J.S. Klar, Presiding Judicial Member.
1. Challenge in this appeal by appellant is to order dated 30.11.2017 of District Consumer Forum, Ludhiana, directing the respondents no.1 to 3 of this appeal to refund the amount of Rs.90,000/- to appellant of this appeal. The appellant of this appeal is complainant in the complaint and respondents no.1 to 3 of this appeal are opposite parties no.1 to 3 whereas respondent no.4 of this is appeal is none of the party in the complaint and they be referred as such hereinafter for the sake of convenience.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs no.1 to 3 on the averments that he contacted OP no.2 for applying VISA under Business Category for Canada in June 2014 and relevant information was supplied to him by Manager of OP no.2 Mr. Chirag Kapoor. OP no.1 is head office of Worldwide Immigration Consultancy Services Limited and OP no.3 is the main office of the company. Global Strategic Business Consultancy (hereinafter referred as GSBC) is associate company of OP no.1/WWICS and in cooperation with each other for getting VISA for their customers. There is relationship of consumer and service provider between complainant and OP no.2. OP no.1 is liable for omission and commission of the GSBC non-party in the complaint, being associate company of WWICS. The entire services were offered by OP no.1 on behalf of above GSBC, which is not impleaded as party in the complaint. All documents were provided by complainant to OP no.2, as advised within fixed period. The complainant also intimated OP no.2 regarding rejection of his visa through his spouse and also submitted all the documents regarding rejection of earlier VISA with OP no.2. OP no.2 received Rs.2,02,248/- from the complainant and obtained his signatures on some papers. The agreement was got executed between complainant and OP no.2 on 14.06.2014 and receipt no. 1026141078 dated 25.06.2014 was obtained. OP no.2 also obtained signatures of complainant on another agreement of even date, which was alleged to be executed by above GSBC. The complainant paid 6000 US dollars to OP no.2, who took this money on behalf of above GSBC. Authorized agent Mrs. Pooja and Mrs. Saruchi met with complainant in the month of November 2014, apprising him about the infirmity of his business VISA due to rejection of his earlier VISA, which was applied through his spouse and advised the complainant to withdraw his case. The complainant got no fruitful results from OPs and sought refund of the amount, which was given to OP no.2 for providing services to him for securing business for him. On 13.05.2016, the complainant approached Branch Manager of OP no.2 and submitted written application for refund of Rs.5,60,000/- , which was duly received by OP no.2 and he assured the complainant that his refund is under process. OPs had not refunded the amount of Rs.5,60,000/- to complainant, despite the fact that they were aware of the fact of little success of business VISA of complainant. The complainant has, thus, prayed for refund of the amount of Rs.5,60,000/- with interest @ 18% p.a. from the date of agreement till its realization, besides Rs.1 lac as compensation for mental harassment and Rs.11,000/- as costs of litigation.
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in the written reply by OPs that complainant failed to disclose, that his previous VISA for Canada was rejected by Canadian High Commission on the ground of false/bogus marriage, vide letter dated 03.11.2012. The complainant failed to disclose that he was already interviewed by Canadian High Commission (CHC) in New Delhi on 30.10.2012 with respect to his application for permanent residency in 2012 and it was found by CHC that his marriage was not genuine and he simply got married for sake of getting permanent residency in Canada. The complainant concealed the material facts by not submitting the required documents and non-cooperation by him towards fulfillment of contract of agreement dated 14.06.2014. The case of the complainant for immigration was considered on sticky wicket by OPs, as his earlier application for permanent residence in Canada stood rejected, vide letter dated 03.11.2012. The complainant never submitted the consent letter to enable the OPs to proceed his case further and later on applied for refund of the amount through letter dated 31.01.2015. The complainant retained the services of OPs for entering into contract dated 14.06.2014 with respect to preparation and submission of complainant's documents with M/s Global Strategic Business Consultancy Dubai and to provide professional services with respect to obtaining nomination certificate from British Columbia Provincial Authorities in Canada under British Columbia Nominee Program. The complainant paid the amount of Rs.1,80,000/- (excluding service tax of an amount of Rs.22,248/-) to OPs, vide receipt dated 25.06.2014. Since the complainant concealed the material facts from OPs and as such he is not entitled to any relief. OPs controverted the case of the complainant even on merits on above referred grounds. It was averred that complainant entered into a separate and independent contract with M/s GSBC on 14.06.2014 and paid an amount of Rs.6000 US dollars directly to the said company, vide receipt dated 12.08.2014 towards execution of the said contract. M/s GSBC is a separate and distinct legal entity from OP no.1, hence no liability can be fastened upon OPs to refund the amount of 6000 US dollars or for any act, or omission of M/s GSBC Dubai. The complainant only paid an amount of Rs.1,80,000/- (excluding service tax of Rs.22,248/-) towards execution of contract dated 14.06.2014, whereas the complainant paid another amount of 6000 US dollar directly to M/s GSBC on 14.06.2014 towards execution of the agreement. M/s GSBC is separate and distinct entity from OPs. Rest of the averments were denied by OPs and they prayed for dismissal of the complaint.
