Tamil Nadu

StateCommission

CC/23/2012

DR. BINOY GUPTA - Complainant(s)

Versus

S. SILAMBANAN, SENIOR ADVOCATE - Opp.Party(s)

BINOY GUPTA

23 Apr 2015

ORDER

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

                                        BEFORE:   HON’BLE THIRU JUSTICE R.REGUPATHI            PRESIDENT

                                                            THIRU.J.JAYARAM,                                                      JUDICIAL MEMBER

                                                            TMT.P.BAKIAVATHY                                                     MEMBER

                                                                                            C.C.No.23/2012

DATED THIS THE 23^rd DAY OF APRIL 2015

Dr.Binoy Gupta,

1101, Shiromani,

Raj Kamal Lane, Parel,                                                         Complainant

Mumbai 400012.

 

Vs

Mr.S.Silambanan,

Senior Advocate,

AL, 193, (New 25), 1^st Street,                                        Opposite party

12^th Main Road, Anna nagar,

Chennai 600 040.

Complainant                                   :        Party in person

Counsel for Opposite Party               :        M/s.Profexs Associates.

       This complaint coming before us for final hearing on 17-04-2015 and upon perusing the material records, this Commission made the following:

THIRU.J.JAYARAM, JUDICIAL MEMBER

          The case of the complaint is as follows:

          The complainant is retired Chief Commissioner of Income Tax, and when he was posted as Chief Commissioner of Income Tax, Chennai  he made a request to  the  Government of  India to allot him Type V flat in the Departmental Pool accommodation in Pedder Road, Mumbai and accordingly he was allotted a type V flat in Pedder Road, Mumbai.

2.       As a Government servant he was entitled to retain his flat for a period of 8 months after retirement, on payment of nominal charges.  On 8.6.2005 i.e., almost four months prior to retirement he requested the Government to allow him to retain the flat for a period of 8 months after his retirement.  By a letter dated 21.02.2006 communicated to him on 24.4.2006 i.e., almost 11 months after his request, the department informed him that his request could not be favourably considered and asked him to pay the market rent of the flat at Rs.1,07,250/- per month with retrospective effect.

3.       Aggrieved by the order he engaged Sri.S.Silambanan, Advocate / the opposite party herein to file a case before the Central Administrative Tribunal, Chennai and accordingly, the opposite party filed an application in O.A.No.283/2006 before the CAT, Chennai seeking interim stay which was granted by the CAT. It is the usual practice with the opposite party to receive the fee in advance and the complainant does not remember how much of fees exactly was paid to the opposite party, but the opposite party received fees in advance before filing the case, Chennai.  The facts will show that the gross negligence was not on account of any fees.

4.       The Income Tax Department did not pay his gratuity and delayed his pension.  He filed two separate applications before the Central Administrative Tribunal, Mumbai.  The Income Tax Department filed replies to the two applications.  Only from this affidavit filed in 2010, he came to know that his application before the CAT, Chennai had been dismissed for non appearance of the opposite party.

5.       He addressed a letter dated 24.2.2010 to the opposite party pointing out the serious  negligence  and  dereliction  of duty on his part and informed him that he would take appropriate action against him.  After receipt of the letter dated 24.2.2010, the opposite party took steps to restore the application and the application was restored and it was finally posted for hearing on 25.6.2010 and before that he sent a letter dated 20.5.2010 to the opposite party explaining the case.  The matter was finally heard by the CAT, Chennai, on 26.6.2010 and the application in O.A.No.283/2006 was dismissed on merits.  In response to his e-mail and phone calls, the opposite party sent a e-mail dated 7.9.2010 that the opposite party had already sent the original order dated 30.6.2010 to the complainant.  At this stage, the complainant requested his friend Sri.R.Gandhi, a very Senior Advocate, Chennai and asked him to file a writ petition against the order of CAT, Chennai.  Sri.R.Gandhi, asked the complainant to get him the case papers immediately. But the opposite party refused to send the papers to Sri.R.Gandhi, whose office is located in the same building as the opposite party’s office and thereafter he collected all the papers from the opposite party through an officer of Income Tax Department and the papers were handed over to Mr.R.Gandhi.  Mr.R.Gandhi informed the complainant over phone that the original order of the CAT, Chennai was not available with the file and therefore, ultimately, the writ was not filed and therefore the complainant issued a legal notice to the opposite party dated 24.6.2011 and the opposite party replied on 19.7.2011. All these amount to gross negligence and deficiency in service and unfair trade practice on the part of the opposite party.

