Tamil Nadu

North Chennai

188/2005

S Subramanian - Complainant(s)

Versus

S Subbaiah Advocate - Opp.Party(s)

Party in Person

06 Oct 2022

ORDER

Complaint presented on  :17.06.2005         

Date of disposal             :06.10.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai -600003.

 

PRESENT: THIRU. G.VINOBHA, M.A., B.L.                            : PRESIDENT

                  TMT. KAVITHA KANNAN,M.E.,                            : MEMBER-I

                                 THIRU V. RAMAMURTHY, B.A.B.L., PGDLA     : MEMBER II

 

C.C. No.188/2005

 

DATED THIS THURSDAY THE 06^th  DAY OF OCTOBER 2022

S.Subramanian,

S/o.Sembulingam

3/83 A1, 5^th street,

Ramalinga nagar, Ariyalur.

                                                                                               .. Complainant.                                                               ..Vs..

 

S.Subbiah,

Advocate,

Chennai High Court,

No.10, Kondichetty street, 2^nd floor,

Chennai.

Also At:-

S.Subbiah,

Advocate,

50407, S-4 Ramana Apartment,

No.28/8, Ratna Nagar,

Mount Road, Chennai-600 018.                                                    ..  Opposite party.

Counsel for the complainant                      : Party-In-Person(Absent)

Counsel for  opposite party                                : M/s.R.Elango

 

This complaint coming up before us to decide preliminary issue that whether the complaint is maintainable before this commission as per the order of the Hon’ble High Court of Madras in W.A.No. 1274/2019 dated 24.06.2022 and upon hearing arguments of the opposite party and inspite of receipt of notice the complainant having absented himself for several hearings and on perusal of records submitted by both the parties having stood over for consideration till this date, this commission has passed the following order

ORDER

THIRU. G.VINOBHA, M.A., B.L.       : PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 praying for compensation of Rs.1986108/- for mental agony and deficiency in service caused by the opposite party upon the complainant.

1.THE COMPLAINT IN BRIEF:

The complainant submitted that the complainant is residing at the address mentioned in the complaint at Ariyalur and the opposite party is a practicing senior Advocate at Madras High Court and according to the complainant he approached the opposite party on 05.05.2003 seeking legal advice as to what should be done regarding charge memo issued against him on 18.09.2002 by the special officer Ayan Rayampuram primary Cooperative Bank and also inrespect of order of suspension dated 09.02.2002 and accepting the brief as an advocate at the relevant point of time the opposite party filed W.P.No.16909/2003 and his behalf and while argue the case too full bench judgments were cited before the learned Judge hearing the said Writ Petition opposing the maintainability of the Writ Petition on the ground that the co-operative society is not amenable to writ jurisdiction as held in Thanikachalam M and ors. Vs. Maduranthagam Agricultural Co-operative marketing society and ors. (2001) 1 LLJ Page 285 and on that basis W.P.No.16909/2003 filed by the complainant for which the opposite party was an advocate was disposed of.  Further there was yet another reason for dismissal of the Writ petition because the complainant questioning the order of the suspension dated 09.02.2002 had also approached the  Civil Court by filing a Suit in O.S.No.37/2002 on the file of District  Munsif Court, Ariyalur.  Since as per Sec 156 of Tamilnadu Co-Operative Societies Act 1983 there is bar of Jurisdiction of Civil Court the opposite party has advised to his client that the suit filed before Civil Court Ariyalur is not legally maintainable and inspite of that the complainant after dismissal of Writ Petition has filed a Consumer Complaint before this commission on the premises that the advice given by the opposite party amounts to deficiency in service and it is further alleged in W.P.NO.16909/2003 the complainant counsel namely the opposite party has without his knowledge and instructions has filed affidavit in the said Writ Petition by stating that his client is willing to withdraw the suit in O.S.No.37/2002 pending before District Munsif Court, Ariyalur and further contended that the opposite party has colluded with the officials of the Co-operative bank in which the complainant was employed and thereby has cheated the complainant which resulted in suspension of the interim order passed in the above suit and also lead to ultimate dismissal of above said suit thereby the complainant was removed from the service based on the final enquiry and due to which the complainant has lost his job and his entire family was deprived of income for leading livelihood and thereby the complainant who was having still service was put to monetary loss and mental agony which he estimated at Rs.1986108/- and claim the same as compensation for the deficiency in service of the opposite party. It is further stated that the opposite party has not argued the complainant case properly in Writ Petition No. 16909/2003 and Review Petition No.72/2003 and falsely represented to the complainant that he will get an order to cancel the suspension against the complainant and also assured to get subsistence allowance during the suspension period but which was not ultimately fulfilled by him in the above said Writ Petition and hence the complainant was forced to file Writ Appeal No. 4096/2003 through another counsel namely C.Selvaraj which was also dismissed by Order Dated 10.02.2004 and therefore filed the present complaint for deficiency in service on the part of opposite party.

