State Consumer Disputes Redressal Commission
Sahabuddin Ahmed, Advocate vs Sk. Ali Box on 26 September, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/184/2015 (Arisen out of Order Dated 26/11/2014 in Case No. Complaint Case No. CC/99/2013 of District Paschim Midnapore) 1. Sahabuddin Ahmed, Advocate Vill. & Post - Bohichberia, P.S. Nandakumar, Tamluk, Dist. Purba Medinipur, Pin-721 649. ...........Appellant(s) Versus 1. Sk. Ali Box S/o Late Sk. Abbas, Vill. & Post - Lowada, P.S. Debra, Dist. Paschim Medinipur, Pin-721 136. 2. Abdul Rahaman S/o Mohiruddin, Vill. - Lakshya, P.O. Kumarara, P.S. Mahisadal, Dist. Purba Medinipur, Pin -721 650. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Ms.Smita Saha , Advocate For the Respondent: Mr. Sankar Nath Mukherjee., Advocate Dated : 26 Sep 2016 Final Order / Judgement JAGANNATH BAG, MEMBER
The present appeal is directed against the Order, dated 26.11.14, passed by the Ld. District Consumer Disputes Redressal Forum, Paschim Medinipur, in Complaint Case No. 99/2013, whereby the complaint was allowed on contest .
The complaint case , in brief, was as follows:
The Complainant engaged the OP No. 1, an Advocate, in the matter of filing application for anticipatory bail before the Supreme Court of India . The OP No.1 assured the Complainant to get bail from the Supreme Court . A sum of Rs. 60,000/- was paid to OP No.1 by 12.10.2011, but he avoided to take any step and demanded a further sum of Rs. 10,000/- . The assurance of OP No. 1 was false and it was with the help of another Ld. Advocate of Paschim Medinipore District Court that the Complainant and his wife were released on bail on 27.04.12 . The Complainant demanded refund of Rs. 60,000/- from the OP No.1, but the said OP refused to refund the money . In the said circumstances , the Complainant filed a consumer complaint before the Ld. Forum below with prayer for direction upon the O.P. to pay a sum of Rs. 60,000/- with interest , another sum of Rs. 2,00,000/- as compensation for mental agony and harassment and litigation cost.
The complaint was contested by the OP No.1 by filing W.V. It has been stated in the W.V. that the OP No.1 engaged an Advocate for looking after the litigation matter of the Complainant. Further, it was asserted that there was no assurance for bail of the Complainant . The Complainant was asked to pay Rs. 70,000/- which he agreed in connection with engagement of Mr. Shib Shankar Banerjee as Advocate in the litigation matter of the Complainant. There was also delay in submitting necessary documents by the Complainant. The Complainant was repeatedly requested to make the balance payment but he failed to do so. The matter came up for hearing on 16.12.2011 , 26.03.2012 , 09.07.12 and 17.08.12. The allegations that the OP No.1 did not take any action in the matter of moving the bail petition of the Complainant was not at all correct. There was no merit in the complaint and as such the complaint was liable to be dismissed.
Ld. Forum below having considered the entire case decided that the Complainant was entitled to get relief as prayed for. An order was passed directing the OP to pay Rs. 60,000/- within 30 days , in default whereof, an interest @ 10 % p.a. will accrue from the date of filing the case.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the OP No.1 - turned - Appellant has come up before this Commission with prayer for direction to set aside the impugned order.
The memorandum of appeal has been filed together with copies of the impugned order , the petition of complaint , letters exchanged between the Appellant and the Respondent and the W.V. filed by the OP among other documents including the deposit slips in connection with payment of Rs. 60,000/- in the savings account of the OP No.1.
Ld. Advocates appearing for the Appellant and the Respondent have been heard.
Ld. Advocate appearing for the Appellant submitted that the complaint case was heard by the Ld. Forum below ex-parte as his Ld. Advocates Mr. S. Maity and A. Maity did not appear after submitting the W.V. filed on his behalf. It was agreed by the Respondent that he would pay Rs. 70,000/- as expenses towards filing SLP in the Supreme Court of India in connection with the release of the accused persons including the Complainant on bail. Mr. Shiv Shankar Banerjee and Mr. K.V. Bharathi Upadhyay were engaged for moving the anticipatory bail application on 14/15 November , 2011 before the Supreme Court of India being Special Leave (CRL) Nos. 931/2011 . The matter came up for hearing on 16.12.11, 26.03.2012 , 09.03.12 and 17.08.12. On 17.08.2012 Hon'ble Supreme Court dismissed the anticipatory bail but liberty was granted to the petitioners to seek appropriate bail before the regular trial court. It is not at all true that the Appellant did not take any step in the matter of the bail petition of the Complainant. The legal fees as paid by the Complainant can not be claimed back on the allegation of providing no service, as proper service was given to the Complainant. The Appellant being an Advocate has no power to ensure bail as that is the discretion of the Hon'ble Court . The Ld. Forum below failed to take note of his submissions in the W.V. and passed the impugned order in a biased manner which is liable to be dismissed with cost.
Ld. Advocate appearing for the Respondent submitted that there was no agreement with the Appellant regarding payment of Rs. 70,000/- . The sum of Rs. 60,000/- as agreed was paid to the Appellant after assurance that the Appellant Advocate would secure bail of the Complainant and his wife and son in connection with the Debra Police Station Case No. 89 dated 15.04.2011 . Inspite of submission of all necessary documents and payment of Rs. 60,000/- , the said Appellant took no step. Several letters were sent to the Appellant/ OP for refund of the said sum of Rs. 60,000/- but he declined to refund the money making false statement that the Respondent / Complainant agreed to pay Rs. 70,000/- to the Appellant. It was rather on the initiative of another Ld. Advocate of Paschim Medinipur District Court that the Complainant and his wife Sahida Bibi were released on bail on 27.04.12 and their son Rajesh was released on medical ground. There was no service provided by the Appellant against the payment of Rs. 60,000/-. Accordingly , Ld. Forum below rightly directed the Appellant/OP to refund the sum of Rs. 60,000/- with interest. There is no question of setting aside the impugned order.
Decision with Reasons:
It is on record that the Respondent / Complainant deposited Rs. 60,000/- in the savings account No.0186010169081 of the Appellant lying with the United Bank of India, Lowada Branch .
It is also not denied by the Appellant/OP that the money was received by him in connection with filing of petition for anticipatory bail of the Complainant .
In his W.V. it has been stated that a sum of Rs. 70,000/- was agreed to be paid by the Complainant / Respondent . It also appears from the W.V. that Mr. Shib Shankar Banerjee , Ld. Advocate was entrusted with the matter and as per advice of the said Ld. Advocate , necessary action was being taken. Another Advocate Mr. K. V. Bharathi Uppadhya was also engaged .
It is, therefore, evident that the Appellant / OP No.1 took steps in the matter of engagement of Advocates for filing the anticipatory bail petition of the Complainant. There is nothing on record to show that those two Advocates were engaged otherwise by the Complainant /Respondent than upon any initiative of the Appellant / OP . The Appellant has submitted copies of Special Leave Petition No.36405 dated 16.11.11 filed by K.V. Bharathi Upadhyya . Such fact of engagement of lawyer has not been denied by the Complainant/OP . In fact, the letter written by the Appellant /OP on 21.11.2011 to the Complainant speaks of such engagement . In that case it would be wrong to hold that the Appellant / OP took no step in connection with filing the bail petition for the Complainant . In the absence of any written agreement as to the extent and nature of service for which a consideration is paid , the allegation about deficiency in service on the part of the service provider should have been provided in a convincing manner.
Ld. Forum below observed that they have not found 'any cogent evidence to accept the plea of the OP for the purpose of reasonable justification of the charges received by him from the Complainant'. Such observation of the Ld. Forum below should have been supported with some detailed discussion on the basis of materials on record and in the absence of such discussion we are unable to endorse the view taken by the Ld. Forum below. In that position , we are inclined to hold that the matter should be adjudicated afresh by the Ld. Forum below after giving opportunity of hearing to both parties . The appeal , therefore, succeeds. Hence, Ordered That the appeal be and the same is allowed on contest. The impugned order is set aside. The matter is sent back on remand to the Ld. Forum below for fresh adjudication after giving opportunity of hearing to both parties who may adduce their respective evidence . There shall be no order as to cost.
Parties are directed to appear before the Ld. Forum below on 09.11.2016 for necessary order.
[HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER