Complaint filed on: 23.03.2020

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

DATED 01^ST DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. It is the complaint filed under section 12 of C.P. Act, 1986 (herein referred as “Act”) to  direct the OP to pay

a)Rs.3,50,000/- being the amount collected from the complainant as court fees.

b) Reasonable interest from the date of payment till actual date of refund.

c) Rs.1000/- to the cost.

d) Rs.50,000/- for the financial loss suffered by the  complainant due to delay in rendering service.

2. The brief facts of the complaint in brief is as follows:

The complainant having consulted OP about his business dispute paid Rs.33,000/- towards legal service as final payment.  On demand he has also paid Rs.3,50,000/- to the OP towards court fee through cheque bearing No.87453603, which has been encashed by OP, but OP  failed to initiate any legal action on behalf of the complainant. Accordingly,  he called upon the OP by notice dt.25.03.2019 to refund his amount. The complainant also issued another letter to the OP dt.05.07.2019 and called  upon OP to refund Rs.3,50,000/-.

Further case of complainant  that OP neither  refunded amount of Rs.3,50,000/- nor initiated legal proceedings on behalf of the complainant. This act of the OP amounts to deficiency of service.

3.      In response to the this notice, OP appeared and files version. OP denies payment of cash of Rs.33,000/- towards legal charges, but OP admits that the complainant having approached him to issue legal notice. Accordingly, OP has received Rs.3,50,000/- only as legal notice charges in the month of April 2018. Accordingly, he had sent notice on behalf of the complainant to the concerned person.

4.      OP denies payment of Rs.3,50,000/- towards the court fee. There is no deficiency of service. OP admits receipt of legal notice. He requests  to dismiss the complaint.

5. Complainant has filed his affidavit evidence and relies on 07 documents. OP has filed his affidavit evidence and relies on 04 documents.

5. Heard arguments of advocate for complainant and OP. Perused records.

6. The points that would arise for our consideration are as under:-

1. Whether there is deficiency of service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

7. Our answer to the above points are as under:

       Point No.1:- Affirmative.

      Point No.2:- Affirmative in part.   

      Point No.3:-As per the final order.

REASONS

8.  Point Nos.1 and 2: Even thought both parties reiterated their  respective contentions in their affidavit evidence. Initial burden lies on the complainant to prove the cash of Rs.33,000/- paid to the OP towards legal fees. This fact is denied by the OP. the complainant has not produced any document to show that he has paid Rs.33,000/- cash to the OP towards legal fees. Therefore, theory setup by the complainant about payment of Rs.33,000/- cash to the OP as legal fees has not been proved.

9. Even though there is dispute between the parties about purpose for which Rs.3,50,000/- paid by the complainant to the OP. The payment made by the complainant to OP on 07.04.2018   by means of cheque bearing no.87453603 for Rs.3,50,000/- has  been proved in the evidence of the complainant, admission of the OP and Exhibit A1 Bank statement.  The real dispute between the parties to the proceedings with regard to payment of Rs.3,50,000/-, either towards court fee or  towards legal fees.

10. It is also proved from the documentary evidence that the OP being  an advocate for the complainant issued legal notice dt.22.06.2018 on behalf of the complainant to Mr.Anirudh R.Ladda jointly and severally  liable for  payment of Rs.1,00,00,000/- and M/s Bobbathi Agencies Business Empire. It is relevant  to note that  this complainant issued the legal notice to the OP  dt.28.08.2018 and another notice dt.05.07.2019. In response to the  legal notice of the OP on behalf of the complainant M/s Bobbathi Agencies  issued   notice dt.25.3.2019.

11. Even though the OP admits receipt of Rs.3,50,000/- by means of cheque from the complainant, but accordingly to OP this payment is towards his legal fees. It is relevant to note that OP receipt Rs.3,50,000/-, he has not issued any receipt about  receiving of Rs.3,50,000/- towards legal fees only. It is also relevant to note that even though  OP has an advocate for complainant issued legal notice dt.27.06.2018 calling  Anirudha Ladda to pay Rs.1,00,00,000/- as damages, but in entire notice, OP never called upon the addressee to pay his legal fee of Rs.3,50,000/- which has claimed as legal fee paid by the complainant. Except receiving legal notice OP has not initiated legal proceedings before any court/any tribunal/authority. It is true that the advocate is entitled to receive his legal fees, but Rs.3,50,000/- cannot be construed as payment of legal fee only. OP being an advocate for the complainant never disputed receipt of Rs.3,50,000/-. If OP has collected Rs.3,50,000/- from the complainant only as his legal fee, we fail to understand why OP never called upon the addressee  to pay legal fee of Rs.3,50,000/- along with quantum of damages of Rs.1,00,00,000/-. This silence  on the part of OP clearly indicates that payment of Rs.3,50,000/- is towards court fee and legal fees. When the six page notice issued on behalf of the complainant by the OP, the legal fees and  cost of notice can be construed Rs.30,000/-. The non initiation of legal proceedings on behalf of the complainant  in any court of law or authority having collected huge amount of Rs.3,50,000/- from the complainant  means deficiency of service.

12. Time and again the slogan has been made “legal profession is a noble profession”. No ordinary person would pay Rs.3,50,000/-  as advocate fee only for issuing notice. Therefore, theory setup by the OP cannot be accepted. Accordingly it is rejected.

13. The OP has also agrued that the order of Hon’ble National Consumer Disputes Redressal Commission in D.K.Gandhi case is stayed by the Hon’ble Supreme Court of India, but mere stay of operation of execution of order does not amount to set-aside or reversal of the order of NCDRC. Unless   order in  D.K.Gandhi case is set-aside by Hon’ble Supreme Court of India, we can say that legal profession is service under provisions of Consumer Protection Act. The OP being the service providers can charge reasonable amount even towards his profession, but OP  collected huge amount of Rs.3,50,000/- from the complainant and failed to file any case before any court of or authority. Therefore, the act of the OP amounts to deficiency of service.

14. The legal fee of the OP towards issuance of notice is construed only Rs.30,000/-. Therefore, OP is liable to refund Rs.3,20,000/- to the complainant. Huge amount of Rs.3,20,000/- is lying with OP since 07.04.2018, even though complainant claims reasonable interest from the date of payment Rs.25,000/- and Rs.10000/- as cost of litigation. In the absence of privity of contract about payment of interest, but we can draw an inference that of the complainant deposited Rs.3,20,000/- in Saving Bank account of the Bank he could have  earn interest the bank rate. Under such circumstance, the complainant is not entitled to interest at 18%p.a. on Rs.3,20,000/- from 07.04.2018 till realization. The complainant is not entitled to compensation with interest and  cost of litigation is quantified as Rs.10,000/-, even though complainant claims Rs.50,000/-.

15.  Point no.3:-In view of discussion made in para-1 & 2 the complainant requires to be allowed in part. The OP shall refund Rs.3,20,000/- to the complainant with interest at 8%p.a. from 07.04.2018 till realization and also liable to pay Rs.10,000/- towards cost of litigation. It is proper to pay  time limit for compliance of the order, in case non-compliance of the orders  within prescribed time limit, OP is liable to pay additional interest.  In view of the discussions made above and findings given on point Nos.1 and 2, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OP is directed refund Rs.3,20,000/- with interest at 08% p.a. from 07.04.2018  and  Rs.10,000/- towards cost of litigation to the complainant.
3. OP shall comply this order within 60 days, failing which the OP shall pay interest at 10% p.a. on Rs.3,20,000/- after expiry of 60 days from this date till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 1^st day of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :