- and the Global Strategic Business Consultancy will return the full amount of US$ 1200 in the event Visa Officer rejects her case. The complainant made full payment of Rs. 50,000/- and US$ 1200 to the opposite parties. The opposite parties had taken full responsibility of refund of said amounts in case Global Strategic Business Consultancy rejects the case and failed to arrange for job for the complainant. The complainant has not misrepresented nor committed fraud or involved in any criminal case etc., nor violated any conditions mentioned in term 8 of agreement signed with Global Strategic Business Consultancy.
It is pleaded that the case of the complainant was cancelled by Canadian Embassy. The Visa processing fee was refunded by C.F.C. to the complainant on 21-10-2013. The complainant submitted application for refund of fee and gold pack of US $ 1200 deposited with the opposite party, but the opposite parties informed telephonically to the complainant that they will only refund US$ 500. The complainant sent E-mail to the opposite parties and requested them to refund Rs. 25,000/- and US$ 1200 as per terms, but they vide E-mail dated 26-4-2014 have refused to refund the same and refused to do anything into the matter.
It is alleged that the opposite parties have failed to perform as per terms of contract. There is deficiency in service on their part. The complainant is entitled for refund of Rs. 25,000/- + US $ 1200. The complainant is also entitled to Rs. 1,00,000/- as damages alongwith interest @18% P.A from the date of payment till refund plus cost of this litigation. Hence, this complaint.
Upon notice, the opposite parties appeared through counsel and contested the complaint by filing joint written reply. In reply, the opposite parties raised legal objections that it is a case of change in immigration rules, as such the complaint is liable to be dismissed in view of law laid down by Hon'ble State Commission, Chandigarh, in number of judgements. The complaint be dismissed on account of law laid down by the Hon'ble State Commission. The complainant has quoted some case law, the reference of which is not considered necessary at this stage. That the complaint is liable to be dismissed on the ground of non-joinder of necessary parties. The complainant had entered into a separate contract of engagement dated 8-8-2006 with M/s. Global Strategic Business Consultancy Dubai (in short M/s. GSBC). US$ 1200 as alleged, have been paid by the complainant through GSBC vide Demand draft of US$ 1200 bearing No. 029172 dated 29-01-2007 in favour of M/s. GSBC, Dubai. This amount cannot be claimed by the complainant from the opposite parties as the said company is a separate independent company having a separate legal entity. The opposite parties are not liable with regard to the same nor liable to refund the professional fee paid to M/s. GSBC. The said dollar amount cannot be claimed by the opposite parties as per law laid down by Hon'ble National Commission in R.P. No. 3334 of 2010 titled M/s. WWICS Ltd., Vs. Manohar Singh Randhawa wherein Hon'ble National Commission has held that the petitioner cannot be held liable to refund the dollar amount which is not paid to them. That as per Clause 8 of the contract of Engagement signed by the complainant with the opposite parties dated 8-8-2006, the complainant had agreed that the opposite parties shall not be held liable for any delay whatsoever occurring due to the backlog of the cases or for any other reason at the Visa post. The case of the complainant was duly prepared and filed in the best possible manner with the Canadian High Commission and the same was acknowledged by the Canadian High Commission vide their letter dated 26-10-2006. The opposite parties have rendered all the services which the complainant was entitled to so as to get her case processed by the Canadian High Commission. The Canadian Government introduced a new Act namely Jobs, Growth and Long Term Prosperity Act which became a law on 29-06-2012 under which all the applications made before 27-02-2008 were terminated by the operation of law. Since the application of the complainant was received by Canadian High Commission on 27-09-2006, her case was also terminated by the operation of law. The opposite parties are nowhere deficient in their services and have already performed all the duties which they were required as per contract. That once the complainant had retained the services, the opposite parties started providing services from day one, even before the case was filed. The opposite parties have also detailed the services as under :-
(a) Counseling and advising the client about the Immigration Category in which he retained the services and the Immigration procedure to be followed.
