COMPLAINT FILED ON: 29.07.2009

DISPOSED ON: 09.12.2010

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

09^TH DECEMBER 2010

  PRESENT :-     SRI. B.S. REDDY                          PRESIDENT

                        SMT. M. YASHODHAMMA             MEMBER                   

                        SRI. A. MUNIYAPPA                      MEMBER

       COMPLAINT NO.1794/2009

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to pay Rs3,750/- and compensation for mental agony and harassment along with cost on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

The Complainant is proprietor of M/s. Gagandeep, Malleshwaram, Bangalore. OP is an advocate by profession complainant obtained the service of the OP to file contempt proceedings bearing CC No.346/07 against M/s. Sneha Enterprises. On 28.05.2007 complainant paid Rs.2,250/- towards fees by way of cheque to OP towards filing of contempt petition. The said cheque was encashed by OP on 13.06.2007.   OP was instructed by the complainant that partner of M/s. Sneha Enterprises has disobeyed court orders and had not removed steps as ordered in HRRP No.1204 of 1999 arising out of HRC No.1602 of 1993 and to take action against them. The said CC No.346/2009 was filed by OP and same was posted for hearing on 19.07.2009 before the Hon’ble High Court of Karnatka before Hon’ble Justice S.R.Bannurmath.Finally the petition come to be rejected by the Hon’ble High Court. At that time complainant was in Delhi.  He could not accompanied OP when the matter was scheduled for hearing. Hence complainant made a telephone call on 18.07.2009 at 8.30 p.m. to OP and instructed OP not to compromise with respondent (land lord) at any cost if the land lord agrees to break the extended steps in front of complainant’s shop No.4 then compromise could be considered. Complainant enquired with the OP as to what happened to the case OP informed the complainant that landlords were directed to dismantle the steps. Complainant believing words to OP requested to obtain certified copy of the order but OP failed to deliver certified copy of the order to the complainant on one or other reason. Complainant got suspicious and applied for certified copy by himself.  Complainant was shocked to note that OP has not made the submission before the court standing like a dumb and deaf without stating that steps were not dismantled and received Rs.1500/- cost towards dismantling. OP has neither informed to the complainant that he has collected the amount of Rs.1,500/- from the respondents (landlords) nor answered to the phone calls made by the complainant.  Complainant caused legal notice to OP on 28.08.2007 and the said notice returned with an endorsement as not claimed. Complainant sent one more copy of the notice under UCP OP failed to comply with the demands.  Hence complainant felt deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint for the necessary reliefs.

3.      On appearance OP filed version mainly contending that he represented the complainant in CC No.346/2007 before Hon’ble High Court on the assurance that the complainant will pay Rs.4,000/- towards his fees but complainant paid only Rs.2,250/- and agreed to pay the balance fees of Rs.1,750/- after disposal of the case. The grievances of the complainant that steps were not removed as per the order of the Hon’ble High Court in H.R.R.P Nos.1204/1999 arising out of H.R.C No.1602/1993.  Two notices were issued by OP to landlord to comply order of the Hon’ble High Court otherwise his client will initiate contempt proceeding against the respondents landlords. In the said notices as per the instructions of the complainant, it was informed to the landlord that the complainant will carry to remove the flooring and steps as per order of Hon’ble High Court if landlord not comply the same. Hence before filing CC No.346/2007 as per the notice of OP cost of Rs.1750/- was demanded by OP only and not by complainant. The landlord submitted to the Court that he will pay the cost to carry out the work as per order to remove the steps. Even though OP argued vehemently the complainant with a view to defame his name has stated in the notice that OP is not argued before court that it shows the conduct of the complainant. Complainant has claim Rs.1500/- in the notice dated 20.08.2007; whereas now in this complaint claiming Rs.3750/- which OP is not liable to pay. The shop evicted as per the Supreme Court order. The charges of two notices of Rs.250/- each in total Rs.500/- is liable to be paid by the complainant. No where in the Hon’ble High Court order it is mentioned that OP has agreed for compromise as per Annexure-B and hence allegation of the complainant that OP has compromised before the court is utter false. Complainant used to call OP several times and abused OP in a filthy language to face dire consequences if Rs. 1500/- not paid to complainant.  Complainant defamed the OP in the presence of public and advocates by abusing thereby committed an offence of defamation for which complainant was liable for punishment under IPC. Complainant is liable to pay Rs.1750/- towards balance fee payable to OP and Rs.500/- towards cost of two notices sent by OP totally 2,250/- is due by the complainant.  OP denied that he is in due of Rs.3,750/- to the complainant; OP prayed for direction to pay complainant to Rs.2,250/- and to dismiss the complaint with cost reserving his right to file civil and criminal proceedings against the complainant for defamation committed by complainant.  Among other grounds OP prayed for dismissal of the complaint.

4.      In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced certified copy of the order in CC No.346/2007 and certified copy of the petition, copy of the legal notice dated 20.08.2007,18.07.2009, postal endorsement and return RPAD covers, copy of the receipt dated 30.04.2008 and copy of the notice dated 19.02.2009. OP filed his affidavit evidence and produced copy of notices dated on 09.04.2007 and 20.08.2007. Complainant submitted written arguments. Heard complainant. Taken as heard from the OP side.

5.      From the above pleadings the points now that arise for our consideration are as under:

  Point No.1:- Whether the complainant has proved

                     the deficiency in service on the part

                       of the OP?

Point No.2 :- If so, whether the complainant has

                    entitled for the reliefs now claimed?

      Point No.3 :- To what Order?

6.      We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:

Point No.1:- In Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

7.      At the outset it is not in dispute that the complainant is a client of OP Advocate and availed his services for the pupose of filing contempt petition against M/s. Sneha Enterprises represented by its partners. OP filed contempt petition in CC No.346/07 on 28.05.2007.  We have perused the copy of CC No.346/07.  Further it is also not in dispute that complainant paid Rs.2,250/- to OP towards the fees to file the said contempt petition by way of bearer cheque.  The said cheque was encashed by OP on 13.06.2007. Complainant has clearly instructed the OP that the partners of M/s Sneha Enterprises has disobeyed the court orders and had failed to remove the steps as ordered in HRRP No.1204/1999 arising out of HRC 1602/1993 and to take action against them.  On 19.07.2007 the said contempt petition in CC No.346/07 came up for hearing in the Hon’ble High Court before the Hon’ble Justice S.R.Bannurmath. At that time complainant was at Delhi hence he could not accompany the OP when the matter was listed. On 18.07.2007 at about 8.30 p.m. Complainant called OP and instructed OP not to compromise with respondent (landlord) at any cost unless landlord agreed to break the extended step in front of shop No.4 of the complainant.  After hearing complainant enquired OP regarding the status of the case. OP informed the complainant that respondents / Landlords were directed to dismantle the steps. We have perused the order copy dated 19.07.2007 nowhere in the order landlords are directed to dismantle the steps. The order reads as follow: “On issuance of the notice respondent has appeared and has stated that as per the request of the complainant dated 09.04.2007 the respondent has paid the cost accrued to the complainant for restoring the front yard of shop No. 4 by paying Rs.1500/- which is acknowledged by the complainant’s counsel today.  In view of the same the contempt petition does not survive and the same is rejected”. OP has made a false statement to the complainant in respect of the order made by the Hon’ble High Court.  Complainant believed the words of OP and informed the OP to obtain certified copy of the order. But OP failed to deliver the certified copy of the order on one or the other pretext. It was the duty of the Advocate to obtain the certified copy of the order. Complainant himself applied and obtained certified copy of the order. We have perused the copy of the order. The certified copy produced was applied by the complainant himself. Complainant was shocked to note that OP without making any submissions has received Rs.1500/- cost towards dismantling.  OP till date neither paid the cost collected to the complainant nor answered any calls made by the complainant. This act of the OP in retaining the cost paid towards restoring the front yard of shop No.4 with himself without informing the complainant amounts to deficiency in service on the part of the OP. Failure on the part of the OP to give reply to the notice dated 20.08.2007 and 18.07.2009 amounts to further deficiency in service on the part of the OP.  There is no response to the notice issued by the complainant.  Hence complainant approached this Forum.

8.      As against the case of the complainant the defence of the OP that, complainant agreed to pay fees of Rs.4000/- towards the filing contempt petition in CC No.346/07 and not Rs.2,250/- as alleged by the complainant and complainant has paid Rs.2,250/- and has agreed to pay the balance of Rs.1,750/- after disposal of the case. In purview OP has not issued any notice to the complainant demanding the balance of fee payable to show that the fees agreed towards filing of CC No.346/07 was Rs.4,000/- and not Rs.2,250/-. Further the defence of the OP that the complainant was due sum of Rs.500/- towards the fees payable for having issued two notices to the landlords to comply the order of the Hon’ble High Court cannot be accepted. In case if the complainant was due any amount towards balance fee, nothing prevented OP in informing the complainant that he has received cost of Rs.1500/- in the contempt proceedings and adjusted the same towards the balance fee payable.  OP has not at all informed the complainant about the receipt of the said amount of Rs.1500/-.  It is true that in the notice issued to the landlords as per the instructions of the complainant, It was informed that if landlord failed to comply the order of the Hon’ble High Court, complainant will carry out work of removing of flooring and steps and demanded Rs.1500/-- towards cost of the same.  Accordingly in the contempt proceedings the landlord made submissions that he will pay cost to carry out work as per the order to remove the steps and the OP as an advocate of the petitioner acknowledged the receipt of the amount of Rs.1,500/-. Since amount was paid towards compliance of the order, contempt petition was rejected on the ground that same does not survive. 

9.      We have perused the affidavit evidence of both parties and available records, for the reasons stated above we are satisfied that the complainant prove the deficiency in service on the part of the OP.  Taking into consideration of all the facts and circumstances we are of the considered view that the ends of the justice would be met by awarding global compensation of Rs.3000/- with litigation cost of Rs.500/-. Accordingly we proceed to pass the following:

ORDER

The complaint is allowed in part. OP is directed to pay compensation of Rs.3,000/- and litigation cost of Rs.500/- to the complainant. This order is to be complied within four weeks from the date of its communication.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 9^th day of December 2010.)

                                                PRESIDENT

MEMBER                                                  MEMBER                     

gm.