SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complaint is filed for compensation for deficiency in service against his lawyer who was contesting his case at Munisiff Court, Kattappana as O.S.100/2004.

The suit was for return of advance money. The complainant was the defendant in that suit. The plaintiff and defendant entered into an agreement to sell the complainant's property(defendant in the suit). The property was 4 acres of land in Survey No.57/1/4/1 of Anavilasam Village. The total sale consideration was fixed as Rs.2,60,000/-. The plaintiff in that suit paid Rs.25,000/- as advance to the complainant(who was the defendant in the suit) on 1.08.2001 and agreed to execute sale deed in respect of the property without any encumbrance on or before 30.09.2001, after receiving the balance consideration. Though the plaintiff has demanded the defendant to execute the sale deed in respect of the property, the defendant did not execute the same as agreed by him on 30.09.2005. He had averred in the plaint that the property had some liability with Idukki District Co-operative Bank. Hence the defendant approached him and informed him to extent the time for executing of the sale deed to discharge his liability with the bank. The plaintiff was always ready to perform his part of contract and he had raised fund to purchase the same. He is further stated in the plaint that, defendant had informed him, his inability to discharge the liability and for executing the sale deed. He had agreed to rescind the contract. Hence the plaintiff also agreed to rescind the same. Evidence adduced by the plaintiff and by the defendant(complainant in this case).Documents Exts.A1 to A3 were marked in the side of plaintiff. Ext.B1 was marked in the side of defendant, who is the complainant in this case. After hearing both sides the Munisiff Court, Kattappana passed a judgement on 30.11.2005. The suit was decreed and the plaintiff in that suit was allowed to realize the amount of Rs.25,000/- with interest at the rate of 6% per annum from the date of the suit till the date of realization with cost of the suit, from the defendant who is the complainant in this case and from his assets. The complainant engaged the opposite party for conducting the case before the Munisiff Court, Kattappana. A sum of Rs.6,020/- was given to the advocate as advocate fee. The fee was given in several instalments from 23.05.2004 to 3.12.2005. All the documents such as gold loan receipt, sketch copy and survey No., date calendar of the year 2001 were given to the advocate by the complainant. The complainant instructed the counsel to include his son Sabu as witness, because the complainant is an illetrate. But his counsel avoided that instruction by telling that he was an interested witness, a blood relative, so the Court would not consider his evidence. After the expiry period of the agreement complainant's son Sabu gave back Rs.10,000/- to the plaintiff in the O.S.100/2004 by pledging his gold ornaments. The receipt of that was given to the counsel for producing before the Court as evidence, but the counsel did not consider the same by explaining the same reason. The contention of the plaintiff in the Munisiff Court was that, the plaintiff was present before the SRO, Kattappana on 30.09.2001. Complainant handed over a date calender of Valiyathovala Service Co-operative Bank to the counsel for producing before the Munisiff Court to prove that 30.09.2001 was a Sunday. But the counsel did not produce the same before the Court. The plaintiff has influenced the complainant's counsel and changed his contention that he was present before the SRO, Kattappana was on 29.09.2001, not on 30.09.2001. But the counsel for the complainant did not challenged the same. The complainant's counsel did relive the original facts before the Munisiff Court and so the Munisiff Court decreed against the complainant in 100/2004 to pay a compensation of Rs.32,000/- to the plaintiff. The complainant understood that his counsel cheated him and so he paid back the entire amount to the plaintiff and the matter was settled. The complainant's son send a lawyer notice on 30.01.2006 for getting compensation for the deficiency in service. But no reply was received from the part of the opposite party. The complaint is filed for getting compensation for deficiency in service against the counsel in various heads.

2. The opposite party filed written version. The petition is filed only for insulting the opposite party before the public in order to degrade the reputation of the opposite party. The petition is filed by hiding the original facts. The complainant when received a notice from Adv.K.G.Shajimon, he approached Advocate Mr.Antony at Thodupuzha and a reply notice was sent through him. After that the said Advocate Mr.Antony was appointed as APP and so Advocate Antony handed over the file to Adv.Mr.Vikram Das at Thodupuzha. Complainant entrusted Adv.Vikram Das, Thodupuzha to file written statement. The said Vikram Das prepared the written statement. The written statement and the vakkalath was received from the said Vikram Das through Advocate Antony. The opposite party filed a joint vakkalath with them. Considering the friendly relation of the opposite party and the said advocate Antony, the opposite party did not receive any fee from the said Antony advocate. The case was conducted by the opposite party for two years, not even a single money was received from the part of the complainant in that period. When the case came in list, the opposite party called the petitioner and received the expenses met by him. The fee was paid by the complainant to the above said advocate named Antony and Vikram Das. The complainant deposed in O.S.100/2004 before the Munisiff Court that the plaint scheduled property was sold to another person when the transaction between the plaintiff was failed. That was against the written version filed by the opposite party. The opposite party examined sufficient witnesses before the Munisiff Court in O.S.100/2004, one witness was the broker of the transaction. He deposed the entire facts and the Munisiff Court considered the same. All the questions needed for cross examination were asked by the opposite party. The complainant never informed the opposite party that he has repaid Rs.10,000/- to the plaintiff in OS.100/2004.

3. The point for consideration is whether there was any deficiency in service from the part of the opposite party, and if so, for what relief the complainant is entitled to ?

4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P16 marked on the side of the complainant and the oral testimony of DW1 and Exts.R1 to R7(series) on the side of the opposite party.

5. The POINT :- The petition is filed for getting compensation against the lawyer of the petitioner who defended his case before the Munisiff Court, Kattappana as O.S.100/2004 for return of advance money. The complainant was examined as PW1. As per his deposition, the complainant's father disbursed Rs.6,020/- to the opposite party for defending his case at Munisiff Court, Kattappana. The complainant has given some documents to the counsel for producing before the Court. But they were not produced by the opposite party before the Munisiff Court because of the influence of the plaintiff in that case. It can be understood by looking over the cross examination of the defendant counsel. The case was decreed because of the non-production of the documents before the Court by the counsel. Ext.P1 is the copy of the decree of O.S.100/2004 before the Munisiff Court, Kattappana. Ext.P4 is the certificate issued to the father of the complainant from the Idukki District Co-operative bank to show that the father of the complainant is not having any account or encumbrance in the said bank. Copy of the Tax receipt of the complainant's father's property issued from Anavilasam Village is marked as Ext.P5. Copy of the suit filed before the Munisiff Court, Kattppana is Ext.P9. The attachment petition filed before the Munisiff Court, Kattappana is Ext.P10(series). The copy of the judgement from the Munisiff Court, Kattappana for OS.100/2004 is marked as Ext.P14. The opposite party was examined as DW1. As per the deposition of DW1, the opposite party never received any amount from the complainant at the time of conducting the case before the Munisiff Court. The opposite party conducted the case only at the time when the case was posted in the list. At that time only he received fee. As per the opposite party, the father of the complainant entrusted Advocate Mr.Antony from Thodupuzha for defending the petitioner's case at Munisiff Court, Kattappana as O.S.100/2004. The copy of the reply notice issued by Adv:Mr. Antony from Thodupuzha is marked as Ext.R1. After that the said advocate Antony was joined as APP and so the case was continued by Adv: Mr.Vikram Das from Thodupuzha. Ext.R2 is the copy of the written statement filed by the said Mr.Vikram Das in Munisiff Court, Kattappana for O.S.100/2004. The opposite party appeared for the complainant at the time of evidence. A joint vakkalath was filed by him. It is admitted by both parties that the opposite party has conducted the case of the complainant. Ext.R4 is the copy of the cross examination from the defendant side in O.S.100/2004. Ext.R5 is the copy of the chief affidavit filed by the complainant before the Munisiff Court. Copy of the deposition of one witness is Ext.R7(series). So it is evident that the opposite party has appeared for the complainant and filed chief affidavit for him before the Munisiff Court, which attested by the counsel ie, opposite party. The cross examination for the complainant was also done by the opposite party. The agreement for the O.S.100/2004 was also done by the opposite party. Certain documents like date calender of the month September was also produced by the opposite party. But as per the complainant, certain documents were not produced. As per the cross examination of the complainant, it is clearly stated by the opposite party that it is because he thought the documents were not necessary for the evidence of the case, and so not produced. In the initial stage of the case, O.S.100/2004, two advocates from Thodupuzha were appeared. The lawyer notice was sent by one Adv:Antony and one Vikram Das filed written version. As per the opposite party, the fee also paid to that advocate Antony and the opposite party conducted the case only because of the friendship with Antony by receiving a small amount. As per the version of PW1, the fee for the case O.S.100/2004 was paid by the complainant and PW1 never witnessed the transaction, the complainant is not made a witness. Going through the evidence we think that there is no deficiency can be found from the part of the opposite party. Even if the opposite party received fee from the complainant, he has conducted the case before the Munisiff Court. Whether the case was succeeded or dismissed is not a matter of deficiency from the part of the counsel who conducted the case. If the complainant was not satisfied with the counsel for defending the case, the complainant ought have given the vakkalath to any other advocate. Here there is no dispute regarding the non-representation of the case before the Court by the counsel. It is mind of the counsel to produce evidence before the Court consulting with the client. If the client is not satisfied, there are several remedies open to the client.

