DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.567 of 19-12-2013

Decided on 04-04-2014

Amulya Marya aged about 40 years S/o Yogesh Marya, Branch Manager, ICICI Bank Ltd., Liberty Chowk, Bathinda R/o # 20091, Street No.3, Jhujar Singh Nagar, Bathinda.

........Complainant

Versus

1.Worldwide Immigration Consultancy Services Ltd., # 2739A, 2nd Floor, Grover Complex, Near Hanuman Chowk, Goniana Road, Bathinda, through its Branch Manager.

2.Worldwide Immigration Consultancy Services Ltd., A-12, Industrial Area, Phase-VI, Mohali, through its Chairman-Cum-Managing Director.

3.Balram Singh, Branch Manager, Worldwide Immigration Consultancy Services Ltd., now posted in its Branch at SCO 112, Above ICICI Bank Ltd., District Shopping Centre, Ranjit Avenue, Amritsar.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt.Vikramjit Kaur Soni, President.

Smt.Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.Lalit Garg, counsel for the complainant.

For Opposite parties: Sh.Ajitinder Pal Singh, counsel for the opposite parties..

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant approached the opposite party No.1 in the month of May, 2012 as he wanted to go Canada and to get his case pursue for the immigration of Canada. The opposite party No.1 asked the complainant to submit the documents and to deposit the amount of Rs.50,000/- as initial deposit. The complainant handed over all the relevant documents relating to himself, his wife and children facilitating the opposite parties for the immigration for Canada. The complainant has been receiving the calls from the opposite parties almost daily that the immigration window will open in the first week of July, 2012 and he is required to sign an agreement/contract of engagement Skilled Worker Category Canada to get prepared his file for the immigration to Canada. The complainant paid the amount of Rs.50,000/- through account payee cheque No.000370 dated 1.6.2012 drawn on ICICI Bank from his account bearing No.055601000182 and executed an agreement/contract of engagement Skilled Worker Category Canada on dated 1.6.2012 itself. After signing the said contract, the complainant made telephone calls to the opposite parties to know about the status of the immigration for Canada and most of times he failed to contact them, as the attendant of the call used to say that the concerned official is busy and he would call the complainant after sometime, but nobody made him any call. The concerned officials of the opposite parties used to demand more and more documents from the complainant, which were neither asked nor required at initial stage. The complainant has been visiting the offices of the opposite parties time and again to handover the documents asked by them, as the opposite parties did not send any person to collect the documents from him at anytime, though at initial stage the opposite party No.3 assured him that they themselves would collect all the documents, if any required, from him. The opposite parties asked the complainant to appear in IELTS test and as per their instructions, he appeared in IELTS test and deposited the amount of Rs.8000/- for the same. The opposite parties demanded the photographs of the complainant, his wife and children. The complainant made call to Jullie Dev Barma, Sr.Counsellor of the opposite party No.1, who used to call him for signing the agreement and making payment of Rs.50,000/-, that what kind of photographs are required and as per his guidance, the complainant clicked the photographs of himself, his wife and his two sons and submitted the same with the opposite parties, but they told him that the format is not OK and he again clicked the photographs and his wife visited 3-4 times to the office of the opposite parties. The complainant did not receive any call from the opposite parties regarding filling of the documents or any changes in the Immigration Rules of the Canadian Government. The complainant came to know that the Canadian Government has changed the dates of opening the window for receiving the files for immigration thrice, but he did not receive any call or e-mail from the opposite parties. The complainant made telephone calls to the opposite party No.3 on its mobile number as well as on office phone number time and again, but most of the times the opposite party No.3 did not pick his phone and whenever picked it used to say that it is busy and would call back to him, but he did not make him any call at anytime. The complainant sent an e-mail to the opposite parties on dated 30.4.2013 to refund the amount of Rs.50,000/-, but they did not give him any reply to the said e-mail. The complainant contacted the opposite parties for getting the reply of his e-mail, but the opposite party No.1 told him that the fees cannot be refunded to him as he has signed the agreement and as per the agreement the opposite parties shall deduct the amount of Rs.30,000/- from the fees of Rs.50,000/-, but till date nothing has been refunded to him. Hence the present complaint filed by the complainant to seek the directions of this Forum to the opposite parties to refund the amount of Rs.50,000/- alongwith interest, cost and compensation.

