Delhi

StateCommission

CC/671/2015

DR. VIRENDRA SINGH - Complainant(s)

Versus

A.P. AGARWAL - Opp.Party(s)

12 Feb 2016

ORDER

IN THE STATE COMMISSION

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 12.02.2016

 

Complaint Case No. 671/2015

 

        In the Matter of:

 

                Dr. Virendra Singh

          S/o Sh. Ram Chander Singh

          R/o Kailashwati Memorial Hospital,

          Judgi Road,

          Bijnor,

          Uttar Pradesh, 246701

 

……Complainant     Versus   Sh. A.P. Agarwal Working At: Chamber No. 271, Lawyers’ Chambers, High Court of Delhi, Sher Shah Road, New Delhi-110503                                                                                      …….Opposite Party

CORAM

Justice Veena Birbal, President

Salma Noor, Member

1.   Whether reporters of local newspaper be allowed to see the   judgment? 

2.   To be referred to the reporter or not?

 

Justice Veena Birbal, President

1.             This is a complaint u/s 12 of the Consumer Protection Act (in short ‘The Act’) wherein following prayers are made:

      a) “Direct the opposite party to compensate the complainant to the extent of Rs. 2,25,000/- as litigation expenses incurred by the complainant after the dismissal of the Appeal Case i.e. FAO (OS) No. 146 of 2012 vide order dated 11.04.2012; and,

      b) Direct the opposite party to pay a sum of Rs. 40,00,000/- as compensation towards the harassment and mental agony suffered by the complainant due to the acts  & omissions of opposite party; and,

      c) Direct the opposite party to pay a sum of Rs. 55,000/- as litigation cost; for filing the preset complaint and/or,

d) Pass such other order/orders as this Hon’ble Commission deem fit and proper in the facts and circumstances of the case”.

2.             The relevant factual background is as under:

                It is alleged that the complainant had opened Demat Account with the Arcadia Commodities and Trading through Mrs. Sonia Nanda and her husband Mr. Sachin Kumar Gupta and had deposited Rs. 50,00,000/- between 01.10.2010 and 29.01.2011. On 18.02.2011, Mr. Sachin Gupta of Arcadia Commodities and Trading informed the complainant that his account had been closed due to paucity of funds. It is alleged that on 16.11.2011, the complainant had filed a claim against the aforesaid firm i.e. M/s Arcadia Commodities and Trading before the Arbitral Tribunal of the MCX for a sum of Rs.83,25,000/-.  On hearing the complainant and the aforesaid firm, the Arbitral Tribunal had dismissed the claim vide order dated 16.11.2011.  Accordingly the complainant challenged the award of the Arbitral Tribunal before the High Court of Delhi by filing a petition bearing OMP No.153/2012 under Section 34 of the Arbitration and Conciliation Act, 1994.  The same was dismissed by the High Court vide Order dated 21.2.12.  Aggrieved from the dismissal of petition by the Single Bench of the High Court of Delhi, the complainant engaged OP for challenging the order dated 21.2.12 before the Division Bench of High Court of Delhi by filing FAO (OS) and for representing the complainant in the said appeal, the complainant also paid necessary fee to the OP.  Accordingly the OP drafted the appeal and the same was filed in the High Court of Delhi which was numbered as FAO (OS) No.146/2012.  The said appeal was listed for admission hearing on 11.4.12.  It is alleged that to the utter shock and surprise of complainant, the OP had withdrawn the said appeal on 11.4.12 without any instructions from the complainant who was present in the court room.  It is alleged that by said withdrawal, OP had caused a damage of Rs. 40,00,000/- to the complainant. It is alleged that the conduct of the opposite party by withdrawing appeal without the consent of the complainant is a clear case of deficiency in service on his part as the OP ought not have withdrawn the appeal i.e. FAO (OS) No. 146/12 without seeking proper instruction from the complainant. It is alleged that said conduct of the OP has caused mental agony, harassment and agony to the complainant. It is further alleged that from 07.09.2013 to 21.01.2015, the complainant availed various other legal remedies available to him for the restoration of FAO (OS) 146/12 which was allegedly withdrawn without the consent of complainant, however, no relief was granted to him. The complainant had also filed a complaint against OP on 08.05.2015 before Bar Council of Delhi which was also dismissed. It is alleged that complainant is entitled for compensation and the loss suffered by him, as such prayer is made seeking directions to the OP to pay the complainant compensation as well as other amounts as has been stated above.

