| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.492 of 27-09-2016 Decided on 01-12-2017 Hardeep Singh Dhaliwal aged about 51 years S/o Karam Singh R/o H.No.107, Village Rajgarh Kubbe, Tehsil Talwandi Sabo, District Bathinda. ........Complainant Versus 1.The General Manager (Business Immigration), World Wide Immigration Consultancy Services Pvt. Ltd. DLF Centre, Mezzaniine Floor, Savitri Cinema Commercial Complex, Greater Kailash-II, New Delhi-110048 (Registered Office). 2.The Chairman and Managing Director, World Wide Immigration Consultancy Services Pvt. Ltd. A-12, Industrial Area, Phase-6, Mohali-160055. (Head office). 3.Branch Manager, Bathinda Branch, World Wide Immigration Consultancy Services Pvt. Ltd. 2739-A Near Hanuman Chowk, Goniana Road, Bathinda. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Present:- For the complainant: Sh.Hans Raj Sharma, Advocate. For opposite parties: Sh.Ajitinder Singh Chahal, Advocate. ORDER M.P Singh Pahwa, President The complainant Hardeep Singh Dhaliwal (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties The General Manager (Business Immigration) and Others (here-in-after referred to as opposite parties). Briefly, the case of the complainant is that he is a progressive farmer. Opposite party No.1 is the registered office of the World Wide Immigration Consultancy Services Pvt. Limited (in short WWICS). Opposite party No.2 is the regional head office at Chandigarh and opposite party No.3 is the branch office of the WWICS providing immigration services at Bathinda. It is alleged that in the month of April 2010, the complainant approached opposite party No.3 for purpose of obtaining assistance for filing of the application and obtaining the permanent resident visa for Canada on agriculture purpose. The officials of opposite parties claimed that they are providing best services in the market for the overseas immigration to the willing candidates. They assured the complainant that if he chooses to avail their services, he would certainly be able to have permanent resident (visa) for Canada on agriculture purpose. The complainant agreed to avail the services of opposite parties for obtaining the permanent residence for Canada on agriculture purpose. He signed the fee agreement with opposite party No.2 for Rs.2,00,000/- to be paid in installments at different stages for availing services of WWICS and paid a sum of Rs.40,000/- by demand draft No.766463 dated 15.4.2010 of Oriental Bank of Commerce as retainer fee and Rs.70,600/- vide demand draft No.766665 dated 28.5.2010 of Oriental Bank of Commerce as professional fee to opposite party No.3 at Bathinda branch. The receiving was acknowledged by opposite party No.2 vide receipts No.1202101019 dated 16.4.2010 and 3202101037 dated 31.5.2010 for file No.BC-160550 allotted to the complainant. It is further alleged that as per the fee agreement, opposite parties took the responsibilities to complete all the requisite formalities for obtaining the visa and prepared his application file. They also submitted the same in the Canadian High commission, New Delhi for the purpose of grant of permanent resident visa on behalf of the complainant. The complainant was allotted client I.D. No.59783/Bathinda by opposite party No.2. Opposite party no.2 was to correspond with the Canadian High Commission on behalf of the complainant and Canadian High Commission was to correspond with opposite party No.2 to convey all the necessary information to the complainant. Even in the application file, which was submitted in the Canadian High Commission, the correspondence address of the complainant was mentioned i.e. regional head office address of opposite party No.2. It is further alleged that at the time of filing of the application through opposite parties, the complainant again paid visa processing fee of about Rs.56,300/- to the Canadian High Commission, New Delhi. On 5.5.2010, the Canadian High Commission acknowledged the receipt of the application file and letter in this respect was conveyed to the complainant through opposite parties. Application was allotted file No.B055999381 by the Canadian High Commission. It is further alleged that after taking payments from the complainant, he was asked to wait for one year as the evaluation period in the Canadian High Commission is about twelve months, depending on the pendency of the applications. The officials of opposite parties also told the complainant that he would be called for the interview by the high commission after the evaluation of the application and interview letter will be sent to the office of opposite parties and they shall forward the same to him as soon as the same is received. It is further version of the complainant that he received the information from opposite parties. He was intimated that the Canadian Government discontinued the scheme for permanent residence on agriculture purpose. On asking to refund the fee paid, opposite parties totally denied to refund the amount. The complainant kept on making one visit after another to the local branch office and head office of opposite parties as well as corresponded with opposite party No.2 through e-mails. On continued requests of the complainant for refund of the total fee paid by the complainant, opposite party No.2 reluctantly agreed to refund only Rs.21,000/- initially. On protest, opposite party No.2 enhanced amount to Rs.25,000/- and sent an e-mail to the complainant to inform him of the short refund approved in his case and also directed him to sign a consent letter, which stipulates no further claim by him and not to file any legal case or raise any claim against the company for refund/damages in future. There was no positive outcome of the efforts of the complainant for his refund of full fee paid to opposite parties. It is also alleged that opposite parties were liable to refund the entire fee received from the complainant for filing the application i.e. Rs.40,000/- as retainer fee and Rs.70,600/- as professional fees paid to them. The Canadian Government returned the entire processing fee, but opposite parties instead of returning the fees, refused to listen to the requests of the complainant for the refund of the entire fee and cheated him and indulged in unfair trade practice. On this backdrop of facts, the complainant has prayed for directions to opposite parties to refund the fees of Rs.1,10,600/- i.e. Rs.40,000/- as retainer fee and Rs.70,600/- as professional fee with interest @ 18% per annum from the month of April 2010, which is calculated as Rs.1,28,300/-. He has also claimed Rs.50,000/- as compensation for mental agony, harassment and litigation expenses. Hence, this complaint. Upon notice, opposite parties appeared through their counsel and contested the complaint by filing their joint written version. In the written version, opposite parties have raised the preliminary objections that this case, being a case of change in immigration rules by the Canadian High Commission (in short CHC), deserves an outright dismissal as complainant's immigration case suffered termination by operation of law due to enactment of new legislation namely Economic Action Plan 2014 Act, No.1 by Canadian Government. Opposite parties have no domain upon the concerned authority with respect to such change of law. As such, they are nowhere at fault. The complaint is liable to be dismissed on this ground only. The complainant retained the services of opposite parties under Federal Business Category by executing a contract of engagement dated 16.4.2010 for receiving professional services with respect to preparation and submission of complainant's immigration case before the concerned authority and paid total amount of Rs.1,10,600/- towards the professional services provided by opposite parties vide receipts dated 16.4.2010 and 31.5.2010. The case of the complainant was duly prepared and filed by opposite parties in the best possible manner before the Canadian High Commission on 30.4.2010. He was allotted file number by the Citizenship and Immigration Canada (in short CIC) vide letter dated 5.5.2010 finding the case complete in all respects. As such, opposite parties rendered all the services, which the complainant was entitled to get his case processed by the CHC. It is pleaded that as a bad luck of the complainant, the Canadian Government introduced a new Act namely Economic Action Plan 2014 Act, No.1, which became law on 19.6.2014 under which all the applications made before 11.2.2014 were terminated by the operation of law. Since the application of the complainant was received by the CHC before 11.2.2014, his case was also affected by the new legislation. As such, his case was also terminated by the operation of law. Opposite parties are not deficient in service. They have quoted some case law to support their version, reference of which is not necessary at this stage. Further preliminary objections are that the complaint is liable to be dismissed on the sole ground of limitation as prescribed under 'Act'. The immigration case of the complainant was terminated by the Canadian High Commission (CHC) vide its letter dated 30.6.2014. The limitation to file this complaint was only till 30.6.2016 whereas the complaint has been filed on 27.9.2016, which is barred by limitation U/s 24-A of 'Act'. Once the complainant retained the services, the company started providing services from day one, even before the case was filed. Services such as: a) Counselling and advising the client about the Immigration Category in which he/she retained the services and immigration procedure to be followed. b) Providing and counselling the client about immigration package and check list of documents, explaining the client in detail about the documents and forms that are 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. Opposite parties had duly been performing their part of the contract right from the time when the complainant retained the services. He was duly advised and guided about the necessary documents for preparing and filing the case. There is no deficiency on the part of opposite parties at any point of time. This Forum has no jurisdiction to deal with this complaint as the complainant agreed in Arbitration clause i.e. clause 17 of contract dated 16.4.2010 that all the differences and disputes arising between the parties shall be referred to the Arbitration. On merits, it is admitted that the complainant approached opposite party No.3 for the purpose of obtaining assistance. It is also admitted that he agreed to avail service for permanent resident at Canada for agriculture purpose. The execution of fee agreement and payment of amounts of Rs.40,000/- and Rs.70,600/- are also admitted. It is denied that opposite parties refused to refund any amount to the complainant. It is further mentioned that as per Clause 10 of the contract of engagement dated 16.4.2010, the complainant is not entitled to any refund. However, without prejudice to defence of opposite parties, they are ready and willing to pay Rs.25,000/- as refund approved to the complainant. All other averments of the complainant are denied. Opposite parties have reiterated their stand as taken in the preliminary objections and detailed above. In the end, they have prayed for dismissal of complaint. Parties were asked to produce the evidence. In support of his claim, the complainant has tendered into evidence his affidavit dated 3.1.2017, (Ex.C1); photocopies of receipts, (Ex.C2 and Ex.C3); photocopies of letters, (Ex.C4, Ex.C12 and Ex.C15); photocopies of e-mails, (Ex.C5, Ex.C8 and Ex.C9); photocopies of approval letter, (Ex.C6 and Ex.C10); photocopies of consent letter, (Ex.C7 and Ex.C11); photocopy of fee receipt, (Ex.C13); photocopy of refund cheque, (Ex.C14); photocopy of visiting card, (Ex.C16); photocopy of contract of engagement, (Ex.C17) and submitted written arguments. To rebut the claim of the complainant, opposite parties have tendered into evidence affidavit of Rajiv Bajaj dated 12.1.2017, (Ex.OP1/1); photocopies of letters, (Ex.OP1/2 and Ex.OP1/7); photocopy of contract of engagement, (Ex.OP1/3); photocopy of retainer fee receipt, (Ex.OP1/4); photocopy of professional fee receipt, (Ex.OP1/5); photocopy of application form, (Ex.OP1/6) and submitted written arguments. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for parties. Learned counsel for complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that some facts are not disputed by opposite parties. It is admitted that the complainant approached opposite parties for obtaining assistance for filing application and permanent resident visa. It is admitted that the complainant paid Rs.40,000/- on 15.4.2010 and Rs.70,600/- on 28.5.2010. The receipts, (Ex.C2 and Ex.C3) also prove this fact. The complainant has executed the agreement, (Ex.C17). Opposite parties have also produced on record copy of this agreement, (Ex.OP1/3). As per Paragraph 3 of this document, total fee of the company was only Rs.60,000/-. It was also mentioned that this package offer will not only for pre-land and post-land charges. Opposite parties have charged an amount of Rs.1,10,600/- from the complainant. It amounts to unfair trade practice. It is also admitted that the application of the complainant for permanent resident visa has been rejected by Canadian High Commission. Therefore, opposite parties have not provided any post-landing services. The complainant continued corresponding with opposite parties for refund of his fee. Copies of e-mail and letters, (Ex.C5 to Ex.C9) also prove this fact. Opposite parties have admitted in the written version that they are ready to refund an amount of Rs.25,000/- as goodwill gesture. This fact also proves that they are not justified to retain the amount received from the complainant as he was not provided visa by Canadian government. Therefore, he is entitled to refund of all the amounts. It is also submitted by learned counsel for complainant that opposite parties have raised some preliminary objections regarding jurisdiction and limitation. The branch office of opposite parties is situated at Bathinda. In Paragraph 3 of complaint, the complainant has pleaded that he approached opposite party No.3 for obtaining assistance for filing application and obtaining visa and officials of opposite party No.3 claimed that they are provided best services. In Paragraph 4, it was pleaded that the demand draft of Rs.70,600/- as professional fee was paid to opposite party No.3 at Bathinda branch. Opposite parties have not denied this fact. Therefore, part of cause-of-action accrued to the complainant at Bathinda. The complainant has pleaded that after receipt of intimation regarding rejection of his application, he made correspondences with opposite parties. He has also relied upon copy of e-mail, (Ex.C6), which is dated 26.7.2016. This fact is further cleared from e-mail, (Ex.C10). Vide these e-mails, opposite parties have approved refund of Rs.21,180/-. Therefore, it is to be inferred that opposite parties have denied the claim of the complainant on 26.7.2016. The cause-of-action accrued to the complainant from 26.7.2016. As such, the complaint is within limitation. Of-course, opposite parties have also referred to arbitration clause, but the remedy before this Forum is additional remedy. It cannot be denied only for arbitration clause. To support these submissions, learned counsel for complainant has cited AIR 1937 (Privy Council) 69 Maharaja Sir Kesho Prasad Singh Bahadur Vs. Bahuria Mt. Bhagjogna Euer and others to submit that judgments quoted by opposite parties are not binding upon the complainant. On the other hand, learned counsel for opposite parties has reiterated his stand as taken in the written version and detailed above. It is further submitted by learned counsel for opposite parties that the complainant has availed the services of opposite parties by executing the contract of engagement, which is relied upon by the complainant as Ex.C17. Duties of the company are detailed in the agreement in Clause I, which are counselling and advising client about the immigration and advising in preparing of documents. Once the complainant retained the services, the company started providing services from day one, even before the case was filed. Services such as: a) Counselling and advising the client about the immigration category in which he/she retained the services and immigration procedure to be followed. b) Providing and counselling the client about immigration package and check list of documents, explaining the client in detail about the documents and forms that are 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. This document proves that opposite parties have performed all the duties as per agreement. The application of the complainant was got prepared and submitted before the concerned authorities. Ex.OP1/7 is letter received from Canadian High Commission. Vide this letter, High Commission has acknowledged the receipt of application of the complainant for permanent residence and file was created. Letter dated 30.6.2014, (Ex.OP1/2) proves that Economic Action Plan 2014 became law on 19.6.2014 under which the immigration investor programme and enterpreneur programme (EN) applications were terminated by operation of law. It was also intimated to the complainant that application was affected by this operation and application has been terminated by law. Therefore, this document also proves that the application of the complainant has been rejected due to change of law and not due to any lapse on the part of opposite parties. It also proves that all the formalities for submitting application was got completed by opposite parties. Opposite parties have performed their duties as per agreement. Clause 10 of the agreement relates to refund. It is categorically mentioned that the service provided by the company is technical, being professional. The entire fee is not refundable. Therefore, the complainant is not liable to get any refund. It is further submitted by learned counsel for opposite parties that the agreement was executed at Mohali. The fees was received at Mohali. Therefore, this Forum has no territorial jurisdiction. As per Clause 17 of the agreement, all the disputes are to be referred to Arbitration. For this reason also, the complainant is debarred from claiming any relief before this Forum. To support these submissions, learned counsel for opposite parties has relied upon following cases law:- i) Decision of Hon'ble State Commission, U.T, Chandigarh rendered in First Appeal No.192 of 2014, Decided on 3.7.2014 Parminder Singh Vs. Wordwide Immigration Consultancy Services Limited & others; ii) Decision of Hon'ble State Commission, U.T, Chandigarh rendered in First Appeal No.193 of 2014, Decided on 3.7.2014 Kamaljit Kaur Vs. Wordwide Immigration Consultancy Services Limited & others; We have given careful consideration to these rival submissions. Firstly, coming to the preliminary objections raised by opposite parties. Opposite parties have raised the preliminary objections regarding limitation; territorial jurisdiction and arbitration clause. Opposite parties have produced on record copy of letter, (Ex.OP1/2) although to prove that case of the complainant was rejected due to the change of law and its intimation was given to him on 30.6.2014. As per opposite parties, cause-of-action accrued to the complainant on 30.6.2014. The version of the complainant is that he was claiming refund of his amount. He has also placed on record copy of e-mails, (Ex.C6 and Ex.C10), which prove that opposite parties offered repayment of Rs.21,180/-. This offer is dated 26.7.2016. There is no specific order declining the refund to the complainant. Therefore, in these circumstances, it is to be inferred that opposite parties denied refund of the amount to the complainant on 26.7.2016 when they approved refund of Rs.21,180/- only. Hence, the complainant got cause-of-action from 26.7.2016. The complaint was filed on 27.9.2016. Therefore, the complaint is within the limitation. The office of opposite parties is situated at Bathinda. It is impleaded as opposite party No.3. It is averred by the complainant that he approached opposite party No.3 for the purpose of obtaining assistance. In Paragarph 4 of complaint, it is further pleaded that a sum of Rs.70,600/- was paid as professional fee to opposite party No.3. Opposite parties have admitted receipt of payment. They have also admitted that the complainant approached opposite party No.3 for consultation. Therefore, part of cause-of-action accrued to the complainant at Bathinda. Hence, this Forum has territorial jurisdiction to entertain and decide the complaint. Of-course, as per Clause 17 of contract of engagement, (Ex.C17) entered into between the parties, there is arbitration clause (Condition No.17). It is well settled that that jurisdiction of Consumer Forum is not barred even in case of jurisdiction clause. It is additional remedy. Therefore, the complaint is maintainable despite arbitration clause. Now, coming to the main controversy i.e. refund of claim. The complainant has claimed refund of Rs.1,10,600/- paid vide two separate receipts of Rs.40,000/- and Rs.70,600/-. Undisputedly, the receipts of these amounts is admitted by opposite parties. Both the parties have also relied upon contract of engagement. The receipt, (Ex.C2) proves that a sum of Rs.40,000/- was received as retainer fee and Rs.70,600/- was received as professional fee. The duties against the retainer fee and professional fee are not detailed in the agreement. Opposite parties have also produced on record only one agreement. It does not contain separate duties as retainer and for professional duties, but it is mentioned that gold package was to include pre-landing and post-landing services also. Therefore, it is to be presumed that opposite parties have charged the fee for providing pre-landing and post-landing services. The duties of the company detailed in the agreement are as under:- “a) Ascertain the eligibility of the client for the program on the basis of information provided by him/her; b) Assist the client in preparation of his/her immigration case; c) Review and identify submission of required documents and supporting evidences; d) Submit the complete case with supporting documentation and evidence alongwith submission report tot eh processing visa office; e) Assist the client in keeping hi/her file up to date; f) Correspond with the High Commission and other concerned authorities with respect to the immigration case of the client.”
Therefore, aforesaid duties reveal that opposite parties were supposed to guide the complainant to decide his eligibility, preparation of case, submission of documents and assist the complainant in keeping the file up to date. Certainly, these duties can be covered under retainer fee for which opposite parties have charged an amount of Rs.40,000/-. Of-course, Clause 10 of agreement specified that the service provided by the company being technical in nature. The entire fee is not refundable. The complainant has produced on record copies of e-mails, (Ex.C6 and Ex.C10), which prove that opposite parties approved refund of Rs.21,180/-. Therefore, this act of opposite parties sufficiently proves that keeping in view the facts of the case, opposite parties were not justified to deny refund the amount. The question is only regarding the amount for which the complainant is held entitled to. It is not disputed that opposite parties have performed their duties up to submission of case of the complainant. The case of the complainant was rejected, but due to change in law and not due to any lapse on the part of opposite parties. It stands proved that opposite parties have performed their duties so far retainer fee is concerned. They were also to provide post-landing services. The application of the complainant was not accepted. He has not gone abroad. Opposite parties have not performed the post-landing service. There is no occasion to provide the same. Therefore, retention of professional fee of Rs.70,600/- is not justified. The complainant is entitled to refund of this amount. For the reasons recorded above, the complaint is partly accepted with Rs.5000/- as cost and compensation against opposite parties. Opposite parties are directed to refund an amount of Rs.70,600/- with interest @12% per annum from the date of deposit till realization. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 01-12-2017 (M.P Singh Pahwa) President (Jarnail Singh) Member
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