2. The opposite parties after appearing before this Forum have filed their joint written statement and pleaded that as per Clause 5 of the declaration form dated 2.6.2012 they are entitled to deduct the amount of Rs.30,000/- till the time the new list of the occupation is issued by the Citizenship and Immigration Canada. Accordingly, the opposite parties informed the complainant vide e-mail dated 16.5.2013 that out of the amount of Rs.50,000/-, the amount of Rs.20,000/- has been approved after deducting the amount of Rs.30,000/- as per Clause 5 of the Declaration signed by him, but the complainant refused to accept the said amount. The opposite parties have also placed on file cheque dated 10.2.2014 for the amount of Rs.20,000/-. The complainant himself vide Clause 3 agreed that he wants to keep his case active with the company and retain the fee that he has paid to the company till the time the new list of the occupations is issued by the Citizenship & Immigration Canada, thus the complainant is not entitled for any refund. On the basis of the declaration the opposite parties kept the case of the complainant active as such they are entitled to retain the fees so as to enable them to file his case whenever the new list of occupation is issued by the Citizenship and Immigration Canada. The said list has not been yet issued by the Canadian Authorities as such the opposite parties are entitled to retain the fees, thus this complaint is liable to be dismissed on this sole ground. The complainant is also not entitled for any refund as per Clause 12-a (1), (2) and Clause 6 of the Contract of Engagement dated 1.6.2012. The complainant did not proceed his case further by sending an e-mail dated 30.4.2013 for seeking the refund. The present complaint is a case of voluntarily withdrawal. The process of an immigration case is a time consuming work and involves documentation running into 100 of pages for which the company has employed professionals who are to be paid salary which is non retrievable. In case a client opts to engage the company in respect to his permanent immigration case, the company starts processing his case and immediately incurs the expenditure of Rs.20,000/-. At the time of signing of the contract of Engagement dated 1.6.2012 the complainant was clearly told that the occupation 'Product Manager-Marketing' (NOC 1122) would be there in the next list of the occupation to be issued by the Citizenship and Immigration Canada under which his skilled worker immigration application can be filed, however the complainant wanted to go ahead and keep his case active till the time new list of the occupation is issued by the Citizenship and Immigration Canada. The complainant has failed to submit the complete documents so as to enable the opposite parties to prepare his case for which several calls were made to him. As per Clause 2 (a) of the contract of Engagement the complainant was required to submit the complete documents within 45 days from the date of signing of the agreement. As per Clause 2 (p) the complainant was required to establish the high proficiency in English by securing the requisite bands in IELTS and he was fully aware to appear in IELTS test so as to enable his case to be processed for the permanent immigration. The complainant was also required to provide his and his family members photographs as per the guidelines of the Canadian High Commission. The complainant vide e-mail dated 30.4.2013 requested for the refund of his fees without waiting for the opening of the next list of the occupations that is against the terms of the contract, as such he was counseled. The complainant also signed a declaration form dated 2.6.2012 wherein he himself admitted that there is no guarantee that his occupation would be included in the next list of the occupations however he vide the said declaration requested the opposite parties to keep his case open till the time next list is issued. As per Clause 5 of the Declaration Form the opposite parties have refunded the amount of Rs.20,000/- vide cheque No.134813 dated 10.2.2014 to the complainant.

3. The parties have led their evidence in support of their respective pleadings.

4. Arguments heard. The record alongwith written submissions submitted by the parties perused.

5. Admitted facts of the parties are that the complainant approached the opposite party No.1 to get pursue his case for the immigration of Canada and deposited the amount of Rs.50,000/- through account payee cheque No.000370 dated 1.6.2012 drawn on ICICI Bank from his account bearing No.055601000182 and submitted the all the relevant documents facilitating the opposite parties for the immigration for Canada and executed an agreement/contract of engagement Skilled Worker Category Canada on dated 1.6.2012.

