Delhi District Court
Sh. Sanjya Gupta vs Dr. Alok Gulati on 29 April, 2013
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IN THE COURT OF SH. JAGDISH KUMAR
JSCC/ASCJ/GUARDIAN JUDGE (East) KKD COURTS DELHI
Suit No. 336/12
UID 02402C0161592012
In the matter of:
Sh. Sanjya Gupta,
Advocate
Having Seat no. D1,
st
1 Floor, Karkardooma Court,
Delhi32. .....Plaintiff
Versus
Dr. Alok Gulati
C/o M/s Medi Aids
220A, PocketB, Mayur Vihar,
PhaseII, Delhi91.
Also At
1 H. No. A21, Sector35,
Noida, U. P.
2 A312, Sector47,
Noida, U. P.201303.
3 Plot/H. NO. 50, BlockA,
Sector36, Noida, U. P. .....Defendant
CS No. 336/12 114
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Date of institution : 22.05.2012
Arguments heard : 27.04.2013
Date of decision : 29.04.2013
SUIT FOR RECOVERY OF RS. 45,500/
JUDGMENT
1 This is a suit for recovery of Rs. 45,500/ filed by the plaintiff against the defendant. Brief facts as stated in the plaint are that plaintiff is a practicing advocate at karkardooma courts, Delhi. The defendant had approached the plaintiff at his office address i.e 9, Radheypuri ExtensionII for filing and pursuing his complaint u/sec 138 NI Act against one Ram Kumar, including issuance of notice. That at the relevant point of time, it was agreed between him and the defendant that the defendant shall pay a sum of Rs. 50,000/ towards professional fee of his complaint case apart from clerical expenses i.e Rs. 500/. The defendant has only paid a sum of Rs. 5000/ at the time of filing of complaint case. It is stated that plaintiff had contested his case with all professional skills and the case was settled by the defendant with the opposite party without the knowledge of the CS No. 336/12 214 3 plaintiff, by way of Lok Adalat. It is further alleged that defendant did not turn up to pay the remaining fee of Rs. 45500/ (Rs. 45,000/ towards balance of professional fee + Rs. 500/ towards clerical expenses) to the plaintiff despite repeated calls by him. The plaintiff has sent a bill to the defendant on 13/04/2012 through speed post, but despite that the defendant did not clear the balance fee of Rs. 45,500/.
2 Thereafter, plaintiff sent a legal notice dated 02/05/2012 through speed post which was duly served upon the defendant as the notice was sent at the correct addresses of the defendant, but he neither replied the said notice nor paid any amount to the plaintiff. The defendant is thus, liable to pay a sum of Rs. 45,500/ alongwith interest to the plaintiff.
3 Summons of the suit were served upon the defendant. The defendant has filed written statement taking preliminary objection that the present suit is not maintainable. The plaintiff has not come with clean hands before this court and has also suppressed the material and relevant facts from this court.
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4 On merits, it is submitted that the defendant approached
to one advocate Sh. Manish Srivastava for reading of his case and he was the main counsel for him. However the vakalatnama was also signed by the plaintiff thus it purports that the plaintiff was also his counsel in the case titled as "Alok Gulati Vs. Ram Kumar" u/sec 138 NI Act. It is submitted that plaintiff only appeared twothree times in the entire trial of the said case but the same was look after by said Sh. Manish Srivastava.
5 It is denied that the settlement regarding professional fees was arrived between the parties for Rs. 50,000/ and clerical expenses of Rs. 500/. It is denied that defendant has only paid a sum of Rs. 5000/ at the time of filing of the complaint case. It is submitted that the settlement between the defendant and his advocates was arrived at towards their professional fees as Rs. 20,000/ at the time of filing the case including all expenses. At the time of filing the said matter, the defendant had given a sum of Rs. 12,000/ to the plaintiff and Manish Srivastava Advocate. During the subsequent stages of the trial, the defendant has given remaining arrears amount of Rs. 8000/ to the said counsel. The defendant has CS No. 336/12 414 5 given entire settled amount to his said counsel. It is contended that the said case was settled by the him (defendant) with the opposite party Ram Kumar by way of Lok Adalat and the same was disposed off. It is denied that plaintiff had contested the case with all professional skills. It is denied that defendant settled the matter without the knowledge or intention of plaintiff. It is submitted that at the time of settlement the defendant approached to the plaintiff and intimated him about the said settlement but they vehemently demanded a sum of Rs. 5000/ further more but when the defendant shown inability to pay the same then they refused to play any role for disposal of the said mater in Lok Adalat. Thus with the help of Lok Adalat the aforesaid matter was settled which shows that plaintiff is not entitled to get any extra benefits from the defendant. 6 It is submitted that the defendant never received any notice or bill from the side of plaintiff through any medium. It is submitted that plaintiff has already recovered his entire settled professional fees from the defendant which was paid by the defendant.
