Sri Shyamal Gupta, Member

The complaint case since been dismissed by the Ld. District Forum, aggrieved with such decision, this Appeal is preferred u/s 15 of the Consumer Protection Act, 1986, by Sri Pijush Kanti Bhowal, the Complainant.

Complainant’s case, in short, is that he applied for permanent residency in Canada through the OPs and for this purpose, he paid necessary charges also.  However, after five years of waiting, when he enquired the matter with the OP No. 2, he was informed that as old cases were not being processed by the Canadian Embassy, he would be required to file legal case and for this purpose, it demanded considerable money from him.  Holding the OPs responsible for such development, the complaint case was filed.

In their WV, the OPs submitted that in terms of the agreement executed between the parties, the disputes required to be referred to an Arbitrator and therefore, this case was not maintainable before the Ld. District Forum.  Further case of the OPs was that the Complainant was duly informed that the delay was caused not by the OPs, but by the Canadian High Commission, which was beyond the control of the OPs.  Accordingly, they urged the Complainant to file a court case and sought for legal fee amounting to 750 US$. At the time of filing of the immigration application, the Complainant was ready to wait for 5/6 years.  However, after filing of his case, Complainant became restless and therefore, the Complainant did not provide the required documents, including the IELTS result to be forwarded to the Canadian High Commission.  By sending a letter to the Complainant, the Canadian High Commission asked the Complainant to submit some documents within 90 days.  However, the Complainant did not provide the same and consequently, the Canadian High Commission rejected the case of the Complainant. 

Decision with reasons

Ld. Advocates for the parties were heard and material on record gone through.

At the very outset, we make it clear that sheer mentioning of arbitration clause in the agreement is no bar to move a complaint case.  Some of the celebrity decisions of the Hon’ble Supreme Court in the matter is appended below which are self-explanatory.

In Skypay Couriers Limited v. Tata Chemicals Limited, (2000) 5 SCC 294 the Hon’ble Court observed:

"Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force."

In Trans Mediterranean Airways v. Universal Exports, (2011) 10 SCC 316 it was observed:

"In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy."

In the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy, 2013 (4) CPR 345 (SC), Hon'ble Supreme Court has observed thus :-

"29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi, AIR 1997 SC 533, the 2 - Judge Bench interpreted that section and held as under :-

"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.”

Therefore, by filing the complaint case, the Appellant committed no legal infirmity.

However, otherwise we find no infirmity with the impugned order. 

It is candidly admitted by the Appellant in his petition of complaint that the Respondents assured him to process his application through Canadian High Commission within 5 years.  It goes to show that, irrespective of the tall claim made in the newspaper ad, the Appellant was well aware of the fact that it would take approx. 5 years to process his application.

Further, from the copies of letters of the Canadian High Commission to the Appellant, it transpires that the concerned High Commission expressed its inability to process Appellant’s case which it received on 11-08-2006 before 52 months, if not more. 

It is also alleged by the Respondents that the Appellant did not submit the IELTS result and other documents as per the demand of the Canadian High Commission for which his application was rejected. At the time of hearing, although Ld. Advocate for the Appellant claimed that he submitted all the requisite documents, not a single scrap of paper is furnished on record to establish such claim. 

Thus, we find no merit in this Appeal.

Hence,

O R D E R E D

The Appeal stands dismissed on contest against the Respondents, but without any cost.  The impugned order is hereby affirmed.