Bangalore District Court
Sri. S.D.Raghunandan Singh vs Mr.Rajagopal on 12 February, 2016
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bengaluru, SCCH-3
DATED THIS THE 12TH FEBRUARY 2016
PRESENT:
Smt.GOMATI RAGHAVENDRA
LL.M, D.I.P.R, D.C.L
VII Addl. Judge & XXXII ACMM,
Court of Small Causes, Bengaluru.
S.C.No.1347 OF 2010
Plaintiff : Sri. S.D.Raghunandan Singh,
Advocate,
Aged 75 years,
Son of Late Ram Singh,
No.917, Out House, 18th A Main,
Rajajinagar 5th Block,
Bengaluru-560 010.
Defendant : Mr.Rajagopal,
Aged about 48 years,
Son of Mr.K.B.Shamanna,
SLN Developers & Builders,
61, 2nd Cross, 5th Main,
Padmanabhanagar,
Bengaluru-560 070.
JUDGMENT
This is a suit filed by the plaintiff for recovery of money.
2. The brief facts of the plaintiff is as under:
The plaintiff rendered his professional services to a tune of Rs.22,400/-, as per the professional bill dated: 22.04.2009 SCH-3 2 SC No.1347 of 2010 towards the outstanding dues and paid Rs.15,000/- and agreed to pay the balance in a short span of time and sought for further legal assistance with regard to business and thereafter another bill was raised for the services rendered by the plaintiff on 03.10.2009 for Rs.25,800/-, which includes the previous balance of Rs.7,400/- and defendant failed to pay the dues and plaintiff issued notice on 25.01.2010, which was received by the defendant on 30.01.2010. Hence, the plaintiff has filed the present suit praying to decree the suit.
3. In response to the suit summons/notice sent by this court, the defendant appeared before the court through his counsel and filed his detailed written statement by denying all the plaint averments.
4. Inter alia, defendant appeared through his counsel and resisted the suit by filing written statement, wherein it is stated that at the time of entrustment of books of account etc., the plaintiff agreed for one time fee of fees Rs.15,000/- towards all things that is required to be done for bringing the concern under VAT scheme and comply with the laws SCH-3 3 SC No.1347 of 2010 regarding filing of returns under VAT for the year 2008-09. Inspite of entrustment of the said work, plaintiff slept over the matter and notice was issued to him on 31.03.2009 and 25.04.2009 to clarify certain matter. Despite instructions, plaintiff did not clarify. There is no agreement to pay the said amount as per the said documents and only Rs.15,000/- as total fee was agreed for entire things of registration and filing of returns etc., and same was paid. According to this defendant, charging of Rs.10,000/- to scrutiny of prospective purchasers agreement cannot be termed as scrutiny and only for taking into account of said transactions in the returns i.e., filed and that defendant did not reply his notices as he was involved in solving the problems. According to the defendant, on account of lapse on the part of the plaintiff, who did not clarified required aspect when called upon by notice of the commercial tax authorities in respect of returns of 2008-09, defendant had to pay an amount of Rs.38,000/- as penalty as per notice dated 15.07.2009 and as such he is claiming said amount from plaintiff as a counter claim and defendant was again given notice on 30.09.2010 with regard to the SCH-3 4 SC No.1347 of 2010 discrepancies in the returns filed by the plaintiff, on account of which department issued notice on 11.05.2009 and levied penalty of Rs.5,000/- and after said notice inspite of giving instructions to the plaintiff to produce books of account, he did not file any objection to the said notice and finally department issued another notice dated 15.07.2009 and levied amount of Rs.38,000/- and defendant had no other go but to pay said penalty and that even after filing return by the plaintiff, defendant was again given notice on 30.09.2009 by the department. Denying rest of the averments sought for dismissal of the suit.
5. The plaintiff in order to establish his case, examined himself as PW.1 and got marked as many as 10 documents as Ex.P.1 to Ex.P.10 and closed his side evidence. The defendant in order to establish his case himself got examined as DW.1 and got marked 3 documents as Ex.D.1 to Ex.D.3 and closed his side evidence.
6. Heard the arguments.
SCH-3 5 SC No.1347 of 2010
7. On the basis of the above pleadings, the points that arise for my consideration are:-
1. Whether plaintiff proves that defendant is due to pay professional fee as claimed by him?
2. Whether defendant proves that on account of lapses on the part of plaintiff, defendant had to pay amount of Rs.38,000/- and penalty amount as stated in the written statement?
3. Whether plaintiff is entitle to relief prayed for?
4. What decree or order?
8. My answer to the above points are as follows:-
Point No.1- In the Affirmative Point No.2- In the Negative Point No.3- Partly in the Affirmative Point No.2- As per final order for the following:
REASONS
9. Point No.1 to 3:- As these points are interrelated to each other, they are taken up together in order to avoid repetition of facts.
10. As per the case of the plaintiff, that he being advocate and tax consultant, defendant approached him for SCH-3 6 SC No.1347 of 2010 legal assistance for the preparation and filing of VAT, scrutiny of agreements with prospective buyers, filing of reply objections to CTO etc., and that the plaintiff rendered his professional service to the tune of Rs.22,400/- and towards outstanding dues, the defendant has paid Rs.15,000/- and agreed to pay the balance in short span of time and thereafter another bill was raised for the service rendered by the plaintiff on 03.10.2009 for Rs.25,800/-, which includes previous balance of Rs.7,400/-. Inspite of issuance of Legal Notice, defendant failed to settle the dues to the plaintiff.
11. In support of such averments, plaintiff himself entered into the witness box and led evidence as PW.1, who in his affidavit has reiterated similar to the plaint averments and in addition he has got marked Ex.P.1 to Ex.P.6. The professional bill, notice issued to the defendant, postal receipt and acknowledgments, letter issued by plaintiff to Airtel Company and reply by the company are marked as Ex.P.1 to Ex.P.9. The pendrive containing of SMS of defendant was marked subject to proof as Ex.P.10.
SCH-3 7 SC No.1347 of 2010
12. Perusal of Ex.P.1, the professional bill dated 22.04.2009 issued by the plaintiff, there is a mention that totally Rs.22,400/- is charged as professional fee towards obtaining VAT registration, filing revised return, preparing and filing Form No.6. As per the case of the defendant, the total amount of Rs.22,400/- as claimed by the plaintiff as professional fee under Ex.P.1, defendant has paid Rs.15,000/- and there is due of Rs.7,400/- and same has been admitted by the plaintiff, which is reflected at the back side of Ex.P.4, the notice dated 03.10.2009. Perusal of this document as its back side, there is a mention of balance due as per bill dated 22.04.2009 as Rs.7,400/-.
13. As per Ex.P.4, defendant is liable to pay Rs.8,400/- as preparation and filing VAT 100 from April 2009 to July 2009 (Rs.1,200/- X 7 months)= Rs.8,400/-, scrutiny of agreements with 5 prospective buyers for April 2008 to March 2009 amounting to Rs.10,000/- and balance due of Rs.7,400/-, which amounts to Rs.25,800/-. But however the defendant contends that there was an agreement to pay SCH-3 8 SC No.1347 of 2010 Rs.3,000/- for item No.1 and not Rs.8,400/- as claimed, and so also there was agreement to pay Rs.1,000/- each for five scrutiny of agreements which comes to Rs.5,000/-, instead of Rs.10,000/- and thus defendant in total is ready to pay Rs.8,000/- in addition to Rs.7,200/-, which comes to Rs.15,200/-, but not the amount claimed by the plaintiff.
14. In the instant case, defendant pleads that on account of the lapse on the part of the plaintiff, who did not clarify the required aspect, when called upon by notices of commercial tax authority in respect of returns of 2008-09, defendant has to pay an amount of Rs.38,000/- as penalty as per notice dated 15.07.2009 at Ex.D.2, defendant is claiming said amount as a counter claim. Although defendant has pleaded so, but there is no material to show that there is counter claim filed by him in this regard.
15. Defendant as stated above, has even though argued that there was an agreement to pay Rs.3,000/- and Rs.5,000/- respectively for item No.1 & 2 in Ex.P.4, but there are no documents produced to substantiate the same.
SCH-3 9 SC No.1347 of 2010
16. The contentions that the plaintiff rendered
professional service to the defendant is not in dispute. In view of the defendant admitting that he is ready to pay Rs.15,000/- to the plaintiff shows that there is some amount that is payable to plaintiff by the defendant. The sum claimed by the plaintiff is Rs.25,800/- with interest at 18% p.a., from the date of suit till its realization. No harm or injustice will be caused to the defendant, if the amount claimed is granted to the plaintiff.
17. Defendant has admitted that he has not issued reply notice to the plaintiff as he was involved in solving the problems. If at all defendant has any grievance or counter against the case of the plaintiff, nothing prevented him to issue reply notice denying the case of the plaintiff. However, defendant has not done so, which in turn leads to an adverse inference that plaintiff is entitle to claim the amount prayed in the suit. Taking into consideration the facts and circumstances of the case, it appears that 18% interest claimed by plaintiff appears to be exorbitant. It would be just SCH-3 10 SC No.1347 of 2010 and proper to impose 8% interest on the sum claimed. Accordingly, Point No.1 is answered in the Affirmative, Point No.2 in the Negative and Point No.3 Partly in the Affirmative.
18. Point No.4:- In view of my above findings on point Nos.1 to 3, I proceed to pass the following:
: ORDER :
The suit of the plaintiff is hereby decreed in part with costs.
The defendant is directed to pay Rs.25,800/- together with interest at the rate of 8% p.a. from the date of filing the suit till the date of realization, within three months to the plaintiff. Failing which the plaintiff is at liberty to take steps as per law.
Draw decree accordingly.
(Typed to my dictation through Online, corrected and then pronounced by me in open court, on this the 16th February 2016).
(GOMATI RAGHAVENDRA) VII Addl. Judge & XXXII ACMM, Bengaluru.
SCH-3 11 SC No.1347 of 2010
ANNEXURE
List of witness examined for the plaintiff:
PW.1: Sri.S.R.Raghunandan Singh List of witness examined for the defendant:
DW.1: Sri.Rajgopal List of documents marked on behalf of the plaintiff:
Ex.P.1 : Professional bill
Ex.P.2 : Notice
Ex.P.3 : RPAD Postal Receipt
Ex.P.4 : Notice
Ex.P.5 : RPAD Postal Receipt
Ex.P.6 : RPAD acknowledgment
Ex.P.7 : Letter issued by plaintiff to Airtel
Company
Ex.P.8 : Postal Receipt
Ex.P.9 : Replied by Airtel Company
Ex.P.10 : Pen drive containing SMS of defendant
SCH-3 12 SC No.1347 of 2010
List of documents marked on behalf of the defendant:- Ex.D.1 : Certified copy of Order U/s.75 of KVAT Act Ex.D.2 : Certified copy of Notice U/s.75 of KVAT Act Ex.D.3 : Certified copy of Show Cause Notice U/s.79 and 82 of KVAT Act (GOMATI RAGHAVENDRA) VII Addl. Judge & XXXII ACMM, Bengaluru.