6. The disputed facts of the parties are that the complainant has been receiving the calls from the opposite parties that the immigration window will open in the first week of July, 2012 and he is required to sign an agreement/contract of engagement Skilled Worker Category Canada to get prepared his file for the immigration to Canada. Accordingly, the complainant has signed the agreement/contract on dated 1.6.2012. After signing the said contract, the complainant made telephone calls to the opposite parties to know about the status of the immigration for Canada and most of times he failed to contact them, as the attendant of the call used to say that the concerned official is busy. The concerned officials of the opposite parties used to demand more and more documents from the complainant, which were neither asked nor required at initial stage. The complainant handed over all the documents demanded by the opposite parties. The opposite parties asked the complainant to appear in IELTS test and as per their instructions, he appeared in IELTS test and deposited the amount of Rs.8000/- for the same and also submitted the photographs of himself, his wife and children. The complainant made call to Jullie Dev Barma, Sr.Counsellor of the opposite party No.1 and as per his guidance, the complainant clicked the photographs of himself, his wife and his two sons and submitted the same with the opposite parties, but they conveyed him that the format is not OK and to resend the photographs. The complainant did not receive any call from the opposite parties regarding filling of the documents or any changes in the Immigration Rules of the Canadian Government, rather he came to know that the Canadian Government has changed the dates of opening the window for receiving the files for immigration thrice, but he did not receive any call or e-mail from the opposite parties. The complainant tried to contact the opposite party No.3 through telephone, but most of the times the opposite party No.3 has not picked his phone and whenever picked it used to say that it is busy and would call back to him. Ultimately, the complainant sent an e-mail to the opposite parties on dated 30.4.2013 to refund the amount of Rs.50,000/-, but they did not sent any reply to his e-mail. The opposite party No.1 conveyed the complainant that the fees cannot be refunded to him as he has signed the agreement and as per the agreement the opposite parties shall deduct the amount of Rs.30,000/- from the fees of Rs.50,000/-, but till date nothing has been refunded to him.

7. On the other hand the submission of the opposite parties is that as per Clause 5 of the declaration form dated 2.6.2012, Ex.OP1/2 they are entitled to deduct the amount of Rs.30,000/- till the time the new list of the occupation is issued by the Citizenship and Immigration Canada. Accordingly, the opposite parties informed the complainant vide e-mail, Ex.OP1/3, that out of the amount of Rs.50,000/-, the amount of Rs.20,000/- has been approved after deducting the amount of Rs.30,000/- as per Clause 5 of the Declaration signed by him, but the complainant refused to accept the said amount. The complainant himself vide Clause 3 agreed that he wants to keep his case active with the company and retain the fee that he has paid to the company till the time the new list of the occupations is issued by the Citizenship & Immigration Canada. The complainant is not entitled for any refund as per Clause 12-a (1), (2) and Clause 6 of the Contract of Engagement dated 1.6.2012, Ex.OP1/5, as he did not proceed his case further by sending an e-mail dated 30.4.2013 for seeking the refund. The opposite parties are within their rights to retain the amount of Rs.30,000/- for the time and money spent by them on the case of the complainant and the process of an immigration is a time consuming work and involves documentation running into 100 of pages for which the company has employed professionals who are to be paid salary which is non retrievable. In case a client opts to engage the company in respect to his permanent immigration case, the company starts processing his case and immediately incurs the expenditure of Rs.20,000/-. The complainant has agreed in Clause 21 of the contract of Engagement dated 1.6.2012 that all the differences and disputes arising between the parties shall be referred to the sole arbitration of the arbitrator appointed by the company as such this Forum has no territorial jurisdiction to try and entertain the present complaint. The opposite parties have already paid the amount of Rs.20,000/- to the complainant as per the agreement and declaration.

