STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH. First Appeal No. 296 of 2017 Date of institution : 27.04.2017 Reserved on : 23.01.2018 Date of decision : 07.02.2018 Dalvir Singh Dhaliwal aged 31 years son of Sukhdev Singh, resident of House No.171, Lakhmirwala, Tehsil Sunam, District Sangrur. .Appellant-Complainant Versus
1. Worldwide Immigration Consultancy Services Ltd., Head Office A-12, Industrial Area, Phase 6, Mohali, Punjab, through its M.D.
2. Worldwide Immigration Consultancy Services Ltd., Leela Bhawan, Patiala, through its Branch Manager, Patiala. ..Respondents/Opposite Parties First Appeal against the order dated 9.3.2017 of the District Consumer Disputes Redressal Forum, Patiala. Quorum:- Honble Mr. Justice Paramjeet Singh Dhaliwal, President Mrs. Kiran Sibal, Member Present:- For the appellant : Shri A.K. Walia, Advocate. For the respondents : Shri Raman Walia, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT: The instant appeal has been filed by the appellant/complainant against the order dated 9.3.2017 passed by District Consumer Disputes Redressal Forum, Patiala (in short, the District Forum), whereby the complaint filed by him, under Section 12 of the First Appeal No.296 of 2017 Consumer Protection Act, 1986 (in short, the Act) for issuance of following directions to the opposite parties:-
i) To refund an amount of 7,01,531/- (i.e. 6,04,098/- as principal amount + 97,433/- as interest w.e.f. the respective dates of deposit) till its realization; ii) To pay 20,000/- as compensation for causing mental torture and inconvenience; iii) To pay 20,000/-, as cost on account of deficiency in service and unfair trade practice; iv) To pay 10,000/-, as litigation expenses; and
v) To grant any other relief which this Forum may deem fit. was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the complaint:
3. Brief facts, as averred in the complaint, are that the complainant hired the services of the opposite parties for getting Permanent Residency in Canada under British Columbia-Provincial Nominee Program (BC-PNP). On 5.10.2014 he visited the office of opposite party No.2 and opposite party No.2 after checking and assessing the documents asked the complainant that they would get sanctioned his application for Permanent Residency in Canada within a period of 12 months. For this purpose the complainant deposited 30,000/- on 5.10.2014, vide receipt No.1032141320 and further deposited 1,72,248/-, vide receipt No.1032141331 dated First Appeal No.296 of 2017 15.10.2014 with the opposite parties. He completed all the formalities as required by the opposite parties. The opposite parties also got deposited from him an amount of 25,000/-, as charges of translation and attestation of documents by Notary Public and for preparation of valuation and Chartered Accountants Report. However, no receipt in this regard was issued. On 18.11.2014 the opposite parties directed him to deposit immigration fee with Paul Merchants Ltd., SCO No.829-830, Sector 22-A, Chandigarh. Accordingly he deposited an amount of 3,76,850/- (i.e. 6000 USD), vide cheque No.541178 dated 18.11.2014 as immigration fee. Thereafter on 5.2.2015, as per directions of the opposite parties, he again deposited an amount of 1,52,250/- (i.e. 3000 USD), vide cheque No.848847 with the Paul Merchants Ltd., which was pretended to be Embassy fee. Accordingly the Paul Merchants Ltd. got prepared Pay Order dated 12.2.2015 of 3000$ in favour of Minister of Finance. Later on Paul Merchants Ltd. got cancelled the Pay Order and refunded 1,47,850/- after deducting 4,400/- to the complainant on 27th of August 2015. At that point of time it came to the notice of the complainant that the opposite parties had not submitted/filed his application for Permanent Residency in Canada before the British Columbia-Provincial Nominee Authority of Canada Government. Thereafter the complainant visited the office of the opposite parties and enquired about the status of his application. The opposite parties did not give any satisfactory reply. Accordingly a request was made to the opposite parties to refund the entire First Appeal No.296 of 2017 amount. Rather the opposite parties continued to delay the same on one pretext or the other. Ultimately on 30th of September 2015 the opposite parties flatly refused to refund the amount. Alleging deficiency in service and adoption of unfair trade practice on the part of the opposite parties the complaint was filed before the District Forum for issuance of above mentioned directions to them. Defence of the opposite parties:
