National Consumer Disputes Redressal
Bajee Govindan vs P. Santhosh Kumar Advocte on 18 April, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 774 OF 2017 (Against the Order dated 26/10/2016 in Appeal No. 64/2016 of the State Commission Kerala) 1. BAJEE GOVINDAN S/O K.P GOVINDAN (LATE) I-A, MUTHOOT GREEN MIST, KRISHNA NAGAR, PEROORKADA P.O. THIRUVANANTHAPURAM - 695005 ...........Petitioner(s) Versus 1. P. SANTHOSH KUMAR ADVOCTE MAVILAZHIKATH, KANNAMMOOLA MEDICAL COLLAGE P.O THIRUVANANTHAPURAM ...........Respondent(s) REVISION PETITION NO. 775 OF 2017 (Against the Order dated 26/10/2016 in Appeal No. 70/2016 of the State Commission Kerala) WITH
IA/4235/2017(Condonation of delay) 1. BAJEE GOVINDAN S/O K.P GOVINDAN (LATE) I-A, MUTHOOT GREEN MIST, KRISHNA NAGAR, PEROORKADA P.O THIRUVANANTHAPURAM - 695005 ...........Petitioner(s) Versus 1. P. SANTHOSH KUMAR ADVOCATE MAVILAZHIKATH, KANNAMMOOLA MEDICAL COLLAGE P.O THIRUVANANTHAPURAM ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Petitioner : (in both matters)
For the Petitioner
:
Mr. Jogy Scaria, Advocate For the Respondent : For the Respondent
: Mr. Jaimon Andrews, Advocate
Dated : 18 Apr 2019 ORDER
HON'BLE MR. DINESH SINGH, MEMBER
1. Learned counsel for the revision petitioner - complainant - client and learned counsel for the respondent - opposite party - lawyer were heard. The material on record was perused.
2. On 14.02.2019, after hearing arguments of both sides and perusing the material on record, we passed the following Order:
Dated: 14-02-2019
ORDER
Heard learned counsels for the revision petitioner and the respondent. Perused the material on record.
The revision petitions are dismissed.
The complaint is dismissed.
A cost of Rs.10,000/- each in both cases to be deposited with the Consumer Legal Aid Account of the District Forum within four weeks of the pronouncement of the reasoned judgment.
Reasoned judgment to follow.
We are giving our reasons hereinafter.
3. To adjudicate the matter on merit, and in the interest of justice, and to remedy an apparent material irregularity, the self-admitted delay of 22 days each in filing the two revision petitions was condoned.
4. The dispute is between one Bajee Govindan (complainant), a PWD contractor, and one P. Santhosh Kumar (advocate), a lawyer by profession. It relates to deficiency in service alleged against the lawyer by his client.
5. The relevant chronology, material to adjudicate this matter, is as below:
(i) As averred by Bajee Govindan (complainant), O.S. no. 92 / 2000, filed before the Munsif's Court, Thiruvananthapuram, in which he was arrayed as the defendant, and one P. Santhosh Kumar (advocate) was his lawyer, was dismissed (in his favour). The appeal A.S. no. 70 / 2004, filed before the Additional Sub Judge, Thiruvananthapuram, arising from the judgment in O.S. no. 92 / 2000, in which P. Santhosh Kumar (advocate) was again his lawyer, was allowed ex parte on 12.12.2007 against the complainant. P. Santhosh Kumar (advocate), his lawyer, did not appear before the court on 28.10.2006 and he was hence proceeded against ex parte. P. Santhosh Kumar (advocate), his lawyer, failed to inform the outcome of his case to the complainant and did not take any corrective steps as per the law to get the ex parte order dated 12.12.2007 recalled.
In another case, the complainant again engaged P. Santhosh Kumar (advocate) as his lawyer to file a criminal complaint under section 138 of the Negotiable Instruments Act, 1881 against one P.S. Santhosh Kumar as a cheque of Rs. 4,05,050/- issued by the said P.S. Santhosh Kumar in his favour was returned by the bank unpaid. The case was registered as C.C. no. 1149 / 2007 before the Additional Chief Judicial Magistrate, Thiruvananthapuram. It was dismissed in default for non-appearance of the lawyer on 15.02.2008. P. Santhosh Kumar (advocate), his lawyer, failed to inform the outcome of his case to the complainant and did not take any corrective steps as per the law to get the case restored.
(ii) The complainant alleged that the dismissal in default of C.C. no. 1149 / 2007 and the ex parte order in A.S. no. 70 / 2004 were inter alia due to "intentional professional misconduct" and "intentional dereliction of duty" on the part of the advocate.
