Consumer Complaint No



1017 of 2009

Date of Institution

21.07.2009

Date of Decision

16.12.2009

Rakesh Kumar son of Jagan Nath, R/o H.No.B-III/453, Jandanwala Road, Barnala.

….…Complainant

V E R S U S

Ashok Bhardwaj, Advocate, Punjab & Haryana High Court, Office-cum-Resident 520, Hallo Majra, U.T., Chandigarh, Second Office at P & H High Court, New Bar Room No.11

..…Opposite Party
CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

SH.SIDDHESHWAR SHARMA MEMBER

DR.(MRS) MADHU BEHL MEMBER



Argued by Complainant in person.

Sh.Ashok Sharma Nabhewala, Adv. for OP



PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

Briefly put, the complainant engaged OP for filing an Appeal in the Hon’ble Punjab & Haryana High Court against the order dated 23.5.2007 passed by the Disciplinary Committee of Bar Council of India against Sh.Ravinder Kumar Gargi, Advocate, Civil Courts Barnala, District Sangrur and paid Rs.15,000/- as counsel fee against receipt and Rs.2000/- was paid for miscellaneous charges. The OP got the signature of complainant on some blank papers for filing the appeal. After that, OP told him that the appeal has been filed in the Hon’ble High Court at Chandigarh. Thereafter, the complainant used to visit the OP many times to enquire about the out come of the appeal and every time he assured that the decision would arrive soon. However, the complainant was shocked & surprised on coming to know that the OP did not file any appeal against Ravinder Kumar Gargi, Advocate. Therefore, the present complaint has been filed alleging the above act of OP as gross deficiency in service and adopting unfair trade practice, due to which the complainant suffered great mental tension, physical harassment and financial loss.

2] OP filed reply and admitted that he was engaged by the complainant for filing the appeal, as alleged and received Rs.15,000/- as counsel fee. However, it is stated that three briefs were handed over to the OP at Chandigarh and the OP after examining the papers of all the briefs, came to the conclusion that cases pertaining to Sh.Pritpal Singh, Advocate & Sh.Rakesh Kumar Vs. Ravinder Kumar Gargi, Advocate, could not be filed, consequently, on 2.6.2007, when the OP visited the chamber of Sh.Anurag Chopra at District Court, Sangrur, the complainant was called and in the presence of Sh.Anurag Chopra returned the papers of two cases i.e. (i) Rakesh Kumar Vs. Ravinder Kumar Gargi, Advocate & (ii) Pritpal Singh, Adv. (since deceased). Then as per the settlement with the complainant, the fee of Rs.15,000/- was charged for filing the case on his behalf in the Hon’ble Supreme Court against the order dated 21.11.2006 in Crl.Misc.No.73056/2007, which fact has been concealed by the complainant. In fact the OP agreed and charged for filing Special Leave Petition in the Hon’ble Supreme Court of India on behalf of complainant and there was no other settlement as has been pointed out by the complainant. It is also stated that the S.L.P. was filed by the OP through his counsel Sh.Narinder Yadav, Advocate and Sh.Mushtaq Ahmed, Advocate on record and the Hon’ble Supreme Court after hearing the matter dismissed the S.L.P. vide Ann.R-1. It is further stated that since the complainant has lost the case in the Hon’ble Supreme Court of India for which OP was engaged and paid Rs.15,000/-, he concocted a cock and bull story and has filed this false complainant against him in order to exploit and extract money from him. Rest of the allegations have been denied and it is prayed that the complaint be dismissed.

3] Parties led evidence in support of their contentions.

4] We have heard the complainant, ld. Counsel for the OP and have also perused the record, including the written arguments.

5] The first argument of the ld. Counsel for the OP is that the lawyers are not amenable to the jurisdiction of the Consumer Fora. In support of his contention he referred to an interim order dated 17.7.2009 passed by the Hon’ble State Commission, UT, Chandigarh in an appeal filed by Suraj Mal Bhatia against Sunil Kumar, and another interim order dated 13.4.2009 passed by the Hon’ble Supreme Court in the SLP staying the order dated 6.8.2007 passed by the Hon’ble National Commission against the lawyer directing him to pay compensation for the deficiency in service. It may be mentioned that none of these orders have held if the lawyers are beyond the jurisdiction of the Consumer Fora. In case Suraj Mal Bhatia Vs. Sunil Kumar, Appeal No.331 of 2009, the appeal has been filed by an advocate against an order passed by the District Consumer Forum to pay compensation for deficiency in service. While entertaining the appeal this interim order dated 17.7.2009 was passed by the Hon’ble State commission staying the operation of the impugned order. Even the complainant/ respondent had not so far been summoned in that appeal and the question of setting aside the order passed by the Consumer Forum or holding the lawyers beyond the jurisdiction of Consumer Fora, therefore, did not arise. The other order dated 13.4.2009 was passed by the Hon’ble Supreme Court of India in which also the order passed by the Hon’ble National Commission was stayed. In none of these cases final orders have yet been passed either by the Hon’ble State Commission or the Hon’ble Supreme Court excluding the lawyers from the jurisdiction of the Consumer Fora. This argument of the learned counsel, therefore, cannot sustain.

6] The complainant has referred to the case of P. Subbalakashmi and Ors. Vs. S.V. Jagaraman & Ors.-2003 (1) CLT 648. In that case there was a delay on the part of the advocates in taking action for probating the will entrusted to them by the complainant. It was held that such an act on the part of the advocates tantamounted to deficiency in service. The facts of the present case are also similar to this authority and, therefore, applies to this case.

7] It is admitted by the OP that the complainant entrusted to him the brief of the case to file an appeal before the Hon’ble High Court against Ravinder Kumar Gargi, Advocate, Civil Courts, Barnala. It is also admitted that the complainant had paid to him a sum of Rs.15,000/- as his fee and in this respect he issued a receipt (Annexure P-1). The further contention of the complainant is that the OP had also received from him Rs.2,000/- for miscellaneous charges but this fact is denied by the OP. It is further admitted by the OP that he has not filed the said appeal for which the brief and the fee was taken by him. His contention is that in fact the said case was not fit for filing an appeal, that the complainant was called and the brief was returned to him. It was so mentioned by the OP in para 2 of the preliminary objections that he called the complainant in the chamber of Shri Anurag Chopra at District Courts, Sangrur and in his presence returned the papers of this case as well as of another case against Pritpal Singh, Advocate and as per the settlement with the complainant the fee of Rs.15,000/- was retained for filing the SLP on his behalf in the Hon’ble Supreme Court against the order dated 21.11.2006 in Crl. Misc. No.73056 of 2007. The OP has not produced Anurag Chopra, advocate on the ground that he has suffered paralytic attack and was unable to move. Even his affidavit has not been placed on file. Anurag Chopra is alleged to have written these facts on his brief and the same has been produced before this Forum. Interestingly, this brief is maintained by the OP himself and not by Anurag Chopra. The writing on this brief is not proved by any evidence if the same is that of Anurag Chopra. The writing on the brief is shown to have been made by Mr. Anurag Chopra at Sangrur on 2.6.2007 to coincide with the date on which the complainant swore the affidavit, copy of which is Annexure P-6, for filing before the Hon’ble Supreme Court of India. All these facts show that it is a tailor made story. We, therefore, cannot believe the contention that any such understanding took place between the parties at District Courts, Sangrur.

8] Otherwise also, this contention is denied by the complainant. We also do not find any merit in this contention of the OP. When the OP had already issued a receipt (Annexure P-1) to the complainant, if this amount was to be adjusted towards fee of any other case he would have obtained the receipt (Annexure P-1) back but it was not done. That other case i.e. S.L.P. in the Hon’ble Supreme Court of India was not to be filed by the OP and therefore, he was nobody to retain the fee with him. Even if the receipt was not got back, the OP would have obtained a writing from the complainant that the fee would be adjusted towards the fee in filing the SLP before the Hon’ble Supreme Court of India, but this was also not done. The OP would have obtained a receipt from the complainant for receiving the brief from him but that also was not done. Otherwise also, if the amount of Rs.15,000/- received by the OP from the complainant was to be paid to Narinder Yadav a receipt would have been obtained in this respect from the complainant that the said fee has been adjusted, but it was not done. It, therefore, shows that the OP is telling a lie when he alleged that the brief was returned or the fee was agreed to be adjusted in some other case.

9] The evidence produced by the OP in this respect also falsifies his contention. The OP has produced the affidavit of Narinder Yadav, Advocate who in para 3 of his affidavit has deposed that when he happened to come to Chandigarh (and not District Courts, Sangrur), the complainant met him where the OP paid him a sum of Rs.15,000/- in the presence of the complainant. No date is given as to when it all took place obviously to avoid the said date being proved to be wrong. It appears everything was taking place as planned by the OP whether it is his going to District Courts, Sangrur where the complainant was called from Barnala, he appeared at Sangrur and agreed to the abovesaid proposal or Narinder Yadav coming to Chandigarh where not only the complainant but the OP also met him and the OP paid the amount of Rs.15,000/- to him in the presence of the complainant. It is not understood as to why the amount was obtained from the complainant if the case was not fit for filing appeal and further why it was retained by the OP for paying to Narinder Yadav at Chandigarh when it should have been safely returned to the complainant if he had met the OP, allegedly at District Court, Sangrur. If the case was not fit for filing an appeal before the Honorable High Court, the OP should not have obtained the fee and his contention that after receiving the fee of Rs.15,000/- on 23.05.07, he realized on 2.06.07 that the case was not fit to file an appeal does not appeal to reason. The complainant in his rejoinder has denied these contentions. According to him he never came to District Courts, Sangrur and never met Anurag Chopra, Advocate nor any such compromise took place between the parties. He denied if Narinder Yadav, Advocate was engaged by the complainant through the OP. He denied if the OP paid any such amount to Narinder Yadav in his presence. According to him Narinder Yadav was engaged by him directly (and not through the OP) to whom the fee of Rs.20,000/- was paid by him directly regarding which he has produced Annexure P-7 which is the copy of the statement of account maintained by the complainant in Punjab National Bank, Barnala. The amount of Rs.20,000/- was withdrawn on 28.5.2007. Annexure P-5 is the copy of the SLP which was filed on 4.6.2007 which corroborates the contention of the complainant. We are, therefore, of the opinion that both these lawyers are joining together and have concocted a false story to defeat the rights of the complainant.

10] It is also argued by the Learned Counsel for the OP that since the complainant has lost the case in the Honorable Supreme Court of India, he has therefore concocted this false story to get back the fee paid by him. This contention is denied by the complainant. It may be mentioned that the SLP before the Honorable Supreme Court of India, was filed by the complainant through Advocates Narender Yadav and Mushtaq Ahmad, as is clear from the order Annexure R-1 passed by the Honorable Supreme Court of India and not through the complainant. The fee of Rs.20,000/- was paid to them by the complainant himself, as reflected from the statement of account annexure P-7. Had there been any grudge to the complainant for which he intended to file a complaint for the dismissal of the SLP, then it would have been against Narender Yadav and Mushtaq Ahmad, Advocates but no complaint has been filed against them. Even if it is believed for the sake of arguments though it is not proved on record that Narender Yadav and Mushtaq Ahmad, Advocates were engaged through the OP, even then there would not have been any reason for the complainant to file the complaint against the OP because it was not his negligence if any due to which the SLP was dismissed. It is therefore clear that the present complaint has not been filed due to the reason that the SLP filed by the complainant was dismissed. The amount of Rs.15000/- received by the OP from the complainant was never returned to him. Even the brief of the case has not been given back to the complainant. The entire story concocted by the OP is devoid of merit. The complainant has led sufficient evidence to prove the allegations. We cannot lose sight of the fact that it is an unequal fight between a seasoned lawyer like the OP and the complainant who is not apprised of law and its intricacies as a lawyer is.

11] It is argued by the complainant that in fact the OP had been engaged to file an appeal against an advocate, that the OP joined hands with his said colleague and in order to save him he did not file the said appeal but gave false assurances to the complainant that the said appeal had been filed by him. It was done by him with an ulterior motive and this not only amounts to deficiency in service but an unfair trade practice adopted by the OP where he has failed to act in accordance with the directions of the complainant but tried to cheat and befool his own client. Now in order to save him the assistance of another advocate namely Narinder Yadav has been obtained. The OP is therefore liable to pay compensation to the complainant for this default.

12] In view of the above discussion we are the opinion that the present complaint succeeds and the same is accordingly allowed. The OP is directed to pay to the complainant a sum of Rs.50,000/- as compensation alongwith Rs.5,000/- as costs of litigation within thirty days from the date of receipt of copy of the order failing which the entire amount shall be paid alongwith penal interest @ 12% per annum since the filing of the present complaint i.e. 21.7.2009 till its payment to the complainant.

Certified copies of this order be sent to the parties free of charge. The file be consigned.