DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 428 of 16-07-2014

Decided on : 30-10-2015

Sh. Subash Chand Singla S/o Janak Raj Singla, C/o Babu Ram Subash Chand C/agents, Maur Mandi now R/o H. No. 17181, First Floor, Gali No. 4, Aggarwal Colony, Bathinda.

…...Complainant

Versus

1. World Wide Immigration Consultancy Services Ltd., (WWICS), Branch Office : Grover Complex 2739-A, 2^nd Floor, Near Hanuman Chowk, Opposite Hotel Sagar, G.T. Road, Bathinda, through its Branch Manager/Incharge.

2. World Wide Immigration Consultancy Services Ltd., (WWICS), Branch Office: SCO-11, First Floor, above idea office, Leela Bhawan, Patiala, through its Branch Manager/Incharge

3. World Wide Immigration Consultancy Services Ltd., (WWICS), Head Office, SCO No. 2415-16, Sector 22-C, Chandigarh 160 022, through its M.D/Chairman/Director

4. Global Strategic Business Consultancy, FZCO, Office No. 315-316, West Wing-3, Dubai Airport Free Zone, Dubai (U.A.E.), through its Owner/Prop/Partner/Incharge/Authorised Signatory (deleted vide order dated 25-07-2014)

   .......Opposite parties

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

Quorum :

Sh. M.P.Singh. Pahwa, President

Smt. Sukhwinder Kaur, Member

Present :

For the Complainant : Sh. Sushil Kumar, counsel for complainant.

For the opposite parties : Sh. A.S Chahal, counsel for OP Nos. 1 to 3.

OP No. 4 deleted

O R D E R

M. P. Singh Pahwa, President

1. Subash Chand Singla, complainant, has filed this complaint against World Wide Immigration consultancy Services Ltd., and others (opposite parties) under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act'). It is relevant to mention that complaint against opposite party No. 4 was withdrawn and its name was deleted vide order dated 25-07-2014.

2. Briefly stated, the case of the complainant is that he is resident of Bathinda as mentioned in the head note of complaint. In the year 2005 he wanted to go to Canada as a federal skilled worker. In this regard, complainant wanted to consult with firm who provides immigration consultancy. The complainant came to know about opposite parties No. 2 & 3 through advertisement in news paper. Accordingly, he approached opposite party No. 2 at Patiala. It is alleged that opposite party No. 2 made tall claims that they are engaged in the business of immigration consultancy. The opposite party No. 3 is their Head Office at Chandigarh having various consultancy Branches all over India including one at Patiala. It was assured to the complainant that opposite party No. 3 is recently opening branch office at Bathinda for speedy and nearest services. The opposite party No. 2 further claimed that they have tie up with various consultancy agencies in different parts of various countries including with opposite party No. 4 through whom they used to provide various facilities in different countries against consideration and also provide pre landing service.

3. As per complainant, in the month of August/September, 2005, opposite party No. 2 made false promise to complainant for giving consultancy, guidance and support for sending complainant to Canada as federal skilled worker. After inspecting the relevant documents of complainant regarding his date of birth, qualification, passport etc., opposite party No. 2 assured complainant that he is eligible to go and settle at Canada as skilled worker. The opposite party No. 2 charged Rs. 45,000/- for providing consultancy service. Apart from this, opposite party No. 2 also obtained two demand drafts in US $ 600 in advance in the name of opposite party No. 4 at Patiala with the pretext for providing pre landing service and settlement services in Canada. It was assured that at the time when complainant will remain/live at Canada, opposite party No. 4 shall provide the facilities and shall help in tackling the problems, if any at Canada. They further assured the complainant that they will refund all the amount to complainant If they could not success to get the VISA for settlement in Canada. Thereafter, on the request of complainant, opposite party No. 2 transferred his file for further processing to opposite party No. 1 Bathinda on the opening of branch office at Bathinda. It is also pleaded that on the assurance, opposite party No. 2 obtained aforesaid amounts from the complainant. The complainant also paid Rs. 20,350/- as fee of government of Canada and spent Rs. 50,000/- for clearing IELTS exam as suggested by opposite parties No. 1 & 2. The opposite party No. 1 promised the complainant that on the clearance of file, complainant shall be sent to Canada but in the month of April, 2014, opposite party No. 1 stopped providing consultancy service on the pretext that due to policy of government of Canada, government fee of all the applicants including complainant has been refunded. The complainant received the refund of US$ 493.19 vide demand draft dated 24-03-2014. It was received by complainant from opposite party No. 1 under protest. The complainant demanded refund of his money, but the opposite parties have not made any refund of Rs. 45,000/- and US$ 600 despite repeated verbal and written requests. The opposite parties are postponing the matter on one pretext or the other. The complainant got served legal notice dated 25-6-2014 through his counsel for the demand of aforesaid amount, but to no effect.

4. On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties. The complainant has prayed for directions to the opposite parties to refund the entire amount i.e. Rs. 45,000/- , US $ 600 and Rs. 50,000/- spent on IELTS alongwith interest @ 18% p.a. from the date of deposit till realization. The complainant has also claimed Rs. 50,000/- on account of mental tension and agony and Rs. 11,000/- as litigation expenses.

5. Upon notice, opposite parties No. 1 to 3 appeared through counsel and contested the complaint by filing written reply. In reply, the opposite parties No. 1 to 3 raised preliminary objections that it is a case of change in immigration rules. Complaint is liable to be dismissed. That complaint is liable to be dismissed for non-joinder of necessary parties. The complainant has entered into a separate contract of engagement dated 12-10-2005 with M/s. Global Strategic Business Consultancy Dubai (in short M/s. GSBC). The amount of US$ 600 has been alleged to have been paid by the complainant to M/s. GSBC vide two separate Demand Drafts. This amount cannot be claimed from the opposite parties as the said company is a separate independent company having separate legal entity. The opposite parties are not liable with regard to this amount paid to M/s. GSBC. Therefore the complaint is liable to be dismissed for non-joinder of necessary parties. The dollar amount cannot be claimed from the opposite parties. The opposite parties have cited case law, the revelation of which is not considered necessary at this stage. The further legal objections are that as per clause 8 of the contract of engagement signed by the complainant with the opposite parties dated 12-10-2015, the complainant had agreed that the opposite parties shall not be held liable for any delay whatsoever occurring due to backlog of the cases or for any other reason at the VISA post. It is pleaded that the case of the complainant was duly prepared and filed with in the best possible manner with Canadian High Commission and the same was acknowledged by Canadian High Commission vide their letter dated 16-2-2006. Thus, the opposite parties have rendered all the services which the complainant was entitled to, so as to get his case processed by the Canadian High Commission. However, as a bad luck of the complainant, 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 that were made before 27-02-2008 were terminated by the operation of law. Since application of the complainant was received by Canadian High Commission on 3-01-2006 his case was also terminated by the operation of law. Therefore the opposite parties are nowhere deficient in their services and have already performed all the duties which the opposite parties were required to do as per the contract. That once the complainant had retained the services, the opposite parties started providing services from day one, even before the case was filed. That the Forum at Bathinda does not have jurisdiction to deal with the present complaint because complainant has agreed in cause 16 of the Contract of Engagement dated 12-10-2005 that all disputes arising between the parties shall be referred to the Sole Arbitration of the Arbitrator appointed by the Company. The venue of the arbitration proceedings shall be at Chandigarh. That complainant is not entitled to any refund in view of Clause 8 & 9 of the Contract of Engagement 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 complaint is liable to be dismissed as there is neither deficiency nor unfair trade practice on the part of the opposite parties. That complainant is not entitled to any refund in view of Clause 10 of 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 non refundable. That VISA processing fee of US$ 493.19 has already been refunded.

6. On merits, the opposite parties have controverted all the material averments and reiterated their stand as taken in preliminary objections and detailed above. In the end, the opposite parties have prayed for dismissal of complaint.

7. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence documents (Ex. C-1 to Ex. C-21) which included his affidavit dated 24-09-2014 (Ex. C-9) and photocopies of contract of engagement (Ex. C-14 & Ex. C-15).

8. In order to rebut this evidence, opposite parties have tendered into evidence (Ex. OP-1/1 to Ex. OP-1/10).

9. Both the parties have also submitted written submissions.

10. We have heard learned counsel for the parties and gone through the record and written submissions of the parties.

11. Learned counsel for complainant has reiterated his version as set up in the complaint and written arguments. It is further submitted by learned counsel for the complainant that although the complaint was filed against opposite party No. 4 and it was subsequently withdrawn but the complaint cannot be treated as bad for non-joinder of necessary party. Agreement entered with opposite party No. 4 GSBC is Ex. C-15. This agreement was also executed by opposite parties No. 1 to 3 claiming to be sister concern of opposite party No. 4. The literature of GSBC is brought on record as Ex. C-9 wherein it is claimed that company is having branches through out world. The payment on behalf of opposite party No. 4 was also received by opposite parties No. 1 to 3 at Patiala in India. Therefore, the complaint cannot be dismissed only for the reason that name of opposite party No. 4 was got deleted by the complainant.

12. It is further submitted by learned counsel for the complainant that it is not disputed that complainant was to be sent to Canada and the opposite parties have charged the amount for sending him to Canada. The opposite parties have failed to perform their part in getting VISA for the complainant from the Embassy. Therefore, the opposite parties are deficient in service. They have adopted unfair trade practice, as such complaint be accepted.

13. On the other hand, learned counsel for opposite parties No. 1 to 3 has submitted that as per agreement there was no responsibility of the opposite parties to procure VISA. The opposite parties were only to provide consultancy and to assist in preparation of his case and assist him in keeping his file up todate. It was further clarified in the contract that service by company is professional in nature and the entire fee is not refundable. However, the company was liable to partly refund the fee but only if the complainant was declared disqualified skill assessment for Australia. It is not the case of the complainant that he was declared disqualified. Therefore, the company is not liable to refund any amount. It is further submitted by learned counsel for opposite parties that contract with opposite party No. 4 was independent contract. The opposite party No. 1-3 are not liable for any act or omission on the part of opposite party No. 4.

14. To support these submissions, learned counsel for the opposite parties relied upon the decision of (i) Hon'ble National Commission in Revision Petition No. 3334 of 2010 case titled Worldwide Immigration Consultancy Services Vs. Manohar Singh Randhawa decided on 08-03-2011 (ii) Hon'ble State Commission, U.T. Chandigarh, in First Appeal No. 193 of 2014 case titled Kamaljit Kaur Vs. Worldwide Immigration Consultancy Services Ltd., and others.

15. We have carefully gone through the record, case law cited by learned counsel for the opposite parties and have considered the rival contentions.

16. The complainant has tendered into evidence copy of Contract of Engagement entered with opposite parties No. 1 to 3 as Ex. C-14 and copy of Contract of Engagement entered with opposite party No. 4. The entire controversy revolves around these Contract of Engagements. Clause '1' of Ex. C-14 deals with duties of the company. For the sake of convenience, these are reproduced as under :-

    “ 1. Duties of the Company :

    In consultation with its associates in respective countries, 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;

    d) Handling all correspondence with the respective High Commission pertaining to client's case;

    e) Assist the client in keeping his/her file upto date;

17. Clause 8 and 10 of the Contract of Engagement are also relevant to solve the controversy. These are also reproduced as under :

    “8. On receiving the required case filling documents from the Client, the Company and its associates shall make all efforts to file the immigration case at the earliest, with the concerned Visa post. However, the company and its associates shall not be responsible for any delay whatsoever occurring in the formal processing of the case due to backlog of cases or for any other reason at the Visa Post .”

    “10. Refund :

    The services provided by the Company being professional in nature, the entire fee is non-refundable.

    However, partial refund of the fee would be considered if the client is declared disqualified in skill assessment for Australia.

    Accordingly, the client shall be entitled to a refund of 50% of the total fee paid or an amount of Rs. 15,000/- whichever is less, if the client is declared disqualified in skill assessment for Australia.”

18. The complainant has alleged that opposite party No. 2 assured the complainant that he is eligible to go and settle at Canada as skilled worker. The opposite parties charged consultation service. It is not the case of the complainant that he was declared disqualified for going to Canada. It is also not the case of the complainant that opposite parties failed to assist the complainant in preparing or submission of his case or handling the correspondence, the acts which were to be performed by the opposite parties. In written reply, the opposite parties have clarified that the case of the complainant was duly prepared and filed with Canada High Commission, which was acknowledged by Canada High Commission vide letter dated 16-02-2006. Copy of letter dated 16-02-2006 is brought on record as Ex. OP-1/6. Vide this letter, the High Commission of Canada has acknowledged the receipt of application of the complainant. It was also mentioned that by that time, they were assessing applications received approximately 52 months ago. As per complainant himself, he has paid fee to the opposite parties on 11-10-2005. Therefore the case of the complainant was got prepared and submitted within reasonable time. Moreover as per Contract of Engagement Ex. C-14 also, time was not to be treated as essence of the contract. In these circumstances, it can be safely concluded that opposite parties No. 1 to 3 performed their part of Contract of Engagement as settled in Ex. C-14. More so, it was clearly mentioned that services provided by the Company are professional in nature and the fee is not refundable. The complainant has not brought any evidence to prove that opposite parties have failed to perform their duties as mentioned in clause No. '1' as detailed above.

19. Now the question is whether the opposite parties are liable for any breach of terms of Contract of Engagement Ex. C-15. This contract was with separate Company. There is nothing to show that opposite parties No. 1 to 3 having any concern with this Contract of Engagement. It is not signed by any member of opposite parties No. 1 to 3. It is independent contract. The contract was entered into at Patiala as per complainant himself. The opposite party No. 4 (since deleted) was to perform their part of post landing i.e. Canada in this case. Therefore, this Forum has no territorial jurisdiction regarding Contract of Engagement with opposite party No. 4. Even otherwise as per this Contract, opposite party No. 4 was to provide the services as mentioned in this Contract which are reproduced as under :-

    “Pre-Landing Services

    - Assist the client in applying for assessment and evaluation of education from respective Educational Bodies.

    - Assist the client in applying for assessment and evaluation of professional skills from respective professional Bodies.

    - Advising Client on immigration laws in force.

    - Advising Client on his/her prospects in the destined country

    - Providing basic information about the destined country of the client.

20. Admittedly the complainant has not been provided VISA. He has not gone to Canada. Therefore, the services were to be provided by opposite party No. 4 at Canada.

21. In view of what has been discussed above, this complaint fails and is hereby dismissed with no order to costs.

22. The complaint could not be decided within the statutory period due to heavy pendency of cases.

23. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    30-10-2015

    (M.P.Singh Pahwa )

    President

     

     

    (Sukhwinder Kaur)

    Member