Tamil Nadu

North Chennai

CC/151/2018

M.A.Jacob & CO Rep by its Managing partner - Complainant(s)

Versus

N.Seetharaman - Opp.Party(s)

Mr.Thomas T. Jacob

22 Feb 2022

ORDER

Complaint presented on :14.07.2004

                                                                    Date of disposal            :22.02.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT: THIRU. J. JUSTIN DAVID, M.A., M.L.                    : PRESIDENT

THIRU. S. BALASUBRAMANIAN, M.A., M.L.          : MEMBER

 

C.C. No.151/2018

 

DATED THIS TUESDAY THE 22^nd DAY OF FEBRUARY 2022

 

M.A.Jacob and Co.,

Rep. by its Managing Partner,

M.Abraham Jacob,

At.No.16, Evening Bazaar,

Chennai – 600 003.

                                                                                                     .. Complainant.                                                                               ..Vs..

 

Mr.T.N.Seetharaman,

No.348, (Old No.196),

Lloyds Road,

Chennai – 600 086.

                                                                                                  ..  Opposite party.

 

 

Counsel for the complainant                      : Mr.Thomos  T Jacob

Counsel for   opposite party                     : Mr.A.Palaniappan,

 

ORDER

THIRU. J. JUSTIN DAVID, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.50,000/- towards fees amount and to pay a sum of Rs.2,00,000/- towards compensation for mental agony with cost of this proceedings.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No.668/2004.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.151/2018.

1.THE COMPLAINT IN BRIEF:

          The complainant are a leading Carpet and Furnishing company and have been in the said field for the past many decades. The complainant was  an amalgamated group case with similar issues involved with in the Income Tax Settlement Commission pertaining to the assessment year 1988-89 to 1992-93 and the same was settled with a onetime settlement of tax and interest of Rs.13,56,341/- by an order under Section 245 D(4) of the Income Tax Act 1961 dated 07.01.2000. Thereafter the Income Tax Department filed a Miscellaneous Petition before the Settlement Commission dated 18.02.2002 on the basis of the Hon’ble Supreme court case that the adhoe waiver granted by the Income Tax Settlement Commission in its order under section 245 D(4) dated 07.01.2000 suffered from a mistake as the waiver of interest appears to have been granted without taking into consideration the circulars issued by the CBDT on the subject and thus the orders passed on 07.01.2000 needs to be rectified. The department filed another miscellaneous petition on 24.07.2003 that based on the Supreme Court decision interest 234B is to be charged for the period beginning from the 1^st day of April next following the relevant financial year up to the date of order of the commission under section 245 D(4). The complainant received notice and wanted to contest this unjust action of the Income tax department. The complainant discussed the same with their financial consultant Mr.Yoganand and he suggested the name of the opposite party in fighting the case against the Income Tax Department. The complainant’s representative Mr.M.Abraham Jacob who is the Managing Partner and Mr.Anand an assistant met the opposite party at his office on 03.01.2004. The complainant agreed to the suggestion and also stated that they fully relied on him as regards this case and asked about the fees for the whole case whereby the opposite party replied that the total fees is Rs.50,000 and that it had to be paid as an advance. The opposite  party appeared only in the Miscellaneous Petitions before the Settlement Commission (IT & WT) Additional Bench, Chennai. The opposite party appeared before the commission on the 5^th and 19^th of February 2004. No copies of the petition or the written submission were given to complainant or their representatives in spite of their repeated request. The  complainant further states that their Managing Partner visited the opposite party’s office on 02.03.2004  for further discussion as regards the filing of the Writ Petition and Stay which had to be obtained was shocked and surprised when the opposite party demanded another Rs.40,000/- to file the Writ Petition.  The complainant protested the same as they had already paid the entire fees of Rs.50,000/- and this demand for a further fees of Rs.40,000/- was unfair and unjust when the Damocles’s word of the additional amount from the Income Tax Department was hanging over the complainant’s head and any further delay would only worsen the matter. The complainant felt cheated and left the office of the opposite party and called Mr.Yoganand who introduced the opposite party to them who pleaded his helplessness in rectifying and remedying this issue. The relevant papers were returned to Mr.Yoganand who was instructing the opposite party in the matter, which is a false statement as it was the Managing partner, and his assistant of the complainant who was instructing the opposite party and Mr.Yoganand was just the person who introduced the complainant and the opposite party. The opposite party  has breached his duty to a client as laid down by the Bar Council of India which states an Advocate shall not ordinarily withdraw from engagements once accepted without sufficient cause and unless reasonable and sufficient notice is given to the Client”.  The complainant was able  to get a counsel to file a writ petition i.e W.P No.5666 of 2004 before the Hon’ble High Court and the Hon’ble Court was pleased to stay the operation of the order dated 19.02.20004 passed by the Income Tax Settlement Commission on 17.03.2004.The attitude of the opposite party  in handling the case, returning the case without reason and not refunding such part of fees as has not been earned is a clear case of deficiency of service and is a slut to professional conduct and etiquette. Hence this complaint.

2.WRITTENVERSION FILED BY THE  OPPOSITE PARTY IN BRIEF:

          The complainant is not a ‘Consumer’ under section 2(d) of the Consumer Protection Act, 1986 and the matter is in issue would not be a “deficiency” in a service contemplated under section 2(d) of the Act. The opposite party is a lawyer. He represented the cases in the competent court to the best of his ability. The cases were disposed of on merits. Hence there was no ‘deficiency’ on the part of the opposite party. The opposite party appeared on behalf of five firms two of which were dissolved firms. There were separate settlement application numbers and five separate proceedings. They were  heard together for convenience and a common order was passed. This does not entitle the complainant to maintain a single petition before this forum. The complainant herein, M.A Jacob and co is sought to be represented by the Managing Partner. The constitution of the Firm is not set out. There is no proof that the person is the Managing Partner. The complaint is not maintainable so far as the two Firms, Flooring & Furnishing co and Jacob’s cleaning products company are concerned as these two are dissolved Firms. They are not in existence. A non-existent firm cannot maintain any complaint as it is a dead person. Mr.Abraham Jacob approached the opposite  party through Mr.K.S.Yoganandh Chartered Accountant, who informed the opposite party that one Mr.A.Areef, Chartered Accountant was filing the I.T. returns of the firms and that he himself had handled the case before the Settlement Commission at the earlier stage. On K.S Yoganandh’s advice, they engaged the opposite party as the issues involved were purely legal and as the opposite party is well-known in the field, having appeared in a number of such cases. The fees were fixed by Mr.Yoganandh who had informed the opposite party  that he would discuss the matter with his clients and fix the fees taking into consideration the volume of work involved and the enormous time required for preparation and representation. Later Mr.Yoganandh telephoned the opposite party and said that he had spoken to his clients and had fixed a total of Rs.75,000/- as fees for appearing before the Settlement Commission in all the 5 cases.  The opposite party and his juniors prepared intensely for the cases for a number of days. As is their unusual practice, they took the cases as a challenge. The provisions of the act were studied. On most of the days, Mr.Anand the agent of Mr.Jacob was also present. The hearing were on 09.01.2004, 05.02.2004, and 15.02.2004. The fee fixed by Mr.Yoganandh was Rs.75,000/- and not Rs.50,000/-. The cheque for Rs.50,000/- was only a part payment. Mr.Anand gave the opposite party a cheque for Rs.50,000/- and requested him to accept it as part payment. He informed the opposite party that the balance of Rs.25,000/- would also be paid shortly.  It is false to say that the Managing Partner visited the opposite party on 02.03.2004 for further discussion regarding  the filing of the writ petitions and that he was shocked when the opposite party demanded another Rs.40,000/- to file writ petitions.  The complainant never asked the opposite party to file the writ petitions. The opposite party never demanded Rs.40,000/- as fees for filing the writ petitions. It clearly set out the work done by the opposite party, the payment made as well as acknowledgement of receipt of the fees. Mr.Yoganandh was present and was an active participant through all stages of preparation and arguments to the knowledge of the complainant and as per his instructions. Now suddenly the complainant wants to make it appear as though he had nothing to do with Mr.Yoganandh. There was no breach of etiquette. There was no breach of any rule of the Bar Council of India, by the opposite party. He was engaged to appear before the Settlement Commission and he did appear and argue the matters. There was no deficiency in service as the opposite party had discharged his duty to the best of his ability. He had prepared intensely and for days on end, he had gone through mounds of case papers and had argued the case relating to each individual firm and had prepared exhaustive written submissions. Moreover the cases also involved seeking for and finding cases law on the subject. The present signatory himself had expressed his satisfaction on the way the opposite party handled the cases. The complaint is not maintainable.    

3. POINTS FOR CONSIDERATION:

1.Whether there is deficiency in service on the part of the opposite party?

2. Whether the opposite party  is liable to refund Rs.50,000/- with interest to the complainant?

3.Whether the complainant is entitled for  compensation and cost?

4. To what other reliefs the complainant is entitled?

04. POINT NO. 1 to 3

          The complainant is a partnership firm and opposite party is a senior lawyer. The complainant alleged  that the complainant engaged the opposite party for conducting a case before the  Income Settlement Commission and paid the fees of Rs.50,000/-, but opposite party appeared only in the Miscellaneous Petition filed before the Settlement Commission  and further the opposite party demanded another Rs.40,000/- for filing writ petition and thereafter without conducting the case return the relevant papers to the financial consultancy Mr.yoganand  and complainant engaged another counsel to file writ petition before the Hon’ble  High Court and the attitude of the opposite party  amounts to deficiency in service.

            05. The opposite party contended the opposite party appeared on behalf of five firms of which to firms were dissolved and complainant filed single petition on behalf of five firms, that the complainant agreed to pay a sum of  Rs.75,000/- for the whole case and agreed to pay the entire amount in advance, that the opposite party fixed a total fee of Rs.75,000/- for appearing before Settlement Commission in all five cases, but the complainant paid Rs.50,000/- by cheque towards part payment, that the complainant informed the opposite party that balance of Rs.25,000/- would be paid shortly. The opposite party conducted the proceedings and had completed his assignment, but the complainant evaded to pay the balance agreed fees, that the complainant never asked to the opposite party to file writ petition and never demanded Rs.40,000/-  as fees for filing writ petition and there is no deficiency in service on the part of the opposite party.

           06. On perusal of documents it is seen that there were five separate proceeding before the Settlement Commission.  The parties are different but the complainant filed one  Consumer complaint without obtaining permission from the commission. Further the complainant has not filed any document to show that Mr.M.Abraham Jacob is the Managing Partner for the all partnership firms.

           07. The opposite party is a lawyer specialized in direct  law as an Income Tax matters.  Further  Ex.B6 & Ex.B7  shows  that opposite party have excellent reputation due to his hard work. The complainant through one Mr.Yaganand, the Chartered Accountant approached the opposite party to handle the matters before the Settlement Commission and opposite party fixed to total pay of Rs.75,000/- for his appearance before the Settlement Commission. The complainant paid only Rs.50,000/- to the opposite party to appear before the Settlement Commission. The opposite party attended the hearing on 09.01.2004,05.02.2004 and 19.02.2004 before the settlement commission. Ex.B2 and Ex.B3 are certified copies are attendance register of the Settlement Commission and same would prove that the opposite party appeared before the Commission. On 09.01.2004, 05.02.2004 19.02.2004. Further written submission on behalf of the complainant filed  before the Settlement Commission were marked as Ex.B9 & Ex.B10. Therefore it is very clear that the opposite party appeared before the settlement commissioner and conducted the case on behalf of the complainant.

          08. The complainant paid a sum of Rs.50,000 by way of cheque to the opposite party. The complainant has not paid the balance fees of Rs.25,000/- to the opposite party. Further there is no proof on the part of the complainant to show that the complainant asked the opposite party to file a writ petition and demanded Rs.40,000/- as fees for filing writ petition before the Hon’ble High Court. The opposite party conducted the case before the Settlement Commission and there is no deficiency in service on the part of the opposite party.

          09. The learned counsel for the opposite party argued that the opposite party is a lawyer received fee of Rs.50,000/- for handling four cases before the settlement commissioner and conducted the case before the Settlement Commission on various dates and Settlement Commission dismiss the complainant case on merit and therefore there is no deficiency service on the part of the opposite party and relied on a decision of the  HON’BLE SUPREME COURT OF INDIA SPECIAL LEAVE PETITION(C) DIARY NO.24842 OF 2021 NANDLAL LOHARIYA VS JAGDISH CHAND PUROHIT AND OTHERS held as follows.