4. The complainant tendered in evidence, his affidavit Ex.C-A, along with copies of documents Ex.C-1 to Ex.C-7 and closed the evidence. As against it; OPs tendered in evidence affidavit of Rajiv Bajaj authorized representative of OPs Ex.R-A along with copies of documents Ex.RW-1/1 to Ex.RW-1/8 and closed the evidence. On conclusion of evidence and arguments, the District Forum Ludhiana accepted the complaint of the complainant by virtue of order dated 30.11.2017 against OPs no.1 to 3 in the complaint. Dissatisfied with the order of the District Forum Ludhiana, the complainant now present appellant, carried this appeal against the same.
5. We have heard learned counsel for the parties and have also examined the evidence on the record of the case.
6. The argument of counsel for the appellant is that the amount of Rs.5,60,000/- of Indian currency has been paid to OP no.2, but VISA has not been provided to him despite providing all information by him. He termed deficiency in service on the part of OPs, besides their unfair trade practice. The submission of counsel for appellant is that documents were filled in by employees of OPs and complainant has not visited Dubai to avail the services of GSBC. OPs cannot retain the amount deposited by the complainant through receipts Ex.C-2 and Ex.C-4 for deposit of amount of Rs.6000 US dollar with GSBC. The agreement on the record is Ex.C-1 between the complainant and OPs, wherein retainer fee of Rs.1,80,000/- as charged from the complainant, vide Ex.C-2. There is another agreement vide Ex.C-3 between complainant and GSBC in which the complainant paid 6000 US dollars through Ex.C-4 to it. The complainant seeks refund of 6000 US dollar paid to GSBC because he never visited Dubai for execution of agreement with it. Previous VISA of complainant was rejected on account of alleged fake marriage being his spouse VISA by Canadian High Commission on 03.11.2012 and it was conveyed to complainant, vide Ex.RW1/2. The complainant was, thus, aware of disapproval of his earlier Canadian Visa for permanent residency therein. The complainant has not disclosed this material fact to OPs, while submitting application Ex.RW1/1 and suppressed this material information as per cause of OPs.
7. Perusal of agreement Ex.C-1 makes it clear that services of OPs were retained by complainant with regard to submission of documents to GSBC by preparing them for professional consultancy services for obtaining nomination certificate from British Columbia Provincial Authorities. OPs were to render services to complainant in the program on the basis of information provided by him to get temporary VISA to Canada. The complainant was bound to disclose all the information, as per Clause 2(l) of Ex.C-1. The complainant has not disclosed the rejection of his previous Canadian VISA by Canadian High Commission to OPs and failed to discharge obligation cast upon it. Vide Clause 7 of Ex.C-1 VISA processing fee or any other fee levied by the Provincial Authorities in accordance with the laws of Province of British Columbia is not refundable . The complainant is not entitled to refund of 6000US dollar paid to GSBC as VISA processing fee, vide Ex.C-4 in that regard. GSBC was not even impleaded as a party in the complaint by the complainant and there is categorical version of OPs that it is a separate legal entity from OPs. National Commission has held in "Worldwide Immigration Consultancy Services Limited and another vs. Paramjti Nigah" reported in 2013(2) CPJ 438 that when fee received by entity like WWICS, which is not impleaded then refund of fee received by non-party cannot be ordered. The complainant himself suppressed the fact regarding rejection of his earlier VISA by Canadian Authorities from OPs. Even as per clause 11 of Ex.C-1 there is provision for non-refund of total fee received, vide Clause 1(iv) of Ex.C-1. The amount of Rs.90,000/- is totally non-refundable, in case application for visitor VISA is denied. Taxes paid are not refundable, vide Clause 11(ii) of Ex.C-1. The District Forum partly refunded the amount of Rs.90,000/- to complainant considering equitable circumstances of the case
8. The appellant filed an application for impleading GSBC during the appeal. It has not been impleaded in the complaint, when evidence was led and trial was held. This application has been filed at quite belated stage by the appellant. The appellant was very much aware of this fact that GSBC is a separate legal entity from OPs and law does not come to rescue of sleeping persons. Undoubtedly, as held by Kerala High Court in "Abraham versus Joseph" repo
Please Login To View The Full Judgment!
rted in 2002(3) RCR (Civil) 497 the application for transposing by petitioner, as an appellant cannot be rejected, when filed in an appeal. This is not a case of transposing, but GSBC was not impleaded at all by the complainant in this case. The complainant has separate agreement with GSBC which is a distinct entity from OPs and complainant has separate cause of action against it. It would not be appropriate to plead it at the belated stage of the case in appeal. Otherwise, purpose of summary proceedings for adjudication of the case under Consumer Protection Act, would be defeated. However, the appellant has separate cause of action against GSBC and can avail his remedy against it thereunder. Hence, application of the appellant stands rejected for impleading GSBC as a party at appellate stage. 9. As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed. 10. Arguments in this appeal were heard on 16.07.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules. 11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.