2. POINTS FOR CONSIDERATION:

1. Whether the complaint filed by the complainant is maintainable before this commission?

2. To what relief?

3. Point No.1:-

          As per the averment in the complaint the complainant is residing at the address mentioned in the complaint at Ariyalur and the opposite party is a practicing senior Advocate at Madras High Court and according to the complainant he approached the opposite party on 05.05.2003 seeking legal advice as to what should be done regarding charge memo issued against him on 18.09.2002 by the special officer Ayan Rayampuram primary Cooperative Bank and also inrespect of order of suspension dated 09.02.2002 and accepting the brief as an advocate at the relevant point of time the opposite party filed W.P.No.16909/2003 and his behalf and while argue the case too full bench judgments were cited before the learned Judge hearing the said Writ Petition opposing the maintainability of the Writ Petition on the ground that the co-operative society is not amenable to writ jurisdiction as held in Thanikachalam M and ors. Vs. Maduranthagam Agricultural Co-operative marketing society and ors. (2001) 1 LLJ Page 285 and on that basis W.P.No.16909/2003 filed by the complainant for which the opposite party was an advocate was disposed of.  Further there was yet another reason for dismissal of the Writ petition because the complainant questioning the order of the suspension dated 09.02.2002 had also approached the  Civil Court by filing a Suit in O.S.No.37/2002 on the file of District  Munsif Court, Ariyalur.  Since as per Sec 156 of Tamilnadu Co-Operative Societies Act 1983 there is bar of Jurisdiction of Civil Court the opposite party has advised to his client that the suit filed before Civil Court Ariyalur is not legally maintainable and inspite of that the complainant after dismissal of Writ Petition has filed a Consumer Complaint before this commission on the premises that the advice given by the opposite party amounts to deficiency in service and it is further alleged in W.P.NO.16909/2003 the complainant counsel namely the opposite party has without his knowledge and instructions has filed affidavit in the said Writ Petition by stating that his client is willing to withdraw the suit in O.S.No.37/2002 pending before District Munsif Court, Ariyalur and further contended that the opposite party has colluded with the officials of the Co-operative bank in which the complainant was employed and thereby has cheated the complainant which resulted in suspension of the interim order passed in the above suit and also lead to ultimate dismissal of above said suit thereby the complainant was removed from the service based on the final enquiry and due to which the complainant has lost his job and his entire family was deprived of income for leading livelihood and thereby the complainant who was having still service was put to monetary loss and mental agony which he estimated at Rs.1986108/- and claim the same as compensation for the deficiency in service of the opposite party. It is further stated that the opposite party has not argued the complainant case properly in Writ Petition No. 16909/2003 and Review Petition No.72/2003 and falsely represented to the complainant that he will get an order to cancel the suspension against the complainant and also assured to get subsistence allowance during the suspension period but which was not ultimately fulfilled by him in the above said Writ Petition and hence the complainant was forced to file Writ Appeal No. 4096/2003 through another counsel namely C.Selvaraj which was also dismissed by Order Dated 10.02.2004 and therefore filed the present complaint for deficiency in service on the part of opposite party. 

4.  It is found that the present complaint was filed on 17.06.2005 after serving of notice on the opposite party the opposite party has filed W.P.No. 24316/2015 praying to call for records relating to CC.No.188/2005 on the file of this commission and to quash the same and in the said Writ Petition it was stated by the opposite party herein that the complainant approached him on 05.05.2003 with a request to appear for him against the order of the suspension dated 09.02.2002 and also for getting subsistence allowance during the period of suspension and on getting instruction from the complainant he dictated affidavit in his present and it was shown to him and the Writ was numbered as W.P.No.16909/2003 and after hearing the writ petition it was disposed by Honble High Court on 20.06.2003 and thereafter a Review Application No.72/2003 was also filed in which the observations made in Para.6 of order dated 20.06.2003 was allowed and on receipt of certificate copy the complainant herein filed W.A.No.4096/2003 by engaging another counsel which was dismissed on 10.02.2004 and thereafter the complainant filed this complaint alleging that the opposite party has not presented the case diligently and properly thereby causing monetary loss Rs.1986108/- .  This C.C. was pending from the year 2005 due to the pendency of W.P.No.24316/2005 which was disposed on 06.12.2018 against which W.A.1274/2019 was filed and pending till 24.06.2022 the date of final order in the Writ Appeal and consequently written version and Proof Affidavit and documents of both side were not filed till this date and those circumstances the Hon’ble High Court has given direction with finding thereon to dispose the matter by deciding the preliminary issue as to whether the complaint filed is maintainable before this commission and also fixed a time limit for the same.

5.  Along with the complaint the complainant has filed with 14 documents.  It is found from documents filed that the complainant herein has filed suit in O.S.No.37/2002 before DMC, Ariyalur by engaging Tiru V.Lakshimipathy as his advocate for declaration challenging the suspension of order as null and void and also questioning the charge memo and initially there was an interim order in his favour in I.A.58/2002 which was closed on 02.09.2002 with a direction to dispose the suit earlier and it is further found that in the said suit by order dated 07.04.2003 it was decided that the Civil Court was having jurisdiction to decide the issue involve in the suit but ultimately on 25.01.2005 the said suit was dismissed on merits  by holding that the plaintiff in that suit is not entitled to act against the order of the Writ Petition and further the plaintiff was directed to seek his remedy in W.P.No.16909/2003 and R.P.No.72/2003.  It is further found that in W.P.No.16909/2003 the opposite party herein has appeared on behalf of the complainant and filed Writ Petition to quash the suspension proceedings and reinstate the complainant and in the order dated 20.06.2003 at Para.6 it is stated that the counsel for the writ petitioner submitted that his client withdraw the suit as well as  I.A. and ready to face the enquiry which according to the complainant he has not given any instruction in this regard to his counsel and it is stated that it was done without his knowledge by the counsel but in the review order dated 10.09.2003 which was filed by the very same counsel namely the opposite party herein the observation in  para.6 of the order dated 20.06.2003 was expunged by the Hon’ble High Court but it is order that the interim injunction granted in I.A. 58/2003 in O.S. 37/2002 on the file of DMC Ariyalur stands suspended and the direction was given to the disciplinary authority to proceed with enquiry.  Hence it is Prima Facie found that there is no evidence to show that the opposite party on his own accord has stated that his client is willing to withdraw the suit. But on the other hand it is found that the opposite party has given a suitable legal advice to the complainant to withdraw the suit since there is a bar U/s.156 of Tamilnadu Co-operative Societies Act 1983 and such legal advice cannot be alleged as deficiency in service as observed by the Hon’ble High Court in W.A.1274/2019.  It is further found from the records that the dismissal of the suit O.S.No.37/2002 is not due to the any fault or deficiency committed by the opposite party in the writ proceedings. It is found from the order passed in W.A.1274/2019 that the writ petition filed on behalf of the complainant by the opposite party was dismissed on the ground that the writ petition is not maintainable against the cooperative society as per the ration laid down by the constitution bench in M.Thanikachalam and ors case as stated supra and hence no blame can be put on the counsel who suffered the dismissal of the writ petition and further it was observed that the opposite party has rightly adviced his client to withdraw the pending suit as trial of the suit generally takes many years besides the bar U/s.156 of Taminadu Cooperative Societies Act it was further found that keeping in mind that paramount interest of his client the opposite party has rightly advised him to withdraw the suit which will not amounted to deficiency in service.

6.  The Hon’ble High Court based on Apex court judgement in Nandlal Lohariya Vs . Jagdish chand Purohit and ors. 2021 (6) CTC 606 held that 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 Fora for compensation alleging deficiency in service which is not permissible at all. Losing the case on merits after the advocate argued the matter cannot to be said to be deficiency in service.  By applying the above said principle to the facts of the present case it is found that the complainant herein has failed to establish the prima facie case of deficiency of service on the part of opposite party even for maintaining the complaint before this commission. The complainant failed to prove that the opposite party colluded with the cooperative bank officials and thereby cheated the complainant.  Further inspite of several adjournments and opportunities given to the complainant and inspte of notice served upon the complainant to appear for the hearing on 12.08.2022 he failed to appear and putforth  his arguments regarding the preliminary issue as per the directions of the Hon’ble Court.  Hence for the reasons stated above the present complaint is prima facie found to be not maintainable before this commission and  Point No.1 is answered accordingly.

7. Point No.2.

            Based on findings given to the Point.No.1 the complaint is dismissed as prima facie not maintainable before this commission. Point no.2 answered accordingly.

               In the result the Complaint is dismissed . No cost. 

Dictated  by President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 06^th  day of October 2022.

 

MEMBER I                                  MEMBER – II                           PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Doc.No.1	12.02.2002	Interim order in W.P.No.3705/2002 and W.P.No.5188/2002 by Honble High Court
Doc.No.2	01.03.2002	Interim order extended in W.P.No.5189/2002 by Honble High Court Madras.
Doc.No.3	23.08.2002	Written statement filed by special officer counsel before PDM, Ariyalur
Doc.No.4	02.09.2002	Order by District Munsif Court Ariyalur.
Doc.No.5	18.09.2002	Memo issued by the Special officer to the complainant.
Doc.No.6	07.04.2003	Order by PDM court ariyalur.
Doc.No.7	20.06.2003	Order in W.P.No.16909/2003 by Honble High Court Madras.
Doc.No.8	10.09.2003	Order in R.P.No.72/2003 by Honble High Court Madras.
Doc.No.9		Order in I.A.58/2002 in O.S.No.37/2007 by District Musif Court Ariyalur.
Doc.No.10		Copy of Regional deputy registrar filed the complaint.
Doc.No.11		Copy of FIR and order in Cr.No.593/01, dated 19.04.02.
Doc.No.12	24.09.2003	Copy of notice sent to opposite party and bar association with acknowledgement card.
Doc.No.13		Postal order
Doc.No.14		Affidavit for appeal

 

 

MEMBER I                                  MEMBER – II                           PRESIDENT