Destiny Overseas Private Limited v Davender Prashad Singh S/o Dwarika Prashad and another

National Consumer Disputes Redressal Commission

DELHI BENCH

28 May 2013

Revision Petition No. 2182 of 2012 with I. A. No.01 of 2012

The Judgment was delivered by : V. B. Gupta (Presiding Member)

1. Present revision petition has been filed u/s. 21(b) of Consumer Protection Act, 1986 (for short, ‘Act’) by the petitioner/O.P. No.1 challenging impugned order dated 18.1.2012, passed by the State Consumer Disputes Redressal Commission, Chandigarh UT (for short, ‘State Commission’), dismissing First Appeal No.361 of 2011 and confirming order dated 14.11.2011, passed by District Consumer Disputes Redressal Forum- II, Chandigarh UT (for short, ‘District Forum’) in Consumer Complaint No.98 of 2011.

2. The facts in brief are that respondent no.1/complainant was persuaded by respondent no.2/opposite party no.2, an authorized representative of petitioner and was offered immigration to Australia. Respondent no.1 was convinced that petitioner would arrange a suitable employer from Australia, to facilitate respondent no.1 and his family for Australian Immigration, without the requirement of passing ILETS. In consideration of the said services, Australian Dollars 10,000 as service charges and Rs.15,000/- for assessment fee alongwith Australian Dollars 300, in favour of “Recognition Australian” were also demanded by respondent no.2 for finding a suitable nomination/sponsor in Australia, for respondent no.1. After receipt of a sum of Rs.15,000/-, petitioner and respondent no.2, issued receipt No.0179 dated 9.8.2006. Australian Dollars to the extent of 300 were paid by respondent no.1, through demand draft, dated 30.10.2006, and receipt was issued. Respondent no.1 also deposited Rs.3,50,000/-, with respondent No.2, under acknowledgement dated 19.12.2006. Further, respondent no.1 furnished all the requisite documents. Thereafter, respondent no.1 made repeated visits to the petitioner and respondent no.2, to know the status of his case. In the meanwhile, for the purpose of visa processing, a medical report was demanded by petitioner and respondent no.2 which he submitted vide receipt Nos.2270 and 2910 dated 11.12.2008. It was further stated that respondent no.1 had to incur approximately Rs.3,500/- for the said test. However, ultimately respondent No.2, left the service of petitioner and started his own concern under the name and style of “ONTINA EDUCATION CONSULTANT”, 21E, ESTATE at Ambala Cantt. Haryana. When no response was given by petitioner and respondent no.2 with regard to the status of the immigration of respondent no.1, left with no other alternative, a legal notice dated 13.12.2010 was served by the respondent no.1, upon them. But no reply to the same was received by him. It was further stated that the aforesaid acts of the petitioner and respondent no.2, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the respondent no.1, was not redressed, left with no alternative, a complaint u/s. 12 of the Act for refund of Rs.3,78,300/- alongwith interest @15% per annum; Rs.50,000/-, on account of mental agony and physical harassment; and Rs.20,000/- against miscellaneous expenses, was filed.

3. Petitioner was duly served, but none put in appearance, on its behalf. As a result whereof it was proceeded against ex parte, vide order dated 26.4.2011.

4. Respondent no.2 put in appearance and filed its written version, wherein, he stated that he was an employee of petitioner at the relevant time. It was further stated that Dr. V. Mattu was the Managing Director of petitioner, at the relevant time. It was admitted that respondent No.2, obtained the amount referred to in the complaint, from the respondent no.1. It was further stated that the same was deposited, in the account of petitioner. It was further stated that crucial document i.e. IELTS, which was the condition precedent, for getting sponsorship of an employer from Australia, was not submitted by respondent no.1 and the remaining documents submitted by respondent no.1, were of no use. It was further stated that respondent no.2, was no longer an employee of petitioner. It was denied that respondent No.2, was in any way, deficient in rendering service, or indulged into unfair trade practice.

5. Later on, none appeared even on behalf of respondent No.2.

6. After hearing the Counsel for respondent no.1 and on going through the evidence, and record of the case, District Forum, accepted the complaint.

7. Being aggrieved, petitioner filed an appeal before the State Commission which was dismissed at the preliminary stage itself.

8. Hence, this revision.

9. We have heard the learned counsel for the petitioner and gone through the record.

10. It has been contended by learned counsel for the petitioner that petitioner did not receive any notice from the District Forum with regard to the complaint and as such District Forum has wrongly decided the complaint ex parte against the petitioner. Further, it is contended that there is nothing on record to show that respondent no.2 was an employee of the petitioner company or he ever paid the amount to the petitioner, received by him from respondent no.1. In fact, it is respondent no.2 who has cheated the petitioner by using the name of petitioner company.

