Shyamal Gupta, Member
Aggrieved with the decision of the Ld. District Forum, Kolkata – I (North) dated 18-12-2015 taken in respect of complaint case bearing no. 192 of 2013, this Appeal is preferred for setting aside the same.
The dispute between the parties cropped up over non-refund of the sum of Rs. 68,200/- plus US$ 1,600 that the Respondent No. 1 paid to the Appellants.
Parties were heard through their respective Ld. Advocates and documents on record gone through.
It seems, the Respondent No. 1 applied for P.R. Visa before the Canadian High Commission in the year 2004. However, as the Authority concerned did not decide the fate of her case even after 7 long years, feeling dejected, she asked for refund of the entire amount being paid to different authorities through the Appellant.
In this connection, Ld. Advocate appearing on behalf of the Appellants asserted that, processing and granting Visa in favour of an applicant falls within the exclusive domain of the Canadian High Commission and under no circumstances, they could be held liable for the delay occurred in processing the case of the Respondent No. 1.
It was also submitted that the Canadian Immigration Rules underwent major changes in the year 2008 and the Canadian High Commission floated a 38 Priority Occupation List (POL) and 29 POL wherein only those cases were being processed on priority by the Canadian High Commission which were filed on the basis of the 38 and 29 POL. The old cases, as that of the Respondent No. 1, which were filed in the year 2003 onwards were processed at a very slow pace by the Canadian High Commission. Vide Clause No. 7 of the Contract of Engagement; the Respondent No. 1 was informed that the Appellants would not be held responsible for any delay in processing the case due to backlog of cases or any other reason at the Visa Post. Also, this was duly communicated to the Respondent No. 1 vide email dated 06-01-2012.
There can be no manner of doubt that the Canadian High Commission took inordinate time to process the case of the Respondent No. 1. The Respondent No. 1 submitted her PR Visa application in the year 2004. Given that the Canadian High Commission duly intimated the Respondent No. 1 post submission of her Visa application that it would take approx. 33 months to process her case, once the said tentative period got over, had the Appellants swung into action in right earnest soon thereafter, probabilities were ripe that the application of the Respondent No. 1 reached its logical end much before the alleged changes in the Canadian Immigration Rules came into effect.
The Respondent No. 1 opted for the premium services of the Appellants out of her ardent desire that the latter would leave no stone unturned to fulfill her long cherished dream. It is an open secret that professional companies like the Appellants develop good rapport with Consulate Officials of different countries to facilitate early processing of the cases of their clients. There seems no good reason to buy the argument being advanced by the Ld. Advocate for the Appellants that they have got no control over the functioning of the Consulate officials. If that was indeed the case, general public would not rope in the services of companies like the Appellants.
In terms of the agreement executed between the Respondent No. 1 and the Appellants, the latter was committed to ensure speedy achievement of the objectives of the Respondent No. 1. There is, however, nothing on record to show that after the tentative period of 33 months got over, the Appellants even once followed up the case of the Respondent No. 1 with the Canadian High Commission. This is inexplicable.
After taking hefty retainer fees from the Respondent No. 1, it was incumbent on the part of the Appellants to maintain proper liaison with the Canadian High Commission to ensure expeditious disposal of the application of the Respondent No. 1. However, in absence of any material proof to suggest so, we are constrained to hold the Appellants guilty of deficiency in service.
As regards the demand of the Respondent No. 1 for refund of the sum of US$ 1,600 being paid to Global Strategic Business Consultancy Corporation, it seems, the Appellants themselves received the amount on behalf of the said company.
Ld. Advocate for the Appellants could not offer any valid explanation as to why they went overdrive to facilitate inking of agreement between the Respondent No. 1 and M/s Global Strategic Business Consultancy Corporation despite being acutely aware of the snail pace at which PR Visa applications were being handled by the Canadian High Commission in those days. Inking the agreement at such a nascent stage, to our mind, was akin to putting the cart before the horse.
It is true that in terms of the forfeiture clause contained in the agreement executed between the Respondent No. 1 and Global Strategic Business Consultancy Corporation, the former deserved no refund as she herself withdrew her case. That said, we cannot overlook the fact that, thanks to the casual/laid back approach of the Appellants, the visa application of the Respondent No. 1 gathered dust for years together resulting which, the Respondent No. 1 lost all her hope and out of sheer disguise, she applied for closing her case. It being completely a force majeure situation for which the Respondent No. 1 was not responsible in any manner whatsoever and as M/s Global Strategic Business Consultancy Corporation rendered no service at all to the Respondent No. 1, we are of view that the said organization cannot hold back the payment being received by it from the Respondent No. 1 and since everything was done at the behest of the Appellants, they shall have to take requisite steps to facilitate refund of the sum of US$ 1,600 to the Respondent No. 1. In case they fail to secure this amount from the said company, in that case, Appellants shall have
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to shoulder the entire financial burden in this regard. In addition, the Appellants shall also return 75% of the amount of Rs. 68,200/- that they received from the Respondent No. 1 along with litigation cost for a sum of Rs. 20,000/-. In case the entire decreetal sum is not paid to the Respondent No. 1 within 40 days from the date of passing of this order, Appellants shall have to face legal consequences as mandated under the 1986 Act besides payment of simple interest @ 9% p.a. over the aforesaid decreetal sum for the entire period of default. Accordingly, the Appeal stands allowed in part. The impugned order is hereby set aside.