BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.  72 of 2015

                                 Date of institution:          27.02.2015

                                                   Date of Decision:            14.01.2016

Sharanjit Kaur wife of Kuldip Singh, c/o Bibi Kartar Kaur, Vill. Bilga, P.O. Sahnewal, Tehsil and District, Ludhiana (Punjab).

                                            ……..Complainant

                                        Versus

1.     Worldwide Immigration Consultancy Services Ltd. (WWICS) having its corporate office at A-12, Industrial Area, Phase-VI, Mohali (Punjab) through its Chairman and Managing Director Col. B.S. Sandhu.

2.     Worldwide Immigration Consultancy Services Ltd. (WWICS) having its Branch Office at SCO No.2415-2416, First Floor, Sector 22-C, Chandigarh through its Branch Manager/Authorised Officer Shri Harpreet      Singh Pahawa.

3.     Global Strategic Business Consultancy having its head office FZCO, Office No.315-316, West Wing -3, Dubai (UAE) (service is to be affected through Mr. Devinder Singh Sandhu, Sr. Director, Worldwide Immigration Consultancy Services Ltd. (WWICS), having its office at A-12, Industrial Area, Phase-VI, Mohali (Punjab).

4.     Yes Bank Ltd. having its one of its Branch at VPO Sahnewal, Tehsil and District Ludhiana through its Branch Manager.

                                                     ………. 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 Nitin Grover, counsel for the complainant.

Shri K.S. Rupal, counsel for OP No.1 to 3.

Shri D.K. Singal, counsel for OP No.4

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

(a)    OP No.1 to 3 to refund the USD 4800 by way of demand draft with interest @ 18% per annum from the date of deposit i.e. 12.09.2011.

(b)    OP No.1 to 3 to pay Rs.1,00,000/- as compensation for physical harassment and mental agony.

(c)    OP No.1 to 3 to pay Rs.50,000/- as compensation for travelling.

 (d)   OP No.4 to pay Rs.50,000/- for physical harassment and mental agony.

(e)    all the OPs to pay Rs.25,000/- as litigation expenses.

                The case of the complainant is that she approached OP No.2, who is branch of OP No.1 in August, 2011 for Federal Processing Permanent Residency to Canada for Manitoba Province.  Respondent No.2 assured the complainant that it would provide the exploratory visit, visitor visa, preparing the interviews to be conducted by the Provine of Manitoba.  After discussion, the complainant was asked to deposit professional services for Bronze Spot Package and the complainant applied vide visa application No.W-0850120110/C11-869124 and entered into a Contract of Engagement on 25.08.2011 by paying all the expenses as demanded by OP No.2. The complainant also submitted the requisite documents for examining, accessing and for processing the case of the complainant.  After that OP No.2 assured the complainant that the complainant is eligible for permanent resident of Canada for Manitoba State for that the complainant signed one printed form agreement which was executed in favour of OP No.1 and 2 vide agreement dated 25.08.2011. At the instance of OP No.1 and 2, the complainant signed one more printed form agreement which was executed in favour of OP No.3 at the premises of OP No.1 and 2. Contract of engagement in favour of OP No.3 was executed on 20.08.2011 and US$ 4800 was demanded from the complainant for availing the services of OP No.3 which was paid by the complainant vide draft No.307236 dated 16.09.2011 issued by HDFC in favour of OP No.3. The demand draft was duly encashed by OP No.3 and a certificate to this effect was issued by the HDFC Bank. The case of the complainant could not mature and on the demand of the complainant OP No.2 agreed to refund the amount after deducting amount of professional service rendered by OP No.1 and 2 and the complainant signed the consent letter dated 15.03.2013 vide which the OP No.1 and 2 had agreed to refund Rs.75,000/- to the complainant. OP No.1 and 2 also issued pay order of USD 4800 bearing pay order No.038103 dated 19.03.2014 in the name of the complainant of RBS Bank.  The complainant deposited the pay order in her account on 04.04.2014 with OP No.4 but this pay order was returned to the complainant vide letter dated 08.08.2014 and from the contents of letter dated 08.08.2014 the complainant came to know that the pay order was never presented by OP No.4 to banker of OP No.3. Due to this the complainant suffered financial loss and moreover the validity of the pay order also expired.  The complainant requested OP No.2 for issuing fresh pay order in lieu of pay order dated 19.03.2014 and on demand, the complainant handed over the original pay order to OP No.2. OP No.2 thereafter asked the complainant to visit OP No.1 for fresh pay order and OP No.1 assured that the fresh pay order would be issued shortly.  The complainant had visited the office of the OPs from Ludhiana number of times for obtaining   the fresh pay order. Thus, the complainant has suffered financial loss as well as mental agony, harassment etc. due to the acts of the OPs. With these allegations the complainant has filed the present complaint.

2.             OP No.1 to 3 in the  written statement have pleaded that the complaint is liable to be dismissed in view of Clause 9 (iii) of contract of engagement dated 20.08.2011. An amount of Rs.90,000/- out of Rs.1,30,000/- was refunded to the complainant and cheques for the same were duly received by the complainant. An amount of US $ 4800 was also refunded by way of demand draft dated 19.03.2014 which was not got encashed by the complainant through OP No.4. The draft became stale due to reasons known to the complainant and OP No.4. However, the fresh draft dated 30.03.2015 is being handed over to the complainant in this Forum. Thus no cause of action survives to the complainant and as such the present complaint is liable to be dismissed as infructuous. The draft of 4800 US $ could not be got cleared by OP No.4 well in time.  Thus, there is no deficiency in service on the part of the OP No.1 to 3.

3.             OP No.4 in its reply has pleaded that the complainant firstly approached OP No.4 on 04.04.2014 and deposited pay order of US $ 4800. The complainant was informed that transactions related to overseas would take some time. After going through the terms and conditions of the request form dated 04.04.2014 the complainant filled the same under her signatures. Thus, the complainant had accepted all the terms and conditions of the request form. After deposit of the pay order, it was immediately sent to its head office for presentation which had further been forwarded by Mumbai Branch to CITI Bank on 10.04.2014 as the OP had tie up with CITI Bank for overseas collection.  The OP contacted CITI Bank on 24.07.2014 for status of the pay order. The OP had received e-mail on 28.07.2014 that the pay order had been returned without any reason and immediately the CITI Bank had also contacted the clearing bank and asked for the reasons for returning the pay order. But by that four months had already passed from the date of deposit of pay order and the CITI Bank had not received the payment. Accordingly, OP No.4 requested the CITI bank for returning the pay order in question at the instance of the complainant. These facts show that the OP No.4 is not responsible for any delay for non encashment or return of the pay order. The disputed transaction is related to overseas bank and no time limit had been prescribed for collection of the pay order as mentioned in the request form.  The complaint involves disputed questions of facts and law and this Forum has no power to adjudicate the same in summary procedure.  The complainant has no locus standi to file the complaint. The complainant is also guilty of concealing material facts.  Thus denying any deficiency in service on its part, OP No.4 has sought dismissal of the complaint against it.

4.             To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1, and tendered in evidence documents Ex.C-1 to C-8.

5.             Evidence of OP No.1 and 2 consists of affidavit of Rajiv Bajaj, their authorised representative Ex.OP-1/1 and copies of documents Ex.OP-1/2 and Ex.OP-1/10.

6.             Evidence of OP No.3 consists of affidavit of Rajiv Bajaj, its authorised representative Ex.OP-3/1 and copies of documents Ex.OP-3/2 to Ex.OP-3/10.

7.             Evidence of OP No.4 consists of affidavit of Sunny Sood, its Branch Manager Ex.OP-4/1 and copies of documents Ex.OP-4/2 to Ex.OP-4/6.

8.             We have heard learned counsel for the parties and have also gone through the written arguments filed by them.

9.             The complainant has availed the services of OP No. 1 to 3 for immigration services and paid on 12.09.2011, a sum of 4800 USD by way of demand draft to OP No. 1 to 3. Somehow the issue did not materialize and OP No.1 to 3 agreed to refund the deposited amount to the complainant. OP No.1 to 3 issued pay order No.38103 dated 19.03.2014 Ex.C-4 to the complainant. The complainant deposited the said pay order with OP No.4 vide deposit receipt dated 04.04.2014 as per Ex.C-4. The grievance of the complainant in the present complaint against the OPs is that the deposited pay order vide request letter dated 04.04.2014 has never been processed by OP No.4 and the pay order became stale.  Despite various requests and follow up OP No.4 could not provide any satisfactory response to the complainant and finally on 08.08.2014 OP No.4 informed that the pay order has been returned without any remarks. The complainant approached OP No.1 to 3 for issuance of fresh pay order in lieu of the earlier pay order dated 19.03.2014 which had become stale. The OP No.1 to 3 conceded to the request of the complainant and issued afresh pay order on 09.09.2015 during the pendency of the present complaint.  The said pay order has been resubmitted to the OP No.4 by the complainant on 14.10.2015 which is duly accepted by OP No.4 for getting clearance from the drawee bank i.e. RBS PLC, Dubai Branch.  The said amount now has been credited to the account of the complainant on 24.11.2015.  The grievance of the complainant is that since the issuance of first pay order dated 19.03.2014 and deposit of the same with OP No.4 on 04.04.2014 till final realization of the pay order for 4800 USD on 24.11.2015, the complainant has been put to financial loss and mental agony due to the acts of omission and commission amounting to deficiency in service on the part of the OPs.

10.           The limited issue whether during the said period from 04.04.2014 till 24.11.2015 the complainant has suffered any financial loss and mental agony, harassment in the hands of the OPs due to delay in realization of the amount due to the complainant  as per pay order dated 19.03.2014  Ex.C-4.

11.           The issuance of pay order dated 19.03.2014 by OP No.3 and deposit of the same by the complainant with OP No.4 on 04.04.2014 as per Ex.C-5 is not disputed.  Further the realization of the amount due to the complainant on 24.11.2015 is also not issue of dispute between the parties. During the intervening period i.e. from 04.04.2014 to 24.11.2015 the processing of the pay order by the OP No.4, pay order having rendered stale during the same being in the possession of OP No.4, issuance of the fresh pay order by the OP No. 1 to 3 and then subsequently final realization of the amount due, as per fresh pay order issued by the OP No. 1 to 3, is to be seen and whether there is delay on the part of the OPs leading to financial loss, mental agony and harassment to the complainant.

12.           Ex.C-5 clearly shows that the complainant has deposited the pay order on 04.04.2014 for clearance from RBS PLC, Dubai Branch.  OP No.4, having tie up with CITI Bank for global cheque collection vide tie up arrangement e-mail dated 22.10.2013 Ex.OP-4/4 has sent the pay order for clearance through CITI Bank.  Till July, 2014 the CITI Bank has not cleared the cheque as is evident from Ex.OP-4/5 i.e. the e-mail dated 28.07.2014 which is internal investigation of OP No.4, it is learnt that the CITI Bank has returned the pay order in question without assigning any reason. The pay order in question having been rendered stale after three months from the date of issuance i.e. 19.03.2014, once the complainant learnt about the status of the stale pay order from OP No.4, she approached OP No.1 and 2 for issuance of fresh pay order. Before we proceed further, it will be appropriate to appreciate the conduct of OP No.4 from the date of deposit of the pay order on 04.04.2014 till 28.07.2014 when they finally learnt about the return of the pay order in question from CITI Bank without any reason, as per their internal investigation report.  The perusal of Ex.OP-4/5 clearly shows that the pay order in question has not been encashed till 28.07.2014 and as per their internal investigation the CITI Bank has returned the pay order in question without assigning any reason and further the CITI Bank has not clarified as to whom the cheque has been returned to. Thus, the investigation as on 28.07.2014 was incomplete and finally perusal of Ex.OP-4/6 shows that the OP No.4 has received on 15.05.2015 the uncleared pay order from the Clearing Bank without any reason. Thus, it is ample clear that from 04.04.2014 till 15.05.2015 the pay order in question remained under process with OP No.4. Though during this period, OP No.4 has informed the complainant on 08.08.2014 about the expiry of pay order dated 19.03.2014 and the complainant has approached OP No.1 to 3 for issuance of fresh pay order in lieu thereof. Therefore, OP No.4 is liable for causing delay in realization of the pay order from 04.04.2014 to 08.08.2014.

13.           The fresh pay order issued by OP No.1 to 3 on 09.09.2015 during the pendency of the present complaint has been accepted by the complainant on 30.09.2015 under protest and then deposited by the complainant with OP No.4 on 14.10.2015 as is evident from the documents attached with the written arguments of the complainant, the fresh pay order having been received and acknowledged by the OP No.4 on 14.10.2015 has now been honoured and the credit of the said amount has been made in the account of the complainant on 24.11.2015.  Therefore, now there is no delay in realization of the fresh pay order as it had been cleared by OP No.4 within a period of one month and ten days which is a reasonable time to get the clearance of international/global cheque. Thus, it is ample clear that the delay in issuance of fresh pay order in lieu of previous pay order dated 19.03.2014, from 08.08.2014 to 30.09.2015 has been caused by OP No.1 to 3. OP No. 1 to 3 have taken a stand in their written statement as well as written arguments that the fresh pay order has been issued as a goodwill gesture. Such plea is devoid of any merit as OP Nos.1 to 3 were under obligation to ensure the realization of the pay order. Merely issuance of pay order dated 19.03.2014 does not discharge them of their obligation which they have taken upon them while issuing the refund amount of 4800 USD by way of pay order dated 19.03.2014.  The OP No.1 to 3 have taken more than one year for issuance of fresh pay order and that too after the complainant has been forced to file the present complaint. Even OP No.2 did not show any bonafide to bring the freshly made pay order at the time of appearance during the proceedings. It took further five months after appearance on 17.04.2015 to bring the freshly made pay order for 4800 USD. Thus, all the OPs have clearly indulged in unfair trade practice and deficiency in service which has been proved on record by the complainant as well as from the conduct of the OPs during the course of proceedings.

14.           Thus both OP Nos.1 to 3 and 4 have caused delay leading to deficiency in service and unfair trade practice causing financial loss, mental agony and harassment to the complainant.  Therefore, the complaint deserves to be allowed and the complainant deserves to be compensated.

15.           The complaint is, therefore, allowed with the following directions to the OPs to:

(a)    OP No.1 to 3 to pay interest @ 9% per annum from 09.08.2014 to 30.09.2015 on the amount of 4800 USD as per the prevailing rate of Indian currency per dollar during the said period.

(b)    OP No.4 to pay interest @ 9% per annum from 04.04.2014 to 08.08.2014  on the amount of 4800 USD as per the prevailing rate of Indian currency per dollar during the said period.

(c)    all the OPs are jointly and severally liable to pay a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. 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.                           

January 14, 2016.     

                                                                                Sd/-

                               (Mrs. Madhu P. Singh)

                                                                        President

I do not agree with it

                                                        Sd/-

(Amrinder Singh Sidhu)

Member

I do not agree

Sd/-

(Mrs. R.K. Aulakh)

                   Member

Dissent view of Members
 

                   We don’t agree with this order of the Ld. President of this Forum vide which she held all the OPs deficient in service and guilty of unfair trade practice. We do not agree with the order of the Ld. President on this point because OP No.1 to 3 have taken a stand in their written reply that OP No.1 to 3 have done their duty by issuing the pay order/demand draft No.038103 dated 19.03.2014 as per agreement and proved vide Ex.OP-3/5. Our view is that when OP No.1 to 3 have discharged their legal duty, then there is no deficiency in service or unfair trade practice on their part. If OP No.4 i.e. Yes Bank Ltd. has delayed encashment of the above mentioned pay order/demand draft No.038103 dated 19.03.2014 then there is no deficiency in service or unfair trade practice on the part of OP No.1 to 3. If there is delay on the part of OP No.4 then OP No.1 to 3 cannot be held liable for any manner. Further OP No.1 to 3 have issued fresh pay order/demand draft No.39376 dated 12.09.2015 out of goodwill gesture which was encashed by the complainant requires appreciation rather than condemnation from this Forum.

                As far as OP No.4 is concerned, the complainant has given her consent in Ex.OP-4/3 stating that “Yes Bank ltd. will not be liable for any interest, charges, cost, fees deducted from cheques proceeds, or any delay in receipt of the cheque proceeds with respect to the USD cheque sent abroad for clearing.” Therefore, as per this consent she is not entitled to claim any amount on account of delay. Hence, the complaint dismissed.

Pronounced.                           

January 14, 2016.     

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                   Member