(b) Providing and counseling the client about immigration package and the check list of documents. Explaining the client in detail about the documents and the forms that are necessary for filing Immigration Application.
(c) Advising and guiding the client in preparation of documents and forms for himself, spouse and children in proper format as per the requirement of Immigration Authorities etc., Documents such a Experience documents, Education documents, salary slips etc.,
It is asserted that opposite parties had duly performed their part of the contract right from the time when the complainant had retained the services and was duly advised and guided about necessary documents for preparing and filing the case. There is no deficiency in service on the part of the opposite parties. That this Forum at Bathinda does not have jurisdiction to deal with the complaint. The complainant has agreed in Clause 16 of the Contract of Engagement dated 8-8-2006. That all the disputes arising between the parties shall be referred to Sole Arbitration to the Arbitrator appointed by the Company and the venue of the arbitration proceedings shall be at Chandigarh. Thus, this Forum does not have jurisdiction to deal with this complaint. That the complainant is not entitled to any refund in view of Clause 8 & 9 of the Contract of Engagement signed by the complainant with the opposite parties wherein it has been specifically agreed that the time shall not be the essence of the Contract. In the instant case, it is not the fault of the opposite parties that a delay has occurred. It has occurred on account of the large backlog of the cases with the Canadian High Commission. The case of the complainant could not be processed by the Canadian High Commission. In the meantime, a new law came into force due to which the case of the complainant was not processed. That there is neither deficiency nor unfair trade practice on the part of the opposite parties. None of the ingredients as mentioned in the 'Act' are full filled in the present case. The present case is a case of change in immigration rules on which the opposite parties have no domain. That the complainant is not entitled to any refund in view of Clause 10 of the Contract of Engagement wherein it has been specifically mentioned that the services being provided by the Company being professional in nature, the entire fee is not refundable. That Visa Processing Fee of Canadian Dollar (CAD) 1100 equivalent to Rs. 66,991.47 has already been refunded by the Canadian High Commission to the complainant vide draft No. 058153 dated 8-8-2013 in view of the fact that the Canadian High Commission has changed the immigration rules and the application of the complainant has been terminated due to coming into force of a new Act namely Jobs, Growth and Long Term Prosperity Act, which became law on 29-6-2012 under which all the applications made before 27-2-2008 were terminated by the operation of law by Canadian High Commission. As per letter dated 24-5-2014, High Commission has clearly mentioned that the application of the complainant has been affected by the provisions of enactment of new law in force. Therefore, the complaint is liable to be dismissed on this score.
On merits, it is not disputed that complainant contacted opposite party No. 2, but all the material averments of the complainant are denied. It is asserted that opposite parties never made any assurance that they will arrange job for the complainant in Federal Canada. The complainant has paid Rs. 45,000/- to the opposite parties against which two receipts were issued. The amount of US$ 1200 was paid by the complainant directly to M/s GSBC, Dubai. The opposite parties reiterated their version as taken in preliminary objections and detailed above. After controverting all other averments, the opposite parties prayed for dismissal of complaint.
Parties were afforded opportunity to produce evidence. In support of her claim, complainant has tendered into evidence photocopies of contract of engagement (Ex. C-1 & Ex. C-2), Photocopies of letters (Ex. C-3 & Ex. C-4), photocopy of cheque (Ex. C-5), affidavit of complainant dated 5-11-2014 (Ex. C-6), photocopies of e-mail (Ex. C-6 to Ex. C-8).
In order to rebut this evidence, opposite parties have tendered into evidence affidavit dated 19-9-2014 of Rajiv Bajaj, AR (Ex. OP-1/1), photocopy of appeal u/s 15 (Ex. OP-1/2 & Ex. OP-1/3), photocopy of contract of engagement (Ex. OP-1/4), photocopy of cheque dated 29-1-2007 (Ex. OP-1/5), photocopy of order dated 8-3-2011 (Ex. OP-1/6), photocopy of contract of engagement (Ex. OP-1/7), photocopies of letters (Ex. OP-1/8 & Ex. OP-1/9), photocopy of cheque (Ex. OP-1/10) and photocopies of receipts (Ex. OP-1/11 & Ex. OP-1/12).
Learned counsel for both the parties have also submitted written submissions.
We have heard learned counsel for the parties and gone through the record and written submissions of the complainant.
Learned counsel for complainant has reiterated his averments as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that material facts are not in controversy. It is not disputed that complainant entered into agreement with opposite parties as complainant was interested to go to Canada and she paid all the charges but the case of complainant was rejected. Therefore, the complainant is entitled to refund of the charges paid to the opposite parties vide agreement Ex. C-1.
It is also submitted by learned counsel for complainant that complainant has also paid US$ 1200 to the opposite parties vide agreement Ex. C-2. Of course the agreement was in the name of M/s. GSBC, but the opposite parties are associated with this company also and they are actually working for the said company. The amount of US$1200 was also paid by the complainant to opposite parties although in the name of M/s. GSBC. The document will also prove that opposite parties are associated with M/s. GSBC. The agreement Ex. C-1 is on behalf of the opposite parties wherein it is mentioned that in consultation with its associates at various locations, the company offers variety of services. The agreement Ex. C-2 was also executed in the office of the opposite parties at Bathinda on the same day. The documents executed in favour of M/s. GSBC are also produced on record by the opposite parties. These facts also show that opposite parties are directly associated with M/s. GSBC. Therefore they are also liable for the deficiency in service on the part of M/s. GSBC. Admittedly, the case of the complainant was rejected. Therefore, the complainant has not availed any service from M/s. GSBC. M/S. GSBC is not entitled to retain the amount of US$ 1200 paid by the complainant as it has not provided any service to her. Therefore the complainant is entitled to refund of US $1200 with interest paid to M/s. GSBC through opposite parties. The complainant has also suffered harassment and pain etc., as such she is also entitled to compensation claimed for.
The learned counsel for the complainant further submitted that relief against M/s. GSBC cannot be denied only for not impleading as party. The payment was made to M/s. GSBC through opposite parties at Bathinda. The agreement in favour of M/s. GSBC was executed at Bathinda through opposite parties No. 1 & 2. As such, M/s. GSBC is not necessary party for disposal of controversy involved in this case.
To support these submissions, learned counsel for the complainant has cited :-
(i) Decision of Hon'ble State Commission, Chandigarh, rendered in First Appeal No. 272 of 2015 decided on 15-07-2016 case titled M/s. Worldwide Immigration Consultancy Services Ltd., and others Vs. Gagandeep Singh
(ii) 2014 (2) CPR (NC) 795 case titled World Wide Immigration Consultancy Services Ltd. and another Vs. Jareena Job P.
(iii) 2004 (1) CPJ 357 case titled Anil Wahi Vs. World Wide Immigration Consultancy Services
(iv) 2016 (2) WBLR 239 case titled Ratan Kumar Majumdar Vs. The Chairman and Managing Director Worldwide Immigration Consultancy Services & Anr.
(v) 2014 (1) CPJ 391 case titled Aditya Kumar Vs. Worldwide Immigration Consultancy Services Ltd.,
On the other hand, learned counsel for the opposite parties has reiterated his stand as taken in written reply and detailed above. It is further submitted by learned counsel for the opposite parties that as per complainant herself she has entered into agreement Ex. C-1 with opposite party No. 1. Therefore both the parties are governed by the terms and conditions incorporated in the agreement. The duties of the company are detailed in agreement which are only advisory in nature and the company has performed its duties as per agreement. All the correspondence was handled by the Company. The complainant was assisted for preparation of case and the case was submitted completely. The case of the complainant was rejected only due to change in Immigration rules. Letter dated 26-10-2016 (Ex. OP-1/8) received from the office of Canada High Commission on 1-11-2006 proves that application of the complainant for permanent residence in Canada was received complete in all respects. It was also mentioned that no processing will occur for approximately 48-54 months. Letter dated 24-05-2013 ( Ex. OP-1/9) reveals that case of the complainant was rejected as Jobs, Growth and Long term Prosperity Act became law on June 29,2012 and the applications made before February 27, 2008 were terminated by operation of law. This letter sufficiently proves that the case of the complainant was rejected due to change of law and not due to any deficiency in service on the part of the opposite parties. As per clause '10' of the agreement, the services provided by the company being professional in nature and the entire fee is non refundable. Therefore, the complainant is not entitled to any refund of the amount paid vide agreement Ex. C-1.
Regarding agreement with M/s. GSBC, it is submitted that the concerned company is not impleaded as party. The complainant has not produced any evidence to prove any concern of the opposite parties with this Company. Both the companies are independent companies and both the companies are having independent duties. Moreover, as per Clause '8' of the agreement Ex. C-2, the complainant is not entitled to refund in case the application is rejected due to change in Immigration rules and regulations. Therefore, as per terms and conditions of the agreement also, the complainant is not entitled to the refund of any part of this amount paid to M/s. GSBC.
It is also submitted by learned counsel for the opposite parties that complainant has claimed refund of US$ 1200 allegedly paid to M/s. GSBC. As this amount was not paid to the opposite parties, therefore the complainant cannot claim refund of any amount in dollars.
To support of these submissions, learned counsel for the opposite parties has cited following decisions of Hon'ble State Commission, Chandigarh :-
(i) First Appeal No. 192 of 2014 decided on 3-7-2014 in the case titled Parwinder Singh Vs. Worldwide Immigration Consultancy Services Ltd., and others
(ii) First Appeal No. 193 of 2014 decided on 3-7-2014 in the case Kamaljit Kaur Vs. Worldwide Immigration Consultancy Services Ltd. and others
(iii) Revision Petition No. 3334 of 2010 in the case titled Worldwide Immigration Consultancy Services Ltd., Vs. Manohar Singh Randhawa decided on 8-3-2011 by Hon'ble National Commission.
We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions.
As per complainant herself, she entered into agreement with opposite parties,which is Ex. C-1. The complainant has also entered into another agreement Ex. C-2 with M/s. GSBC. Therefore, as controversy relates to two different agreements, the case of the complainant is being considered separately for separate agreement.
Firstly coming to the agreement entered into with opposite parties as Ex. C-1. The duties of the Company are detailed in this agreement, which are as under :-
In consultation with its associates at various locations, the Company shall provide the following services to its clients :-
(a) Assist the client in preparation of his/her immigration case;
(b) Review and identify submission of required documents and supporting evidences;
(c) Submit the complete case with supporting documentation and evidence alongwith the submission report to the processing visa office within 15 days of the receipt of all requisite documents from the client at WWICS Ltd., Head Office;
(d) Handle all correspondence with the respective High Commission pertaining to client's case
(e) Assist the client in keeping his/her file upto date;
(f) Advice the client about any subsequent changes in the immigration laws and any subsequent conditions applicable to meet the selection criteria;
A perusal of these duties reveals that company was to provide services to the complainant for preparation of immigration case, handling correspondence with the High Commission and to keep her file upto date etc., It is not the case of the complainant that opposite parties have failed to perform their duties detailed in the agreement. The opposite parties have also placed on record copy of letter Ex. OP-1/8 to prove that application of complainant was submitted in the office of High Commission of Canada on 1-11-2006 complete in all respects. The copy of letter dated 24-5-2013 (Ex. OP-1/9) further proves that the case of the complainant was rejected due to change in Immigration rules and not due to any lapse on the part of the opposite parties. As per clause '10' of the agreement Ex. C-1, it is clearly mentioned that services provided by the company are professional in nature. The entire fee is not refundable. The partial refund was allowed only in case where the client (applicant) is declared disqualified in skill assessment for Australia but the case of the complainant does not fall under this exception. Therefore, keeping in view the terms and conditions mentioned in agreement Ex. C-1, the complainant is not entitled to refund of any amount paid to opposite parties against agreement Ex. C-1.
