Punjab

Patiala

CC/15/62

Ravinder Mann - Complainant(s)

Versus

World Wide Immigration Service - Opp.Party(s)

sh Vinay Vatrana

28 Jul 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Complaint No.CC/62/15 of 24.3.2015

                                      Decided on:        28.7.2015

 

Ravinder Mann S/o Sh.Gurbachan Singh resident of H.No.32, Anand Nagar-A, Extention,Gali No.2, Patiala.

 

                                                                   …………...Complainant

                                      Versus

 

1. Branch Manager/concerned official,

WORLDWIDE IMMIGRATION CONSULTANCY SERVICE LTD SCO.11 First Floor, Leela Bhawan, Patiala.

2. WORLDWIDE IMMIGRATION CONSULTANCY SERVICE LTD South East Asia Operations A-12, Industrial Area, Phase-6, Mohali.
3. WORLDWIDE IMMIGRATION CONSULTANCY SERVICE LTD A-31/A, Third Floor, near Raja Garden Flyover, above Yamaha Showroom, Ring Road, Rajouri Garden, New Delhi.

 

                                                                   …………….Ops

 

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

 

                                      QUORUM

 

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

                                     

                                                                            

Present:

For the complainant:     Sh.Ritin Vatrana, Advocate

For Ops No.1&2:           Sh.S.S.Sidhu,Advocate               

                                     

