Punjab

Ludhiana

CC/16/777

Gurchaten Singh - Complainant(s)

Versus

Worldwide Immigration - Opp.Party(s)

P.s.Chawla Adv.

30 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                         Complaint No: 777 dated 02.11.2016                                                                           Date of decision: 30.11.2017           

Gurchetan Singh son of S.Hari Singh, resident of Chumo, Post Office Malaudh, District Ludhiana.                                                                                                                                                                                                   ..…Complainant                                                            Versus

1.Worldwide Immigration Consultancy Services Limited, Head Office: A-12, Industrial Area, Phase-VI, Mohali, through its Authorized Officer/Agent.

2.Worldwide Immigration Consultancy Services Limited, Branch Office:Near City Police Station, G.T.Road, Khanna, through its authorized Officer/Agent.

3.Worldwide Immigration Consultancy Services Limited, A-31/A, 3^rd Floor, Near Raja Garden Flyover, Above Yamaha Showroom, Ring Road, Razori Garden, New Delhi, through its Authorized Officer/Agent.                                                                                                                                                                          …..Opposite parties

            Complaint under Section 12 of Consumer Protection Act, 1986.

QUORUM:

SH. G.K. DHIR, PRESIDENT                                                                               SH. PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For complainant            :         Sh.Paramjit Singh Chawla, Advocate.                                            For OPs                         :         Sh.G.S.Sandher, Advocate

ORDER

PER G.K. Dhir, PRESIDENT

1.                Complainant approached Op2 in June 2014, so as to apply for Visa under business category for Canada. Mr.Chirag Kapoor, the branch Manager of Op2 apprised about British Columbia Provincial Nominee Program and provided relevant information for getting Visa under business category. Even requisite fee options were disclosed to the complainant. OP1 is the head office of Worldwide Immigration Consultancy Services Limited(hereinafter in short referred to as ‘WWICS’), but OP3 is the main office of the company. Global Strategic Business Consultancy(hereinafter in short referred to as ‘GSBC) is associated company of WWICS and having cooperation with each other for getting Visa for their clients. Complainant is consumer of OPs. WWICS is responsible for the omission and commission of the GSBC, being associated company. Complainant signed all the documents at the office of OP2 and never approached GSBC at any timer. So, WWICS is responsible for its own act as well as   act of GSBC, being its associated company. Complainant provided all the requisite documents to OP2 within the stipulated period. Even complainant apprised Op2 regarding rejection of the earlier Visa, for which, he applied for Canada through his spouse. All the documents regarding rejection of earlier Visa even were supplied to OP2. Op2 received Rs.2,02,248/- from the complainant, while getting his signatures on some papers. Later on it transpired that OP2 got executed one agreement dated 14.6.2014 with complainant and issued receipt No.1026141078 dated 25.6.2014. Even OP2 got signature of complainant on another agreement of same date, which was alleged to be executed with GSBC. Complainant paid 6000 US$ to OP2, who took money on behalf of GSBC and issued receipt No.2026141013 dated 12.8.2014. Thus, in this way, total sum of Rs.5,60,000/- has been received from the complainant. In November 2014, Mrs.Pooja and Mrs.Saruchi, the authorized agents apprised the complainant about the weakness of his business Visa due to rejection of his earlier Visa, which the complainant applied through his spouse, so complainant was advised to withdraw his case. That fact was apprised to OP2’s Branch Manager Mr.Chirag Kapoor as well as to authorized person of Head Office of WWICS at Mohali. No response was received in matter of refund of amount and nor even a single penny has been returned, despite approach on 13.5.2016 again by way of submission of a written application. Rather, it is claimed that Branch Manager handed over copies of emails and reply for assuring the complainant as if refund is under process and complainant will get the same at earliest. By pleading deficiency in service on the part of OPs, prayer made for directing OPs to refund the amount of Rs.5,60,000/- along with interest @18% per annum from the date of agreement till realization. Compensation for mental harassment and agony of Rs.1 lac and litigation expenses of Rs.11,000/- more claimed.

2.                In joint written reply filed by OPs, it is pleaded interalia as if complainant failed to disclose about the rejection of his earlier application for permanent residency in Canada by the Canadian High Commission on the ground of false/bogus marriage. That copy of rejection letter dated 3.11.2012 is produced by OPs with the written statement. Even complainant failed to disclose that he was already informed by Canadian High Commission in New Delhi on 30.10.2012 regarding rejection of his application for permanent residency in 2012 for finding as if his marriage was not genuine and he simply got marriage for sake of getting permanent residency. Non submission of required documents and non co-operation by the complainant for fulfilling the terms of contract of engagement dated 14.6.2014 pleaded for claiming that complainant not entitled to any relief. Admittedly, complainant’s immigration case was considered to be a weak case by the Ops because of rejection of his earlier application for permanent residence in Canada. On finding of the case of the complainant as a weak case, Ops called upon the complainant to provide consent letter stating that complainant completely understood the pitfalls and shortcomings of his application, but despite that he aspired to proceed further for his immigration case. Email dated 16.12.2014 was sent in this regard to the complainant, but complainant never submitted the consent letter for enabling Ops to proceed further with his case. However, complainant later on applied for refund through letter dated 31.1.2015. Complainant himself is at fault in the present case and as such, complaint alleged to be liable to be dismissed in view of clause 12(i),(ii), (v) & (ix) of Contract of Engagement dated 14.6.2014. Complainant retained services of OPs by entering into contract dated 14.6.2014 with request for preparation and submission of documents to GSBC, Dubai. Even GSBC was engaged for providing professional services with respect to obtaining Nomination Certificate from British Columbia Provincial Authorities in Canada under British Columbia Nominee Program. An amount of Rs.1,80,000/-(excluding service tax of an amount of Rs.22,248/-) was paid by the complainant to OPs vide receipt dated 25.6.2014. As complainant himself concealed the material facts at the time of entering into contract and as such he is not entitled for refund of Rs.1,80,000/- even. Separate contract with M/s GSBC even was entered by the complainant by paying an amount of US$ 6000 directly to the said company vide receipt dated 12.8.2014. M/s GSBC is a separate and distinct legal entity and as such, complainant cannot fasten  liability for refund of said amount for any act of omission     or commission of M/s GSBC, Dubai. Complainant even paid amount of Rs.22,248/-, the amount of taxes levied by the Government in addition to the professional fee to OPs. This amount of Rs.22,248/- includes service tax, education cess and secondary & higher education cess leviable by the Government. Amount of taxes is totally non-refundable. Ops started providing services from the date one even before the case was filed. The provided services are mentioned below:-

a)Counseling and advising the client about the immigration category in which, he/she retained the services and the immigration procedure to be followed.

b)Providing the immigration package and the check list of documents while explaining the client in detail about the documents and forms necessary for filing immigration application.

c)Advising and guiding the client in preparation of documents and forms in proper format as per the requirement of immigration authorities etc. Documents such as experience documents, education documents etc.

So, Ops had been duly performing their part of contract by advising and guiding the complainant about necessary documents and filing of case. There is no deficiency in service on the part of OPs. Forum at Mohali alone has jurisdiction to deal with the present complaint in view of clause 23 of the contract dated 14.6.2014 providing for referring the disputes and differences between the parties to the Arbitration. Complainant was required to submit the request for a Business Trip/Exploratory visit to British Columbia and also for filing temporary resident Visa application with the company within 30 days of signing of the contract. However, complainant instead of submitting the requisite documents informed Ops about previous Visa refusal by Canada High Commission on the ground of false/bogus marriage vide letter dated 3.11.2012. After receipt of letter dated 3.11.2012, Ops concluded case of complainant to be a weak one and that is why, consent letter was sought from complainant as referred above. Other averments of the complaint denied.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C7 and thereafter, his counsel closed the evidence.

4.                On the other hand, Counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Rajiv Bajaj, Authorized representative of OPs along with documents Ex.RW1/1 to Ex.RW1/8 and thereafter, closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral arguments alone addressed by counsel for parties and those were heard. Records gone through carefully.

6.                It is vehemently contended by counsel for complainant that total sum of Rs.5,60,000/- in Indian currency has been paid, but despite that Ops did not apply for Visa, despite providing of full information by the complainant and as such,                there is deficiency in service on the part of OPs. Rather, it is                               contended that after assurance of providing services and thereafter not rendering the same, despite acceptance of full amount also is an act of unfair trade practice on the part of OPs and as such, prayer made for directing Ops to refund the entire amount with interest and even to pay compensation for mental harassment and agony as well as  litigation expenses. Moreover, it is claimed that forms are always filled by the employees of Ops and complainant never visited Dubai for availing services of GSBC and as such, fee on behalf of GSBC even was accepted by Ops through OP2. Moreover, there is no clause in Ex.R1 qua submission of information qua rejection of previous Visa and as such, it is contended that OPs cannot retain the amount deposited by the complainant with them through receipts Ex.C2=Ex.RW1/6 and Ex.C4. Ex.C4 is professional fee receipt showing deposit of 6000 US$ with GSBC, whereas, Ex.C2=Ex.RW1/6 is the receipt of deposit of Rs.2,02,248/- with OPs. Complainant himself has produced on record agreement Ex.C1 arrived at by him with Ops, on the basis of which, retainer fee of Rs.1,80,000/- was charged from the complainant through Ex.C2. Even complainant himself has produced on record agreement Ex.C3 arrived at by him with GSBC, on the basis of which, 6000 US$ was deposited by him through Ex.C4. So, certainly documentary evidence produced on record by the complainant itself establishes as if he executed agreements i.e. one with WWICS and second with GSBC.

7.                It is the claim of complainant that he never visited Dubai for execution of agreement with GSBC, but he paid amount of 6000 US$ to Op2  and as such, he is entitled for refund of said amount. However, it is the claim of complainant put forth through complaint as well as through affidavit Ex.CA itself that he signed on the agreements in question in English and complainant has also put the signatures in English on the complaint itself and it is admitted case of the complainant that his earlier application for permanent residency in Canada was rejected and as such certainly, complainant is aware of some of the intricacies of execution of documents for getting Visa from the concerned authorities. Complainant has not produced on record any documents to establish that he informed Ops about rejection of his earlier Visa by Canadian Authorities, but Ops have produced on record letter Ex.RW1/2 dated 3.11.2012 for establishing that Government of Canada through High Commission of Canada informed complainant as if the information provided by him regarding his marriage is not genuine because marriage was primarily found to be entered for the purpose of acquiring permanent residence in Canada only and that is why request for permanent residency Visa was declined. Intimation to the sponsor of complainant even was sent through this letter Ex.RW1/2. Complainant filled application Ex.RW1/1 with OPs for availing their services by mentioning as if he has Farm Management Experience due to owning of four acres of land and network of his assets minus liabilities is Rs.3 crore. Details about spouse even has been provided by the complainant through Ex.RW1/1. Nowhere in Ex.RW1/1, mention made regarding rejection of earlier visa of the complainant by Canadian Authorities and as such, certainly submissions advanced by counsel for Ops has force that complainant himself suppressed the information regarding rejection of his earlier request for grant of permanent residency Visa by the Canadian Authorities, while availing services of Ops through contract agreement Ex.C1 dated 14.6.2014.

8.                As rejection of earlier Visa of complainant by Canadian Authorities took place before 3.11.2012 and intimation regarding rejection was conveyed to the complainant through letter Ex.RW1/2 dated 3.11.2012 and as such, certainly complainant was fully aware of rejection of his earlier Visa for permanent residency in Canada. Despite such knowledge, complainant failed to disclose the same to the Ops while submitting application Ex.RW1/1 and as such, complainant himself suppressed the material facts from Ops due to which, fault lay with the complainant in not fulfilling his promise of supplying the true and correct information to Ops.

9.                After going through agreement Ex.C1=Ex.RW1/3, it is made out that the services of OPs retained by complainant for preparation and submission of documents to GSBC for the purpose of receiving professional consultancy services for obtaining nomination certificate from British Columbia Provincial Authorities in Canada under Regional Business Succession Option of the British Columbia Provincial Nominee Program. As per this agreement Ex.C1=Ex.RW1/3, GSBC to provide all necessary information/knowledge to OP company for providing services for getting the client assessed for the program on the basis of information provided by the client and even to get provided the services to the client on submission of application for temporary resident   Visa to Citizenship and Immigration of Canada with the assistance of associated company. Even through this agreement, Ops were to provide assistance to the complainant for preparing for the interview(if any) to be conducted by the British Columbia Authorities. Assistance for preparing for the business plan even was to be provided by the OPs. Besides, assistance in matter of preparing application for Nomination certificate also was to be provided along with assistance for correspondence with the associated company. In Ex.C1=Ex.RW1/3 itself, it is mentioned that duties of the client i.e. complainant is to submit the complete documents requisite for request for a Business Trip/Exploratory Visit to British Columbia. Those duties of the client are mentioned in clause 2 of Ex.C1=Ex.RW1/3 in detail. One of the duty mentioned in clause 2(j) of Ex.C1=Ex.RW1/3 is to execute forms as required and produce all documents as well as information that may be necessary for the processing of the case as per Op company instructions. Further, as per clause 2(i) of Ex.C1=Ex.RW1/3, it was the duty of the complainant to truthfully disclose to OPs all information relating to him as well as accompanying dependents along with their current or prior criminal charges. Duty also was caste on complainant as per clause 2(m) of Ex.C1=Ex.RW1/3 to intimate Ops forthwith about all communications received from the provincial authorities. Despite these duties of disclosing truthful information about provincial authorities, complainant deliberately did not disclose to Ops about rejection of his previous Visa request by Canadian Authorities even after getting letter Ex.RW1/2 from High Commission of Canada and as such, fault lay with complainant in not providing true information to OPs. So, complainant himself failed to discharge obligations of providing true and correct information to Ops. For that fault of complainant, Ops cannot be blamed, particularly when they took steps for processing the request of complainant for immigration or of obtaining of temporary residency Visa to the citizenship or of immigration as disclosed by document Ex.RW1/4 and email correspondences produced on record as Ex.C6 and Ex.C7 by the complainant himself.

10.  After going through Ex.RW1/4,I is made out that matter was taken by Ops for consultancy   with Lawyer, but he disclosed as if case of complainant is weak because of his family issue. Through Ex.RW1/4, advice was tendered for getting consent from the complainant because he had already received refusal letter from the authorities, who gave appeal decision. Copy of printed consent letter was sent to the complainant for signature, but despite that complainant did not submit consent letter and as such, fault lay with the complainant in that respect also. Rather, complainant through application Ex.RW1/5 admitted that his case was considered as doubtful on earlier occasion, when he applied by way of sponsorship through his wife. Rather, in Ex.RW1/5 bearing endorsement of Mr.Chirag Kapoor dated 31.1.2015 mention not made at all regarding disclosure by the complainant to OPs regarding rejection of his earlier case for permanent residency. It was only through application Ex.C5 bearing endorsement of date 13.5.2016 of WWICS, Khanna that complainant claimed as if he had already disclosed about rejection of his earlier application. So, virtually complainant concocted a story regarding disclosure made by him about rejection of his earlier Visa through Ex.C5 after gap of one year and three months of submission of earlier request Ex.RW1/5 for refund of fee of 6000 US$ and of Rs.1,80,000/-. In view of shifting of these stands by the complainant in Ex.C5 viz-a-viz of Ex.RW1/5, it has to be held that the complainant virtually cooked up a story for seeking entire refund of the fee, despite the fact that OPs took steps for consulting the Lawyer for processing the case of the complainant and rendering the services of consultancy.

11.              Through email correspondence dated 26.5.2015(Ex.C7), complainant disclosed as if his marriage was totally genuine, but he was not retained in spouse Visa category, but was retained in Business Category. In Ex.C7 itself, it is mentioned that due to mis-understanding between the complainant and his wife, his spouse Visa was got rejected. Probe was made for finding that even after rejection of earlier Visa, fresh application can be filed as disclosed by contents of Ex.C7 and as such, it is obvious that virtually Ops had been doing their best for rendering the professional services of getting Visa application of complainant through or making the same successful. Rather,   contents of Ex.C6 discloses as if Mrs.Pooja and Mrs.Suruchi, representative of Ops contacted the concerned for finding that due to rejection of his earlier Visa in November 2012, case of complainant is a weak case, due to which, complainant after being confused applied for refund. So, it is not a case, in which, Ops did not render the services to the complainant. Rather, they tried their best to do whatever possible, despite the fact that complainant did not provide the true and correct information regarding rejection of his earlier Visa. It may be mentioned here that Ex.C4 and Ex.RW1/7 is one and the same thing.

12.              After going through clause 7 of Ex.C1=Ex.RW1/3, it is made out that Visa processing fee or any other fee levied by the provincial authorities in accordance with the Laws of Province of British Columbia is non refundable and client of OPs will not seek refund of the same. In view of this specific clause 7 incorporated in Ex.C1=Ex.RW1/3, certainly complainant not entitled for the refund of 6000 US$ fee paid to GSBC as Visa processing fee. So, claim of complainant in that respect is not sustainable, particularly when that fee of 6000 US$ has been credited in the account of GSBC as revealed by contents of Ex.C4=Ex.RW1/7. Moreover, said GSBC has not   been made as a party and as such, refund of said 6000 US$ fee received by GSBC cannot be ordered. As per para no.9 of case titled as Worldwide Immigration Consultancy Services Limited and another vs. Paramjit Nigah-2013(2)CPJ-438(N.C.), when fee  is received by an entity like WWICS Canada who is not made as a party, then refund of fee received by non party  cannot be ordered. Same is the position in the                            case before us because here GSBC not made  a party and as such, refund of fee   received by GSBC cannot be ordered. Benefit from ratio of above cited case not available to the complainant, particularly when he himself suppressed the facts regarding rejection of his earlier Visa request by Canadian Authorities. Ratio of this case would have been beneficial for the complainant, if complainant would not have suppressed the facts regarding rejection of his earlier application by the Canadian Authorities. Likewise, benefit from ratio of case titled as Canadian 4 Ur Immigration Services and another vs. Lakhwinder Singh-2009(2)CPJ-83(Union Territory Consumer Disputes Redressal Commission, Chandigarh) cannot be gained by the complainant because in the reported case, it was found that no process started for getting Visa and immigration for more than a year, but that is not the position in the case before us because consultancy with Lawyer was done, so as to proceed with the process of getting Visa/immigration for complainant as discussed above. However, total non refund of the paid fee of Rs.1,80,000/- by the Ops to the complainant not warranted because the circumstances rendering to the non-obtaining of Visa occurred partly due to fault of complainant and partly because of non fulfillment of statutory requirements in the circumstances of the case.

13.              Even if clause 11 of Ex.RW1/3=Ex.C1 provides for non refund of total fee received by Ops for the services to be provided by it, despite that after going through clause 11(iv) of Ex.RW1/3=Ex.C1, it is made out that same provides as if Rs.90,000/- is totally non-refundable, in      case application for visitor Visa for exploratory visit submitted on behalf of client to the immigration authorities is denied and only if the case, cannot be processed further, then refund is applicable only if the complete documents for exploratory visit were submitted  by the client within 30 days of signing of agreement, else the entire fee for the services provided is non-refundable. In this case, consent letter not submitted by the complainant despite demand by Ops and denial of Visa would have been  possible because of rejection of earlier Visa request in 2012 of complainant and as such, in view of half rendered services by OPs qua consultation with Lawyer or writing letters to the complainant, ends of justice warrants that half of paid fee of Rs.1,80,000/- should be refunded. Taxes, if any paid, absolutely are not refundable as per clause 11(ii) of Ex.C1=Ex.RW1/3. So, the collected tax amount of Rs.22,248/- is non refundable. As complete deficiency in service on the part of OPs is not there, but partial deficiency in service is attributable due to fault of complainant also in not submitting the consent letter and disclosing true information and as such, complainant entitled for refund of 50% of paid fee of Rs.1,80,000/-. Ops must refund this fee within stipulated period, failing which, complainant should be held entitled to interest @6% per annum from today till payment. In view of peculiar circumstance of this case, ends of justice warrants that no amount for compensation for mental harassment and agony and litigation expense should be allowed, particularly when fault lay with the complainant himself in not providing true and correct information as discussed in detail above.

14.              As a sequel of above discussion, complaint partly allowed to the extent of refund of Rs.90,000/- only by the Ops to the complainant. That amount of Rs.90,000/- be refunded by OPs to the complainant within 40 days from the date of receipt of copy of this order, failing which, complainant will be entitled to interest @6% per annum from today till payment. No amount of compensation for mental harassment and litigation expenses is allowed. No other relief granted. Copies of order be supplied to parties free of costs as per rules.

15.              File be indexed and consigned to record room.

                             (Param Jit Singh Bewli)                     (G.K. Dhir)

                              Member                                            President

Announced in Open Forum.

Dated: 30.11.2017.

Gurpreet Sharma