Now coming to the claim of the complainant regarding agreement Ex. C-2. The legal objections of the opposite parties regarding agreement Ex. C-2 are that M/s. GSBC is not joined as necessary party and the amount of US$ 1200 was paid to M/s. GSBC. This amount cannot be claimed from the opposite parties as the Company is separate independent company having separate legal entity. Therefore, before coming to the claim of the complainant towards agreement Ex. C-2, it is to be seen whether M/s. GSBC is total separate company and opposite parties have no concern with the same.
Before proceeding further, it is relevant to mention that in the case M/s. Worldwide Immigration Consultancy Services Ltd., and others Vs. Gagandeep Singh (supra), M/s. GSBC was impleaded as party but it was proceeded against exparte. Ultimately, opposite parties No. 1 & 2 (which were same as opposite parties in this complaint) were held liable to refund US$ 8500 which were paid to M/s. GSBC.
In this case, the agreements Ex. C-1 & Ex. C-2 were executed on the same day at Bathinda in the office of opposite parties. The documents in favour of M/s. GSBC and relating to M/s. GSBC are produced on record by the opposite parties. In the case of Aditya Kumar Vs. Worldwide Immigration Consultancy Services Ltd., (supra) also, the matter was relating to WWICS as well as GSBC and it was noticed by Hon'ble National Commission that duties of the company as well as duties of client have been mentioned in the agreement. These companies are providing services for helping the prospective clients to obtain visa from the Canadian High Commission and for that purpose, they are charging requisite fees. The agreements were signed by the petitioner with M/s. WWICS on the same day. The order of District Forum directing the opposite parties to refund a sum of Rs. 25,000/- plus 1400 Canadian dollar and a sum of Rs. 50,000/- as compensation was restored by Hon'ble National Commission.
Therefore, keeping in view the facts of the case as well as observations of the Hon'ble State Commission and National Commission recorded in the above cited cases, it can be concluded that opposite parties are associated with M/s. GSBC and they can be held responsible for the liability of M/s. GSBC. Therefore, complaint cannot be denied only for non impleading of M/s. GSBC.
Now coming to the relief of complainant regarding US$ 1200 paid to M/s. GSBC. Admittedly M/s. GSBC has not provided any post landing services to the complainant. Agreement Ex. C-2 proves that M/s. GSBC was having two payment plans Gold and Bronze. Gold plan was for Rs. US$ 1200 and Bronze was for US$ 400/-. The duties of M/s. GSBC are also mentioned in the agreement which are under the heading Pre-landing services and Settlement Services. It is also mentioned in the agreement that No Settlement & Placement Assistance services are provided under the Bronze Package. Therefore, it can be inferred that under Bronze Package only pre-landing services are to be provided for which company charges US$ 400. In this case, complainant had admittedly not availed any Settlement and Placement Assistance which was to be provided under Gold Plan and post landing services. In these circumstances, M/s. GSBC is not entitled to retain the part of the amount i.e. US$ 800 which were only for post landing services. Therefore, the complainant is entitled to refund of INR equivalent to US$ 800/(as on 24-05-2013). The complainant is also held entitled to interest @ 12% p.a. from 24-05-2013 i.e. the date when the application of the complainant was rejected.
In the result, the complaint is partly accepted against the opposite parties with Rs. 5,000/- as cost and compensation. The opposite parties are directed to pay INR equivalent to US$ 800 as on 24-05-2013 with interest @ 12% p.a. w.e.f. 24-05-2013 till realization, within 60 days from the date of receipt of copy of this order. However, the opposite parties will be at liberty to claim the said amount from M/s. GSBC after payment to the complainant.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced :
08-08-2016
(M.P.Singh Pahwa )
President
(Jarnail Singh )
Member
