Punjab

Ludhiana

CC/17/728

Rajwinder Kaur - Complainant(s)

Versus

Worldwide Immigration Consultancy Services Ltd - Opp.Party(s)

Devan Verma adv

14 Oct 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:728 dated 06.10.2017.                                                         Date of decision: 14.10.2021. 

Rajwinder Kaur age about 27 years W/o. Sh. Gurinder Pal Singh, Advocate, Resident of VPO Begowal, Tehsil Payal, Distt. Ludhiana.                                                                                                                 ..…Complainant

                             Versus

1. Worldwide Immigration Consultancy Services Limited, Branch Office Near City Police Station, G.T. Road, Khanna, Ludhiana-141401, through its authorized signatory/Manager/owner.

2.  Worldwide Immigration Consultancy Services Limited, Head Office A-12, Industrial Area, Phase-VI, Mohali through its authorized officer/Manager.                                                                                               …..Opposite parties 

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

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Devan Verma, Advocate.

For OPs                          :         Sh. G.S. Sandher, Advocate.

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                Shorn of unnecessary details, the case of the complainant is that she was IELTS qualified and wanted to go and settle abroad. The complainant approached the OPs, who assured her to get visa within 6-8 months. The complainant paid a sum of Rs.6,59,950/- to the OPs out of the same, a sum of Rs.50,000/- was paid to OP1 on 28.07.2015 at their office at Khanna. Another sum of Rs.34,200/- and Rs.2,05,200/- was paid on 04.08.2015 at Khanna. Thereafter, the OPs demanded another sum of Rs.3,70,550/- as final payment. The OPs further assured the complainant that the visa work will be completed within 30 days from the receipt of the said amount. Accordingly, the complainant gave cheque No.003761 dated 29.09.2015 for Rs.3,70,550/-  drawn at Ludhiana Central Cooperative Bank, Mehdudan, Ludhiana from the account of her father Manjit Singh in favour of Paul Merchant. Prior to this, contract dated 04.08.2015  was signed between the parties. However, the OPs never gave any information to the complainant after receiving the full amount. The complainant supplied all the requisite documents to OP1 and OP2, but the OPs could not secure the visa for the complainant nor they returned even a single penny to the complainant. In the month of September 2017, the complainant along with her father visited the office of OP1 and later on OP2 as well, but the OPs failed to disclose the status of the file and instead misbehaved with the complainant. No plausible reasons were given by the OPs for not providing the proper services to the complainant. This amounts to deficiency of services on the part of the OPs and the complainant suffered mental and physical harassment on account of the acts and omissions of the OPs. In the end, it has been requested that the OPs be directed to refund the amount of Rs.6,59,950/- along with Rs.2,00,000/- as compensation and Rs.22,000/- as litigation expenses. 

2.                The complaint has been resisted by the OPs. In the written filed on behalf of OPs, it has been pleaded that the complainant paid a sum of Rs.5,67,500/- in connection with Express Entry Employment Facilitation, Canada, out of which, an amount of Rs.5,00,000/- has already been paid to the complainant vide cheque dated 15.01.2018 No.014576 drawn on Axis Bank, Chandigarh as a goodwill gesture and the same ahs been got encashed by the complainant even though the complainant was not entitled to any refund as per clause 8 (i) of the contract dated 04.08.2015. Even otherwise, the complainant has become in-fructuous as the amount of Rs.5,00,000/-  has been paid by the OPs. Moreover, the complainant had paid an amount of Rs.2,10,000/- to the OPs out of which a sum of Rs.29,399/- has been gone to the state exchequer as service tax which is non-refundable. According to the OPs, there has been no deficiency of service or negligence on their part. The complainant engaged services of the OPs by entering the contract dated 04.08.2015 under Express Entry Employment Facilitation Canada with regard to preparation and submission of documents to the associated company to secure job offer under NIC 6315-Cleaning Supervisor for the complainant. The OPs immediately started working on the immigration case of the complainant who was guided thoroughly for preparation of his job duties and documents. The OP company assessed the documents of the complainant as per National Occupation Classification (NOC). Information pertaining to job duties of the complainant was communicated vide email dated 02.09.2015 which was duly conveyed to the complainant with suggested modifications and reminder was sent vide email dated 23.09.2015. Thereafter, the OPs received modified resume and other documents vide email dated 28.09.2015. Thereafter, the OPs prepared the case of the complainant in the best possible manner and uploaded the documents of the complainant to “Job Bank Canada” on 09.12.2015 for arranging job offer. However, as a matter of bad luck of the complainant, the employees did not pick up the resume of the complainant and the complainant has not received job offer till date and  without waiting further, the complainant filed the complaint before this Commission asking for refund. Therefore, under the circumstances, the complaint is liable to be dismissed. According to the OPs, the complainant had to apply for a job offer under NOC-6315 (Cleaning Supervisor) for which she paid Rs.2,05,200/-, out of which Rs.25,199/- was non-refundable, being service tax. The complainant further entered into another contract for Federal Processing-Post Provincial Selection and paid Rs.34,200/- out of which Rs.4200/- was non-refundable being service tax. The amount of the fee  charged by the OPs was also non-refundable as per clause 8 (i) (ii) of the contract dated 17.01.2015.

