DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .

                                                                         RBT Complaint No. 406

 Instituted on:  08.10.2018

                                                                          Decided on  :  23.12.2022        

1. Pankaj Nayyar, aged about 37 years, Son of Sh. Ashok Kumar Nayyar, Resident of House No.10175/5, Preet Nagar, Tripuri Road, Patiala, now residing at abroad for the purpose of higher study, through his special power of attorney Sh. Ashok Kumar Nayyar son of Sh. Hans Raj Nayyar, resident of House No. 10175/5, Preet Nagar, Tripuri Road, Patiala.         

                                                          …. Complainant.     

                                                 Versus

1.     The Director/Area Manager/Authorized Signatory, WWICS Global Resettlement Solutions, SCO-11, 1^st Floor, Leela Bhawan, Near Sandeep Autos, Patiala.

….Opposite party. 

QUORUM                                       

JOT NARANJAN SINGH GILL: PRESIDENT

KANWALJEET SINGH              : MEMBER

For the complainant  : Shri Jagjit Singh Adv.              

For the Op                        : Shri S.S. Sidhu, Adv.

ORDER BY

KANWALJEET SINGH, MEMBER

As per orders of the Hon'ble State Commission, vide Endst.No 10226 dated 26.11.2021, the present file received by transfer from District Consumer Disputes Redressal Commission, Patiala vide receipt no.481 dated 30.11.2021 to this Commission.

1. Complainant has alleged in the complaint that he is a consumer of Op. The present complaint has filed by his father being special power of attorney. Complainant alongwith his father visited the office of Op on 22.04.2017. The complainant discussed the matter regarding study visa with the Op. The Op assured the complainant to get PR through express entry in Canada within six months and gave 90% assurance regarding the matter. Op asked to the complainant he is required to deposit only Rs. 1,03,500/- for the purpose. Op did not disclose to the complainant as to how much amount he was  required to deposit for the purpose. Complainant has deposited amount of Rs. 1,03,500+59,000+11,600+1,00,300 through cheques on different dates. After receipt of said amount the area manager of Op explained to the complainant that there was no chance to get study visa, because there is much gap after completion of degree. Complainant was having 12 years experience in multi National Companies and having good profile, he was eligible for express entry in Canada. But Op did not disclose the prevalent cut off points. Complainant asked to Op many times about his present status of the profile. Official of Op assured for the work done 99.9% within 4 months positively. The Op called the complainant in his office and obtained his signature under the false assurance that it is mere formality. There is much publicity in the news paper that maximum period is 12 months for getting PR in Canada/Australia. But there is no transparency regarding procedure, eligibility of cut of point, acceptance of fees and refund the amount in case of failure in their service. The complainant left India for abroad, his father being special power of attorney of complainant on 04.09.2018 made written request to the official of Op with regard to refund of the money but no satisfactory reply was given to him. The complainant father was surprised that his son's application was not approved on 13.09.2018 and later on approved for 500 US dollars in accordance with the alleged agreement. Op did not made the refund of the full amount deposited by complainant during his stay in India. The Op has failed  to get the PR of complainant after lapse of One and half year. Complainant got the study visa approved at his own level during the first week of August 2018 and gone to Canada for temporary residence in Canada and lastly prayed that the Op be direct to refund the amount to tune of Rs. 2,62,800/- alongwith interest @ 18% per annum from the date of making the payment till its actual realization to the complainant through his attorney and also to pay damages to the tune of Rs. 5 Lacs.
2.  Upon notice, Op appeared and filed reply and taking the preliminary objection that the complainant retained the services of Op by entering into contract of engagement dated 23.04.2017 and paid Rs. 90,000/- excluding service tax of Rs. 13,500/- which is non refundable as professional fee to the Op. The complainant was provided a check list for getting the educational credential. Complainant vide email dated 28.04.2017, submitted his documents, which were assessed and after completed all the formalities, the same were forwarded to World Education Services on 16.06.2017 for getting the same assessed, the positive   World Education Services result was received by Op on 26.07.2017 and sent the same to the complainant on 14.08.2017. In response, the Op received incomplete documents of the complainant vide email dated 06.06.2017. The Op assessed the documents of the complainant and the discrepancies were sent vide email dated 12.06.2017. Thereafter email dated 07.07.2017 the Op received the NOC-6231 confirmation from complainant. After submission of the  incomplete documents by the complainant the case was prepared, but was kept held for submission improved IELTS score, vide email dated 11.08.2017 the express entry forms were sent to the complainant for authentication for which the complainant sent his consent vide email dated 18.08.2017 for submission with these documents only. The documents of the complainant were assessed by designated authority and the comprehensive ranking system. The score of the complainant was calculated as 324. The immigration case of the complainant was submitted under express entry to Canadian Authorities with the comprehensive ranking system score 324 dated 20.08.2017.
3. However, vide email dated 20.08.2017 the complainant was informed that the application of the complainant for express entry was not picked by the authorities as the comprehensive ranking system score of the complainant was lower than the cut off score of 438, which is totally the discretion of the authorities on which the Op have no domain. The said comprehensive ranking system score varies from time to time on application received. In order to get the case of the complainant reassessed fresh IELTS score card with improved score has to be provided by the complainant. Complainant failed to submit his improved IELTS score card till date. Due to which his immigration case could not be processed further and the express entry online profile of the complainant got expired on 13.05.2018 due to his age factor which was intimated to the complainant vide email dated 16.05.2018. The Op is still ready and willing to perform its part of contract as the case of the complainant has not been rejected and can be still considered. Complainant himself suggested to apply for express entry provincial nominee program, Canada and entered into another agreement with Op dated 02.11.2017 under express entry provincial nominee program, Canada. Complainant paid an amount of Rs. 2,03,800/- (excluding service tax of Rs.28,800/- which is non refundable) vide receipts dated 23.04.2017 and 02.11.2017 professional fee to the Op thereafter, knowing the whole process of filing the immigration case the complainant himself submitted his provincial nominee program to the concerned authorities on 19.11.2017. Later on vide refund letter dated 04.09.2018 the complainant started asking for refund.
4. Complainant entered into another contract dated 23.04.2017 with M/s Global Strategic Business Consultancy, Dubai which is a separate and distinct legal entity and had paid US Dollar 900 on 28.04.2017. Since, the complainant had committed Breach of Contract by not providing his improved IELTS score card. Complainant is not entitled to any refund as per clause 11(I),(III) and 12(a)(I), (V) of the contract dated 24.03.2017.   

5. The pleadings reply on merits are similar to the preliminary objection so no need to retreat the same to avoid repetition and prayed the complaint may kindly be dismissed.
6. In order to prove the complaint the complainant tendered into the evidence his affidavit of complainant Ex.C-A and documents Ex.C-1 to Ex.C-14 and closed the evidence. Similarly, Op tendered into evidence affidavit Ex.Op-A and documents Ex.Op.1 to Ex.Op.24 and closed the evidence.
7. We have heard the learned counsel of both the parties and gone through the record file carefully with the valuable assistance of the learned counsel for the parties.
8. During arguments the contentions of both the learned counsels are similar to their respective pleadings. So, no need to reiterate the same to avoid repetition.
9. Now, come to major controversy, Whether the complainant is entitled to refund the amount as prayed? No doubt it is admitted fact that the complainant applied for Canada express entry profile to the Op. The complainant entered into contract of engagement with Op on 23.04.2017 as per Ex.Op.1. Complainant again entered into another agreement with Op which is Ex. Op.18 on 02.11.2017 express entry provincial nominee program, Canada. Further Complainant entered into another contract dated 23.04.2017 which is Ex.Op.21 with M/s Global Strategic Business Consultancy, Dubai which is a separate and distinct legal entity and had paid US Dollar 900 on 28.04.2017 as per Ex.OP.22. As alleged by Op in his written argument again complainant himself submitted his provincial nominee program to the concerned authorities on 19.11.2017. But this Commission Observed that as per the pleading of the complaint at para no.13 complainant has mentioned that he got the study visa approved at his own level during the first week of 2018. To trace out the varsity of truth this Commission examined the document Ex.Op.1 which is contract of engagement clause 7,9,11(I),(II),(III),12(a)(1)(2) is reproduced as under:-

Clause 7. Fees charged by the Educational Credential Assessment organization and by the Immigration Authorities:

In addition to the fee of the company, the client agrees and undertakes to pay the Educational Credential Assessment Fee and Visa processing Fees or any other fee levied by the designated Educational Credential Assessment organizations/Immigration Authorities in accordance with the current policy of ECA organization and Immigration regulations of Canada. Since the Visa Processing Fee and Educational Credential Assessment Fee is paid to the concerned Authorities, the client Shall not seek refund of the said fee from the company.

Clause 9. On receiving the required case filing documents from the client, the company and its associates shall make all efforts and its honest endeavor to file the immigration case at the earliest, with the concerned Visa post. However, the company and its associates shall not be responsible for any delay whatsoever occurring in the formal processing of the case due to backlog of cases or for any other reason at the Visa Post. Thus, time shall not be the essence of this contract.

Clause 11.  Refund:

I) The services provided by the company being professional in nature, the entire fee for the services provided is non-refundable.

II) Since visa processing fee and educational credential assessment fee is being paid to the organization/organizations, refund of same shall not be claimed from the company.

III) Taxes(if any) paid shall not be refundable.

IV)   In case the client has been given any discount on the fee payable to the company the same would be deducted from any amount refundable to the client.

Clause 12.(a) The company will not refund any of the total fees for the services provided and shall be entitled to full payment for the services provided if:

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

2)The Client voluntarily withdraws the Immigration case at any stage.

10. It is writ large on the file that the complainant entered into first contract of agreement dated 23.04.2017 as per Ex.Op.1. Further, Complainant entered into second contract dated 23.04.2017 with M/s Global Strategic Business Consultancy, Dubai which is a separate and distinct legal entity and had paid US Dollar 900 on 28.04.2017.Complainant again entered into third agreement on 02.11.2017 express entry provincial nominee program, Canada with the Op. Forthly, complainant himself submitted his provincial nominee programme to the concerned authorities on 19.11.2017. This Commission observed that when the complainant entered into first contract dated 23.04.2017 of engagement there is no provision regarding the amount paid by him adjusted into another agreement on 02.11.2017 for express entry provincial nominee program, Canada executed between the complainant and Op. The stand of the complainant is not clear. As per para no. 13 of the complaint complainant pleaded that the he got the study visa approved at his own level during the first week of 2018. This Commission considered that "A man can lie, but document can't". Reply on merit para no.6 at page 9 of reply the pleading of Op mentioned that Op is still ready and willing to perform their part. Complainant pass out bachelor of engineering in 2003 from PTU, Jalandhar. As per Ex.Op.1 contract of engagement Federal Skilled Worker Category (Express Entry, Canada), Complainant put his signature on each and every page of the contract.
11. The clause 22 of the contract dated 23.04.2017 which is Ex.Op.1 provides that both the parties have properly read and understood the contents of the contract of the engagement and append the respective signature of their free will and without any misrepresentation, coercion, undue influence or importunity on the part of either party. The parties further render their consent and undertake to abide by the terms of the contract in its totality.
12. It seems to this Commission that the complainant sail in two boats at the same time. Terms and conditions of the contract agreements Ex. Op.1 are binding on both the parties of contract. No party of the contract can violate the terms and conditions of the contract. In the light of Ex.Op.1 the Op did not committed any violation of the contract.
13. Resultantly, Keeping in view the facts and circumstances of the present complaint in hand we dismiss the present complaint of the complainant.
14. The complaint could not be decided within the statutory time period due to heavy pendency of cases.
15. Copy of this order be supplied to the parties free of cost. File be consigned to the records after its due compliance.      

                                Announced.

                                December 23, 2022.

( Kanwaljeet Singh)              (Jot Naranjan Singh Gill)

    Member                                      President