Chandigarh

DF-I

CC/556/2019

Smt Shashi Prabha - Complainant(s)

Versus

Bar Council of Punjab and Haryana law Bhawan - Opp.Party(s)

In Person

01 Jun 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/556/2019
Date of Institution	:	28/05/2019
Date of Decision	:	01/06/2022

 

Smt. Shashi Prabha W/o Sh.Ashok Kumar aged 68 years resident of Flat No.138/6D-2, Acme Height-1, Sector-126, Chhaju Majra Road, Tehsil Kharar, Greater Mohali.

… Complainant

V E R S U S

1. The Secretary, Bar Council of Punjab and Haryana law Bhawan, Dakshin Marg, Sector-37A, Chandigarh.
2. Anil Gogna Advocate, District Court Complex, Sector-43, Chandigarh, Chamber No.260.

… Opposite Parties

CORAM :	SURJEET KAUR	PRESIDING MEMBER
	SURESH KUMAR SARDANA	MEMBER

 

                                                

ARGUED BY	:	Sh.Ashok Kumar Sharma, Authorized Representative of Complainant.
	:	Complaint against OP No.1 already dismissed vide order dated 30.05.2019.
	:	Sh.Anil Gogna, OP No.2 in person alongwith his counsel Sh.Vivek Mohan Sharma, Advocate.

Per Suresh Kumar Sardana, Member

1.      The long and short of the allegations are that the complainant paid a sum of Rs.20,000/- to the OP No.2 to oppose the Bail at Mohali in FIR No.0005, but the OP No.2 did not attend the court on the very important dates of the case i.e., (29.01.2018, 06.02.2018, 09.02.2018, 10.02.2018, 12.02.2018) and even on 16.02.2018 consequently on 06.02.2018 the court has granted the bail to Sh.Kulwant Singh and Sh.Balwant Kumar. But the OP No.2 did not oppose it. Neither he has appeared in the court, nor refunded the fee amount of Rs.20,000/- charged and not even returned the file of the complainant and documents related to the case. The complainant also filed a complaint with the Bar Council of Punjab & Haryana but the same was dismissed. Hence this complaint alleging that the aforesaid acts of the OP No.2 amount to deficiency in service and unfair trade practice.
2.     Opposite Party No.2 contested the consumer complaint and denied the allegations of any deficiency in service. In the present case, the total professional fee settled with the complainant and her husband was Rs.30,000/- excluding the expenses to be incurred by the complainant herself for all the four bail applications as these were pending in three different courts at SAS Nagar for different dates. The OP No.2 had received only Rs.20,000/-. It is also specifically denied that the OP No.2 did not oppose the bail applications of the accused. The bail applications of the accused were allowed due to the adamant behavior of the complainant as she was not ready to get the registry done in her favour by paying balance amount of Rs.2 lacs nor she was interested to get back Rs.31.05 lacs. The accused were ready to get the registry done in the favour of the complainant. It is denied that the OP No.2 did not attend the important court proceedings as alleged. On 10.02.2018 remaining two bail applications were listed in the Lok Adalat for settlement between the complainant And the accused. The OP No.2 was already assigned duty in Lok Adalat as member Lok Adalat with Hon’ble Ms.Iram Hassan, Ld. JMIC, Chandigarh on 10.02.2018. Copy of office order dated 07.02.2018 of Secretary; District Legal Services Authority is annexed as Annexure R-6. On these lines, the case is sought to be defended by the OP No.2.
3.     Complaint against OP No.1 already dismissed vide order dated 30.05.2019.
4.     Rejoinder was filed and averments made in the consumer complaint were reiterated.
5.     Parties led evidence by way of affidavits and documents.
6.     We have heard the parties and gone through the record of the case. After perusal of record, our findings are as under:-
7.     On going through a copy of SLP (C) No.3052 of 2008 etc., titled as Bar of Indian Lawyers Vs. D.K. Gandhi & Anr., preferred before the Hon’ble Supreme Court, against the order dated 6.8.2007 passed in R.P. No.1392 of 2006 of the Hon’ble National Commission, the operation of the order of Hon’ble National Commission was suspended.  It is also made out, Hon’ble National Commission had reversed the order of the Hon’ble State Commission which was under challenge before it holding advocates do not fall within the definition of service providers or the client is not a consumer and the accountability of the advocates is to the State Bar Council and Bar Council of India for disciplinary action. The Hon’ble National Commission had reversed the finding and held, client is a consumer and the consumer complaint is maintainable against the lawyer if there was any unfair trade practice or say deficiency in service. However, the Hon’ble Apex Court has ordered, there shall be a stay of the impugned order of the Hon’ble National Commission during the pendency of the appeals.  The said appeals have not yet been decided by the Hon’ble Apex court as was argued and the Hon’ble Apex Court is seized of the matter and the precedent of the Hon’ble National Commission cannot be looked into as it is not in operation as per order of the Hon’ble Supreme Court. We do agree with this contention, there is no guidelines to hold, advocates are service providers and clients are consumers.
8.     The Hon’ble Apex court is already seized of the matter and the judgment and the precedent is still awaited for the guidance of the subordinate courts, including this Commission.  Now while sitting as a District Commission, we are afraid to make any such interpretation of client being a consumer and OP service provider and consumer complaint is maintainable against them. Hence, a necessity has arisen to dispose of this consumer complaint on merits.
9.     Assuming that the client is a consumer, in that situation, it has to be established, there was any deficiency or negligence in service on the part of the lawyer, therefore, the consumer is to be compensated for the loss caused. 
10.     The main allegation of the complainant is that the OP No.2 (advocate of the complainant) has not attended the court on the important dates and he did not oppose the grant of bail by the court and also has not returned the file & documents related to the case.
11.     It is observed from Annexure R-2 to R-5 (colly) that OP No.2, appeared on the very first date in each & every bail application, and during the course of proceedings all bail applications were transferred to the Court of Hon’ble Ms.Girish Ld.ASJ, SAS Nagar, Mohali.
12.     On perusal of Annexure R-4, which is an order dated 22.01.2018, it is observed that the complainant was ready to compromise the matter with the Opposite Party and the complainant was ready to join the mediation proceedings and accordingly, interim bail was granted on this date also the OP No.2, (advocate of complainant was present).
13.     We have also perused the Annexure R-7 & R-8, which are the statements of ASI Sh.Sahib Singh & ASI Sh.Jiwan Singh, which have been recorded by the Court that the Sh.Kulwant Singh and Sh.Balwant Kumar are not required for custodial interrogation.
14.     In view of above discussion, it is observed that as and when necessity arose, the OP No.2 was present on behalf of the complainant in the court. Moreover, to grant or not to grant the bail, is the prerogative of the Hon’ble Court, and the OP No.2 has to assist the Court and the public prosecutor only and place factual records before court only.
15.  During the course of arguments, it was also argued orally that the complainant had filed a complaint for disciplinary action against the OP advocate before the Bar Council of Punjab and Haryana for the negligence or say misconduct on the part of the OP. Therefore, the complainant had availed the remedy and if any negligence or say misconduct was done by the OP, Bar Council is already seized of the matter and could punish the advocate under the relevant Advocates Act.  However, it is observed from the complaint that the complaint pending before the Bar Council of Punjab and Haryana, Chandigarh has been dismissed.
16.            In view of the above discussion, we do not find any merit in the present consumer complaint.  Accordingly, the same is hereby dismissed, leaving the parties to bear their own costs. 
17.           The certified copies of this order be sent to the parties free of charge. The file be consigned.

 

	Sd/-	Sd/-
01/06/2022	[Suresh Kumar Sardana]	[Surjeet Kaur]
Ls	Member	Presiding Member