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7 Replication to the written statement of defendant
has been filed by the plaintiff in which he has denied all the allegations levelled by the defendant and reiterated and reaffirmed the statement made in the plaint.
8 On the pleading of the parties following issues were framed on 16.10.12:
1. Whether plaintiff is entitled for recovery of a sum of Rs.45,500/ as prayed for? OPP.
2. Whether the plaintiff is entitled for interest @12% per annum till realization of the suit amount? OPP.
3. Relief.
9 The plaintiff has examined himself as PW1 and relied upon the documents from Ex.PW1/A to PW1/H. Sh. Manish Srivastava as PW2 and relied upon the document Ex.PW1/A already exhibited in the evidence of PW1. The defendant has examined himself as sole witness.
10 I have heard the Ld. Counsel for plaintiff as well as of the
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defendant and perused the file. My issue wise findings is as under: ISSUE NO. 1 Whether plaintiff is entitled for recovery of a sum of Rs. 45,500/ as prayed for? OPP.
The onus to prove this issue is on the plaintiff. The plaintiff has claimed the recovery of legal fee on account of providing legal services to the defendant. The first question is whether the plaintiff was the advocate of the defendant in a complaint case filed under Negotiable Instrument Act. The defendant in his examination in chief filed by way of affidavit, has admitted in para no. 7 that the vakalatnama was signed by the plaintiff, thus it purports that plaintiff was also his counsel in case titled as Alok Gulati Vs. Ram Kumar filed U/Sec.138 N. I. Act. The document Ex.PW1/A is also on record which is a vakalatnama signed by the defendant in a complaint case bearing no. 120/07 under N. I. Act. So, from the admission of the defendant and evidence on record it proves that plaintiff was the advocate of defendant in complaint case bearing no. 120/07 tiled as CS No. 336/12 714 8 Alok Gulti Vs. Ram Kumar filed U/Sec.138 N. I. Act. The Legal Practitioners (Fees) Act, 1926 talks about the right of legal practitioner to sue for fees. Section 3 & 4 of the Act says as under: "3. Any legal practitioner who acts or agrees to act for any person may be private agreement settle with such person the terms of his engagement and the fee to be paid for his professional services.
4. Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the time being in force in regard to the computation of the costs to be CS No. 336/12 814 9 awarded to a party in respect of the fee of his legal practitioner."
So, in view of Sec.3 and 4 of Legal Practitioner's Fee Act, 1926 the advocate is entitled for recovery of fee by way of suit.
The next question is whether the amount of Rs.50,000/ was fixed as fee for professional services and Rs.500/ as clerical charges between the plaintiff and the defendant.
The PW1 and PW2 have deposed in their examination in chief that the legal fee was fixed as Rs.50,000/ and clerical expenses was also fixed as Rs.500/. The witness deposed that the fee was agreed orally and no written agreement was executed. Both the PWs deposed that the agreement was oral. The defendant has also not took any defence that agreement was in written. The agreement may be written or oral. The oral agreement is also enforceable. The PW1 and PW2 have deposed in their examination in chief that out of Rs. 50,000/ only Rs.5,000/ was paid by defendant. Both the PWs have reiterated the same version in their crossexamination. Only CS No. 336/12 914 10 suggestion has been put to PW1 that Rs.45,500/ is not outstanding. On the other hand the defendant has took the defence that the legal fees was fixed as Rs.20,000/ and he has already paid Rs.20,000/ to the plaintiff. The Rs.12,000/ was paid at the time of filing the complaint case bearing no. 120/07 and the remaining amount of Rs. 8,000/ was paid during the subsequent stages of the trial of that case. The question arises whether the evidence of the plaintiff is reliable or the evidence of defendant is reliable because both the parties are relying upon oral testimony. The PW1 has deposed on the same lines as he has asserted in the plaint. The PW2 has also deposed on the same lines as asserted by the plaintiff in the plaint. The testimony of defendant seems not reliable as in the examination in chief he has admitted that plaintiff was his advocate in complaint case no. 120/07. But in his crossexamination he stated that he do not remember when complaint no. 120/07 was filed. Mr. Sanjay Gupta advocate had not filed the complaint case 120/07 on his behalf. While plaintiff has signed the vakalatnama and appeared for defendant. The defendant also deposed that he has engaged Mr. Manish Srivastava as his advocate but Mr. Manish Srivastava denied the assertion of the defendant while examined as PW2. The CS No. 336/12 1014 11 defendant has also not disclosed the dates, month and years when he has paid a sum of Rs.8,000/ to his advocate/counsel.
The plea of the defendant is also not reliable that the plaintiff has not appeared in his case regularly because there is no complaint filed by him against the plaintiff for not providing his legal services by the plaintiff up to the optimum caliber. And if he was having any complaint against plaintiff for professional misconduct, he was having the opportunity to complaint before Bar Council. But it is not situation in the present case. On the other hand, both the PWs have categorically deposed that the defendant had visited the office of the plaintiff situates at Radhey Puri Extension, Delhi and paid only Rs.5,000/.
So, I am of the view that the plaintiff and the defendant have fixed the professional fee as Rs.50,000/ and defendant has paid only Rs.5,000/. So I am of the view that plaintiff is entitled for recovery of Rs.45,500/ on account of processional fee and clerical charges.
Now the question arises whether the bill Ex.PW1/B dated CS No. 336/12 1114 12 13.04.12 of Rs.45,500/ and the legal demand notice Ex.PW1/D were served upon the defendant or not. The plaintiff has sent the document Ex.PW1/B through document Ex.PW1/C. The plaintiff has also placed on record the document Ex.PW1/E to PW1/H the receipt of postal department vide which the notice Ex.PW1/D was sent to the defendant. The bill and notice were sent through speed post. The defendant has admitted that his address as mentioned on notice and speed post as A21, Sector35, Noida U. P. is correct. The Hon. Supreme Court of India has held in case titled as Har Charan Shiv Vs. Shiv Rani, AIR 1981 SC 1284, the Supreme Court held that a presumption of service can be drawn under Section 27 of the General Clauses Act, 1897 and Section114(f) of the Indian Evidence Act, 1872. The observations of the Supreme Court and reproduced hereunder "The section thus arises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. So, I am of the view that the legal notice was served upon the defendant.
CS No. 336/12 1214 13 ISSUE NO. 2 Whether the plaintiff is entitled for interest @12% per annum till realization of the suit amount? OPP. The onus to prove issue no. 2 is on the plaintiff. The plaintiff has nowhere stated in the plaint that a interest was also agreed to be paid by the defendant in case he does not pay the professional fee. The plaintiff has also failed to prove that he has caused any special damages on account of nonpayment of professional fee. So, I am of the view that the interest @6% per annum is sufficient to compensate the plaintiff. The interest is awarded from the notice period. Issue is disposed of according.
RELIEF So in view of issue wise findings the suit of the plaintiff is decreed in favour of plaintiff and against the defendant in the sum of Rs.45,500/ along with interest @ 6% per annum from the notice period. Cost of the suit is also awarded in favour of the plaintiff and CS No. 336/12 1314 14 against the defendant. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Announced in open Court (JAGDISH KUMAR)
today i.e 29.04.2013) JSCC/ASCJ/GJ(East)
KKD COURTS/DELHI
CS No. 336/12 1414
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Suit No. 336/12
29.04.2013
Present: Proxy counsel for plaintiff.
Proxy counsel for defendant.
Vide separate judgment, the suit of the plaintiff is decreed in favour of plaintiff and against the defendant in the sum of Rs. 45,500/ along with interest @6% per annum from the notice period. Cost of the suit is also awarded in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East)
KKD COURTS/29.04.13
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CS No. 336/12 1614