State Consumer Disputes Redressal Commission
Worldwide Immigration Consultancy ... vs Kulwinder Kumar Madar on 20 February, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 1284 OF 2010
Date of Institution: 26.07.2010
Date of Decision: 20.02.2014
1. Worldwide Immigration Consultancy Services Ltd.
(WWICS), SCO 2415-16, Sector 22, Chandigarh,
through its Principal Officer.
2. The Branch Manager, Worldwide Immigration
Consultancy Services Limited, 211, Defence Colony,
Jalandhar.
.....Appellants/Opposite Parties
VERSUS
Kulwinder Kumar Madar S/o Sh. Ashok Kumar resident of B-IX,
303/1, Santokhpura Hoshiarpur Road, Jalandhar City (Punjab).
.....Respondent/Complainant
First Appeal against the order
dated 03.06.2010 passed by the
District Consumer Disputes
Redressal Forum, Jalandhar.
Quorum:
Hon'ble Mr. Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Smt. Surinder Pal Kaur, Member Present:
For the appellants : Sh. Raman Walia, Advocate For respondent : Sh. Hitesh Kaplish, Advocate SMT. SURINDER PAL KAUR, MEMBER This appeal has been filed by the appellants/opposite parties against the order dated 03.06.2010, passed by the District Consumer Disputes Redressal Forum, Jalandhar (in short "District Forum"), vide which the complaint of the respondent/complainant Sh. Kulwinder Kumar was allowed and opposite party was directed to refund Rs. 25,000/- as professional consultancy fee + US$ 700 (equivalent value First Appeal No. 1284 of 2010 Page 2 of 8 of in Indian currency prevalent at the time of payment) and to pay Rs. 15,000/- as compensation.
2. Facts, as pleaded in complaint, are that the complainant/respondent approached the opposite parties for immigration to Australia. After assessment of his credentials, opposite party No.2 informed that his case was fit for permanent immigration to Australia under 'skilled Migration Category' as 'Marketing Specialist', and advised him to pass IELTS test as per requirement of Australian immigration. It was further informed that they are working in consultation with Global Strategic Business Consultancy Corporation U.A.E.. Accordingly he paid Rs. 30,000/- on account of Retainer fee to them, vide cheque dated 18.4.2008. On 30.5.2008 he got prepared draft of AUD 350/- for the assessment of his qualification from an organization in Australia namely VETASSESS and handed over the same to opposite party No.2. His case was approved vide VETASSESS's letter dated 24.7.2008 for Nominated Occupation of "Marketing specialized". The out come of his case was positive; which meant that he was duly qualified for immigration to Australia. He also paid US$ 700 as professional fee vide demand draft 00011535 dated 1.8.2008 in favour of M/s Global Strategic Business Consultancy to one of the executive of opposite parties at Jalandhar Branch and also paid Rs. 20,000/- as balance retainer's fee on 5.8.2008. When he visited the office of opposite parties on 6.8.2008 with all requisite papers and asked for the next step to be taken by him for the purpose of filling of his immigration case for Australia, the executive of the opposite parties told him that his case was not fit at all, as his score in IELTS was less than the First Appeal No. 1284 of 2010 Page 3 of 8 prescribed score for immigration to Australia. He visited their office a number of times, for the refund of the amount paid by him but the same was not refunded to him, as a result of which he suffered physically and mentally at the hands of opposite parties, for which he sought following reliefs against opposite parties in the complaint filed before the District Forum:-
a) to refund Rs. 50,000/- & US$ 700;
b) to refund AUD 350/- got spent by the opposite parties as
fees of VETASSESS on false guidance given to him;
c) to reimburse the expenses of Rs. 20,000/- incurred by him solely on their directions;
d) to pay damages to the tune of Rs. 1,00,000/- for the mental tension, agony & wastage of valuable time.
3. Upon notice the opposite parties No.1 and 2 filed a joint written reply admitting that the complainant contacted them for immigration to Australia. They pleaded that after assessment he was informed that his case is fit for permanent immigration to Australia, if he obtained 7 Bands in each Module of ILETS. He agreed to that and signed the contract. The complainant had paid the professional fee of US$ 700 to M/s Global Strategic Business Consultancy and Rs.25,000/- as balance fee to them. However, he failed to perform his part of contract as he failed to achieve required 7 bands in each Module i.e. speaking, writing, listening and reading. He was not entitled to any refund of fee as per Clause 10 of the contract as he retained the services of the opposite parties as a Marketing Specialist and his case was filed for Skill Assessment with VETASSES (Assessing Agency of Australia) on 1.7.2008 and positive Skill Assessment was received First Appeal No. 1284 of 2010 Page 4 of 8 from VETASSES on 31.7.2008. After receipt of positive Skill Assessment from VETASSESS his case was further processed with DIAC (Department of Immigration and Citizenship). However he failed to provide his IELTS result with 7 Bands in each module so as to make himself eligible with DIAC. He himself admitted in his letter dated 22.1.2009 that he was not able to qualify as it was very difficult task for him to get 7 Bands for each module. It was pleaded that the complainant had not impleded M/s GSBC, Dubai, as party with whom he entered into separate agreement and deposited US$700 in favour of the said company. Thus the present complaint was liable to be dismissed on the ground of non-joinder of necessary parties. In view of Clause 17 of Contract of Engagement (Skilled Category) the District Forum had no territorial jurisdiction as all the disputes were to be referred to Sole Arbitrator within the local limits of Courts at Chandigarh. As per Section 20 C.P.C. cause of action to claim refund had arisen at Chandigarh in view of Clause 17 of the Agreement. The remaining averments were denied, being wrong..
4. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint in the terms referred above.
5. We have gone through the pleading of the parties, perused the record of the learned District Forum as well as heard the arguments of the learned counsel for the opposite parties.
6. It has been submitted by learned counsel for the opposite parties that the complainant had entered into two independent agreements. One of the agreement was entered into by him with the First Appeal No. 1284 of 2010 Page 5 of 8 opposite party whereas the other agreement was entered with M/s Global Strategic Business Consultancy. The sum of US$ 700, which has been ordered to be refunded, was infact paid by the complainant directly to the M/s Global Strategic Business Consultancy under the second agreement. That agreement was on principal to principal basis and the opposite party was not a party to that agreement. Therefore no such direction for refunding that amount could have been issued against it. He prayed for setting aside that part of the order of the District Forum.
7. On the other hand it has been submitted by the learned counsel for the complainant that the opposite parties were mediator between the complainant and M/s Global Strategic Business Consultancy and the money had passed to that company through them. Therefore, they were liable to refund the same and correct order was passed by the District Forum.
8. A cheque of Rs.30,000/- dated 16.4.2008 was given by the complainant as retaining fee regarding which opposite party No.1 issued the receipt No.102208196 (Ex. C-2). Another cheque of Rs.20,000/- as professional fee was deposited by him with that opposite party, for which receipt No.202208 (Ex.C-6) was issued. On 30.5.2008, AUD350 were paid by the complainant in favour of the VETASSESS (Ex. C-3). The payment of US$700 was made directly to the M/s Global Strategic Business Consultancy as is clear from the receipt No.2308-08 (Ex. C-5). The opposite party has proved on the record the agreement (Ex.R-5) which was executed between the complainant and M/s Global Strategic Business Consultancy, Clause 9 of which is reproduced as under:-
First Appeal No. 1284 of 2010 Page 6 of 8
"Refund
i) The services provided by the Company being professional in nature, the entire fee is non refundable.
ii) However, Partial refund of the fee would be
considered if the client is declared
disqualified in skill assessment for Australia.
Accordingly, the Client shall be entitled to a refund of full professional fee (if paid by the client), in case the Client is declared disqualified in skill assessment for Australia.
iii) Since VPF is being paid to the processing Visa Officer, refund of same shall not be claimed from the Company.
9. From the evidence produced by the opposite party, including agreement Ex.R-5, it stands proved that the amount of AU $700 was received by M/s Global Strategic Business Consultancy and it was that company who was liable to refund the same to the complainant. As per terms and conditions of the agreement (Ex. R-5), the complainant could not have claimed this amount from the opposite parties.
10. In Worldwide Immigration Consultancy Services Ltd. Vs. Manohar Singh Randhawa, Revision Petition No.3334 of 2010, decided on 08.3.2011, the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, has observed as under:-
"Having considered the respective submission, we must at once hold that the orders of the Fora below directing the petitioner First Appeal No. 1284 of 2010 Page 7 of 8 company to refund the fee of 1500 U.S. dollars deposited by the complainants with the Worldwide Immigration Consultancy Services Canada Inc. cannot be upheld in any view of the matter because the said amount was paid by the complainants under agreements signed by the complainants under the advice of the petitioner. Since these amounts were not received by the petitioner and were received by a third party i.e. Worldwide Immigration Consultancy Services Canada Inc. and that they are not privy to the said agreement, no liability can be enfastened on the petitioner for the refund of the said amount. The said Worldwide Immigration Consultancy Services Canada Inc. has not been made a party in the complaint and, therefore, we are not aware as to whether there was any deficiency in service on the part of that company or what is their stand."
11. The principle of law, laid down, in Immigration Consultancy Services Limited's case (supra) is fully applicable to the facts of the instant case. In the absence of impleadment of M/s Global Strategic Business Consultancy UAE, no claim of refund of this amount, could be made, against the opposite parties. The submissions of the counsel for the respondent/complainant, in this regard, cannot be sustained are liable to be ignored.
12. Accordingly, the appeal is partly allowed. The part of the order of the District forum, vide which it directed the opposite parties to refund US $ 700 is set aside. No order as to costs.
13. The appellants/opposite parties had deposited Rs.25000/- with this Commission at the time of filing of appeal. This amount of Rs.25000/- with interest accrued thereon, if any, be remitted by the First Appeal No. 1284 of 2010 Page 8 of 8 Registry to the respondent/complainant by way of Crossed Cheque/Demand Draft after expiry of 45 days under intimation to the learned District Forum, under intimation to the District Forum.
14. The arguments in this appeal were heard on 6.2.2014 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (SURINDER PAL KAUR) MEMBER February 20, 2014 Sonia