KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 404/2008

JUDGMENT DATED: 22-12-2009

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU            :  PRESIDENT

APPELLANT

O. Ranjini D/o Late Karunakaran,

Nallery House, Near Kavitha Theatre,

Kannur District, Kerala State.

      (Appellant in person)

                                    Vs

RESPONDENT

M/s M.K.S. Menon, S/o Narayanan Kutty Achan,

Advocate, 240, New Lawyers Chamber,

Supreme Court, New Delhi.

(Rep. by Adv. Smt. V. Usha Nandini)

JUDGMENT

JUSTICE SHRI. K.R. UDAYABHANU:   PRESIDENT

                        The appellant is the complainant in OP No. 598/03 in the file of CDRF, Ernakulam.  The complaint stands dismissed.

2.          It is the case of the complainant that she had filed OP No. 544/94 in the CDRF, Kannur against Canara Bank, Thalipprampa.  The above OP was dismissed on 20-12-1995 with a direction to the complainant to approach the Civil Court.  She filed Appeal No. 384/95 before the State Commission, which was also dismissed.  The matter was taken up before the National Commission as RP No. 604/98 which also ended in dismissal.  An advocate at Ernakulam introduced the opposite party as a suitable lawyer and directed the petitioner to approach him.  He also sent a letter to the petitioner for the above purpose.  The petitioner contacted the opposite party through telephone as well as through letters and the opposite party agreed to take up the matter before the Supreme Court.  All connected papers were sent with vakalath through advocate Mohan Kumar, a junior advocate of Sri. Narayanan Kutty Achan, Ernakulam.  A cheque for Rs. 10,000/- with No. 920557 was also sent to the opposite party, drawn on Syndicate Bank, Kannur.  The opposite party has sent to the complainant through Advocate Mohan Kumar a letter stating that there is every chance of success in the case.  Subsequently, on 10-07-2001 the opposite party sent a letter to the complainant with a copy to Adv. Mohan Kumar, Ernkulam stating that Special Leave Petition No. 8794/01 stands dismissed.  The opposite party did not forward a certified copy of the order.  The complainant sent a letter to the opposite party demanding a certified copy of the order.  She issued another notice on 05-08-2001 demanding to send the order of the Supreme Court in the Special Leave Petition.  There was no response to the letter or to the notice.  The certified copy of the Special Leave Petition filed before the Supreme Court was necessary for filing before Sub Court, Payyannoor in OS 66/94.  As she did not get the above order, she was not in a position to substantiate her contentions in OS 66/94.  The opposite party did not perform his duty properly.  On account of the negligence of the opposite party, the complainant could not take steps against M/s Vijaya Bank, Thalipprampa.  Her business turnover in 1986 was more than 63 lakhs and in 1992-93 it was 94 lakhs.  According to her the damage sustained amounted to Rs. 20 lakhs.  She has claimed a sum of Rs. 20 lakh as compensation on account of the failure of the opposite party to provide the copy of the order of the Supreme Court in the SLP.

3.          The opposite party has filed a version contending that the Forum has no territorial jurisdiction to entertain the complaint.  The opposite party is residing at Ghaziabad where he has constructed his house.  There is no residence for him at Ernakulam.  The alleged cause of action has arisen at New Delhi.  There was no engagement with the opposite party at Ernakulam.  The opposite party is not having any office at Ernakulam.  It is pointed out that the complaint filed against Vijaya Bank, Thalipprampa through another lawyer, was dismissed.  The opposite party was engaged by the complainant to prepare the Special Leave Petition and to argue the case in the Supreme Court.  M/s Promila, Advocate on Record was engaged through the opposite party to file the Special Leave Petition as the Supreme Court Rules require an Advocate on record to file the vakalath.  The opposite party did not hold a vakalath on behalf of the complainant.  It was as a gesture of goodwill that the opposite party helped the complainant to get the matter filed in the Supreme Court through the advocate on record.  The complaint filed is frivolous and vexatious in nature.  It was only on the basis of the request of a very senior advocate of Kerala High Court namely, Mr. Krishnan Kutty Achan that the opposite party extended his help to the complainant.  The professional engagement of the opposite party is limited to drafting the Special Leave Petition and arguing the case in the Supreme Court.  The complainant has no case that the opposite party did not conduct the case diligently or without reasonable care or skill expected of a professional.  There is no case that the information regarding the dismissal of the SLP was not conveyed to the complainant.  The professional engagement ceases at the moment when the fact of disposal of the matter is conveyed.  Getting a copy of the order is not part of professional engagement of the lawyer.  If the complainant wanted the copy of the order, she could have obtained the same on paying the necessary expenses.  The same is also exhibited in the site of the Supreme Court through Internet.  It is pointed out that the name of the lawyer and the name of the junior advocate mentioned are incorrect.  The non-receipt of the copy of the order of the SLP is made known to the opposite party only when the copy of the complaint is received from the CDRF.  The clerk of the opposite party forwarded the copy of the order by ordinary post immediately on getting the copy of the order from the registry of the Supreme Court.  The opposite party has also produced the copy of the same along with the version.  It is not explained as to how the copy of the order is required in OS 66/94.  The nature of the above suit is also not disclosed.  The Special Leave Petition is not a continuation of the appeal filed by the complainant against the Vijaya Bank.  The principle of merger is not applicable in the present case.  It is on an imaginary set of facts that the complainant is claiming Rs. 20 lakhs as compensation.

4.          The evidence adduced consisted of Exts. A1 to A9 and B1.

5.          The Forum has held that it has no territorial jurisdiction as the opposite party was not residing at Ernakulam nor is he having an office at Ernakulam and no part of the cause of action has arisen at Ernakulam vide Section 11(2) of the CP Act.  It was also held that the complainant could not establish the loss sustained to her on account of the non production of the order in SLP before the sub court.  It was also noted relying on the decision in Kunhayammed Vs State of Kerala 2003(3) KLT 354(SC) that SLP is not a continuation of the appeal and hence it has not been established that the order is necessary in the civil proceedings.  It is also mentioned in the order of the CDRF that it is seen from Ext.B1 that the application for copy has been made before the registry of the Supreme Court on 03-07-2001 (sic.13-07-2001) and it was obtained on 23-07-2001 and hence the case of the opposite party that a copy of the order was forwarded by ordinary post appears probable.

6.          Ext.A1 is the photocopy of the letter dated 10-03-2001 from Advocate K. Mohanakannan for Advocate P.N.K Achan to the opposite party mentioning that the papers relating to a consumer disputes matter is sent to him and requesting to look into it and inform whether there is any scope for further appeal to the Supreme Court.  Ext.A2 is another letter from Advocate Mohanakannan dated 21-03-2001 acknowledging the letter of the opposite party dated 14-03-2001 and forwarding the vakalath and signed papers in order to file the SLP and also cheque for Rs. 10,000/- with No. 920557.  Ext.A3 is the letter to the complainant sent on behalf of Adv. P.N.K Achan informing that the opposite party has intimated that there is scope for getting a favourable order on examination of the records sent to him and asking the complainant to do whatever is appropriate.  Ext.A4 is the letter from the office of Chandrasekharan & Chandraswkhara Menon dated 11-04-2001 informing her that the opposite party had contacted the sender and that he wanted the order of the National Commission and the cover in which it was received immediately.  She has been informed to contact the opposite party over telephone.  Ext.A5 dated 10-07-2001 is a letter from the opposite party to the complainant with copy to Advocate Mohanakannan of M/s Chandrasekharan & Chandraswkhara Menon Advocates mentioning that the SLP 8794/01 has been posted for admission on 09-07-2001 before Justice Rajendra Babu and Justice K.G, Balakrishnan and that although arguments were made with respect to the one line order passed by the National Commission and also regarding the ‘in limine’ dismissal of the claim by all the Forums, the Court was not inclined to admit the matter.  It is also mentioned that as soon as the copy of the order is received, the same shall be forwarded to the complainant.  Ext.A6 is a letter dated 25-08-2001 sent by the complainant to the opposite party seeking to forward the certified copy of the Special Leave Petition and other documents produced before the Supreme Court as it is necessary for her to produce the same before the sub court.  Ext.A7 dated 15-03-2001 is the letter from the complainant to the opposite party forwarding the photocopy of the order of the District Forum and other papers for perusal.  Ext.A8 is the photocopy of the income tax self-assessment in the name of the complainant of the period 92-93.  Ext.A9 is a photocopy of the cover of an unregistered parcel addressed to the opposite party.  Ext.B1 is the order of the Supreme Curt in SLP No. 8794/01 mentioning that it is not a fit case for the interference of the Supreme Court and that the Special Leave Petition is dismissed.

7.          We find that the CDRF, Ernakulam is not having the territorial jurisdiction to entertain the complaint vide Section 11(2) of the Consumer Protection Act as there is nothing in evidence to show that the opposite party is having an office or residence at Ernakulam or that the cause of action has arisen at Ernakulam.  There is nothing to show from the records produced that the opposite party is sharing the office with Advocate P.N.K Achan or Chandrasekharan & Chandraswkhara Menon Advocates.  What could be seen from the documents produced by the complainant is only that she contacted the opposite party through the above office of advocates and forwarded the papers etc through the above office.  The same would not constitute the part of cause of action.  Hence we agree with the finding of the Forum below that it has no territorial jurisdiction to entertain the complaint.

Moreover, the complainant has not adduced any evidence to substantiate her case that she sustained loss on account of not obtaining the copy of the order in the SLP.  In the circumstances, we find that there is no scope for interference in the order of the Forum below.

In the result, the appeal is dismissed.

                                                JUSTICE K.R. UDAYABHANU:   PRESIDENT