6.       Now the Government has asked him to pay the rent of Rs.18 lakhs or so plus interest.  Hence the complaint prays for direction to the opposite party to pay the rent plus interest of Rs.20 lakhs or so now demanded by the Government and to pay Rs.1,00,000/- for the inconvenience and mental agony caused to the complainant and to direct the opposite party to pay costs of Rs.50,000/- and to direct the opposite party to file the writ petition and take appropriate steps to get it admitted.

7.       The opposite party filed his version stating that the complaint is not maintainable against the Senior Advocate as there is no direct interaction or contract between the complainant and the opposite party and hence the complaint is liable to be dismissed.  The opposite party was not designated as a Senior Counsel at the relevant point of time when the complainant engaged the opposite party as his counsel to file the case before the CAT, Chennai.  The complainant himself has admitted that he paid only the initial fee and expenses at the time of filing O.A.No.283/2006 and the opposite party has filed the same and obtained favourable interim orders.  The opposite party had received only the filing expenses and initial fees for admission and interim relief and did not collect any fees in advance for final hearing and as per the own admission of the complainant it would be established that the complainant did not pay any amount towards lawyer’s fees for final hearing.  Further the complainant himself has admitted that there is no negligence on the part of the opposite party on account of non payment of fees.  The opposite party himself conducted the case even after becoming a Senior Counsel and the complainant has admitted that he has not paid any fees to the counsel for conducting the case.  Therefore the provision of Consumer Protection Act cannot be invoked by the complainant.

8.       The opposite party was designated as a Senior Advocate and so his earlier briefs were handed over to the other Advocates and in that there was some loss of communication and the O.A was dismissed for default and immediately the opposite party took steps and the O.A.283/2006 was restored to file.  Thereafter, after full enquiry and after hearing both sides the CAT dismissed the O.A. (the main case) on 30.6.2010 on merits.  The complainant himself admitted that the O.A. was heard on 25.6.2010 and the same was informed to him by the letter dated 26.6.2010 by the counsel.  The letter was addressed by the counsel as the opposite party is a Senior Advocate.  The counsel for the complainant had written a letter to the complainant on 26.6.2010 as accepted by him.  The opposite party did not write any letters or sent any mails to the complainant.  On verification it was found that the original order copy was received on 15.7.2010 as seen in the reply notice dated 19.7.2011 to the complainant wherein it was stated that the same was received on or about 8^th or 9^th July 2010 and immediately thereafter the original order copy was sent by the counsel to the complainant even in July 2010.  Thereafter in September 2010 the complainant informed the opposite party that he did not receive the original order copy, in response to which the counsel immediately sent an E-mail on 7.9.2010 stating that the original order copy had been dispatched to him long back; but however, on 7.9.2010 itself the opposite party sent him the scanned copy of the original order which was in the computer.  It can be seen that even the copy of the original order was received by him even on 7.9.2010 and hence there is no delay on the part of the counsel of the opposite party nor the opposite party.