                                         ORDER

D.R.ARORA, PRESIDENT

1. The complainant on January 30^th,2013 entered into a contract of engagement with Op no.2 at the instance of Op no.1 in the office of Op no.1, on it’s assurance that he will be got offered a job within a period of 3-4 months for Nova Scotia Immigrant Nominee Programme. Op no.1 induced the complainant to make the payment of Rs.2,02,248/-, which he paid vide cheque no.155532 dated 30.1.2013 drawn on Axis Bank Limited, Patiala and on 6.2.2013 under the directions of Op no.1, the complainant deposited US $ 5200 with HDFC Bank, Patiala, which was lateron converted into a demand draft in favor of Global Strategic Business Consultancy under the pretext of depositing  the requisite fee for obtaining the job offer. The said payments were received by Op no.1 from the complainant at its office at Patiala. Op no.1 also got an undertaking from the complainant vide which the complainant could ask for the refund of the amount only after 24 months on entering into the contract of engagement i.e. after 30.1.2013 and 6.2.2013 respectively.
2. The complainant kept enquiring from Op no.1 about the job offer but Op no.1 kept on lingering the matter under one or the other pretext and failed to provide any information as to whether his application had been moved by the Ops for the purpose of visa and went on representing the complainant that the application was under process. Ultimately, the complainant approached Op no.1 and requested for the refund of the payments made by him but the Ops refused to pay the same and asked him to apply for the refund after a period of two years from the date of the contract of engagement i.e. after 30.1.2015.
3. On 10.2.2015 , the complainant approached Op no.1 for the refund of the amount of Rs.2,02,248/- and US $5200 but Op no.1 made a refusal on the ground that the amounts were not refundable. The complainant got the Ops served with a legal notice dated 16.2.2015 but the Ops failed to respond . The act of the Ops in not having refunded the said amounts is said to be a deficiency in service. Accordingly the complainant brought this complaint against the Ops under Section 12 of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Ops to refund him the said payments made by him with interest @18% per annum.
4. Cognizance of the complaint was taken against Ops no.1&2 but the written version has been filed on behalf of all the three ops.It will be read for and on behalf of Ops no.1&2. It is admitted by the Ops that the complainant had approached Op no.1 for securing him a job offer from an employer in the province of Nova Scotia so as to get nomination letter from Nova Scotia Immigration Authority after the employer received positive labour market opinion from Service Canada. The complainant had signed two contracts of engagement, one for obtaining job offer and another for preparation and submission of immigration case after obtaining the job offer. The complainant also signed another contract of engagement dated 30.1.2013 with M/s Global Strategic Business Consultancy Services Limited, Dubai for securing him job offer from an employer in the province of Nova Scotia.
5. It is admitted by the Ops that the complainant paid the amount of Rs.2,02,248/- out of which Rs.22,248/- had been paid towards service tax by the complainant, which is non refundable as the same has gone into the Govt. account as would appear from the receipts Annexure R2 and R3. It is denied that the complainant paid US $5200 to the Ops rather the said amount was paid by the complainant to M/s GSBC, Dubai vide contract of engagement dated 30.1.2013 and the same has been refunded to him. It is denied that any undertaking was obtained from the complainant rather as per Clause 3 of the Contract of Engagement, the complainant was clearly told that to obtain job offer normally it may take 24 months. It is denied that Op no.1 had agreed that the job offer  will be arranged within a period of 3-4 months. The case of the complainant was duly sent to the Canada office for obtaining the job offer. However, since the job offer had to be obtained under “Retail Trade Manager”, which was to be followed under tough National Occupation Code (NOC) list, therefore, the said job offer could not be obtained within 24 months and therefore, the Ops refunded the amounts as per the terms of the contracts. The Ops were still trying to obtain the job offer but the complainant in the mean time brought this complaint.
6. The complainant failed to approach the Ops for any refund after 30.1.2015 nor he moved any application in this regard and rather he brought this complaint in the proceedings of which the Ops refunded the amount. It is also the plea taken up by the Ops that under Clause 9 of the Contract of Engagement dated 30.1.2013 ( Annexure R1), it is specifically provided that in case the company is unable to obtain the job offer from Canada, the company will deduct 25% of the total amount payable and the remaining amount will be refunded. Since the Ops have not been able to obtain the job offer , a sum of Rs.1,12,500/- and US $5200 have been refunded being 75% under Clause 9 of the contract. An amount of Rs.1,12,500/- out of Rs.1,50,000/- was tendered vide cheque No.453165 dated 20.4.2015 drawn on ICICI Bank ,Mohali and Rs.15000/- out of Rs.30,000/- were paid vide cheque no.453164 dated 20.4.2015 of ICICI Bank, as per second contract. Thus, out of the total amount of Rs.1,80,000/- an amount of Rs.1,27,500/- was refunded. The complete amount of US $ 5200 paid by the complainant to M/s Global Strategic Business Consultancy Services Dubai was also refunded vide draft No.039119 dated 7.5.2015 during the pendency of the complaint and now the complainant is not left with any cause of action.
7. It is also the plea taken up by the Ops that the complainant retained the services of the Ops in respect of (a) Counseling and advising the client about the immigration category in which he retained the services and 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 the immigration application (c) Advising and guiding the client in preparation of documents and forms for himself, his spouse and children in proper format as per the requirement of immigration authorities etc. Documents such as experience documents, education documents, salary slips etc. The Ops had duly been performing their part of the contract right from the complainant retained their services. After denouncing the other averments of the complaint, going against the Ops, it was prayed to dismiss the complaint.
8. In support of his complaint, the complainant produced in evidence Ex.CA, his sworn affidavit alongwith the documents Exs.C1 to C9 and the complainant closed his evidence.
9. On the other hand, on behalf of the Ops, their counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Rajiv Bajaj, authorized representative of Op no.2 alongwith documents Exs.OP1 to Op8 and closed their evidence.
10. The Ops filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.
11. The parties arrived at three agreements i.e. Exs.C4 ( Ex.OP8), C5( Ex.OP7) and Op1, the copy of the same having not been produced by the complainant.
12. It is the admitted case of the parties that the Ops could not get the complainant the job offer issued from Global Strategic Business Consultancy Service, Dubai, which is the associated company of the Ops and therefore, the Ops have refunded the entire fee of US $ 5200 as per the terms and conditions of the agreement,Ex.OP8.
13. The Ops have also refunded a sum of Rs.1,12,500/- vide cheque No.453165 dated 20.4.2015 and further a sum of Rs.15000/- vide cheque No.453164 dated 20.4.2015 both drawn on ICICI Bank Limited, Mohali, issued in favor of the complainant.
14. Now it has to be seen whether the  Ops were justified in having deducted 25% from the total fee of Rs.1,50,000/- deposited by the complainant with Op no.2 vide retainer fee receipt Ex.C6 dated 30.1.2013 in accordance with the contract of engagement agreement, Ex.OP1 and further having deducted 50% from the amount of Rs.30000/- deposited by the complainant with Op no.2 vide receipt Ex.C7 dated 30.1.2013 in accordance with the contract of engagement, Ex.OP7.
15. It is provided under Clause 9 of the Contract of Engagement Ex.OP1 under the heading Refund: “I. The service provided by the Company being professional in nature, the entire fee for the services provided is non-refundable.II.Taxes( if any) paid shall not be refundable.III. In case associated company is unable to obtain Job Offer from Province of Nova scotia after submission of relevant documents, total fee paid by the client, will be refunded to the client after deduction of 25% of the total amount payable as per this agreement. IV.Once Job offer and Positive LMO/Nomination Letter is received from Nova Scotia Immigration Authorities nothing is refundable. However, in case Services Canada does not issue a positive LMO or Nova Scotia Immigration Authorities do not approve the application for Nomination Letter the company undertakes to refund the Full amount after deduction of 25% of the total amount payable as per this agreement. V. The client understands and agrees that the COMPANY is not responsible for any delay/rejection of application for permanent residence in Canada for any reason whatsoever, besides Job Officer and Nomination Letter not being valid and therefore, no refunds/compensation can be claimed.VI. In case the client has been given any discount on the fee payable to the company the same would be deducted from any amount refunded to the client.”
16. Clause 10  of the said Contract of Engagement provides: “(a) The Company will not refund any of the total fees and shall be entitled to full payment if:

