A. Radha : Member
Appellant is the 5th opposite party in C.C.No.242/2011 on the file of CDRF, Ernakulam who preferred this appeal. The complainant is the 1st respondent and respondents 2 to 7 are the opposite parties 1 to 4, 7 and 8.
2. The brief facts of the case are that attracted by the assurances made by opposite parties the complainant contacted the 4th opposite party who directed the complainant to approach the 5th opposite party. The opposite parties claimed that they are the world’s largest global re-settlement solutions company delivering excellence in industrial knowledge, world class infrastructure and comprehensive resettlement package, consisting of immigration, placement and settlement services. The opposite parties are having Offices at Cochin and all over India and also overseas Offices in several countries. The opposite parties assured that its associate’s help clients in getting permanent residence status and assist in settlement and placement. The specific information given to the complainant is that the opposite parties would be providing excellent services to obtain permanent residence and work permit of Denmark under Green Card Scheme. The complainant is a graduate having MSW and is working as Co-ordinator on contract basis. On 2/8/2009 the resume of the complainant was received and the file number was provided as WB-92270. It is stated in the complaint that the 5th opposite party at Cochin Office instructed the complainant to deposit an amount of Rs.55,000/- in advance and to deposit an amount of Rs.20,000/- after one month and the further deposit of 1500 US Dollars and provided a leaflet to the complainant. The complainant remitted Rs.55,000/- on 11/8/2009. As per DD drawn on Andhra Bank and the 5th opposite party issued receipt No.118608 dated 11/8/2009. A check list was provided on remittance of the amount. The complainant prepared all the documents as per check list and duly attested through M/s. Sree Sai Documentation on remitting an amount of Rs.8,000/- and the fee receipt was issued in this regard. Thereafter the complainant had to remit Rs.20,063/- on 29/10/2009 against which the 5th opposite party issued receipt also. On the same day itself an amount of Rs.73,375/- (1500 US Dollars) was also remitted as per the direction of the opposite parties and all the documents were submitted on 30/10/2009. The complainant received the receipt for 1500 US Dollars from the 6th opposite party on 7/11/2009. Intimation was received from 8th opposite party to submit application which was duly filled by opposite party before the Danish Visa Application Centre, Chennai directly. The 8th opposite party again instructed the complainant to remit an amount of Rs.16,427/- before VFS Global Pvt. Ltd., Chennai. Meantime the complainant received a call from Royal Danish Company, New Delhi to attend an interview. As there had no progress in the matter the complainant came to know that several persons had complaints against the opposite parties in the subject matter. On 11/6/2010 the Royal Danish Company, New Delhi informed that the application submitted by the complainant was rejected. An appeal was filed before the Embassy was also rejected. The complainant made repeated enquiries and at last the complainant was called upon to meet at the 5th opposite party’s office and to settle the matter. It has come to the knowledge of the complainant that in order to obtain work permit in Denmark under Green Card Scheme there is no need for service of a third party. The complainant incurred lot of money and the actual total expense came to Rs.1,87,865/-. The complainant had to arrange the money by availing loan and pledging gold ornaments. Though the opposite parties accepted consideration no proper service was provided to the complainant. It is the allegation of the complainant that the opposite parties fraudulently grab money from people giving fraudulent promises. The complaint is filed for get refund of the amount expended ie. Rs.1,87,865/- from the opposite parties and also Rs.1 Lakh towards mental agony and also for Rs.1 Lakh for the deficiency in service. The opposite parties 1 to 8 are jointly and severally liable to compensate the complainant. A petition to delete the 6th opposite party from the party array was allowed by Forum Below.