8. The opposite parties have taken the legal objection that as per the contract of Engagement dated 1.6.2012, in case of any dispute, the sole arbitrator be appointed by the company and dispute be decided by him. This objection is not tenable as the remedy available under the 'Act' is additional and alternative and not in derogation with any other law for the time being inforce. The support can be sought by the law laid down by the Hon'ble Supreme Court of India in case titled M/s National Seeds Corporation Ltd. Vs. M.Madhusudhan Reddy & Anr., 2012(1) Apex Court J 0265, wherein the Hon'ble Supreme Court of India has held:-

“Consumer Protection Act, 1986, Section 3-Remedy available under the Act is in addition to and not in derogation of the provisions of any other law for the time being in force. (Para 29)

Consumer Protection Act, 1986, Section 3-Arbitration and Conciliation Act, 1996, Section 8-Arbitration clause-Does not oust the jurisdiction of Consumer Forum-If a complaint is filed under the Consumer Act in the first instance then a consumer cannot be denied relief by invoking S.8 of Arbitration and Conciliation Act, 1996. (Para 29)”

9. A perusal of Retainer Fee Receipt, Ex.C2, reveals that vide receipt No.1202121100 dated 1.6.2012, File No.C12-900967, Rt/Dl Br:BTI/BTI, the amount of Rs.50,000/- has been received by the complainant vide cheque No.000370 dated 1.6.2012 drawn on ICICI Bank on account of retainer fee of Worldwide Immigration Consultancy Services Limited, this amount is paid for installment due against Service Retain(S). The complainant has applied for the immigration to Canada through the opposite parties and executed an agreement/contract of engagement Skilled Worker Category Canada on dated 1.6.2012 itself. The complainant has deposited the requisite documents, but the concerned officials used to demand more and more documents from him, which were neither asked nor required at initial stage. On asking of the opposite parties, the complainant has also appeared in IELTS test and spent the amount of Rs.8000/- for the same. Thereafter the opposite parties demanded the photographs of the complainant, his wife and children and he clicked the said photographs and submitted the same with the opposite parties under the guidance of Jullie Dev Barma, Sr.Counsellor of the opposite party No.1. The opposite parties conveyed the complainant that the format is not OK, so he again clicked the photographs. After that the complainant did not receive any call regarding filling of the documents or any changes in the Immigration Rules of the Canadian Government. The complainant came to know that the Canadian Government has changed the dates of opening the window for receiving the files for immigration thrice, but he did not receive any call or e-mail from the opposite parties. Ultimately, the complainant sent an e-mail to the opposite parties on dated 30.4.2013 to refund the amount of Rs.50,000/- vide Ex.C11. The relevant portion of Ex.C11 is reproduced:-

“I request you to kindly refund my fees I deposited for processing of my PR file. I need my full amount of Rs.50,000/-. Looking at the pathetic service levels, I am no longer interested to apply for PR immigration through WWICS. I also request you to give all my papers back to me.”

The opposite parties conveyed the complainant that they are deducting the amount of Rs.30,000/- out of the amount of Rs.50,000/- and only the amount of Rs.20,000/- has been refunded to him.

10. On 20.2.2014, the learned counsel of the complainant Sh.Lalit Garg has received the amount of Rs.20,000/- before this Forum during the pendency of this complaint and has suffered the statement to the effect:-

“That I have received cheque No.134813 dated 10.2.2013 for Rs.20,000/- in the name of Amulya Marya from the opposite parties under protest.”

Thus he has received the amount of Rs.20,000/- under protest. The opposite parties have deducted the amount of Rs.30,000/- as per Clause 5 of the declaration form. As per the submission of the opposite parties they have provided all the services as agreed and promised however the complainant did not wait for the opening up of the next list of occupation by the Canadian Authorities and sent an e-mail dated 30.4.2013 claiming refund which as per the contract he is not entitled to. The complainant is not entitled for any compensation as his case is of voluntary withdrawal and non performance of his obligations under the declaration form dated 2.6.2012. The opposite parties are still ready and willing to perform their part of the contract however the complainant instead of waiting for the new list has filed the present complaint. Clause No.5 of the Declaration Form, Ex.OP1/2 is reproduced:-

“In case the company is unable to file my immigration case for permanent resident status under skilled worker category due to:

I) My occupation not being on the next list of occupations issued by Citizenship & Immigration Canada.

II) Any changes in the total points required to qualify.

III) Any changes in the selection criteria or any other change in immigration act and regulations and/or policies.

Then the company will refund any fee paid by me over and above the fee of Rs.30,000/- (Rupees Thirty Thousand) whereby the fee mentioned here is totally non refundable as this fee is being charged to keep my case active till the time the new list of occupation is issued by Citizenship & Immigration Canada.