3.                It has further been pleaded in the written statement that the complainant availed the service another company namely M/s. Global Strategic Business Consultancy, Dubai and entered into a contract dated 04.08.2015 and paid amount of US$5500 vide receipt dated 29.09.2015 directly to the said company. As per clause 8 (i) (ii) it was agreed by the complainant that the fee was totally non-refundable and the complainant cannot ask for the refund of US$5500 from the OPs. The company duly provided the services for which it was hired including counseling and advising, providing assistance to the client in getting immigration package  and guiding the complainant in preparation of documents etc. It, therefore, cannot be said that the OPs have not rendered the services properly. The other averments made in the complaint have been denied as incorrect and a prayer for dismissal of the complaint has also been made.

4.                In evidence, the complainant submitted her affidavit as Ex. CA along with documents Ex. C1 to Ex. C5 and closed the evidence.

5.                On the other hand, learned counsel for the OPs tendered affidavit Ex. RA of Sh. Rajiv Bajaj, Authorized Representative of OPs along with documents Ex. R1 to Ex. R10 and closed the evidence.

6.                We have heard the learned counsel for the parties and have also gone through records.

7.                During the course of arguments, the counsel for the complainant has argued that the OPs did not provide proper service with the result that no job permit or visa was granted to the complainant. This clearly amounts to deficiency of service on the part of the OPs and they are liable to refund the entire amount along with compensation and litigation expenses, as prayed for in the complaint.

8.                On the other hand, the counsel for the OPs has argued that the matter was compromised and a sum of Rs.5,00,000/- had already been returned to the complainant out of the total amount of Rs.6,59,950/-. It has also been argued by the counsel for the OPs that a sum of Rs.3,75,550/- was paid to M/s. Global Strategic Business Consultancy, Dubai through M/s. Paul Merchants for which OPs cannot be held responsible as the company M/s. Global Strategic Business Consultancy, Dubai is having a separate and distinct legal entity and the said company has not been impleaded. According to the counsel for the OPs when the present complaint was filed, the refund letter had not been received. Therefore, the complaint is premature. Moreover, the OPs filled all the forms properly and the OPs have simply charged the complainant for assisting her in applying for job visa and there is no clause in the agreement that the OPs gave any guarantee that they would secure the visa as the grant of visa is not in the control of the OPs which was to be given by the authorities in Canada. The counsel for the OPs has further contended that as a matter of goodwill gesture, the OPs have already returned the amount of Rs.5,00,000/- and they cannot be made to refund the remaining amount, out of which a sum of Rs.25,199/-, Rs.4200/- and Rs.29,939/-  has been paid as tax as is evident from Ex. R6 to Ex. R8. The counsel for the OPs has further contended that the complainant paid US$5500 to M/s. Global Strategic Business Consultancy, Dubai through M/s. Paul Merchants and the said company has also not been impleaded as party and OP1 & OP2 cannot be made to refund the amount paid to the said company, which is having a separate and distinct legal identity.

9.                We have weighed the contentions raised by the counsel for the parties and have gone through the record.

10.              It is not disputed that the complainant paid a total sum of Rs.6,59,950/- to the OPs for providing assistance in securing job visa offer to the complainant in Canada. It is also not disputed that a sum of Rs.5,00,000/- has already been refunded to the complainant during the pendency of this complaint. The only controversy which is left to be resolved in this case as to whether the OPs are liable to refund the remaining amount of Rs.1,59,950/-  or not.

11.              In this regard, the case set up by the OPs is that the complainant engaged the services of the OPs for Express Entry Employment Facilitation in Canada as well as National Occupation Classification (NOC) and as per the contract between the parties, the duties of the OPs was to prepare and submit documents to the associated company to secure job offer under NOC 6315-Cleaning Supervisor for the complainant. The OPs have claimed that they properly assisted the complainant and prepared the documents and submitted the same with the concerned authorities, but the present complaint was filed even before the fate of application of the complaint became known. The OPs have proved on record the contract of engagement Ex. R1, email Ex. R2 to Ex. R4, profile information Ex. R5, retainer fee receipt Ex. R6 to Ex. R8 and another contract of engagement Ex. R9. Surprisingly enough, no record or document has been placed on file to show that the necessary application of the complainant for job visa was duly filed by the OPs or not. The OPs have further not placed on record any documents whereby the request of the complainant for job visa might have been declined or rejected. In the absence of these documents, it cannot be said that the OPs actually carried out the work for which they were engaged by the complainant. That appears to be the reason as to why the OPs promptly refunded the amount of Rs.5,00,000/- out of total amount of Rs.6,59,950/-. Therefore, under these circumstances, the deficiency of service on the part of the OPs is writ large.

12.              The OPs have claimed that out of the amount received from the complainant, a sum of Rs.59,338/- was received  and paid as service tax as is evident from the receipts Ex. R6 to Ex. R8. No doubt, in the receipts Ex. R6 to Ex. R8, a sum of Rs.25,199/-, Rs.29,939/- and Rs.4200/- is mentioned as service tax respectively, but no receipt or record of depositing the amount of Rs.59,338/- as service tax with any authority has been placed on the file. In the absence of the evidence of the fact that the amount of Rs.59,338/-  was actually deposited as service tax by the OPs, it cannot be successfully argued that this amount is not refundable to the complainant.

13.              It has been also argued on the part of the OPs that there is a arbitration clause in the agreement Ex. R1 and Ex. R9 and therefore, the present complaint is not maintainable. However, this contention raised by the counsel for the OPs is not tenable considering the fact that it is a settled provision of law that despite there being an arbitration clause in the agreement, in the case of a dispute between the parties relating to the deficiency of service, the aggrieved party can definitely knock at the door of this Commission under the provisions of Consumer Protection Act.

14.              It has also been argued on the part of the OPs that a sum of US$5500 was actually paid to M/s. Global Strategic Business Consultancy, Dubai, which is a separate and distinct legal identity and since the said company has not been impleaded as a party in this case, the amount paid to the said company cannot be recovered from the OPs. Even this contention of the counsel for the OPs seems to be specious considering the facts that no record with regard to incorporation of the said firm/company and its management has been placed on record by the OPs. It cannot be disputed that the entire documentation was done by the complainant with the OPs and if any arrangement with the company at Dubai was made, that was also made only through the OPs and not directly by the complainant as the complainant admittedly never visited Dubai to secure services of the said company. Had the said company been a different and separate identity and it had nothing to do with OP1 and OP2, the OPs would not have refunded the amount of Rs.5,00,000/- to the complainant. It is noteworthy that if the fee amounting to US$5500 allegedly received by the company at Dubai is excluded from the total amount of Rs.6,59,950/-, it will come to less than Rs.3,00,000/-. Thus, the amount of Rs.5,00,000/- refunded by the OPs includes the amount received by the company at Dubai. This shows that the company at Dubai is nothing, but a sister concern of the OPs.  

14.              As a result of above discussion, the complaint is allowed and the OPs are directed to refund the remaining amount of Rs.1,59,950/- to the complainant along with interest @6% per annum from the date of filing of the complaint till the date of actual payment. The complainant is further held entitled to compensation and litigation costs of Rs.10,000/- (Rupees Ten Thousand only) from OPs. Compliance of this order be made within 30 days from the date of receipt of copy of the orders. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:14.10.2021.

Gobind Ram.