(iii) The complainant filed a complaint before the Bar Council of Kerala alleging "intentional professional misconduct" on the part of the advocate:
The averments in the complaint are as follows: The complainant had engaged the respondent to file Criminal Complaint against one Mr. P.S. Santhosh Kumar under Section 138 of the Negotiable Instrument Act. The complaint was filed before the Additional Chief Judicial Magistrate Court, Trivandrum and numbered as C.C. 1149/2007. Though the case was posted several times it was dismissed due to the non appearance of the respondent on 15-2-2008. The complainant was regularly attending the case and give fees to the respondent. At the time of filing of the case Rs. 10,000/- was given as fees and for every posting date of Rs. 250/- was given to the respondent. Though the case was dismissed on 15-2-2008 the respondent did not intimate the same to the complainant. When the complainant contacted the respondent's office on 20-8-2008 to know about the posting date of the case he did not get any date. When the complainant directly contacted the office of the Court he came to know that the case was dismissed for default on the part of the respondent.
2. The petitioner has engaged the respondent in another case A.S. No. 70/2004 in Sub Court, Trivandrum in which the complainant was the respondent. The complainant had given Rs. 10,000/- at the time of filing of the case. The appeal was dismissed ex parte as the respondent did not appear before the Court. The vakalath given to the respondent was not filed before the Court. The appeal was dismissed on 12-12-2007. The respondent had refunded Rs. 4000/- to the complainant from Rs. 10,000/- which was given as fees in A.S. No. 70/2004. The dismissal of the criminal complaint C.C. 1147/2007 and ex parte decision in A.S. No. 70/2004 was intentional professional misconduct on the part of the respondent. The complainant believe that the respondent had colluded with the opposite party in A.S. 70/2004 of the Sub Court, Trivandrum. The action of the respondent amounts to professional misconduct and the complainant wants action against the respondent.
(paras 1 and 2 of the State bar Council's order)
(iv) P. Santhosh Kumar (advocate) filed his reply before the Bar Council of Kerala:
3. The respondent filed remarks denying the allegations in the complaint. The respondent herein is a known litigant with antecedents of vexatious litigation even against the members of the Bar. The respondent had successfully conducted 5 cases for the complainant and his spouse in various courts in Trivandrum. The complainant had taken back the Vakalath from the respondent in October, 2008 in absolute good humour. At that time the respondent had convinced the complainant and his wife about their own negligence resulting in situation as averred in the complaint. The complainant had preferred the complaint in order to wriggle out from the delay caused in filing the appeal. A.S. No. 70/2004 was an appeal preferred against O.S. No. 92/2000 by the plaintiff in the original Suit. The complainant was the defendant in that case and the Suit was dismissed on merits. After the judgement as per the direction of the complainant the respondent had obtained Ext. B1 document which was required by the complainant to be filed before the Honourable High Court. While obtaining such a document the respondent had undertaken before the Court that the document will be returned as and when called upon to do so. The complainant had not received any notice from the court in the appeal as he had changed his residence as shown in the Original Suit. When the respondent enquired about the receipt of the notice the complainant replied in negative. While so in 2007 the respondent received a notice from the Munsiff's Court, calling upon the respondent to return the document which he had received from the court. On enquiry the respondent came to know that after paper publication the petitioners were set ex-parte on 28-10-2006 and the same was intimated to the complainant and demanded to return back Ext. B1 document to be submitted before the Munsiff's Court. The respondent have been present in the court during two adjournments in appeal on the basis of the said notice from the Munsiff's court and he has not received any vakalath or entrustment from the part of the complainant in the appeal. The respondent has not received any payment for the appeal as referred in the complaint.
4. C.C. No. 1149/07 was posted for return of summons on 26-7-2007. The third posting date of the case was on 15-2-2008 and the respondent had intimated the complainant to be present personally in the court to be duly represented by his junior Advocate, Prasanth as the respondent had to appear before the Family Court for final hearing in a case. In the evening on 15-12-2008 the Clerk of the respondent intimated the respondent that the complaint was dismissed for the reason that the complainant nor his Counsel appeared before the Court. Necessary process fee was not paid and steps were not taken for issuing fresh summons to the accused. The order of dismissal was duly informed to the complainant and advised him to file revision. The complainant had never taken any steps for filing revision. There is no professional or other misconduct on the part of the respondent in the matters. He wants to drop further proceedings in the matter.
