O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The grievance of the complainant against the Op against whom the complainant has come up with this complaint Under Section 12 of the Consumer Protection Act is, that he was the Proprietor of M/s Tarus Earth Movers engaged in sales and services of the earth moving machines manufactured by the then Escorts JCB Limited later on is converted into a company known as Taurus Earthmovers Limited, registered under the companies act 1956. That Op is an advocate practicing in the Hon’ble Supreme Court of India has his office also at Hyderabad as given in the cause title. That OP was introduced to him by one G. Kalyandas of M/s Kalyandas and Company, a Chartered Accountants of Hyderabad. That he had entrusted a matter to the Op for filing a Criminal Appeal against the order passed by the Hon’ble High Court of Karnataka in Criminal Appeal No.957/2000 in which the Hon’ble High Court allowed the appeal filed by the appellant M.A.A Harris against him aggrieved by the order of acquittal. The Hon’ble High Court allowed the appeal reversing the order of the Court below convicting him for the offense punishable Under Section 132 of Negotiable Instrument Act and sentencing him to pay a fine of Rs.1,60,000/- and in default to pay the said fine to undergo simple imprisonment for a period of three months and further directing that fine amount deposited shall be paid to M.A.A Harris. That in view of the circumstances prevailing, without prejudice to his rights to challenge the order passed by the Hon”ble High Court deposited the fine amount on 13/04/2005 with a liberty to file an appeal before the Hon’ble Supreme Court. Then he entrusted all the papers to the Op to file a Criminal appeal to over come the stigma of conviction when the Op came to Bangalore. Then the OP through his letter dated 09/06/2005 furnished him the Special Leave Petition with affidavit and Vakalath for signatures with attestation and sought for some more documents. Through that letter the Op had instructed him to pay Rs.10,000/- towards preparation of paper books, filing charges and clerkage and Rs.25,000/- towards professional fee. That through his letter dated 09/06/2005 and 22/06/2005 he made payments of Rs.23,725/- and on 21/06/2005 Rs.10,000/- through cheques to the Op. That Op informed him over phone that SLP had been filed and it will come for hearing and he will be intimating. The Op informed him through his letter dated 21/06/2005. That the Op did not keep up his assurance and he issued a letter on 28/04/2008 to the address given by the Op but it was returned unserved and when the Op did not respond to telephonic calls he addressed another letter on 28/05/2008 to the Op to send him status report. Then he did not receive any communication from the Op then he was forced to check the registry of the Supreme Court during July 2008 through a local advocate, he was informed regarding status of his SLP telling that SLP was filed on 11/07/2005 with certain defects to be attended by the counsel for the appellant but the Op did not attend those objections even after lapse of 3 years therefore the SLP was not posted for hearing for admission. Then he issued a letter to Kalyandas on 25/07/2008 and also to the Op then that Kalyandas also on 01/08/2008 addressed a letter to Op. Though those letters were served on Op he failed to comply the request. The OP being an advocate caused deficiency in his service and gross negligence. Therefore, has prayed for a direction to Op to remove the deficiency in his service by taking appropriate legal steps to attend the objection raised by the Office of the Supreme Court in the Criminal Appeal filed on his behalf, to get that SLP listed for adjudication and to pay compensation of Rs.5.00 lakhs with other reliefs.<br /> <br /> The Op has appeared through his advocate and filed counter affidavit to the complaint filed in place of version. In this counter affidavit, the Op has contended that this forum has no territorial jurisdiction to entertain complaint and stated that at the time of filing this complaint he was not voluntarily residing or carrying on any business or was working personally for gain within the jurisdiction of this forum. That he is registered as an advocate on record by the order of the Hon’ble Chamber Judge of the Supreme Court of India on 17/08/1994. As stated by the complainant he is an advocate practicing in the Hon’ble Supreme Court of India at the address given and his office at Hyderabad also as stated in the cause title and he has no office at Bangalore. That professional fee was paid to him were non local cheques were credited to his account at Delhi, denied that the professional fee and papers of appeal were entrusted to him at Bangalore and contended as per the documents enclosed papers were entrusted to him at Hyderabad through his friend Kalyandas and therefore stated that the complaint is not maintainable. It is further contended by him that the allegations of the complainant that he has caused deficiency in his service is all false and stated that SLP was filed within the limitations on 11/07/2005 and the registry of Supreme Court has returned the case pointing out certain defects. That matter was entrusted to a junior advocate namely Mr. G. Venkatesh for rectifying defects but that advocate suffered from kidney failure and expired during 2005. Because of that sudden death of his junior Advocate, case papers were lying at his house were taken away by his family members to their native place and after ascertaining the place of that junior advocate he got those papers back then reconstructed the case file during May 2008 along with an application for condonation of delay in re-filing the SLP. Then that SLP came to be registered as SLP (Cr) CC NO./Crl. MP No.1514 of 2009 was listed before the Hon’ble Court of Registrar on 04/02/2008 on which date, the case was directed to be deleted from his list. Thereafter the case was again listed on 07/04/2009 before Hon’ble Mr. Justice Altmas Kabir and after hearing the arguments the Hon’ble Court was pleased to direct to issue of notice to the respondents and stated that complainant was on telephonic contact with him and he has informed the complainant through phone and thereby denying the allegations of the complainant contended that the matter is still pending before the Hon’ble Supreme Court and complaint is to be dismissed as it has no merits.<br /> <br /> During the course of enquiry into this complaint, the complainant has filed his affidavit evidence and the Op has also again filed his counter affidavit. The complainant along with this complaint has produced a copy of judgment passed in CC No.18514/05, Criminal appeal No.957/2000 and copies of several letters he had addressed to op and to Sri. G.Kalyandas. Op has produced a copy of special leave petition (Cr) CC NO./Crl. MP No.1514 of 2009 and copy of his account extract, copy of proceedings of registrar of Court NO.1 of the Hon’ble Supreme Court, copy of record of proceeding of the Hon’ble Supreme Court of India, Court No.4 dated 07/04/2009. We have heard the counsel for the complainant and counsel for Op was absent is taken as heard.<br /> <br /> On consideration of the materials placed before us following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the Op as an advocate has caused deficiency in his service in prosecuting a criminal appeal entrusted to him before the Hon’ble Supreme Court?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> Point No.1 : See the reasons and final order.<br /> <br /> Answer on point No.1: Op without disputing the fact of entrustment of a professional work for filing a special leave petition (Cr) before the Hon’ble Supreme Court against the Order of the Hon’ble High Court of Karnataka and receipt of professional fee and delay in further action in the process of prosecuting the special leave petition has canvassed three grounds regarding maintainability of this complaint against him. No.1 is that by referring Section 11 of the Consumer Protection Act regarding jurisdiction of this forum has contended that as an advocate practicing before the Hon’ble Supreme Court of India at Delhi maintained an office also at Hyderabad and stated that he do not have any office at Bangalore. That he is not either residing or carries on business at Bangalore and that relevant papers for filing SLP were entrusted to him in Hyderabad, this forum has no jurisdiction to entertain this complaint and therefore the complaint is liable to be dismissed. The second point canvassed is that he has not caused any deficiency in his service, that he has filed SLP before the Hon’ble Supreme Court within the period of limitation but because of some event that is sudden death of his junior advocate there was delay in attending the office objections and no injury or hardship is caused to the complainant and therefore contended that the complaint is un-sustainable. The last and third ground urged is that SLP he has filed before the Hon’ble Supreme Court is still pending and that the Hon’ble Supreme Court ordering registration of the SLP has issued notice to the respondent to hear on the application filed for condonation of delay as such the complaint attributing deficiency against him is not maintainable.<br /> <br /> The counsel appearing for the complainant in the course of arguments submitted that the Op has not produced certain documents he had sought for by filing an application before this forum and further referring to the affidavit evidence of the complainant that whatever the Op has said in his affidavit evidence regarding filing of SLP and status of the SLP cannot be believed and therefore submitted that certain admissions made by the Op and the delay he has caused in filing the SLP and get it adjudicated upon speaks much of the deficiency and concluded that the Op is found to be deficient and prayed for relief as prayed for.<br /> <br /> So far as the first ground of the objection raised by the Op regarding jurisdiction of this forum, we find that there is some force in he contention of the Op in he having not any office, establishment for carrying on any business and is not voluntarily residing in Bangalore to confer jurisdiction on this forum to entertain this complaint. But having regard to the fact that the Criminal papers were entrusted to the OP, correspondences that were made and subject to investigation as to issue of cheques to the Op towards his professional fee. Whether they were drawn on the account of the complainant at Bangalore Bank/s are all to be taken up for conclusive adjudication of jurisdiction of this forum.<br /> <br /> Op has admitted that he has received the relevant papers from the complainant to file a special leave petition through letter dated 15/06/2005 from Mr. Y.H. Ganesh Bhat on behalf of the complainant. He has also admitted to had filed SLP within the limitations on 11/07/2005 and contended that he had entrusted to his junior counsel by name G. Venkatesh for curing and rectifying the defects of the office of the Hon’ble Supreme Court but has pleaded that junior advocate had suffered kidney failure and expired in the year 2005 itself and he could not get the relevant case papers for some time to attend the objections of the office of the Hon’ble Supreme Court and further pleaded that during May 2008 after securing the papers and re-construction of the file he was able to attend to the office objections and filed an application for condonation of delay in re-filing the SLP. It is further stated by him that the Hon’ble Supreme Court on 07/04/2009 has been pleased to order notice on the application for condonation of delay in re-filing to the respondents. The complainant has not at all seriously denied nor opposed the status of this SLP. Therefore that being the status and position of the SLP pending before the Hon’ble Supreme Court and the application filed for condonation of delay in re-filing the SLP is pending for hearing this forum can not at this stage determine whether the Op is deficient in not attending to the objections raised by the office of the Hon’ble Supreme Court and delay caused by the Op in re-filing the SLP after attending to the objections. Op having filed an application for condoning delay in re-filing SLP it is for the Hon’ble Supreme Court to decide. The Hon’ble Supreme Court may have to decide that by holding the reasons assigned are acceptable or not and may have to decide the fate of the SLP. Therefore that issue cannot be decided by this forum at this stage and cannot express its opinion when that issue is before the Hon’ble Supreme Court. It is on that event happening the complainant may have to consider whether the act or omissions of the OP has resulted in his deficiency in service and then take a decision. Admittedly the complainant has complied the order of the Hon’ble High Court of Karnataka passed in the Criminal appeal according to him under protest as such he has not suffered immediate damages. As such, we hold that the complaint under these circumstances is pre-matured. Therefore, is not maintainable and by answering issue No.1 accordingly proceeded to dismiss the complaint and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is dismissed. Parties to bear their own cost.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 3rd March 2010.<br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />