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Worldwide Immigration Consultancy Services Ltd. & Others v/s Kulbir Singh Bajwa

    Revision Petition No. 1324 of 2015
    Decided On, 05 July 2017
    At, National Consumer Disputes Redressal Commission NCDRC
    For the Petitioners: Sunil Goyal, Deepak, Advocates. For the Respondent: Rajat Sharma, Advocate.

Judgment Text
This revision petition has been filed by the Petitioner, Worldwide Immigration Consultancy Services Ltd against the order dated 23.2.2015 by the State Consumer Disputes Redressal Commission, Punjab (for short, State Commission) passed in F.A. No.1210/2011.

2. Brief facts of the case that are relevant for disposal of this revision petition are that the complainant/respondent availed services of OPs to get permanent residents immigration to Canada as agriculturist investor. The complainant paid all the due amounts as asked by the OPs. He paid Rs.40,000/- to OP-1 and US $ 2200 to OP-2 alongwith some other payments. The Canadian High Commission interviewed the complainant but his PR Visa application was rejected. After getting to know the dismissal of his application, the complainant sought refund of the refundable amount from the OPs but they did not properly respond. Then complainant filed consumer complaint No.644 of 2010 with the District Consumer Disputes Redressal Forum, Jalandhar. The complaint was resisted by the OPs by filing an application under Section 24(a) of the Consumer Protection Act, 1986 mentioning that the consumer complaint was barred by limitation. The District Forum after hearing the submissions of both the parties dismissed the complaint vide order dated 11.7.2011.

3. The complainant then preferred appeal bearing No.1210/2011 before the State Commission and the State Commission vide its order dated 23.2.2015 allowed the appeal partly which reads as under:

'In the light of above discussion, we set aside the order of the District Forum dated 11.7.2011 holding the complaint to be within time and remit this case to the District Forum, Jalandhar for its adjudication on its merits after recording the evidence of the parties, as permitted by the Act. The parties are directed to appear before District Forum, Jalandhar on 10.04.2015. Record be sent back to the District Forum, Jalandhar, so as to reach there well before the date fixed.'

4. Hence, the present revision petition.

5. Heard the learned counsel for both the parties and perused the record.

6. The learned counsel for the petitioners argued that the application for PR Visa was dismissed on 25.9.2008 and the same was communicated by the OPs to the complainant vide letter dated 3.10.2008 which was received by the complainant on 4.10.2008. By way of precaution another intimation was sent on 6.10.2008 which must have been received within 2-3 days of its dispatch. The complaint has been filed on 18.10.2010. Thus, the complaint has been filed after two years of cause of action and the same is clearly barred by limitation. It is on this basis that the District Forum after critically examining all the facts dismissed the complaint. However, the State Commission has given finding that the complaint is in time. As no application for condonation of delay has been filed, so there is no question of condoning any delay. The State Commission has given finding that the complainant came to know of rejection of his application only in December,2008 though no clear date is given in the order of the State Commission or in the complaint. Thus, State Commission has accepted the averment of the complainant as given in the complaint. It is totally false as the complainant has signed on the receipt of the delivery of the letter dated 3.10.2008. The State Commission has clearly overlooked the direct evidence available in the matter. The order of the State Commission is liable to be set aside.

7. On the other hand, the learned counsel for the complainant/respondent stated that the State Commission has given a clear finding that the letter dated 3.10.2008 and 6.10.2008 were not received by the complainant. It has also been held that the acknowledgement receipt alleging the signature of the complainant has not been filed. The complainant has clearly stated in the complaint that he contacted the OP only in December, 2008 to know the result of his Visa application because sufficient time had lapsed after the interview. When the complainant came to know of rejection of visa application in December, 2008, he was continuously pursuing with the OPs for refund of the refundable amount. When the complainant did not hear anything from the OPs even till 20.9.2010 he filed complaint on 18.10.2010. Thus, the cause of action actually arose when the OPs did not take any action for refund of the refundable amount to the complainant. Even the information of rejection of visa application was given to the complainant only in December, 2008. Hence, the State Commission has rightly held that the complaint is in time.

8. I have carefully gone through the material on record and have given a thoughtful consideration of the arguments advanced by learned counsel for both the parties. The learned State Commission in its impugned order has observed as under:

'Hence the submission of the OPs is that complainant signed on the proof of delivery POD No.714174366 regarding receipt of letter through Pafex Courier Service. Annexure R-3 has been addressed to the complainant, but it nowhere indicates that it was received by the complainant on the dates, as alleged by the OPs. No such courier receipt signed by the complainant has been brought to our notice on the record by the OPs. On the other hand, there is categorical stand of the complainant in his affidavit on the record that his rejection letter was not conveyed to him nor he received it. That he has not heard anything from the OPs till 20.09.2010. At the most, we can hold as per the pleadings of the parties and the affidavits that in absence of courier receipt, no such knowledge on the above dates can be attributed to the complainant. Consequently, in the absence of any courier receipt having been duly signed by the complainant as alleged by the OPs, it is difficult to hold that complainant got the actual knowledge of this rejection letter on 06.10.2008, as alleged by the OPs. There is no proof of these letters having been delivered to the complainant on the above dates, as per the pleadings of the OPs. Consequently, we hold that the complaint has been filed within a period of two years by the complainant from the date of his knowledge of rejection of PR application from the OPs on December 2008

9. From the above observation of the State Commission, it clearly comes out that the alleged receipt of delivery by the complainant was not placed on record and therefore, the State Commission was right in holding that there was no proof of delivery for the letters dated 3.10.2008 and 6.10.2008. Accordingly, the State Commission believed the version of the complainant that he received the information of rejection of his Visa application only in December, 2008. In my view, the main question here is to see what constitutes the cause of action in the present case. Clearly the cause of action is not the rejection of visa application because this cause of action could be relevant only if deficiency was alleged against the Canadian High Commission. In the complaint the deficiency has been alleged against the OPs who have taken money for consultancy and to facilitate arrangement of visa for the complainant. The complainant is praying for refund of the refundable amount in his complaint and the cause of action for this prayer would be rejection or denial of refund request or non-response by the OPs in this regard. The OPs have themselves not given any date for the request of complainant asking for the refund. However, the complainant has clearly stated that after he came to know about rejec

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tion of visa application, he requested OPs to refund the refundable amount. However, OPs tried to persuade him to apply for the visa again but the complainant refused the same and insisted for his refund of the amount paid. Looking from this point of view, the complaint has been filed within two years from the date of cause of action which continued from December, 2008 till filing of the complaint. 10. Based on the above discussion, I do not find any illegality or material irregularity or jurisdictional error in the impugned order of the State Commission which calls for any interference from this Commission. Accordingly, the RP No.1324 of 2015 is dismissed with no order as to costs. 11. Parties to appear before the District Forum on 08.08.2017 in pursuance to the order dated 23.2.2015 passed by the State Commission.