9.       When the entire papers were collected from him on 24.9.2010, and when the order was also sent to him there was no reason why a writ petition could not be filed though there was no limitation prescribed for filing a writ petition and if the original order was not available, the same could be dispensed with by the Hon’ble High court for valid reasons.  Therefore there was no impediment whatsoever for the complainant for filing the writ petition in November 2010 itself, if he so desired.  It is a false allegation against the opposite party that writ petition could not be filed for want of original order copy of CAT in O.A.No.283/2006, dated 30.6.2010.  There was no necessity to file condonation delay petition to file the writ petition.  The complainant remained silent from September 2010, to June 2011 when he sent a notice to the opposite party and such a delay on 9 months was not explained by the complainant either in the notice or in the complaint.  Had he filed the writ petition even in September 2010 there will not be any delay.  But being informed in September 2010 that the complainant did not receive original order, immediate steps were taken to send him a copy and hence there is no negligence or deficiency in service or unfair trade practice or dereliction of duty on the part of the opposite party as alleged and the complaint is not maintainable.

10.     Both parties filed their proof affidavits reiterating their averments.  On the side of the complainant Exs.A1 to A7 were filed and marked and on the side of the opposite party no documents were filed.

11.     The points for consideration are :

          1.Whether there is negligence or deficiency in service on the part of the

             opposite party as alleged in the complaint?

          2.Whether the complainant is entitled to claim compensation from the

             opposite party?

          3.To what relief the complainant is entitled?

12.     POINT NOS.1 & 2 :  The 1^st allegation against the opposite party is that the opposite party failed to appear before the CAT on hearing dates as a result of which, the application in O.A.No.283/2006 was dismissed for default and that the opposite party failed to inform the complainant about this.  Admittedly the application was dismissed for default for non appearance of the complainant.  Further we find that necessary steps were taken by the opposite party to restore the application and the same was restored to file.  Subsequently after due enquiry, on hearing both sides the application was dismissed on merits.  Therefore though the application was dismissed for default and it was duly restored and the final order was passed on merits and therefore no prejudice has been caused to the complainant.  Therefore the allegation of deficiency in service on the part of the opposite party on this score cannot be sustained and the contention of the complainant in this regard is untenable.

13.     Further allegation of the opposite party would be that the opposite party failed to inform the complainant about the final order passed by the CAT on 30.6.2010 and the opposite party did not send the original order in consequence of which the writ petition could not be filed before the Hon’ble High Court.  We have to note that the counsel for the complainant has sent a letter dated 26.6.2010 as accepted by him but the opposite party did not write any letter or mail to the complainant.

14.     The complainant himself admitted that the O.A was heard on 25.6.2010 and the same was informed to him by the letter under Ex.A4 dated 26.6.2010 by the counsel for the opposite party and we have to further note that the opposite party was addressed as a Senior Advocate by the complainant in the letter Ex.A6.  Thus it is seen that the counsel for the complainant had written a letter dated 26.6.2010 as  accepted by him.  It is seen that the opposite party did not write any letters or send any mails to the complainant.  On verification by the opposite party, it was found that the original order copy was received on 15.7.2010 as stated in the reply notice EX.A7 dated 19.7.2011 to the complainant and it is also stated that the same was received on or about 8^th or 9^th July, 2010 and immediately thereafter the original order copy was sent by the counsel to the complainant even in July 2010, and we have to further note that the complaint was aware of the dismissal of O.A. even in June 2010 and even then the complainant intimated him in September 2010 that he did not receive the original order copy and on hearing it, the counsel immediately sent an e-mail to the complainant on 7.9.2010 stating that the original order copy had been dispatched him long back and since the complainant informed that he did not receive the original order copy, the counsel immediately on 7.9.2010 itself sent a scanned copy of the original order taken from the computer.  Therefore we can see that the original order copy was received by the complainant on 7.9.2010 itself and therefore we find that there is no delay on the part of the opposite party’s counsel nor the opposite party in this regard.

15.     Admittedly the opposite party was not designated as a Senior  Advocate at the relevant point of time when the complainant engaged the opposite party as his counsel to file the case before the CAT, Chennai and the complainant had paid only the initial fees and expenses for filing the application before the CAT and the opposite party filed the application and obtained interim order and we have to note that the complainant paid only the initial fees and expenses to the opposite party for admission and interim relief and no fee was paid by the complainant to the opposite party for the final hearing.

16.     It is relevant to note that, the opposite party was not designated as a Senior Advocate at initial stage and after designation as a Senior Advocate he conducted the case as requested by the complainant.  For these reasons, we find no negligence or deficiency in service on the part of the opposite party and the opposite party is not liable for any act under the Consumer Protection Act.

17.     It is further contended by the complainant that he contacted the Senior counsel Mr.R.Gandhi and requested him to file the writ petition against the order of the CAT and Mr.Gandhi agreed to do so.  The complainant requested the opposite party to send the entire papers to Mr.Gandhi for filing the writ petition.  But the opposite party did not oblige and he did not co-operate with the complainant to send the papers to the Senior counsel Mr.Gandhi.  Therefore, the complainant collected the papers from the opposite party through an officer of the Income Tax Department and the papers collected from the opposite party were handed over to the Senior Advocate Mr.Gandhi.  It is further contended by the complainant that Mr.Gandhi told him over phone that all necessary papers were not available with the file and that the original order was not found in the file and that non-cooperation of the opposite party to send the papers to the Senior Counsel Mr.Gandhi, amounts to deficiency in service on the part of the opposite party.

18.     Per contra, the opposite party would contend that all the papers were handed over to the complainant’s representative who came to collect the papers.  Therefore, we find no deficiency in service on the part of the opposite party in not sending the papers to the Senior Counsel Mr.Gandhi, since the papers were duly handed over to the complainant’s representative.

19.     It is pertinent to note that the papers were collected by the complainant through the representative on 24.9.2010, but no writ petition was filed by the complainant through the Senior Counsel Mr.Gandhi though there was no impediment for filing the writ petition.  The contention of the complainant in this regard is unsustainable.  The writ petition could be filed with the scanned copy before the Hon’ble High Court without the original order copy and there is no limitation for filing writ petition and therefore there was no need for filing condonation petition and further there is no reason why the complainant did not take any steps to file writ petition from September 2010 to June 2011.  So, it is abundantly clear that the complainant was not inclined to file writ petition for want of merits for filing writ petition and the opposite party is not responsible or liable for this. Therefore, we find no deficiency in service on the part of the opposite party in this regard as contended by the complainant.

20.     On consideration of the entire materials on record, we hold that the complainant has not established his case of negligence and deficiency in service against the opposite party and that there is no negligence or deficiency in service on the part of the opposite party and the complainant is not entitled to claim any compensation from the opposite party and these points are answered accordingly.

21.     POINT NO.3 :    In view of our findings on Point Nos. 1 and 2 we hold that the complainant is not entitled to get any relief in this complaint and the point is answered accordingly.

22.     In the result, the complaint is dismissed without costs.

 

P.BAKIYAVATHI                       J.JAYARAM                           R.REGUPATHI

    MEMBER                               (J)MEMBER                             PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT :

Sl.No	Date	Descriptions
Ex.A1	21.02.2006	Copy of the letter from CC, Chennai
Ex.A2	24.2.2010	Copy of the complainant letter to the opposite party
Ex.A3	20.05.2010	Copy of the complainant letter to the opposite party
Ex.A4	26.06.2010	Copy of the letter from the Opposite party
Ex.A5	30.06.2010	Copy of CAT, Chennai order
Ex.A6	24.06.2011	Copy of the notice issued by the complainant to the opposite party
Ex.A7	19.07.2011	Copy of Reply sent by the opposite party to the complainant

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY  : NIL

 

P.BAKIYAVATHI                       J.JAYARAM                           R.REGUPATHI

    MEMBER                               (J)MEMBER                             PRESIDENT

 

INDEX; YES/ NO

VL/D;/PJM/CONSUMER