O R D E R
K.S. MOHI, PRESIDENT
The complainant has filed the present complaint against the O.P u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant is a body corporate and carries on inter alia, banking business, throughout the country. It is alleged that the complainant had advanced various credit facilities from its Branch Office, Okhla Industrial Estate, New Delhi to M/s Kishore Opticals. It is further alleged that the advanced granted to M/s Kishore Opticals were guaranteed by Sh. Prem Das Kalra, but neither the borrower nor the guarantor repaid the amounts outstanding in the account. It is alleged that a legal notice dated 3.5.2003 to borrower and the guarantor for payment of a sum of Rs.2,04,327.43p due as on 28.3.2003 alongwith further interest was given but aforesaid parties did not pay the outstanding amount, hence the complainant instructed the OP to file a suit for recovery of the outstanding amounts from the said parties. It is alleged that suit was assigned to the court of Sh. Vinay Singhal, Civil Judge on 11.8.2003 registered the suit and adjourned the same to 18.2.2004 for service of the OPs. However, even on the very first date of hearing the OPs did not appear before the court. It is alleged that on 22.2.2005 a proxy counsel appeared on behalf of OP when the court dismissed the suit filed by the complainant as the OP had neither taken steps for publication of the notice in the newspaper inspite receipt of the amount from the complainant and nor the cost imposed was deposited by him. It was only as late as 20.8.2005 that the complainant received a letter dated 17.8.2005 from the OP for the first time, informing about the dismissal of the suit. It is alleged that OP has committed professional misconduct in conducting the above suit. It is alleged that Non-appearance of OP on numerous dates of hearing and non-compliance of the orders dated 13.12.2014 and 5.2.2005 passed by the Court leading to the dismissal of the suit filed by the complainant, clearly amounted to deficiency of service and gross negligence on the part of OP. On these facts complainant prays that O.P be directed to pay the sum of Rs.2,69,848.75 alongwith interest @ 15.75%p.a., apart from cost and compensation as claimed.
2. O.P appeared and filed the written statement. In its written statement OP submitted that the present complaint is hopelessly time barred as the suit in question was dismissed on 22.2.2005 and the present complaint was filed on or after 7.11.2007. It is submitted that complainant Bank is not the consumer within the meaning of section 2(1)(d) of the Consumer Protection Act 1986 as the complainant has not received any consideration to deal the case at the stage of high court except distt. Court. Only part of professional fee was paid for distt. Court case, even expenses bill has not been cleared. It is alleged that OP had received part consideration to deal with the case at district court and has attended 17 dates against the consideration Rs.8820/- out of which Rs.1200/- was already spent in service of OP that was not paid by complainant till date. It is alleged that recovery suit was filed and assigned to Sh. Vijay Singhal, Civil Judge and adjourned to 18.2.1004. The suit was attended by the Proxy counsel on behalf of OP and the needful was done by filing process fee for 18.2.2004. The non-appearance of the main counsel is not a deficiency as pointed out by the complainant. It is alleged that the OP rendered his services with full honesty as an Advocate. It is alleged that Bank has not performed their duty to prosecute the suit before the civil judge by attending the case on each and every date as well as to get their knowledge up dated regularly. They were bound to supply the fresh address of the OPs, which was never done by them and application for publication was filed and the same was allowed to be published in Hindustan Times for which the payment was not remitted as directed by the OP, due to which the case was dismissed on 22.2.2005. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit in evidence testifying all the facts made in the complaint. On the other hand Mr. Brijendra Kulshrestha, Advocate of O.P has filed affidavit in evidence.
4. We have carefully gone through the record of the case and also heard submissions of Ld. Counsels for the parties.
5. In the instant case the dispute between the parties is as to whether the OP whose service were hired by the complainant as an advocate for a civil suit filed on behalf of complainant lacked/deficiency. Needless to say that OP instituted a civil suit for recovery on behalf of complainant. The Civil suit ultimately entailed in dismissal because of non-prosecution on behalf of complainant. The reason of the dismissal of the suit was non-depositing of publication charges for the service of the OP in the civil suit. The case of the complainant is that OP never attended the civil suit nor was diligent in prosecuting their case and the case was dismissed due to carelessness on the part of OP. On the other hand, OP maintained that it was the complainant itself which did not remit the publication charges in time; as a result, the suit was dismissed due to non-prosecution. Now it is to be seen from the documents filed on behalf of the parties as to which party contributed for dismissal of suit.
6. I have gone through all the order sheets of civil suit filed by the complainant which speak itself and will demonstrate which party committed lapse.
7. On 13.12.2004, the Civil Court directed the complainant to get the defendant in civil suit served by way of publication in daily newspaper Hindustan Times and matter was fixed for 5.2.2005. On that day proxy counsel appeared on behalf of complainant, steps were not taken for publication, cost of Rs.500/- was imposed and the matter was adjourned to 22.02.2005. On said date, again steps were not taken on behalf of complainant, as a result, the suit was dismissed for non-prosecution. The record indicates that vide Annexure C-12, the OP had written a letter to the complainant on 7.2.2005 to arrange funds for execution of publication. Admittedly the publication charges were paid to the complainant on 17.2.2005 and the publication amount was deposited/ credited in the account of OP only on 3.3.2005, whereas the case was fixed for 22.2.2005. The OP had, well in advance written a specific letter to the complainant on 7.2.2005 and the complainant took 10 days to arrange the funds which, in fact, was credited in the account of OP only by 3.3.2005. The aforesaid circumstances, explicitly demonstrate that it was the fault of complainant for not remitting the required fund in time for the purpose of carrying out the publication of the defendant in the civil suit.
8. I don’t find any circumstance indicating that dismissal of civil suit was the result of deficiency in service on behalf of OP. It needs to be clarified here that the senior advocates engage their assistant to put up appearance on their behalf as proxy counsel in misc. cases because Sr. Counsel cannot appear in all his cases simultaneously, therefore the objection taken by the complainant that OP never appeared in the civil suit and rather sent his proxy counsel does not hold water.
9. In view of the aforesaid facts and circumstances and the discussion stated above, we are of the view that there is absolutely no deficiency in service on the part of the O.P. Complaint is, therefore, rejected.
Copy of the order be sent to the parties as per rules.
Announced this 05th day of January, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