4. Upon notice opposite parties appeared and filed their written statement admitting the deposit of 30,000/- and 1,72,248/- totaling 2,02,248/- with them. It is averred that out of the said amount, 22,248/- was deposited towards service tax and 1,80,000/- was towards fee. It is also admitted that the complainant had paid an amount of 6000USD, vide receipt dated 18.11.2014 towards the fee of M/s Global Strategic Business Consultancy, Dubai, with whom the complainant had entered into a separate contract. It is further admitted that the complainant had paid an amount of 3000USD towards the processing fee of his case in favour of Minister of Finance, vide draft dated 12.2.2015. It is stated that the complainant became disinterested and did not want to file his case. Therefore, the draft of 3000USD was returned back to him. It is averred that the complainant had hired the services of the opposite parties on 5.10.2014 for the said Program after completion of the formalities by him and his case was filed, vide letter dated 13.2.2015. However, the same was received back for want of certain documents, vide e- mail dated 16.3.2015. The case was again sent for filing on First Appeal No.296 of 2017 25.3.2015 through e-mail after revised documents were received from the complainant. However, before the case could be filed, the BC-PNP category was put on hold on 31.3.2015 for 90 days. It was intimated that the Program will re-open in the month of July after redesigning the nominee program. On 2.7.2015 the redesigned BC- PNP program was opened. The complainant was immediately informed to visit the Branch Office or the Head Office, for re-filing his case but he became disinterested and sent refund letter dated 14.8.2015 and also signed a declaration form dated 17.10.2015 with regard to the same. As such, as per clause 11(i); clause 12(i) and
(ii); and clause 24 of the Contract dated 15.10.2014, executed with the opposite parties and M/s Global Strategic Business Consultancy, Dubai, the complainant is not entitled to any refund; being a case of disinterest and voluntarily withdrawal. However, without prejudice to the rights of the opposite parties still as a special case and as a goodwill gesture, an amount of 50,000/- out of the amount of 1,80,000/- was paid to the complainant, vide cheque No.481447 dated 5.1.2016 and an amount of 3000USD was also refunded to him. The complainant has wrongly calculated the amount of 7,01,531/- as well as 97,433/- as interest. He is not entitled to refund of any more amount. Denying any deficiency in service or adoption of unfair trade practice, a prayer for dismissal of the complaint was made. First Appeal No.296 of 2017 Finding of the District Forum:
5. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide impugned order. Hence, this appeal.
6. We have heard learned counsel for both the sides and have carefully gone through the records of the case. Contentions of the Parties:
7. It was vehemently argued by the learned counsel for the complainant that on 5.10.2014 on the assurance of the opposite parties the complainant approached them for getting Permanent Residency under the BC-PNP Program and had deposited the entire documents as required by them and after assessing the documents the opposite parties further assured him that he will get visa for Permanent Residency in Canada within a period of 12 months. It was further argued that the complainant deposited the amounts as demanded by the opposite parties, detailed in the complaint. It was further argued that the assurance was given by the opposite parties that they will be in a position to convince the Canadian authorities to accept the application of the complainant for Permanent Residency under the BC-PNP Program but they themselves have delayed in the process of filing the application. The complainant has been paying the amounts, from time to time, as required by the opposite parties. Actually the complainant had paid the initial amount in the month of October 2014 and within 12 months they suggested that Permanent First Appeal No.296 of 2017 Immigration of Canada will be given to the complainant. It was further argued that there was no delay on the part of the complainant. There is no evidence on record that at any point of time the complainant had defaulted in not complying with the terms of the contract sent to him. The opposite parties sent the case of the complainant much later in-spite of receiving the amount from him. In the meantime, the BC-PNP Program was changed. As a result of which the complainant did not remain interested because there may be further delay in providing the immigration. In fact, the deficiency in service was on the part of the opposite parties and they have acted in an unfair manner. Therefore, this appeal is liable to be allowed; the impugned order is liable to be set aside; and the complaint is liable to be allowed with costs throughout as prayed for.
8. On the other hand, it was vehemently argued by the learned counsel for the opposite parties that after receipt of the requisite fee and the documents the case of the complainant was filed, vide letter dated 13.2.2015, Ex.OP1. However, the same was received back for want of certain documents, vide e-mail dated 16.3.2015 Ex.OP2. They again sent the case of the complainant after receiving the requisite documents from him. However, before the case could be filed, the BC-PNP category was put on hold on 31.3.2015 for 90 days as is evident from Ex.OP4. It was further argued that the complainant was called, vide letter dated 3.7.2015 Ex.OP6 for re- filing his case but he showed his unwillingness and requested for the refund of the amount, vide his letter dated 14.8.2015, Ex.OP7 and First Appeal No.296 of 2017 also signed a declaration form dated 17.10.2015 Ex.OP8. It was further argued that since the complainant himself asked the opposite parties not to file his case before the Immigration Authority, therefore, as per clauses 11(i), 12(i) and (ii) and 24 of the Contract dated 15.10.2014, he was not entitled to any refund being a case of disinterest and voluntarily withdrawal. It was further argued that still as a goodwill gesture part payment has already been refunded to him. There is no deficiency in service or adoption of unfair trade practice on the part of the opposite parties. The District Forum has passed a well reasoned order and there is no infirmity or illegality in the same. There is no merit in the present appeal and the same is liable to be dismissed. Consideration of Contentions:
9. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.
10. Admittedly the application was given to the opposite parties on 5.10.2014 and the said application was submitted along with the relevant documents as required by the opposite parties. The complainant had been paying the amounts, from time to time, as required by the opposite parties. There is no dispute regarding the same. A perusal of records reveals that the complainants application was submitted only on 3rd of July 2015 Ex.OP-6 meaning thereby that almost for 9 months no action was taken by the opposite parties on the application of the complainant. In the meantime, the Program initiated by the Canadian Government under the BC-PNP First Appeal No.296 of 2017 program was withdrawn and fresh program was to be launched. Since more than 9 months had already been lost by the opposite parties even in applying to the Canadian Agency and again another registered application was sought to be filed in view of the change in the BC-PNP Program. At that stage the complainant realized that the opposite parties were indulging in unfair trade practice and had not acted promptly as was required to be done by them. Clause 11(i), 12(i),12(ii) and 24 of the Contract of Engagement, Ex.OP-9, relied upon by the opposite parties read as under:-
11. Refund:
i. The services provided by the Company being professional in nature, the entire fee for the services provided are non- refundable.
ii. .
iii. .
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12. The Company shall not refund any of the total fees and shall be entitled to full payment for the services provided if:
i. once the client signs this contract and then he/she does not wish to proceed further for any reason whatsoever.
ii. The client voluntarily withdraws the application for Nomination at any stage.
iii. First Appeal No.296 of 2017
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viii.
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24. Conclusion. This Agreement shall be deemed to be concluded/terminated upon performance of contract/disinterest/non- cooperation/death of the Client, in which case no amount for the services provided shall be refundable to anyone. These clauses can be made applicable only if the complainant has defaulted at any point of time. The opposite parties have failed to show that after 5.10.2014 the complainant has defaulted at any point of time nor they have placed on record any correspondence with the complainant or the Canadian Government or any other form etc. to show that they had started acting on the application of the complainant immediately after the receipt of the payment from him. As already mentioned above for almost 9 months no progress took place in the application. In the meantime, there was a change in the BC-PNP Program, which is admitted by the opposite parties in their reply and revised application was required to be filed along with First Appeal No.296 of 2017 other relevant documents. In these circumstances, the opposite parties have failed to show that they have been performing their duties in a diligent manner and there was no delay at any point of time. It was for the opposite parties to explain that they have acted from the day one when the application and payment was received by them promptly. Rather the perusal of the facts reveals that they did not do much for almost 9 months. Even no receipts have been produced on record or shown to us that they had deposited all the amounts to the Canadian Government at any point of time. Rather, the draft, which was prepared in the name of Minister of Finance was also returned to the complainant. We find that the opposite parties are certainly deficient in service and they have not acted promptly resulting in the loss to the complainant due to the change in the BC- PNP Program by the Canadian Government. In these circumstances the complainant is entitled to the refund of the entire amount which he has paid to the opposite parties.
11. Accordingly this appeal is allowed and the impugned order passed by the District Forum is set aside. The complaint of the complainant is allowed and the opposite parties are directed as under:-
i) to refund the amount of 7,01,531/- minus the amount already refunded by the opposite parties along with interest at the rate of 9% per annum from the date of different deposits till the date of actual refund; and First Appeal No.296 of 2017 ii) to pay a sum of 50,000/- as consolidated amount on account of compensation for causing mental torture and inconvenience including litigation expenses. The opposite parties shall make compliance of this order within a period of one month from the date of receipt of certified copy of this order.
12. Since there is shortage of postal stamps in this Commission, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it would be the responsibility of the learned counsel for the parties to inform them accordingly. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER February 07, 2018 Bansal