(paras 3 and 4 of the State Bar Council's Order)
(v) The Bar Council of Kerala, on 04.12.2011, decided to drop the proceedings against the advocate:
5. The complainant filed rejoinder reiterating the allegations in the complaint.
6. The matter was placed before the Council meeting held on 4-12-2011 and the Council after due deliberations found that there is no reason to believe that the respondents have committed any professional or other misconduct. Therefore the Bar Council decided to drop further proceedings in the matter.
(paras 5 and 6 of the State Bar Council's Order) (emphasis supplied)
(vi) The complainant separately filed a consumer complaint no. 14 of 2010 in the District Forum on 18.01.2010 alleging deficiency in service on the part of the advocate.
(vii) During the pendency of the complaint case before the District Forum the complainant approached Hon'ble High Court and filed a second appeal R.S.A. 278 / 2009 for setting aside the ex parte order in the appeal A.S. no. 70 / 2004 and filed criminal RP no. 1209 / 2014 for restoration of the C.C. no. 1149 / 2007. Both, the second appeal R.S.A. 278 / 2009 and the criminal RP no. 1209 / 2014, were allowed by Hon'ble High Court and the cases were remanded back to the respective courts.
(viii) In proceedings before the District Forum the complainant subsequently filed I.A. no. 433 / 2015 in the c.c. no. 14 of 2010 for amendment in the on-going consumer complaint before the District Forum by incorporating additional paragraphs and modifying the relief clause of the original complaint filed on 18.01.2010.
(ix) The District Forum vide its Order dated 14.01.2016 allowed the I.A. no. 433 of 2015 in c.c. no. 14 of 2010:
ORDER
- - - We are of the opinion that complainant being the master of the case and relief sought for amendment arous from the continuous process of the other litigation pending which is connected with the subject matter of this complaint. We being the Forum under Consumer Protection Act which is a beneficial legislation. We are of the opinion that strict principal of Civil Procedure Code has no much application and the amendment sought for will not change the nature of the case the IA is allowed. The decisions produced by the opposite party have no application in this case and hence not discussed her.
In the result, IA is allowed and opposite party is permitted to file additional version if any with regard to the amendment made.
(as per the translated copy furnished by the revision petitioner)
(x) The complainant then filed I.A. 117 of 2016 in c.c. no. 14 of 2010 seeking condonation of delay in carrying out amendment in the complaint as per Order dated 14.01.2016 of the District Forum. The District Forum vide its Order dated 09.06.2016 dismissed the said I.A. no. 117 of 2016 and estopped the complainant to carry out amendment:
ORDER This I.A. is filed by the complainant to condone the delay in carrying out the amendment as per order in I.A. No. 433/2015 dated 14.01.2016. The reason for the delay is stated as the counsel was bedridden and was unable to carry out amendment. The case was posted to 01.03.2016 and on that day there is boycott of advocates and then posted to 28.03.2016. Opposite party filed objection stating that as per order VI Rule 17 and 18 of Civil Procedure Code if no time is prescribed in the order for carrying out amendment, it shall be done within 14 days from the date of order, Amendment petition allowed on 14.1.2016 and 14 days culminated on 28.01.2016. For carrying out amendment posting of the case is immaterial. This petition has got a delay of 61 days. The reason stated for the condonation of delay does not constitute sufficient cause and no supporting evidence produced. Hence we are of the opinion that there is wide latches on the part of the complainant. hence I.A. dismissed without cost and the complainant is estopped from carrying out amendment on the strength of the order in I.A. No. 433/20105.
(as per the translated copy furnished by the petitioner)
(xi) The complainant filed revision petition no. 64 of 2016 in the State Commission challenging the Order dated 09.06.2016 of the District Forum in I.A. no. 117 of 2016 in c.c. no. 14 of 2010.
The advocate (P. Santhosh Kumar) filed revision petition no. 70 of 2016 in the State Commission challenging the Order dated 14.01.2016 of the District Forum in I.A. no. 433 of 2015.
(xii) The State Commission vide its Order dated 26.10.2016 allowed the revision petition no. 70 of 2016 of the advocate (P. Santosh Kumar) holding that the amendment sought for if allowed will change the character of the complaint:
6. The complaint was filed claiming Rs. 4,05,050/- for the loss caused to the complainant for the dismissal of CC 1149/07 in CJM Court, Thiruvananthapuram and Rs. 1,00,000/- for the dismissal of AS 70/04 in Sub Court, Thiruvananthapuram and Rs. 50,000/- as compensation for mental agony. But the amendment sought for was to return of the Advocate's fee paid by him for conducting the cases in High Court. It is clear from the above that the amendment sought for if allowed will change the entire character of the complaint. Therefore Forum is not justified in allowing the amendment of the complaint.