As a result, the petition is dismissed. No cost is ordered against the petitioner.

Pronounced in the Open Forum on this the 18th day of July, 2008

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SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

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SMT.SHEELA JACOB(MEMBER)

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SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions : Forwarded by Order,

On the side of Complainant :

PW1 - Sabu Abraham

On the side of Opposite Party :

DW1 - K.Balakrishnan SENIOR SUPERINTENDENT

Exhibits:

On the side of Complainant:

Ext.P1 - True copy of the Decree of O.S.100/2004 before the Munisiff Court, Kattappana

Ext.P2 - Photocopy of Proof Affidavit dated 9.11.2005 filed by Joseph Thomas as witness in O.S.100/2004

Ext.P3 - Photocopy of Summons issued by the Munisiff Court, Kattappana

Ext.P4 - Photocopy of Certificate dated 13.03.2007 issued to the complainant

from the Idukki District Co-operative Bank Limited, Kattappana Branch

Ext.P5 - Photocopy of Land Tax Receipt

Ext.P6 - Photocopy of Receipt dated 12.03.2007 for Rs.510/- issued by Kerala

Karshaka Thozhilali Kshemanidhi Board, Thrissur

Ext.P7 - Photocopy of Sketch of the complainant's property

Ext.P8 - Photocopy of Certificate dated 13.03.2007 issued by the Manager, Nedumkandam Service Co-operative Bank Limited No.K.326, Nedumkandam

Ext.P9 - Photocopy of Suit filed before the Munisiff Court, Kattappana as OS.100/2004

Ext.P10(series) - Photocopy of Affidavit and Attachment Petiton filed by the

Plaintiff in OS.100/2004 before the Munisiff Court, Kattappana

Ext.P11 - Photocopy of Proof Affidavit filed by Sri.Abraham(Respondent) in OS.100/2004

Ext.P12 - Photocopy of Proof Affidavit filed by Sri.Thomas Joseph(Plaintiff) in OS.100/2004

Ext.P13 - Photocopy of Deposition of PW1(Plaintiff) in OS.100/2004

Ext.P14 - Photocopy of Judgement dated 30.11.2005 in O.S.100/2004 before the Munisiff Court, Kattappana

Ext.P15 - Photocopy of registered Notice dated 30.01.2006 issued by the complainant's son to the opposite party

Ext.P16 - Photocopy of registered notice dated 16.11.2006 issued by the complainant to the opposite party

On the side of Opposite Party :

Ext.R1 - Reply notice dated 16.04.2004 issued by Adv:K.M.Antony from Thodupuzha

Ext.R2 - Copy of written Statement filed by Adv:Mr.Vikram Das in Munisiff Court, Kattappana for OS.100/2004

Ext.R3 - Copy of Proof Affidavit filed by the Plaintiff in OS.100/2004

Ext.R4 - Copy of Deposition of Plaintiff in OS.100/2004

Ext.R5 - Copy of Chief Affidavit filed by the respondent in OS.100/2004 before the Munisiff Court, Kattappana

Ext.R6 - Copy of Deposition of Respondent in OS.100/2004

Ext.R7 (series) - Copy of Deposition of witness Joseph Thomas and Proof Affidavit