i.       Once the client signs this contract and then he/she does not wish to proceed further for any reason what so ever.

ii       The client voluntarily withdraws the case at any stage.

iii      If it becomes impossible to meet the objective of the agreement due to any unforseen reasons or any Act of God (including fire, flood, earthquake, or other natural disaster),war, hostilities, rebellion, terrorist activities, blockage, embargo, labor dispute, strike, lockout or interruption or any type of changes  in any laws and/or rules such as: introduction of new assessment/selection criteria, after filing of the case and if the same is being applied to the applications retrospectively by the concerned authorities or the authorities decide not to process the cases filed under a particular category and/or time period and decides to return the cases, the client shall not be entitled to claim any refund from the company.

iv      The client does not co-operative towards completion of this agreement in any manner.

v       The client does not submit the documents required by Services Canada, the Provincial Authorities and advised by the Company for obtaining the job offer Positive LMO and nomination letter within the time prescribed by Services Canada, the Provincial Authorities or as advised by the Company.

vi      The client breaches all or any of the terms of this agreement by providing false information, fake documents and/or commits any other sort of fraud or misrepresentation or by any other means.

vii     The case gets rejected due to the reason that the client could not withstand all the background checks conducted by Services Canada and the Provincial Authorities.

viii    The client does not perform his part of Contract i.e. in case he omits to perform any of his duties enshrined in this Contract.

ix.     If it becomes impossible to meet the objective of the agreement due to reasons like client having medical problems, having criminal/civil charges, national security reasons of Canada, changes in rules and/or any other reasons.

(b)     In case the client does not submit documents required for the job offer, Positive, LMO and/or Nomination Letter within 30 days from retaining the services, the Co. shall not be under any liability to refund the fee paid by the client.

(c)     The client is expected to disclose complete information about himself/herself and dependants in the assessment form truly and correctly at the time of retaining services of the Co. so that he/she may be assessed correctly. If at a later stage, the client comes up with some different information whereby he/she becomes disqualified, he/she shall not be entitled to claim any refund from the company.

(d)     The company will not refund the fee in case of physical or mental unsoundness or in case of death of the client”.

17. In order to appreciate the conditions contained under Clause 10(a), it is necessary to go through the duties of the company as provided under Clause  1 of the Contract of Engagement,Ex.OP1, as under: “Duties of the Company: “In consultation with its associates at various locations the Company shall provide the following services to its client:

1. Review and identify for submission required documents to the associated company.
2. Submit the complete details about the client to the associated Company on receipt of the same from the client.
3. Handle all correspondence with the associated Company pertaining to the client for the Job offer.
4. Intimate the requirements of the same to the client.
5. The Company shall only be responsible for preparation and submission of documents to be submitted to the associated Company and NOT for any immigration consultancy or immigration application filing or assessment or processing including application for Nomination under Nova Scotia Immigrant Nominee program”.

