BEFORE THE DISTRICT CONSUMER DISPUTES

                                                              REDRESSAL FORUM, JALANDHAR.

Complaint No.410 of 2016

Date of Instt. 21.09.2016

Date of Decision: 28.08.2018

Rajiv Kumar S/o Sh. Hari Om R/o Plot No.3, Aman Nagar, Jalandhar.

..........Complainant

Versus

1. Worldwide Immigration Consultancy Services Pvt. Ltd. A-12, Industrial Area, Phase-VI, Mohali through its Managing Director.

2. Branch Manager Worldwide Immigration Consultancy Services Pvt. Ltd. Branch Office, Midland Tower, G. T. Road, Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Rahul Sharma, Adv Counsel for the Complainant.

Sh. GPS Rana, Adv Counsel for the OPs.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainant, wherein alleged that the complainant applied for permanent residency at Manitoba, Provincial Nominee Program, Canada and the complainant entered into an agreement with the respondent on 04.02.2016. The complainant had paid Rs.2,06,100/- as the fee for the engagement and providing services to the complainant. The payment was made through cheque. The said agreement was executed at Jalandhar. While entering the aforesaid agreement, the respondent assured the complainant qualify for the above said category and assured that the complainant will get the permanent residency, on the assurance given by the respondent, the fee of Rs.2,06,100/- has been paid by the complainant to the respondent along with said fees a sum of Rs.50,000/- has also been taken as cash for miscellaneous expenses i.e. for preparing CA Report, Valuation Report etc. The complainant has visited number of times to the respondent and inquired about the status of his file/application. That as the respondent has not responded, as such the complainant requested them to refund of his fee i.e. Rs.2,06,100/- and Rs.50,000/-, which was taken as cash. The respondent made the petitioner convinced that Rs.50,000/- has been taken as for the purpose of expenses and they have incurred the said expenses and now the said Rs.50,000/- cannot be refunded in any circumstances. It is worth mentioning that the complainant was not eligible for the Manitoba Canada business category. The complainant having Adaptability Matrix Score Evaluation and he got 55 points out of 100, whereas the minimum required points are 60, so the respondent are misleading and using unfair trade practice. The complainant filed an application to this effect has been made and presented to the Branch Office i.e. with the respondent No.2 on 23.05.2016, which was duly received by their representative Ms. Depali. Copy of the said application is attached. One an other application dated 15.07.2016 was filed. It is worth mentioning that the brother of the complainant has also filed the same category permanent immigration and his case was also not processed and the respondent has also used unethical and unfair trade practice while filing his case also. One letter relating to the internal correspondence came into the hand of the brother of the petitioner showing that he is not qualified under MPB Program.

2. The complainant on 15.07.2016, again moved an application requesting them to refund the amount, the said application was received by the representative of the OP No.2. Thereafter, the representative of the respondent at Jalandhar office asked the complainant that there is no clause for refund of the fees in any circumstances as per E-mail dated 09.08.2016. The complainant applied for permanent immigration for Manitoba Province Canada as per program dated 04.02.2016. The OP acted negligently and fraudulently and by unfair trade practice extracted the amount of Rs.2,06,100/- and Rs.50,000/- by way of cash and assured that the complainant will get permanent immigration. When the complainant requested to refund the amount, they refused and flatly stated that the amount will have not be returned. Now, the complainant have got the letter along with documents returned by the respondent with the content that the complainant not qualify under MPB Program. The complainant made request to the respondent to settle the matter and to adjust the fee with the fees payable for the agreement of his brother Rajiv Kumar, but the OP did not agree and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the fee of Rs.2,06,100/- along with interest and be also directed to pay compensation for unfair trade practice and negligence to the tune of Rs.1,00,000/- and be also directed to pay cost of litigation of Rs.10,000/-.

3. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared through its counsel and filed its joint written reply and contested the complaint by taking the preliminary objections that the present complaint is liable to be dismissed as the complainant has not approached this Forum with clean hands. The complainant withdrew his immigration case intentionally as his brother Mohit Arora's application could not be lodged due to 5 years ban imposed by Canadian High Commission on Mohit Arora and later on, the complainant gave an excuse of fee adjustment for withdrawing his immigration case. Further, the complainant neither furnished his refusal letter sent by Canadian High Commission in his previous application nor did he agree to obtain the CAIP's forms, which is valuable for processing of an immigration application. It is understandable that a ban was also imposed upon complainant because as per complainant's email dated 22.06.2016, his previous immigration application was refused on similar grounds. The complainant in the present case, voluntarily withdrew his case and applied for refund. The complainant and his brother, Mohit Arora, are hand in glove with each other and have suppressed material facts from this Forum and as such, the present complainant is liable to be dismissed. It is further averred that the present complaint is liable to be dismissed as at the time of retaining the services of the respondents, the complainant failed to disclose that his earlier immigration application/case was refused on ground for purpose of visit and net worth. The complainant admitted this fact vide his email 22.06.2016, wherein he had requested the respondents to process his case without filing mandatory CAIPS notes with regard to earlier refusal of his immigration case, which was not possible as it is mandatory to fill the CAIPS notes for providing information to CHC, as is clear from the documents. It is further averred that the complainant had engaged the services of OP by entering into contract dated 04.02.2016 under Manitoba Provincial Nominee Program for the purpose of securing a Nomination Certificate from Manitoba Provincial Authorities. The complainant had paid an amount of Rs.1,80,000/- (excluding service tax of an amount of Rs.22,248/-), vide receipt dated 04.02.2016 towards the execution of the said contract. As per clause 2(i) of the said contract, the complainant was required to execute forms and produce all documents and information that is necessary for processing of complainant's immigration case and accordingly, the respondents asked the complainant to execute the relevant forms, vide an email dated 07.06.2016. The complainant instead of providing the required relevant documents informed the respondents, vide an email dated 22.06.2016 that the complainant had earlier applied for a Tourist Visa in Canada and got the same refused on the ground of purpose of visit and net worth and complainant requested the complainant to process his case as it is without filling mandatory CAIPS notes and also agree that if any any negative impact of his previous refusal in the present application will come, then the complainant will not hold the respondents liable in any manner. On merits, it is admitted that the complainant engaged the services of answering OP and also paid a sum of Rs.2,06,100/- as well as entered into an agreement dated 04.02.2016, but the remaining allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove the case of the complainant, the complainant himself tendered into evidence his own affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-4 and closed the evidence.

5. Similarly, counsel for the OPs tendered into evidence affidavit Ex.OP/A and some documents Ex.OP1/1 to Ex.OP1/8 and then closed the evidence.

6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7. After considering the over all circumstances as envisaged in the pleading of each party and reached to the conclusion that the factum of the complaint to the effect that the complainant entered into an agreement with the OP for getting services from the OP for immigration of Canada and agreement was executed between the parties dated 04.02.2016 and copy of the same produced on the file by the complainant himself Ex.C-1. Further, it is also not disputed that the complainant paid a fee of Rs.2,06,100/- for getting services from the OP and also paid other miscellaneous expenses, but thereafter due to delay, the complainant asked for refund of the said fee by submitting letter dated 23.05.2016 Ex.C-2 and letter dated 15.07.2016 Ex.C-3, but the refund of the aforesaid fee has been refused by the OP, vide letter Ex.C-4 on the ground that the complainant himself failed to submit an application for withdrawing of his immigration case because his brother Mohit Arora's application could not be lodged due to five years ban imposed by the Canadian High Commission and similarly, there was a doubt that a ban was also imposed upon the complainant Rajiv Kumar and this fact is established from the email dated 22.06.2016 sent by the complainant in response to the email of the OP dated 07.06.2016, whereby demanded some documents, both the emails are make available on the file by the OP, which are Ex.OP/5 dated 07.06.2016 and Ex.OP/2 dated 22.06.2016. The OP through email dated 07.06.2016 Ex.OP/5 asked the complainant to furnish documents, which was discussed on telephonic conversation and in response to that email, the complainant gave detailed email message Ex.OP/2 dated 22.06.2016, whereby gave information to the OP that he had already applied Tourist Visa for Canada in November, 2015 and got his visa refused on the following grounds:-

1. Purpose of Visit.

2. Net worth.

So, this email of the complainant itself established that the case of the complainant is also similar of the case of his brother Mohit Arora and both the cases were declared a case of given misrepresentation and accordingly, five years ban was imposed upon them for getting immigration of the Canada. So, from the above documents as well as story propounded by the OP itself reveals that the complainant himself is at fault because he intentionally, willfully and deliberately concealed the material and true facts from the OP regarding refusal of his previous Tourist Visa of Canada and if the fault is on the part of the complainant, then how we can fasten liability of the OP regarding deficiency or unfair trade practice.

8. The above facts show that there is no deficiency in service on the part of the OPs rather the OPs are ready to proceed and guide as well as gave services to the complainant, but the complainant himself did not disclose regarding imposition of five years ban by the Canadian High Commission and thus, we do not find any force in the argument of the learned counsel for the complainant, therefore, the complaint of the complainant is dismissed. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

28.08.2018 Member President