3. The opposite parties except the 6th opposite party filed joint version contending that the complainant had not impleaded 6th opposite party who is separate legal entity and to whom the complainant had deposited 1500 US Dollars vide receipt dated 7/11/2009. It is contended that the 6th opposite party is a necessary party to the proceedings. The other opposite parties have no connection with regard to the amount of 1500 US Dollars paid by the complainant to the 6th opposite party. It is admitted that the 1st opposite party is a company having branches all over India and 14 International Offices having its registered office at New Delhi and Head Office at Chandigarh. The 1st opposite party company are professionals who have knowledge about the emigration laws and formalities regarding migration to European Countries, Australia, Canada etc. The opposite parties assist the candidates in processing and preparation of emigration file, verify their credentials, supplying with required documents and communicate with the respective authorities and High Commission. It is contended that 100% guarantee of migration will not cover as it is subject to the satisfaction of the authorities in the respective embassies. The migration depends upon educational/technical qualifications, experience and ability of the complainants. The Global Strategic Business Consultancy is one such company providing the facility for the migrants. The application is to be submitted in person at Chennai and it is mandatory as a legal requirement. The complainant had not produced the full extract of the rejection letter issued from the Embassy. The opposite party prepared the draft of appeal to be submitted before the Appellate Authority on behalf of the complainant. The performance of the complainant at the interview is a criterion to be decided by the officials of the Embassy. The professional fees and other amounts were paid to third parties for the preparation of the documents and the opposite parties are not liable as not remitted any money with the opposite parties. The complainant’s case was rejected on the ground that he failed to qualify as per his qualifications and could not succeed the interview. The inability to qualify for the interview cannot be treated as a deficiency on the part of opposite parties. The entire process of migration with regard to Green Card Scheme for Denmark is a lengthy process and it depends upon approval from authorities. The conditions in the contract of engagement are binding on the parties and the complainant had accepted the same. As per clause 10 of the contract it is stated that the services provided by the company being professional in nature the entire fees is non-refundable. The complainant’s case could not be processed not due to deficiency on the part of opposite parties but on the complainant’s failure in the interview and the complainant is not entitled for any refund as regards the retainer fee and professional fee. The complainant suppressed material facts and the complaint is only to be dismissed.4. No oral evidence adduced by both parties. Along with the complaint the complainant produced documents as Exbts. A1 to A26 to substantiate his case.
5. The counsel for the appellant submitted that the appellant is the Branch Manager of 5th opposite party and the company is having branches all over India and 14 International Offices having its registered office at New Delhi Head Office at Chandigarh. It is admitted that the appellant accepted Rs.55,000/- as directed by the 5th respondent/4th opposite party on 07/11/2009. The 1st respondent deposited 1500 US Dollars with the 7th respondent directly of whom the complainant deleted from the party array. The documents were submitted through M/s. Sree Sai Documentation on remitting Rs.8,000/- as per the instruction of appellant/opposite parties. The amount was remitted with them and they duly attested the documentation work and assisted the 1st respondent to submit his application with the Danish Embassy. The amount of Rs.16,427/- remitted before VFS Global Pvt. Ltd., Chennai was directly made and the 1st respondent attended the interview at New Delhi. The respondent failed in the interview and on appeal the complainant was again submitted his papers with the Royal Danish Embassy which also was rejected. It is also argued that the interview is based on the qualification, experience and ability of the candidate and the appellants are not liable or responsible for the performance of the 1st respondent. The counsel also pointed out the amounts remitted towards the VFS Global Pvt. Ltd., was in order to appear for the interview as per the contract and is not refundable. The removal of 6th opposite party from the party array at the request of the complainant before the Forum Below resulted mis-carriage of justice. Exbt: A7 receipt for 1500 US Dollars was issued by Global Strategic Business Consultancy, Dubai. The 1st respondent could not achieve the points fixed by the Danish Embassy and refused the residence permit. The appellants have no role in issuance of the migration and only assistance for preparation was given by the appellant. Hence no deficiency in service can be attributed upon the appellants.
6. The counsel for the respondent submitted that the appellants demanded consideration for the assistance with the malafide intention and mis-led the respondent. It is on the request of the appellant/5th opposite party on behalf of other appellants deposited 1500 US Dollars in their name. The respondent alleges unfair trade practice on the part of the appellants who inspired the respondent with the residence permit. It was not informed while applying the residence permit through the 5th respondent. The amounts were collected in several stages and the respondents were compelled to pay the amount on pressure. It is admitted that the documentation was carried out through another agency who was introduced by the appellant/5th opposite party. The 1st respondent had financial loss, mental agony and it is to be compensated from the appellants. Due to the failure in the interview the respondent requested for refund of the fees remitted which was refused by the appellants. It is an admitted fact that the appellant is having several branches in India as well as in abroad. Hence the appellant could not shirk the liability after accepting the consideration. It is on the direction of the appellant/ 5th opposite party that the respondent paid the whole amount as per instructions. The Danish Embassy rejected the application and the appellant is liable to refund the amount collected from the respondent. It is argued that the appellants gave 100% guarantee of migration while submitting the application. It is also argued that there is no need of third party service for obtaining permanent residence and work permit in Denmark under Green Card Scheme. Mere assistance in submission of the documents was extended by the appellant whereas nothing has been done regarding the documentation or during the interview. Hence the 1st respondent is entitled to get the refund of the whole amount remitted with the appellants.
7. Heard both counsels in detail and had gone through the records. The undisputed facts are that appellants offered immigration, placement and settlement services in Denmark and are having branches all over India and in overseas. It is also an admitted fact that the appellants offered services on accepting money in several stages. It is evident from records that the appellants accepted Rs.55,000/- as per Exbt: A3 as professional charges. The amount of 1500 US Dollars was remitted to the Global Strategic Business Consultancy in Dubai directly of whom the 1st respondents deleted from the party array clearly shows that it amounts to mis-joinder of necessary party. The receipt produced is marked as Exbt: A7 issued by the 6th opposite party. An amount of Rs.8,000/- remitted was for the documentation charges with M/s. Sree Sai Documentation. It is not disputed that the documentation was not carried out by M/s. Sree Sai Documentations. The other remittances were made by the respondent directly. The Bank draft for Rs.8,650/- in favour of Royal Danish Embassy payable at Delhi shows that it is the fees to be remitted for the processing fee required to be paid to the Danish Visa Application Centre. So also verification charges for the dependents are made to the Visa Danish application centre. The amount of 1500 US Dollars paid to the Global Strategic Business Consultancy in Dubai was directly sent by the respondent himself and the appellant/5th opposite party is to be clearly exonerated. The letter issued by Royal Danish Embassy regarding refusal of residence permit states that the applicant has to obtain 100 points according to the executive order on the Green Card Scheme point system. The Danish immigration service had not granted the residence permit to the 1st respondent pursuant to section 9(a)(2)(1) of the Danish Aliens Act. It is mandatory for the person who attends the interview to obtain 100 points. In the case of the complainant he received only 70 points and the 1st respondent was dis-qualified from granting the residence permit. We would like to point out that the candidates had to attend the interview and the interview is based on the points obtained based on the qualification, experience and ability of the party. Nothing could be done by the appellants in the inte
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rview as it is exclusively done by the Danish Embassy. It is pertinent to point out that all the processing work was assisted by the appellants in the case of the respondent. It is also evident from records that the appellants have supported the 1st respondent even in filing appeal for the 2nd time also and the complainant’s application was again rejected. The Forum Below partly allowed the complaint is not sustainable as the complainant himself has not mounted to the box nor he filed proof affidavit in support of his case. Both parties had not filed any proof affidavit. The 1st respondent failed to prove that the opposite parties have not extended the professional service. It is pleaded in the complaint that the respondent accepted the service on remitting the professional fees and the respondent attended the interview. At this juncture the emigration process and the Green Card Scheme is given directly by the Embassy people and the appellants have no role in extending the Green Card. It is purely on the basis of the qualification, experience and ability of the person who is attending the interview which is exclusively done by the Danish Embassy. The performance is accounted in points upto 100 against which the 1st respondent received 70 points only. Hence we find no deficiency in service on the part of the appellants. In the result, appeal is allowed setting-aside the order passed by the Forum Below. The office is directed to send a copy of this order to the Forum Below along with LCR.