3.             The complaint is fixed for admission hearing.  We have heard Ld. Counsel for the complainant as well as perused orders passed by the High Court of Delhi as well as of Hon’ble Supreme Court concerning the present case which are annexed with the complaint.

4.             The main grievance of the complainant is that the Counsel for the complainant i.e. OP to whom the complainant had engaged in FAO (OS) 146/12 had withdrawn the said appeal on 11.4.12 without his consent which amounts to deficiency in service on the part of OP.

5.             For considering the allegation of deficiency in service, it is appropriate to reproduce the order of the Division Bench of High Court of Delhi dated 11.4.12 passed in FAO (OS) which is as under:

                “11.04.2012 

                 Caveat No. 356/2012

Since learned counsel for the caveators/respondents have entered appearance, the caveat stands discharged.

                CM No. 6319/2012

                Allowed subject to just exceptions

                FAO (OS) No. 146/2012

After arguing for some time, learned counsel for the appellant seeks to withdraw the appeal.

                Dismissed as withdrawn.”

6.             Perusal of material on record shows that complainant had moved an application under 151 CPC seeking review/recall of the aforesaid order.  However, the said application was dismissed by the Division Bench of High Court of Delhi vide order dated 17.09.2013. The said order reads as under:

                 “17.09.2013

                  CM 14594/2013

                The exemption is allowed subject to all just exceptions.

                The application stands disposed of.

                CM No. 14593/2013

          This is an application for recall of the order dated 11.04.2012. According to the applicant/appellant, the appeal was dismissed as withdrawn on 11.04.2012 by the learned counsel for applicant/appellant without instructions. We are not at all impressed by this statement now being made in this application. Even the delay is filing this application is unexplained. Consequently, the application is dismissed”

7.             The stand taken by the complainant in review petition before the High Court of Delhi was that the Counsel, representing him i.e. OP of the present complaint case, without his instructions, had withdrawn the said appeal. However, the Division Bench of High Court of Delhi, while dismissing the review petition, had observed that the Bench was not at all impressed of the statement being made in the said application. It may be mentioned that even the delay aspect was also considered while dismissing the review application.

8.             The aforesaid order was challenged by the complainant by filing Special Leave to Appeal (Civil) No.6831/2014 before the Hon’ble Supreme Court.  The same was dismissed on 26.03.2014.            

9.             Thereupon the complainant had filed a review petition bearing no. 1123/2014 in SLP (CIVIL) No. 6831/2014 before the Hon’ble Supreme Court which was dismissed on 08.07.2014.

10.            The complainant thereupon had filed a Curative Petition (CIVIL) No. 326/14 before the Hon’ble Supreme Court. Even the same was also dismissed vide order dated 21.01.2015.

11.            The availing of different remedies by the complainant, as has been stated above, has not yielded any result.  Thereafter the present complaint case is filed. 

12.            The main allegation in the present case is that the OP had withdrawn the appeal i.e. FAO (OS) No. 146/2012 which was listed before the Division Bench of High Court of Delhi without obtaining any instructions from the complainant, as such there is deficiency in service on the part of OP.  On the aforesaid allegation, the complainant is trying to invoke the jurisdiction of this Commission for seeking compensation for the alleged loss suffered by him.  As noted above, the aforesaid stand was taken by the complainant in review petition CM-14593/12 in FAO (OS) No.146/2012 for recall/review of the order dated 11.04.2012.  In the said application the complainant had also categorically stated that he had suffered irreparable loss and had been gravely prejudiced due to misconduct of the OP and pleaded before the High Court of Delhi to restore the appeal.  As noted above, the aforesaid application was  dismissed vide order dated 17.09.2013 by the Division Bench of High Court of Delhi by observing that they were not impressed of the statement of the complainant made in the review application. The complainant has availed the remedy up to Hon’ble Supreme Court by way of filing the Special Leave Petition against aforesaid order which was dismissed on 26.03.2014.  Thereafter the review petition and curative petition were also dismissed vide orders referred above.  In these circumstances, the present is not a fit case for admission.

13.            Further, it may be mentioned that the cause of action had arisen on 11.04.2012 when as per complainant, his counsel in FAO (OS) No.146/12 i.e. OP had withdrawn the appeal without his consent. The period of 2 years from the said date had also expired on 11.04.2014 whereas the complaint is filed on 02.09.2015.  In these circumstances, the complaint is also time barred.

14.            Accordingly, the complaint stands dismissed at admission stage. 

(Justice Veena Birbal)

President

 

(Salma Noor)

Member