State Consumer Disputes Redressal Commission
K. Chandrasekhara Reddy vs N. Sudheer Reddy And Another on 12 March, 2010
FA716 of 2009.html BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION CIRCUIT BENCH AT TIRUPATHI. F.A. 716/2009 against C.C. 156/2007, Dist. Forum, Nellore. Between: K. Chandrasekhara Reedy Chief Engineer (Retd) S/o. Rami Reddy, 78 years R/o. 26/260, 9th Cross Road Z.P. Colony, Nellore-4. *** Appellant/ Complainant. And 1) N. Sudheer Reddy S/o. N. Chandrasekhara Reddy Advocate, H.No. 23/1242, Sodhan Nagar Nellore. 2) V. Visweswara Rao Advocate C/o. P. Srinivasulu Reddy Advocate, D.No. 16/1175 Kasturidevi Nagar Nellore. *** Respondents/ Ops. Counsel for the Appellant: M/s. P. Madhusudhana Reddy Counsel for the Resps: M/s. A. Jaya Raju (R2) CORAM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT & SMT. M. SHREESHA, MEMBER
FRIDAY, THIS THE TWELFTH DAY OF MARCH TWO THOUSAND TEN Oral Order: (Per Honble Justice D. Appa Rao, President) *****
1) Appellant is unsuccessful complainant.
2) The complainant filed a complaint, claiming Rs. 18,22,140/- towards compensation alleging professional negligence on the part of R1 his advocate and R2 junior of R1, ( running into 32 pages) alleging breach of trust, fraud, collusion and cheating and deficiency in service.
3) The case of the complainant in brief is that he filed O.S. No. 165/2004 on the basis of a pro-note executed in his favour and O.S. No. 225/2004 on the basis of a pro-note transferred by him in favour of one Sri B. Mallikarjuna Reddy before the Principal Senior Civil Judge Court, Nellore. He engaged R1 an advocate, paid Rs. 3,500/-
towards notices issued and Rs. 3,000/- towards his fee respectively. He also filed O.S. No. 237/2005 through the same advocate. R2 is junior of R1. They did not conduct the trial of the suits properly nor did inform correct dates of hearing.
He did not prepare the chief-affidavit even though the court insisted. Due to his negligence O.S. No. 225/2004 was dismissed for default. An application filed to set-aside the ex-parte order was also dismissed. He filed his affidavit instead of filing the affidavit of Sri B. Mallikarjuna Reddy. During the entire proceedings and the trial R1 did not evince any interest made him to pay costs. He did not submit to the court about the correct position of law whereby suits have not been decreed in his favour. R1 had colluded with the defendant. Despite the notices issued no reply was given. The complainant submitted that O.S. No. 165/2004 was filed for payment of Rs. 5,84,929/- with compound interest @ 24% p.a., from 15.4.2005 till the date of realization, O.S. No. 225/2004 was filed for payment of Rs. 6,16,500/- with interest @ 18% p.a., from 7.6.2004 till the date of realization and O.S. No. 237/2005 for payment of Rs. 6,18,711/- with interest @ 24% p.a., from 15.4.2005 till the date of realization, in all Rs.
18,22,140/- against respective defendants. Therefore he claimed Rs. 12,50,000/- towards damages, Rs. 10,300/- for refund of amount, Rs. 16,000/- spent by him towards expenses for the C.M.A. in High Court of A.P. and damages at Rs. 7 lakhs from respondents together with costs.
4) R1 resisted the case. While denying each and every allegation made against him, however, admitted that he filed the suits on behalf of the complainant, however denying having received any fee.
He received Rs. 8,226/- towards court fee for filing the suits. The complainant promised that he would pay his fee and other incidental charges after disposal of the suits as he was his classmate and well- known to him. However, he was unaware of truth or otherwise of the execution of pro-note or the transactions covered therein.
O.S. No. 225/2004 filed by a third party and the complainant has no right to ask him to conduct the matter. It is the duty of the plaintiff to attend the court on the dates fixed. When Sri B. Mallikarjuna Reddy did not attend at the time of call work the suit was dismissed. He did not file any complaint against him. The complainant is an educated retired engineer read every memo and on his advise he acted. He had attended on every date of adjournment and there was no deficiency of service on his part. When O.S. No. 225/2004 was dismissed the High Court restored it. The notices issued were vexatious. He gave no objection in the vakalat. The complaint is equally vexatious. In fact the complainant had to pay the fee to him as well as to his junior and therefore prayed for dismissal of the complaint with costs.
5) R2 equally resisted the case. He stated that the complainant is not a party to O.S. No. 225/2004 filed by one Sri B. Mallikarjuna Reddy. He was junior to R1. He represented the matters in courts as per the instructions given by his senior. The suit was dismissed for no fault of his as another junior Smt. J. Surekha was appearing on the said date. The suit O.S. No. 225/2004 which was dismissed for default was restored in C.M.A. No. 1257/2005 by the High Court. No loss was caused to Sri B. Mallikarjuna Reddy or to the complainant at any time.
Therefore he prayed for dismissal of the complaint with costs.
6) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A12 marked. Refuting his evidence the respondents filed their affidavit evidence.
7) The Dist. Forum after considering the evidence placed on record opined that O.S. No. 225/2004 was filed by one Sri B. Mallikarjuna Reddy having paid the amount covered under the pro-note to the complainant, got the pro-note transferred in his name and filed a suit for recovery of the amount against one G.V. Subba Reddy. When he had received the entire amount from B. Mallikarjuna Reddy, he had no concern with the suit. Even the affidavit of Sri B. Mallikarjuna Reddy was not filed to substantiate that there was deficiency in service on their part. With regard to O.S. No. 165/2005 the suit was still pending and therefore it cannot be said that there was deficiency of service on their part. At any rate the question of breach of trust, fraud, collusion and cheating etc. cannot be decided in summary proceedings under the Consumer Protection Act. He had to approach the Civil Court. Therefore, the complaint was dismissed, however, without costs.
8) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. He contended that his written arguments were not specifically rebutted by R1 in his written arguments. Therefore, he prayed that the complaint be allowed and grant compensation as claimed by him.
9) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
10) It is an undisputed fact that the complainant had engaged R1 and also his junior R2 to file and conduct suits O.S. No. 165/2004 and O.S. No. 237/2005 for recovery of the amounts covered under the pro-notes. The complainant alleges that they did not conduct the trial properly leading to payment of costs, and unnecessary adjournments. Despite his request to file written arguments it was not prepared nor was filed. In support of his contention he filed his chief-affidavit prepared in O.S. No. 165/2004 marked as Ex. A4 and xerox copy of orders passed in O.S. No. 225/2004 marked as Ex. A6 and a note on the events in O.S. No. 225/204 prepared by R1 marked as Ex. A7.
11) O. S. 237/2005 was filed for recovery of the amount covered under the pro-note wherein the plea of discharge and jurisdiction was raised by the defendant therein. The complainant stated that he paid Rs. 500/-
towards demand notice and Rs. 3,000/- towards initial fee to R1 for conduction of the suit. The appellant impugns the conduct of his counsel in conducting the matter by endorsing no objection on I.A. No. 522/2005, which petition was filed to set-aside the order passed on 21.11.2005 in I.A. No. 397/2005 dismissed for the absence of counsel for other side. Such an endorsement was made without his consent. Equally revised affidavit evidence was prepared without incorporating the suggestions made by him. Though he requested to obtain a copy of the judgment reported in 1975 MLJ 414 in support of his stand, that the suit was within the limitation, but he did not obtain or file it. When he requested him to file certain documents, the respondent had informed that if the documents were filed it would go against his case. When he did not file application as suggested by him he himself filed I.A. 578/2005 and conducted the case in person, and got the petition allowed. His junior Ms. J. Surekha on her insistence, he wrote no objection on a petition filed by the defendant. In fact the defendant wanted to misuse the letter.
It was all with the connivance of respondents. It would enable them to state that he himself agreed that no part payment was made and such an endorsement on the blank pro-note was forged. He also alleged that respondents had filed the suit belatedly. It was returned four times and later numbered as O.S. 237/2005. Though written statement was not filed within time, his counsel never protested. It is extended more than 90 days beyond the period prescribed in C.P.C. He made to get the suit dismissed for default and the restoration petition filed was also dismissed. In the light of contentions taken by the defendant, the respondents ought to have filed an application under Order VIII Rule 10 CPC to pass judgment and decree in his favour. Later he made the respondent to withdraw their vakalat. However, suit filed was dismissed for which appeal has been preferred. He now alleges that but for the dismissal he would not have spent the amount in preferring the appeal AS 443/2009 pending before the High Court, and therefore it amounts to deficiency in service.
12) We may state that his contention in that suit that letter Dt. 26.2.2003 was valid and that it would save limitation u/s 25(3) of the Contract Act, and since the said question was not argued properly his suit was dismissed cannot be adjudicated in this complaint. More over the said questions are in issue before the Honble High Court of A.P. in A.S. No. 443/2009 and the complainant could as well raise these contentions and get his contention up-held. At no stretch of imagination this could be termed as deficiency in service.
Granting adjournments, imposing terms, dismissing or restoration of applications are all in the realm of discretion of courts and granting of adjournments or not could not be termed as deficiency in service or give a cause of action for agitating before consumer fora.
13) O.S. 225/2004 is a suit filed by one B. Mallikarjuna Reddy on the basis of a transfer endorsement made by the complainant having received consideration covered under the pro-note. It is Sri B. Mallikarjuna Reddy who paid the amount and filed the suit. He was not a party to the suit even in order to allege deficiency in service on the part of respondents. He alleges that one Sri B. Mallikarjuna Reddy never met the counsel. He met him only on 1.8.2005 in his office for preparing the chief-examination affidavit. In fact he (the complainant) gave the documents to his counsel, got prepared the plaint, obtained the signatures of B. Mallikarjuna Reddy and filed the suit. Though O.S. 225/2004 was decreed in favour of the plaintiff, he alleges that the defendant in O.S. 225/2004 was retired in June, 2009. His salary was attached from April, 2009 as per the orders of Sub-Court, Nellore. In the interregnum the said suit was dismissed for default for the fault of the advocate, and was restored by the High Court in CMA filed. An amount of Rs. 2,47,800/- could not be recovered due to dismissal, and therefore he wants that the said amount to be collected from the respondent.
14) The matters will be decided on merits on the basis of evidence and documents and necessarily not on the basis of arguments or conduction of the case by the counsel. Unless evidence of fraud, collusion etc are let in it is highly dangerous to grant decree against his counsel for the amount due by the defendant, solely on the result of lis.
It cannot be termed as deficiency in service. We may state that the plea of fraud, forgery etc. cannot be resolved in a summary proceedings under the Consumer Protection Act. It needs extensive examination and cross-examination of witnesses, pleadings and documents etc.
15) Admittedly when Sri B. Mallikarjuna Reddy, plaintiff in O.S. 225/2004 was called absent on 1.8.2005 the suit was dismissed for default.
It was later restored by the High Court. Importantly the complainant did not file affidavit evidence of Sri B. Mallikarjuna Reddy in order to substantiate the contentions taken by him to prove that there was deficiency in service by the respondents. At any rate, he was not at loss he having received the consideration covered under the pro-note from Sri B. Mallikarjuna Reddy. Since the suit filed by him was dismissed, wherein he claimed Rs. 6,15,500/- the complainant intends to recover the same from the respondents. We are still unable to comprehend as to how he could complain deficiency in service on behalf of Sri B. Mallikarjuna Reddy who was plaintiff in the above said suit. This is a farfetched claim. He was not entitled to any amount under this score.
16) Finally he complains that he filed O.S. 165/2004 for recovery of the amount covered under the pro-note and paid the lawyers fee. The contention of the defendant in the said suit was that he did not make part payment endorsement on the back of the pro-note and it was forged.
He discharged the amount under the pro-note long back. The pro-note was not returned on the plea that it was mis-placed in his house. Despite his request to file the documents which show part payments were made by the defendant and that there was no forgery the advocate did not file it.
17) Then he himself prepared the chief-examination affidavit and conducted the suit in person. The complainant alleges that he requested R1 to issue notice however he had purposefully delayed in order to see that pro-note gets time barred. He sent notice to debtors father in stead of debtor. As he was in need of urgent money, he borrowed Rs. 5 lakhs from Sri B. Mallikarjuna Reddy and transferred the pro-note. Basing on which earlier suit was filed. All through R1 has been delaying in drafting the plaints in O.S 225/2004 as well as O.S. 165/2004. Despite his request to include some of the facts in the affidavit evidence he did not do so. He bent upon both the suits were dismissed for default. These are all unsubstantiated contentions.
18) In all these suits the main contention was that the courts at Nellore have no jurisdiction. The complainant asserts that the transaction took place at Nellore and not at Kadapa where the defendant resides. He alleged that even assuming that the transaction took place at Nellore, as per the doctrine that the debtor has to seek the creditor, the place of residence of the creditor will be criteria for determining the jurisdiction of the court. The creditors resides at Nellore as such the courts at Nellore have jurisdiction.
19) At any rate when such a contention has been taken, it is for the Courts to determine its jurisdiction.
Simply because a particular contention was accepted, it cannot be a ground to state that the respondent the advocate was at fault, and therefore liable to compensate for dismissal of the claim or suit. Now he wants that all the amount covered under the suits be paid to him on the ground that there was deficiency in service. We are unable to find any deficiency in service on the part of respondents. Deficiency in service cannot be inferred by the acts imputed by the complainant in this regard. The complainant can as well prefer the appeals if the suit goes against him, which in fact he did. In one of the suits, he was not even plaintiff.
In O.S. 225/2004 he was not a loser. The complainant having conducted the matter in person now intends to throw the blame against his advocate for the part played by him for preparing plaint, issuance of notices and filing of affidavit evidences etc. The plea of the complainant cannot be countenanced. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. There are no merits in the appeal.
20) In the result the appeal is dismissed. However, no costs.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER Dt.
12. 03. 2010.
*pnr UP LOAD O.K.