11. District Forum while allowing the complaint in its order held;

“2. On being properly served, O.P. No.1 failed to make an appearance and hence, was proceeded against ex parte vide Order dated 26.4.2011. Whereas, O.P. No.2 has contested the claim of the C.C. and has filed its version wherein has raised a preliminary objection to the fact that he only being the employee of O.P. No.1 and O.P. No.1 being a shareholder in the accompany and one of the Board of Directors as well as the Managing Director of O.P. No.1 a registered company established under Companies Act, 1956. Hence, the main grievance of the C.C. being against O.P. No.1, O.P. No.2 claims the dismissal of the present complaint against himself.”

On merits, O.P. No.2 has admitted to the facts of para 1 of the present complaint but however, has denied himself being the authorized representative of O.P. No.1 as of today. However, the fact that O.P. No.2 was the employee of O.P. No.1 is admitted and hence cannot be held vicariously liable for the Acts of O.P. No.1.

District Forum further observed;

“(ii) The allegations of the C.C. as per his complaint go unrebutted against O.P.-1 who happens to be the principal company with whom the C.C. had deposited the money and had engaged to render services for immigration to Australia. Though O.P.-2 who has appeared in the present complaint has denied any deficiency on his own part, but, however, has proved the case of the C.C. by admitting that he had received money from the C.C. on behalf of O.P.-1 and O.P.-2 has claimed that he was an employee of O.P.-1 and all the services demanded by the C.C. were to be provided by O.P.-1 and not O.P.-2 in his personal capacity. It is also mentioned that O.P.-2 is no more in the employment of O.P.-1 and in no manner liable for the claim of the C.C.

(iii) In the present circumstances we believe that the principal of vicarious liability is unidirectional i.e. the company can be held liable for all the Acts of omission & commission of its employees and not vice-versa i.e. to say the employees of the company cannot be held liable in their personal capacity for the Acts of the company. In the present circumstances, we feel as the money has been deposited in the account of the O.P.-1 by O.P.-2 and even the certificate (Annexure C-3) wherein it is clearly mentioned that the amount of Rs.3,50,000/- is refundable if the organization is unable to get a suitable employer from Australia to sponsor the C.C. for Employer Nomination Scheme, proves the bonafides credentials of O.P.-2 who has acted true to his responsibilities.

(iv) As O.P.-2 is no more in the employment of O.P.-1, he is also unable to explain the reason with regard to the qualification of waiver of IELTS examination for the C.C. to qualify for immigration to Australia as of today. This fact can only be proved from the record of O.P.-1, who has failed to appear and contest the claim of the C.C., though properly served. In the light of the above observations, we feel that the main grievance of the C.C. is against O.P.-1 and it is only O.P.-1 who needs to be held liable for deficiency in service as per the allegations of the C.C.

5. Hence, in the light of above facts, the present complaint is allowed against O.P.-1 and O.P.-1 is directed to refund Rs.3,78,300/- and pay interest @ 9% p.a. from the different dates of deposit of different amounts. O.P.-1 is further saddled with Rs.7,000/- as litigation costs.

6. The above order shall be complied within 30 days of its receipt; thereafter O.P.-1 shall be liable for an interest @ 18% per annum on the aforesaid amount, except for litigation expenses.”

12. The State Commission while dismissing the appeal at the preliminary stage itself, in the impugned order observed;

11. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. Opposite Party No.2/respondent No.2, in his written version, in clear-cut terms submitted, that he was an employee of the appellant/Opposite Party No.1 and, in that capacity, he collected the amount, mentioned, in the complaint, by the complainant, for his immigration to Australia. He also admitted, in the written version, that the amount, so collected from the complainant, was deposited, in the account of the appellant/Opposite Party No.1. Alongwith the appeal, an application Annexure A-2, dated 14.08.2008, was filed by the appellant. This application was addressed by Opposite Party No.1/appellant to the SHO Police Station, Sector 3, U.T., Chandigarh. Para 3 of this document reads as under:-

“That this job was assigned by the company to Satinder Singh Soni and he was looking after all the affairs of the Company at Chandigarh office and was collecting money and other papers from the students and all the job for processing all the paper work was done by the accused and the accused has to deposit all the amount in the account of Destiny Overseas Pvt. Ltd. His benefit will be taken from the company profits and used to get his salary from the income of the company including other company expenditure. Even many times Corporate Office has also sent money for meeting some urgent office expenditure based on the request of the accused, without aware of his scam with company account” .

