BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.496 of 2015
Date of institution: 01.10.2015
Date of Decision: 07.06.2016
Raman Kalia son of Ravinder Kalia, resident of House No.411/9A, Phase-6, Mohali.
……..Complainant
Versus
1. Worldwide Immigration Consultancy Services Ltd., having its corporate office at A-12, Industrial Area, Phase-VI, Mohali through its Chairman and Managing Director Col. B.S. Sandhu.
2. Worldwide Immigration Consultancy Services Ltd., A-31/A, Third Floor, Near Raja Garden, Flyover, Above Yamaha Showroom Ring Road, Rajouri Garden, New Delhi through its Chairman and Managing Director Col. B.S. Sandhu.
3. Global Strategic Business Consultancy having its Head Office FZCO, office No.315-316, West Wing-3, Airport Free Zone, Dubai (UAE) (service to be effected through Devinder Singh Sandhu, Sr. Director, Worldwide Immigration Consultancy Services Ltd. (WWICS), having its office at A-12, Industrial Area, Phase-VI, Mohali (Punjab).
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Varinder Arora, counsel for the complainant.
Shri Dinesh Kumar, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) refund him Rs.2,02,248/- and US $ 4162 being principal amount alongwith interest @ 18% per annum from the date of receipt till actual realisation.
(b) pay him compensation of Rs.1,00,000/- on account of physical harassment as well as mental agony.
(c) pay him Rs.33,000/- as costs of litigation.
The complainant approached OP No.1 for assessment of eligibility criteria for permanent settlement in Canada. OP No.1 suggested the complainant that he can go abroad under ‘Federal Skilled Trades Program’ and accordingly contract was executed with OP No.1 on 13.03.2013. The complainant also signed another agreement on 13.03.2013 with OP No.2. the complainant paid Rs.33,708/- for processing of his case and Rs.1,68,540/- for job offer stream to the OPs vide receipts dated 13.03.2013. Thus, total amount of Rs.2,02,248/- was paid by the complainant to the OPs. After few days fresh demand was made by the OPs to make the payment in US Dollar on the ground that the said payment was required for securing job of the complainant in Canada. The complainant deposited US $ 4162 with the OPs vide receipt dated 24.04.2013. Thereafter, neither the complainant got any job nor his case was processed by the OPs. The complainant had been regularly pursuing his case with the OPs but the OPs showed their inability that the category in which the complainant had applied for job has been abolished and nothing can be done. The OPs demanded further sum of Rs.1,50,000/- for getting the employment for the complainant from Canada under different category with execution of fresh contract of engagement but the complainant refused to this offer. Till date the OPs neither have returned his money nor provided any service to the complainant. Hence, the complainant has filed the present complaint.
2. Upon notice, the OPs appeared and filed reply in which they took preliminary objections that the complaint is premature as till date the complainant has not filed any refund application. The complainant in the contract has specifically agreed in Clause 8 (III) that in case the company is unable to obtain the job offer, the OPs would deduct 25% of the total amount payable and the remaining amount i.e. Rs. 1,12,500/- would be refunded to the complainant. As per Clause 11 (I) of the contract the complainant is not entitled for any refund as the services provided by the OPs being professional in nature and the entire fee for services provided is non refundable but as a goodwill gesture an amount of Rs.15,000/- is being paid to the complainant. Further the total amount of US $ 4162 would be refunded to the complainant. The OPs had been duly performing their part of the contracts from time to time. This Forum does not have the jurisdiction to deal with the present complaint because the complainant has agreed in Clause 15 of the contract that all the differences and disputes arising between the parties shall be referred to the Sole Arbitrator appointed by the OPs. On merits, it is pleaded that the complainant was fully aware that he had engaged the services of the OPs firstly for obtaining job offer and thereafter for filing his case. The case of the complainant was duly filed under Federal Skilled Trades Program for securing job offer under occupation 7301 ‘Contractors & Supervisors, Mechanical Trades’. However, inspite of best efforts of the OPs, the job offer could not be obtained as the category of the complainant was falling under tough category. The OPs have denied that they demanded a sum of Rs.1,50,000/- from the complainant for changing the category of employment from Canada under different category. Thus, denying and deficiency in service or unfair trade practice on their part, the OPs have sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record his affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-5.
4. Evidence of the OPs consist of affidavit of Rajiv Bajaj, their authorised representative Ex.OP-1/1 and copies of documents Ex.OP-1 to Ex.OP-6.
5. We have heard learned counsel for the parties and have also gone through written arguments filed by them.
6. The availing of services of the Ops for obtaining job offer in Canada, by the complainant is an admitted fact. As per contract Ex.C-1 the total amount payable for service retain charges Rs.30,000/- and Rs.1,50,000/- for job offer stream. Contrary to these amounts, the OPs have charged a sum of Rs.33,708/- and Rs.1,68,540/- total being Rs.2,02,248/- against due receipts dated 13.03.2013 Ex.C-3 and C-4. Further the OPs have got another contract signed with its sister concern i.e. OP No.3 for post landing services and under the agreement has charged a sum of Rs.4162 US $ duly received and acknowledge on 24.04.2013 vide Ex.C-5. The complainant’s grievance is that the OPs have been unable to obtain the job offer for the complainant under Occupation 7301 category – Contractors & Supervisors/Mechanical Trade and, therefore, the complainant has sought refund of the deposited amount.
7. The OPs have admitted in their written reply that they are unable to obtain the job offer for the complainant, therefore, out of the total deposited amount minus taxes, they are willing and ready to refund 75% of the amount as per Clause 8 (III) of the contract and further they are willing to refund the whole amount of US $ 4162 paid to OP No.3 for post landing services. During the course of proceedings, the OPs have offered to make payment of Rs.1,27,500/- and US $ 4300 by way of two cheques brought in favour of the complainant but the counsel for the complainant has not accepted the same. Now the limited question left is whether the offer of said refund by the OPs is as per terms of duly executed agreement Ex.C-1 or not. In order to appreciate it will be relevant to reproduce Clause 8 governing the refund of the contract for engagement Ex.C-1:
“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 Canada 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 is received nothing is refundable. However, in case LMO received from services Canada/HSRD is not positive, 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… xxxxxx”
8. It is an admitted position of the parties that the OPs were unable to obtain the job offer from Canada after submission of relevant documents. Therefore, the complainant is entitled to refund after deduction of 25% of the total amount payable as per agreement. Admittedly, the complainant has paid a sum of Rs.1,80,000/- to the OPs for availing services i.e. service retain and job offer stream and the rest of amount i.e. Rs.22,248/- is towards service tax, the total amount having been deposited is Rs.2,02,248/-. Tax once paid is not refundable to the complainant. So out of Rs.1,80,000/- after deduction of 25%, the total amount payable to the complainant is Rs.1,12,500/- and against the said amount, the OP has offered to pay Rs.1,27,500/- during the course of proceedings. Therefore, we do not find anything amiss on the part of the OPs and their offer of refund of Rs.1,27,500/- is over and above the agreed terms of refund as per Clause 8 (supra).
9. So far as payment of 4162 US $ towards post landing charges to OP No.3 is concerned, OP No.3 is also willing to refund against the said amount 4300 US $ as per US $ rate prevalent on 26.03.2016. There are no agreed terms and conditions of service by the OP No.3 and the complainant on record and, therefore, the action of voluntary refund of 4300 US $ by OP No.3 by no stretch of imagination can be termed as an act of unfair trade practice and deficiency in service. We do not find any merit in the complaint as the complainant has failed to prove any deficiency in service and unfair trade practice. However, since the OPs have themselves admitted to refund an amount of Rs.1,27,500/- and 4300 US $, the complainant will be at liberty to approach the OPs to seek such refund from the OPs.
10. The complaint being devoid of merits is hereby dismissed. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
June 07, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
