Utpal Kumar Bhattacharya, Member
Being aggrieved with the judgment and order dated 10.08.2017 passed by the Ld. District Forum, Unit—I Kolkata in Complaint Case No. 13/603, the Appellant/OP filed the instant Appeal u/s 15 of the C.P Act, 1986. In the impugned judgment and order, the Ld. District Forum directed the Appellant/OP to refund a sum of Rs. 1,68,540/- only to the Respondent/Complainant along with compensation of Rs. 3,00,000/- for the mental agony and harassment that the Respondent/Complainant had to suffer from due to the allegedly unlawful trade, practice resorted to by the Appellant/OP and litigation cost of Rs.10,000/-.
The impugned order was directed to be complied with by the Appellant/OP within 30 days from the date on which it was passed, failing which, as ordered, interest @ 10% p.a. should accrue to the entire sum due to the credit of the Complainant till full realization.
Briefly stated, the fact having relevance with the instant complaint was that the Appellant/OP No. 1 Company, the World’s highest immigration group, claimed to be having legacy of excellence in delivering comprehensive re-settlement package consisting of immigration, placement and settlement services providing job from foreign employers to the aspiring candidates, convinced the Respondent/Complainant of a guaranteed delivery of complete service once the Respondent/Complainant entered into an Agreement with the Appellants/OPs to that effect.
A convinced Respondent/Complainant, with a view to availing himself of the immigration services, contacted the office of the Respondent/OP No. 1 expressing his interest to that effect. He was made to understand that the Appellants/OPs would entertain his proposal only after examining his eligibility for the proposed immigration. The visa, as explained, would be finally arranged only after availing an employment offer. The Respondent/Complainant was informed that Canada would be the best suited country considering his knowledge and experience and for processing his proposal, he was to pay a service charge termed as retention fee for an amount of Rs. 1,50,000/- excluding service taxes. The Respondent/Complainant was provided with a flow chart detailing therein the phase wise steps of actions to be taken by the Appellant/OP for processing the proposal. Since the day the Respondent/Complainant got himself introduced with the Appellant/OP office, the Appellants/OPs started creating pressure on the Respondent/Complainant through constant telephone calls without even his eligibility being properly assessed and his bio-data evaluated. The Appellants/OPs, with the intention to make the condition of the Respondent/Complainant more critical not allowing him the least breathing space to take a vital decision of life, kept on putting pressure on the Respondent/Complainant for making immediate payment as, what was informed, any delay might enhance charges to be paid for the purpose.
The Respondent/Complainant, as alleged, in a created compelling circumstance, had to enter into an Agreement putting an amount of Rs. 1,68,540/- through HDFC Banker’s cheque No. 091777 dated 26.09.2012.
As alleged, the Appellants/OPs preferred to remain silent about the fate of the proposal after the payment was made. The Respondent/Complainant’s visit to the office of the Appellant/OP No. 1 could not even enable him to get the update of his proposal. What was more, the Appellants/OPs demanded from the Respondent/Complainant a further payment of USD 5,500, being the second stage payment, which was not disclosed earlier, nor even did it figure in the flow chart of the Appellants/OPs at that point of time.
The Respondent/Complainant was shocked to know that the above mentioned amount for the second stage was demanded within a period of seven days since the date of first payment was made when the fact remained that the second payment was scheduled to be made at the time of job offer which was likely to take at least 6 to 8 months time. The Respondent/Complainant in or about April, 2017 received information from the Appellants/OPs that he did not qualify in the category of the skill criteria published by the Canadian High Commission, the reason of it, however, as alleged, was never divulged to the Respondent/Complainant. The Respondent/Complainant, being disappointed with the activities of the Appellants/OPs, demanded refund of his money from them which was responded to by the Appellants/OPs through an email dated 06.05.2013 where they agreed to repay an amount of Rs. 50,000/- only. They, however, agreed subsequently to pay a further refund of Rs. 50,000/- only. The Respondent/Complainant got humiliated and sustained a severe mental agony when the Appellants/OPs even dared to ignore the legal notice for refund of the entire amount, initiated at the instance of the Respondent/Complainant on his behalf.
Finding no other alternative, the Respondent/Complainant filed the Complaint Case before the Ld. District Forum. Impugned judgment and order originated from the said complaint case.
Heard Ld. Advocates appearing on behalf of both sides.
Ld. Advocate appearing on behalf of the Appellants/OPs submitted that the Respondent/Complainant had withdrawn himself voluntarily from the contract after signing the Agreement rendering themselves not eligible to any refund as per provisions of Clauses 10—A (i)(2) of the contract.
As submitted further, they had entered into a separate contract with one M/S Global strategic Business Consultancy, Dubai with whom the Respondent/Complainant had entered into a separate contract of engagement signing the contract form himself but refused to pay them the contractual amount of Rs. 5,500 USD.
The Ld. Advocate continued to submit that the Respondent/Complainant changed his mind for obtaining job offer in Nova Scotia Immigrant Programme and thereafter, tried to wriggle out of the contract after learning about the process he was to be gone through without submitting the documents he was supposed to supply mandatorily for the proposal to be processed.
As submitted, the Respondent/Complainant, by filing the complaint case, had tried to apply pressure tactics for deriving the full refund which, as per policy terms, he was never entitled to. Still, as he continued, the Appellants/OPs out of their goodwill gesture, offered the Respondent/Complainant a repayment of Rs. 1,00,000/- which the Respondent/Complainant refused to accept and filed the complaint case.
As he continued, the permanent immigration was a subject purely within the domain of the Canadian High Commission. The rejection of immigration proposal was, as he submitted, not supposed to be intervened or modified by any immigration consultant.
Ld. Advocate, with the submission as above, prayed for allowing the Appeal setting aside the impugned judgment and order.
Ld. Advocate appearing on behalf of the Respondent/Complainant, per contra, after describing, in brief, the issue in the lines of the complaint petition, submitted that the Appellants/OPs were vocal about non-submission of the documents for processing his case but he could not file even a piece of paper wherefrom it would come apparent that the Respondent/Complainant was ever informed through any kind of communication from them about the documents, in specific, what the Respondent/Complainant was needed to supply.
The Ld. Advocate informed the Bench that the repeated persuasions of the Respondent/Complainant for having information about the documents, in specific, that he needed to furnish, had fallen in deaf ears of the Appellants/OPs.
As regards their demand for an amount of Rs. 5,500 USD for their performance in second stage, the Ld. Advocate submitted the Agreement at running page 68 was almost a replica of the first one which the Appellants/OPs had very cleverly got signed in blank by the Respondent/Complainant without letting him know the purpose of the same. As submitted, it was explained to them on subsequent query that the second Agreement was with another company at Dubai which was supposed to provide the Respondent/Complainant with post landing services in Canada. As he continued, it was peculiar that the Appellants/OPs preferred a premature claim for post landing services when their preliminary services were yet to take any shape. This, as observed by them, was an indication of their unlawful trade practice for grabbing money from their poor customers.
Ld. Advocate, with his submission as above, prayed for the Appeal to be dismissed setting aside the impugned judgment and order.
Perused the papers on record. Considered submissions of the Ld. Advocates appearing on behalf of both sides.
The record revealed that the Respondent/Complainant paid an amount of Rs. 1,68,540/- in advance as retention fee after signing the Agreement. It further appeared that the second Agreement with a separate company was also signed by him. We have plethora of decisions where the Hon’ble Apex Court observed that the parties were bound by the terms and Agreement and any deviation from the same by the participating sides would amount to a breach of condition, not acceptable in the eye of law. In this context, we may rely upon the observation of the Hon’ble Apex Court in Civil Appeal No. 9057 of 1996, decided on May 9, 1996 [Bharathi Knitting Company—Vs—DHL Worldwide Express Courier Division of Airfreight Limited] wherein the Hon’ble Apex Court observed, “when a person signs a document which contains certain contractual terms, normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. Although in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy, but each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the tribunal has to refer the parties to original civil court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract.”
In view of the above, the Respondent/Complainant’s ignorance about the execution of the second Agreement, as pleaded by his Ld. Advocate at the time of hearing of the Appeal, seemed to be idle and devoid of any merit.
We, however, are not at one with the argument made by the Ld. Advocate of the Appellants/OPs about the innocence of his client as was pleaded by him at the time of hearing of the Appeal. The Respondent/Complainant’s claim of not being provided with the list of the documents to be supplied to him by the Appellants/OPs in spite of repeated demand went uncontroverted leaving reasons for considering the ingredients of truth in the said claim. Our observation became firmer as the record was found to be devoid of any communication from the Appellants/OPs seeking from the Respondent/Complainant the documents they desired to be submitted by the Respondent/Complainant. This helped the Bench arrive at a conclusion that the Respondent/Complainant was not sufficiently explained about the documents he needed to supply for processing the proposal which he should have been well explained by the Appellants/OPs before execution of Agreement was taken place so as to realize how far he was capable of procuring the subject documents. This was of more relevance with the issue in view of the fact that the eligibility criteria of the Respondent/Complainant was assessed by the Appellants/OPs before sending the proposal to immigration office, Canada. Running page 34, being the part of the flow chart supplied by the Appellant/OP Company revealed that there was a provision for payment of 5,500/- USD after the job offer was given to the aspirer. That meant it was a post landing payment as claimed by the Respondent/Complainant. The demand of the premature payment when the very immigration proposal came out unsuccessful, appeared to be surprising and inexplicable.
The Appellants/OPs themselves had realized their activities to be out of proportion when they accepted the demand of refund to th
Please Login To View The Full Judgment!
e tune of Rs. 1,00,000/- out of total amount of Rs.1,68,934/- paid by the Respondent/Complainant. In consideration of the facts and circumstances narrated above, we are of the view that there was contributory negligence of both sides on the instant occasion when the negligence of the Appellant/OP outweighed that of the Respondent/Complainant. Going by the provision laid down under Clause 9 at running page 59, we feel it wise that a refund order for an amount of Rs. 1,26,405/-, after deducting 25% from the paid amount of Rs. 1,68,540/-, to be passed for payment to the Respondent/Complainant together with reasonable amount of cost and compensation. Hence, Ordered that the Appeal be and same stands allowed in part. The Appellants/OPs are hereby directed to pay to the Respondent/Complainant an amount of Rs. 1,26,405/- as refund. They are further directed to pay to the Respondent/Complainant a litigation cost and compensation for the amounts of Rs. 5,000/- and Rs. 15,000/- respectively. Entire order has to be carried out within 45 days from the date of the instant order failing which, simple interest @ 9% p.a. shall accrue to Rs.1,41,405/-, being the total of the refund amount and compensation, from the date of default till the entire decretal amount is fully realized. Impugned judgment and order stands modified accordingly.