I further declare that I have also signed a contract of Engagement to avail the professional services of the company with respect to preparation, submission and processing of my immigration case (Applicable for grant of permanent resident visa) under the Federal Skilled Worker category.

I expressly agree and affirm that I will not hold the company and any of its associates or employees liable in any manner whatsoever, should my occupation not be included in the next list of occupations issued by Citizenship & Immigration Canada.”

In the above mentioned Clause 5, it has been specifically mentioned that 'Then the company will refund any fee paid by me over and above the fee of Rs.30,000/- (Rupees Thirty Thousand) whereby the fee mentioned here is totally non refundable as this fee is being charged to keep my case active till the time the new list of occupation is issued by Citizenship & Immigration Canada', this Clause is not applicable on the complainant as per Ex.C11. The complainant has specifically mentioned in Ex.C11 that '….Looking at the pathetic service levels, I am no longer interested to apply for PR immigration through WWICS....'. The opposite parties have taken the shelter of Clause 12(a) of Contract of Engagement Skilled Worker Category Canada, Ex.OP1/5. The relevant portion of Clause 12(a) is reproduced:-

“12(a) The company will not refund any of the total fees for the services provided and shall be entitled to full payment for the service provided.

1) Once the client signs this contract and then he/she does not wish to proceed further for any reason whatsoever.

2) The Client voluntarily withdraws the immigration case at any stage.”

The complainant has voluntarily withdraws the immigration case as he was not satisfied with the services provided by the opposite parties as they have been asking for the more documents again and again from him, which has not been conveyed to the complainant at the initial stage, whereas it was the duty of the opposite parties to get submit all the documents alongwith the application of the immigration and to guide the complainant that what type of photographs are required for the immigration purposes. Moreover the plea of the opposite parties is contradictory to the Clause No.5 of the agreement as in their reply the opposite parties have specifically mentioned that in the permanent immigration case, the company start processing his case and immediately incurs the expenditure of Rs.20,000/- and the opposite parties have refunded the amount of Rs.20,000/- only out of the total amount of Rs.50,000/-, whereas, as per their own version the amount is to be retained by the company is only to the tune of Rs.20,000/- (Being incurred on processing the case).

11. The opposite parties have placed on file chart of Time & Money Spent for Making One Client From the Start, Ex.OP1/7, in this chart record of Rs.20,000/- has been given. If for the arguments sake we believe on that chart, Ex.OP1/7, even then the opposite parties were entitled to retained the amount of Rs.20,000/- only and not Rs.30,000/- on any pretext, hence the detail regarding the amount of Rs.20,000/- has been given, but the opposite parties have failed to show that how they have deducted the amount of Rs.30,000/- from the amount of Rs.50,000/-. In the case in hand the case of the complainant has not been processed as the dates of opening the window for receiving the files for immigration has been changed thrice which were never conveyed to the complainant. The opposite parties have specifically mentioned in their written statement that the complainant himself vide Clause 3 agreed that he wants to keep his case active with the company and retain the fee that he has paid to the company till the time the new list of the occupations is issued by the Citizenship & Immigration Canada. Thus Clause 3 of the Agreement was in force only till the complainant did not apply for the refund, but once he has applied for the refund of the amount deposited by him and given his refusal to proceed with his case further, the opposite parties cannot seek the defence of Clause 3 of the Agreement.

12. Therefore in view of what has been discussed above there is deficiency in service on the part of the opposite parties. Hence this complaint is accepted with Rs.10,000/- as cost and compensation against the opposite parties. The opposite parties can deduct the amount of Rs.20,000/- only from the total amount of Rs.50,000/- as per Ex.OP1/7. The opposite parties have already refunded the amount of Rs.20,000/- to the complainant during the pendency of this complaint. Thus the opposite parties are directed to refund the remaining amount of Rs.10,000/- more to the complainant alongwith interest @ 9% per annum since the date of request for the refund i.e. 30.4.2013 till realization and also to pay the interest on the amount of Rs.20,000/- @ 9% per annum since 30.4.2013 till its payment i.e. 20.2.2014.

13. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.

14. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

04-04-2014

(Vikramjit Kaur Soni)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member