12. From the afore- extracted para 3, of Annexure A-2, it is proved, that Opposite party No.2, was looking after the affairs of the Company, at Chandigarh Office, and was collecting money, and other papers, from the students. He was also doing the job of processing and other paper work. It is further evident from this document, that he was to deposit the amount, so collected, in the account of the Company. So the submission of the Counsel for the appellant, to the effect, that Opposite Party No.2, was never authorized to collect the money, but was only given the responsibility, to look after the office space, where it wanted to open its office, is belied from document Annexure A-2, referred to above. In case, after collecting the money from the complainant, Opposite Party No.2 did not allegedly, deposit the same, in the account of Opposite Party No.1, then this is a dispute, between them, but the third party, i.e. the complainant, could not be made to suffer, for their act and conduct. From Annexure C-3, the certificate, dated 19.12.2006, it is evident that an amount of Rs.3,50,000/-, equivalent to 10000 Australian dollars, was deposited by the complainant, as the initial deposit for his visa processing under employer nomination scheme. This document was issued by Satinder Singh Soni, Opposite Party No.2/respondent No.2. When Opposite Party No.1/appellant, was unable to arrange Australian immigration for the complainant and his family members, for, whatever the reason may be, then, it was its duty to refund the entire amount of Rs.3,78,300/-, deposited by the complainant, with Opposite Party No.2, its employee. Opposite Party No.1, did not refund the amount of Rs.3,78,300/-, which was deposited by the complainant, despite the fact that it did not render the requisite service to him. Opposite Party No.1, thus, could, certainly be said to be deficient, in rendering service. The complainant, was, thus, entitled to the refund of amount with interest. The District Forum, was right in holding so. The findings of the District Forum, being correct, are affirmed.

13. Case of petitioner in this revision is that, it was not served with any notice regarding the case pending before the District Forum and order was passed by the District Forum without providing an opportunity. It is also the case of the petitioner that it received the copy of order dated 14.11.2011 passed by the District Forum on 24.11.2011 and thereafter had filed appeal before the State Commission within the period of limitation. Other ground taken by petitioner is that respondent no.2 was not its employee. Simultaneously, petitioner has also taken this plea in the revision, that respondent no.2 has cheated the petitioner by using the name of petitioner company and petitioner has already filed complaint against respondent no.2 in the year 2008 and office of the petitioner was also closed after that. Thus, petitioner company cannot be held liable for anything done by respondent no.2 in an illegal manner without the consent and authority of the petitioner.

14. Thus, this plea of the petitioner that respondent no.2 was never its employee is against its own case. Petitioner itself has placed on record copy of complaint dated 14.8.2008 it made to the S.H.O., Police Station Sector-3, UT Chandigarh (Pages 37 to 42 of the paper book). Para 3 of the complaint is reproduced as under;

“That this job was assigned by the company to Satinder Singh Soni and he was looking after all the affairs of the company at Chandigarh office and was collecting money and other papers from the students and all the job for processing all the paper work was done by the accused and the accused has to deposit all the amount in the account of Destiny Overseas Pvt. Ltd. His benefit will be taken from the company profits and used to get his salary from the income of the company including other company expenditure. Even many times corporate office has also sent money for meeting some urgent office expenditure based on the request of the accused, without aware of his scam with company account.”

15. Hence, this defence taken by the petitioner, that respondent no.2 was never its employee falls to the ground.

16. Present revision petition has been filed u/s. 21(b) of the Act. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.

17. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 2011 Indlaw SC 207 has observed ;

“Also, it is to be noted that the revisional powers of the National Commission are derived from S. 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under S. 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

18. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power u/s. 21 (b) of the Act, since, two fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

19. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras. Time and again Courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands.

20. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioner for dragging the respondent no.1 upto this fora when petitioner had no case at all. It is not that every order passed by the judicial fora is to be challenged by the litigants even if the same are based on sound reasonings.

21. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904 2003 Indlaw SC 855, Apex Court observed ;

“Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system.”

22. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors 2011 Indlaw SC 411., Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;

“45. We are clearly of the view that unless we ensure that wrong -doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.”

23. In our opinion, the present petition is nothing but a gross abuse of process of law and same is totally frivolous and bogus one, which is required to be dismissed with punitive costs.

24. Accordingly, we dismiss the present petition with cost of Rs.25,000/- (Rupees Twenty Five Thousand only). Out of this cost, Rs.15,000/- (Rupees Fifteen Thousand only) be paid to respondent no.1 by way of demand draft and remaining cost of Rs.10,000/- (Rupees Ten Thousand only) be deposited by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission. Cost be paid/deposited within eight weeks from today.

25. In case, petitioner fails to pay/deposit the aforesaid costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

26. Pending application stand dismissed.

27. List for compliance on 2.8.2013.

Petition dismissed