18. There is nothing brought in evidence by the Ops to show that they had ever submitted the complete details about the complainant (client) to the associated company on receipt of the same from the complainant and that Op no.2 handled all correspondence with the associated company pertaining to the complainant for the job offer. Not even a single document is placed on record by the Ops with regard to any correspondence to have been made by Op no.2 with the “Associated Company” namely Global Strategic Business Consultancy LLC (GSBC) as referred to in the Contract of Engagement,Ex.OP1 itself , meaning thereby that Op no.2 had not rendered any services to the complainant in terms of the Contract of Engagement Ex.OP7. Here, it is important to note the duties of the company as provided under Clause 1 of the Contract of Engagement Ex.OP7: “Duties of the Company: In consultation with its associates at various locations the Company shall provide the following services to its clients:

1. Assess the client according to the information provided by the client in the assessment form.
2. Assist the client in preparation of the immigration case;
3. Review and identify for submission required documents and supporting evidences;
4. Submit the complete case with supporting documentation and evidence along with the submission report to the processing visa office on the receipt of all requisite documents from the client;
5. Handle all correspondence with the processing visa office pertaining to client’s case;
6. Intimate the requirements sent by Processing Visa office during the progress of the immigration case.
7. Assist the client in keeping the file up to date;
8. Advise the client about any subsequent changes in the immigration laws and any subsequent conditions applicable to clear the Immigration process”.

19. To the contrary, it is the plea taken up by the Ops in para no.3 of the written version that “ the case of the complainant was duly sent to the Canada office for obtaining the job offer, however, since the job offer was to be obtained under “Retail Trade Manager” which was falling under tough National Occupation Code (NOC) list therefore, the said job offer could not be obtained within 24 months, hence the Ops have refunded the amounts as per the Contracts.”When we asked the learned counsel for the Ops as to what does it mean by “Retail Trade Manager”, he could not explain the same and it appears that the Ops have put forth the plea  which has nothing to do with the terms and conditions of the Contract of Engagement, referred to above. Whether “Retail Trade Manager”, a procedure was applicable at the time of the parties entered into the agreements or whether the same had come into being thereafter and how the same worked against the complainant or proved a clog in getting the job offer by Op no.2 from its associated company. It appears that no steps were taken by Op no.2 in sending  the application of the complainant to the associated company and consequently Op no.2 failed to get any reply/objection in the matter of processing the application of the complainant with the authorities in Canada. After all one or the other letter would have been received by Op no.2 from its associated company i.e. GSBC explaining the very grounds on the basis of which the job offer could not be obtained under “Retail Trade Manager”, in the absence of which, it would appear that the Ops having failed to discharge their duties as provided under the Contracts of Engagement Exs.OP1 and OP7 respectively were not entitled to deduct 25% of the total amount payable under Contract of Engagement, Ex.OP1, vide which Op no.2 realized a sum of Rs.1,50,000/- from the complainant and to deduct 50% amount of the retainer fee deposited by the complainant vide Contract of Engagement Ex.OP7. It appears that from the very beginning the Ops had no intention of taking up the matter of the complainant with their associated company and they wanted to rob of the money of the complainant and that is why they obtained an undertaking from the complainant that he will not ask for closure of his case prematurely before 24 months of his having submitted all the requisite documents for obtaining the job offer, the said undertaking having been produced on file. There is however, no evidence to have been lead by the Ops to show that they made any efforts through their associated company for obtaining the job offer letter from Nova Scotia Immigration Authority. There is also no evidence to show that Op no.2 submitted the complete case with supporting documentation and evidence alongwith submission report to the  Processing Visa office on receipt of all requisite documents from the complainant(client) in compliance with Clause 1 (d) of the Duties of the Company as provided in Contract of Engagement Ex.OP7. Similarly, there is no evidence to show that Op no.2 submitted the complete details about the complainant (client) to the associated company on receipt of the same from the complainant (client) in compliance with Clause 1(b) of the Contract of Engagement Ex.OP1 and further handled all correspondence with the associated company pertaining to the complainant(client) for the job offer in compliance with Clause 1 (c) of the Contract of Engagement Ex.OP1. Thus, Op no.2 having failed to discharge its duties it had no right to deduct 50% amount out of Rs.30,000/- deposited by the complainant vide Contract of Engagement Ex.OP7 and rather to our mind, the Ops practised an unfair trade practice in not having discharged their duties as discussed above.
20. It was submitted by Sh.Ritin Vatrana, the learned counsel for the complainant that there is no evidence to have been lead by the Ops that the amount of the service tax of Rs.18000/- on the amount of Rs.1,50,000/- @ 12.00% + Rs.360/- educational cess on amount of Rs.1,50,000/- @ 0.24% and Rs.180/- on account of secondary and higher education cess on amount of Rs.1,50,000/-@ 0.12% as per receipt Ex.C6 has been deposited with the Taxation Department and similarly no evidence is lead by the Ops that they deposited the amount of Rs.3600/-towards service tax  on amount of Rs.30,000/- @12% + Rs.72/- towards education Cess on amount of Rs.30,000/- @ 0.24% + Rs.36/-towards secondary and higher education cess on amount of Rs.30,000/- as per receipt Ex.C7 with the concerned Taxation Department.
21. It was submitted by Sh.Vatrana that when the Ops have refunded the amounts on account of their being not able to get the job offer from their associated company, it was obligatory on the part of the Ops to have provide the complainant with the receipts regarding the deposit of the service tax + education cess + Senior and Higher Education Cess or else they should have lead the positive evidence regarding the deposit of the same but no such evidence is lead  by the Ops and therefore, the said amount is also liable to be refunded by the Ops.
22. Sh.S.S.Sidhu, the learned counsel for the Ops could not show any correspondence to have been made by Op no.2 with its associated company i.e. GSBC having faced any problem in getting the job offer to the complainant from the employer in Canada.He simply referred to the plea taken up by the Ops that the case of the complainant was duly sent to the Canada office for obtaining the job offer but since the job offer had to be obtained under “Retail Trade Manager”, which was falling under tough National Occupation Code (NOC) list and therefore, job offer could not be obtained within 24 months.
23. We have considered the submissions and are of the considered view that the Ops utterly failed to discharge their duties as provided in the Contracts of Engagement Exs.OP1 and OP7 and therefore, there was no question of the Ops deducting 25% of the total fee of Rs.1,50,000/- received from the complainant vide Contract of Engagement Ex.OP1 and to deduct 50% from the amount of Rs.30,000/- received by Op no.2 vide Contract of Engagement Ex.OP7. It is not the case of the Ops that the complainant could not be got the job offer issued by Op no.2 from its associated company on account of any lapse on the part of the complainant and rather Opno.2 failed to discharge its duties in the matter of providing the services to the complainant by way of taking up the matter with its associated company and thus, Op no.2 committed unfair trade practice and therefore, Op no.2 is liable to refund the entire amount of the fee of Rs.1,50,000/- and Rs.30,000/- received by it vide receipts Exs.C6 and C7 respectively because Op no.2 has failed to show that the amount of Rs.18540/- payable towards service tax etc. in the case of receipt Ex.C6 and Rs.3708/- in the case of receipt Ex.C7 have been deposited with the concerned taxation department and rather it was obligatory on the part of Op no.2 to have provided the receipt in that regard to the complainant or to have lead the evidence for that sake.
24. Op no.2 has refunded a sum of Rs.1,12,500/- out of total fee of Rs.1,50,000/- vide cheque No.453165 dated 20.4.2015 drawn in favor of the complainant upon ICICI Bank Branch, Mohali, tendered before the Forum on 4.6.2015, which was accepted by the complainant under protest and similarly the Op made the payment of Rs.15000/- out of retainer fee of Rs.30,000/- deposited by the complainant vide receipt Ex.C7 vide cheque No.453164 dated 20.4.2015 drawn upon the said bank, which was also tendered in the Forum on the said date and which was accepted by the complainant under protest.Thus, the op is liable to refund Rs.37500/-+ Rs.15000/-+ Rs.22248/-(Rs.18540+3708) deducted on account of service tax, in all Rs.74748/-. The complaint is accepted accordingly and Ops no.1&2 are directed to pay the interest @ 9% per annum on the amounts already refunded by them from the date of the deposit upto the date of their refund i.e. 30.1.2013 in respect of deposit of Rs.1,50,000/- and Rs.30,000/- deposited vide receipts Exs.C6 and C7 and 6.2.2013 in respect of US $ 5200. They shall also refund the balance amount of Rs.37500/-+ Rs.15000/-+ Rs.22248/-totaling Rs.74748/- with interest at the said rate of interest w.e.f. 30.1.2013 till final payment. In view of the facts and circumstances of the case, the complaint is accepted with costs assessed at Rs.5000/-. The order be complied by the Ops within one month on receipt of the certified copy of the order.

Pronounced

Dated:28.7.2015

 

                   Sonia Bansal                Neelam Gupta                        D.R.Arora

          Member                        Member                                  President