  “We are of the firm opinion that the District Forum, the State Commission and the National Commission have rightly dismissed the complaint filed by the petitioner herein filed against the three advocates who appeared on behalf of the petitioner in the aforesaid three complaints, which as such were dismissed on merits. There  are no observations by the District Forum against the advocates that there was any negligence on the part of the advocates in prosecuting and/or conducting the complaints. In the common order, it has been specifically observed by the District Forum that the allegations in the complaints are not proved and due to which all the three complainants are liable to be dismissed. Once the complaints  came to be dismissed on merits and there was no negligence on the part of the advocates at all, it cannot be said that there was any deficiency in service on the part of the advocates who appeared on behalf of the complainant and lost on merits. If the submission advanced on behalf of the petitioner is accepted, in that case, in each and every case where a litigant has lost on merits and his case is dismissed, he will approach the consumer for a and pray for compensation alleging deficiency in service. Losing the case on merits after the advocate argued the matter cannot be  said to be deficiency in service on the part of the advocate. In every litigation, either of the party is bound to lose and in such a situation either of the party who will lose in the litigation may approach the consumer for a for compensation alleging deficiency in service, which is not permissible at all.”

In this case also the opposite party conducted the case before Settlement Commission and the Settlement Commission dismiss the petition on merits and therefore the above ruling is applicable to the fact of this complaint.

          10. The opposite party through oral documents evidence proved that there is no deficiency in service on the part of the opposite party. Hence the opposite party not liable to refund Rs.50,000 with cost and opposite party not entitled for compensation and cost.   

11. POINT NO :4

          Since the opposite party has not committed any deficiency in service, the complainant is not entitled for any relief as prayed and the complaint is liable to be dismissed.

          In the result, this complaint is dismissed. No costs.    

Dictated  by the President to the Assistant taken down, transcribed and computerized by her, corrected by the President and pronounced by usin the open Commission on this the 22^nd day of February 2022.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 24.01.2004                   Complainant and I.T.Dept Notice

Ex.A2 dated NIL                     Complainant and opposite party Bank Statement

Ex.A3 dated 19.02.2004                   Complainant and I.T. Dept Order Copy

Ex.A4 dated 06.03.2004                   Complainant and opposite party Letter cum Bill

Ex.A5 dated  16.03.2004                  Complainant and Third party Bill

Ex.A6 dated 17.03.2004                   Complainnt Order copy in W.P.No.6566 of 2004

Ex.A7 dated 05.04.2004                   Complainant and opposite party Legal Notice

Ex.A8 dated 03.05.2004                   Complainant and opposite party Reply

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY:

 

Ex.B1 dated 09.01.2004                    Income-Tax Settlement Commission

 

Ex.B2 dated 05.02.2004          Certified copies of attendance Registrar of income Tax settlement commission

 

Ex.B3 dated 19.02.2004          Income-Tax Settlement Commission

 

Ex.B4 dated 06.03.2004          Letter by the opposite party to the complainant

 

Ex.B5 dated 17.04.1971          Receiving order issued to the oppoiste party

 

Ex.B6 dated 17.03.1995          Application letter issued to the opposite party

 

Ex.B7 dated 25.01.2005          Letter from the southern India Regional council of the Institute of Chartered Account of India to the opposite party

 

Ex.B8 dated NIL                      Eloborate notes of the oppposite party

 

Ex.A9 dated 12.02.2004          Written submissions filed by the opposite party

 

Ex.A10 dated 12.02.2004        Written submisisons filed by the opposite party

 

Ex.A11 dated 08.08.2005        Copy of notice to produce

 

Ex.A12 dated 19.02.2004        Orders passed by Income Tax Settlement Commissioner Chennai

 

Ex.A13 dated 10.03.2004        Affidavit filed in W.P.No.7781/04 in W.P.No.6566 of 2004

 

Ex.A14 dated 10.03.2004        Affidavit filed in W.P.No.6566/2004

 

Ex.A15 dated 07.01.2000        Orders passed by Income Tax Settlement Commisioner, Chennai

 

Ex.A16 dated 26.07.2016        Orders in W.P.No.5553 to 5558 of 2008

 

Ex.B17 dated 02.08.2017        Web copy of the orders in W.P.No.6566 of 2004

 

 

MEMBER – I                                                               PRESIDENT