In the result revision petition is allowed. The impugned order of the Forum allowing the amendment of the complaint is set aside. IA 433/15 before the Forum is hereby dismissed.
(para 6 of the State Commission's Order in RP No 70 of 2016) (emphasis supplied) The revision petition no. 64 of 2016 of the complainant (Bajee Govindan) was together dismissed vide Order dated 26.10.2016 of the State Commission:
ORDER
- - - In the light of the order passed in RP 70/16, this Revision Petition is dismissed.
(extract of the State Commission's Order in RP No 64 of 2016)
(xiii) The complainant filed a petition O.P. (C) No. 348 of 2017 in Hon'ble High Court challenging the Orders dated 26.10.2016 of the State Commission. Hon'ble High Court vide its Judgment dated 31.01.2017 dismissed the petition as not maintainable with liberty to challenge it before this Commission:
Dated this the 31st day of January, 2017 JUDGMENT This original petition is filed challenging an order passed by the State Consumer Disputes Redressal Commission setting aside an order of District Consumer disputes Redressal Forum allowing an amendment of complaint.
2. This court is of the view that that remedy of the petitioner is to challenge the above order before the National Commission as highlighted by the Judgment of the Hon'ble Supreme Court in Nivedita Sharma vs. Cellular Operators Associates and others [2011 (13) SCALE 584] and the Judgment of this court in Z.O.P. (C) No. 612 of 2016. In view of the above, the original petition is not maintainable.
With a liberty to challenge the above orders, the original petition is disposed off.
(as per the translated copy furnished by the petitioner)
(xiv) The instant two revision petitions have been filed by the complainant against the Orders dated 26.10.2016 of the State Commission passed in revision petition no. 64 of 2016 and revision petition no. 70 of 2016.
6. The revision petitions have been filed under section 21(b) of the Act 1986:
21. Jurisdiction of the National Commission. -- Subject to the other provisions of this Act, the National Commission shall have jurisdiction--
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
7. We would first want to quote for reference section 2(1)(c)(iii), section 2(1)(d)(ii), section 2(1)(g), section 2(1)(o) and section 14(1)(d) of the Act 1986:
section 2(1)(c)(iii): Complaint means any allegation in writing made by a complainant that--
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
section 2(1)(d)(ii): Consumer - means any person who--
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
section 2(1)(g): Deficiency - means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;
section 2(1)(o): Service - means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
section 14: Finding of the District Forum -
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party:
(emphasis supplied) The Consumer Protection Act, 1986 is a comprehensive enactment for speedy and simple redressal to consumer disputes and for better protection of the interests of consumers. A plain reading of the definitions shows that the client (complainant) was a 'consumer' within the meaning of section 2(1)(d)(ii) and had the right to file a 'complaint' within the meaning of section 2(1)(c)(iii) for 'deficiency in service' within the meaning of section 2(1)(g) and section 2(1)(o) read with section 14(1)(d).
8. The Consumer Protection Act, 1986 is to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith.
The Advocates Act, 1961 is to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All-India Bar.
Both, a State Bar Council, and a consumer protection forum, work in their respective domains, as per their respective statutes.
A State Bar Council entertains and determines cases of misconduct against the advocates on its roll. Its decisions are not binding on a consumer protection forum. Nor can a consumer protection forum sit in any form of judgment on the decisions of a State Bar Council. A consumer protection forum can, however, adjudicate complaints of deficiency in service against advocates under the Consumer Protection Act, 1986. Orders of a consumer protection forum are not binding on a State Bar Council.
Decisions of a State Bar Council, though not binding, have, however, to be given the due consideration, if and as relevant and material to the particular case before a consumer protection forum.
9. In this case, we note that the advocate in his reply to the State Bar Council submitted that he had successfully conducted 5 cases for the complainant and his spouse in various courts; the complainant filed a complaint of "intentional professional misconduct" before the State Bar Council "to wriggle out the delay caused in filing the appeal" (that is to say, the delay in filing second appeal RSA no. 278 / 2009 before Hon'ble High Court); the complainant did not appear before the Additional Sub Judge, Thiruvananthapuram, and was proceeded against ex parte by the Additional Sub Judge, Thiruvananthapuram on 28.10.2006, after the complainant was served through paper publication; he (the advocate) was present in the court proceedings during two adjournments in A.S. 70 /2004. In the other case i.e. C.C. no. 1149 / 2007 filed under section 138 of the Negotiable Instruments Act, 1881, he (the advocate) duly informed the complainant to attend the proceedings in person alongwith his junior advocate one Mr. Prasanth on the said date (15.02.2008) when the order of dismissal in default for non-appearance was passed as he (P. Santhosh Kumar, advocate) had to appear in a case before the Family Court for final hearing; necessary process fee had not been paid and steps for issuing fresh summons to one P.S. Santhosh Kumar (accused in C.C. no. 1149 / 2007) had not been taken; he duly informed about the disposal (dismissal) of the case to the complainant and advised him to file revision; the complainant did not take any further step to file the revision against the Order dated 15.02.2008.
10. We also note that the complainant - client (Bajee Govindan), a PWD contractor, first filed a complaint of "intentional professional misconduct" before the State Bar Council of Kerala on 26.03.2009. The State Bar Council gave its decision on 04.12.2011 that there is no reason to believe that the advocate had committed any professional or other misconduct and dropped proceedings against the advocate.
The complainant, separately and independently, also filed a complaint before the District Forum. The complaint was filed on 18.01.2010. After a period of about 71 months he filed an application for amendment in the complaint. He did not carry out the amendment till about 3 months from the date of allowing of the amendment. He was then estopped by the District Forum on 09.06.2016 from amending the complaint. He then approached the State Commission in revision, and the State Commission dismissed his revision on 26.10.2016 holding that the amendment sought for if allowed will change the entire character of the complaint. He then approached Hon'ble High Court against the State Commission's Orders dated 26.10.2016. Hon'ble High Court vide its Judgment dated 31.01.2017 dismissed the original petition being not maintainable with liberty to challenge the State Commission's Orders dated 26.10.2016 before this Commission. He approached this Commission in revision on 27.03.2017.
11. We would also like to specifically observe that "intentional", in the allegations of "intentional professional misconduct" and "intentional dereliction of duty", is a strong and serious allegation, and the onus to establish it is on the complainant, who has made the allegation. The complete material on record, ex facie, but clearly shows that there is no element whatsoever of "intentional" in the whole sequence of facts and circumstances.
12. Here we would want to quote section 26 of the Act 1986:
Section 26: Dismissal of frivolous or vexatious complaints. -- Where a complaint instituted before the District Forum, the State Commission or as the case may be, the National Commission, is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order.
13. A plain reading of the facts and a simple appreciation of the circumstances of the case clearly show that the complaint filed before the District Forum is frivolous and vexatious within the meaning and essence of section 26. The advocate in this case is being put to vexatious harassment and difficulty on a frivolous complaint.
14. The scope of section 21(b) is defined. It but does allow for interference in cases of (well) evident material irregularity, miscarriage of justice.
15. In the instant case, we find that a frivolous and vexatious complaint has been filed by the complainant, a PWD contractor, against the advocate, a lawyer by profession, and the complaint is lingering on unnecessarily and unwarrantedly before the District Forum since 2010, and we are now in 2019.
16. Consumer Protection fora are not meant to be a tool for creating 'nuisance value' or for indulging in vexatious harassment through frivolous complaints.
17. The vexatious harassment and difficulty of the advocate on such frivolous complaint requires to be put to an end.
18. We are therefore going into the genesis itself of the impugned Orders before us, that is, to the 'complaint' itself, and dismissing it as being frivolous and vexatious, misconceived and devoid of merit. Anything to the otherwise would be a miscarriage of justice.
19. The complaint before the District Forum is dismissed.
20. We have consciously refrained from directing for cost to the opposite party - advocate. Having regard to the opposite party i.e. advocate's overall position per se and to the overall situation of the case, recourse to the provision of cost provided for in section 26 of the Act 1986 is not being adopted. (The advocate would no doubt appreciate the overall perspective, and maybe moreso after perusing para 21 below.)
21. It is seen that the time and resources of this Commission have been thus wasted, in such manner, and for such evident purpose. It is therefore appropriate and albeit necessary to give stern advise of caution to the complainant through a monetary deterrent (/ cost), to desist from misusing the statutory processes provided for for a consumer for better protection of his interests under the Consumer Protection Act, 1986. (This Act is not meant to be a tool to create 'nuisance value' or to indulge in vexatious harassment through frivolous complaints).
22. In the totality of the case, it is felt just, apt, reasonable and necessary that cost of Rs.10,000/- (rupees ten thousand only) in each case (total Rs.20,000/-) be deposited by the complainant (Bajee Govindan), PWD contractor, with the Consumer Legal Aid Account of the District Forum within four weeks from the date of pronouncement of this Order.
23. The revision petitions are dismissed.
24. Operative and executable paragraphs are para 19, para 22 and para 23.
25. A copy of this Order be sent to the District Forum by the Registry within ten days of pronouncement.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER