w w w . L a w y e r S e r v i c e s . i n



E. Kasturi v/s S. Sathavoo

    R.P.NO.79/2010 (Against order in CMP.NO.8/2010 in CC No.50/2009 on the file of the DCDRF, Dindigul)

    Decided On, 19 January 2011

    At, Tamil Nadu State Consumer Disputes Redressal Commission Chennai

    By, HONOURABLE THIRU JUSTICE M. THANIKACHALAM PRESIDENT
    By, THIRU J. JAYARAM
    By, M.A.
    By, M.L.
    By, JUDICIAL MEMBER & THIRU S. SAMBANDAM
    By, MEMBER II

    For the Appellant : M/s. M.Vivekanandan, Advocate. For the Respondent : In person.



Judgment Text

The Respondent as complainant filed a complaint before the District Forum against the Petitioner/ opposite party. The District Forum has dismissed the petition. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.5.10.2010.


This petition coming before us for hearing finally on 5.1.2011. Upon hearing the arguments of the counsels on either parties, this commission made the following order.


M. THANIKACHALAM J, PRESIDENT.


1. The order under challenge, in this revision is the dismissal of I.A.No.8/2010, in CC.No.50/2009, where a prayer was sought for, to reject, or strike off the complaint, as not maintainable, for want of cause of action.


2. The respondent, in this revision, as complainant, claimed a sum of Rs.8,84,000/-, representing the pronote amount, in addition to interest, for the recovery of a sum of Rs.93000/-, paid to the opposite party, further in addition to a sum of Rs.10000/-, as compensation for mental agony, against the advocate/opposite party, alleging negligence as well as deficiency in service, which is pending before the District Forum, Dindigul.


3. In the said case, the opposite party filed IA No.8/2010, to strike off the petition, contending that the matter at issue in this case, has been directly and substantially, decided in the case, pending before the Bar Council of India, that the complainant /respondent, has no cause of action to file this case, and that the averments are all false etc., which was opposed.


4. The District Forum, considering the order passed by the Bar Council of Tamil Nadu, as well as the Bar Counsel of India, and taking into account, the claim made in CC.No.50/2009, came to the conclusion, that both the case are for different reliefs, though the negligence may be one and the same, and in this view, the cause of action pleaded by the complainant, must be true, which should be enquired, and decided. Thus concluding, the petition filed by the opposite party came to be dismissed, as per order dt.5.10.2010, which is impugned in this revision.


5. The Revision Petitioner, is a practicing advocate. The complainant/ respondent, had some money transaction, with one Thangaraj, for which it seems, Thangaraj had executed a Promissory note in favour of the complainant for Rs.650000/- on 7.5.2001, agreeing to pay the amount with interest. As reported, since the said Thangaraj, has not paid the amount, under the promissory note, the complainant, approached the Revision Petitioner/ advocate, to file a case, on the basis of the promissory note, which is not in dispute. According to the complainant, at the time of engaging the opposite party/Revision Petitioner, as his advocate, which is not disputed, he had given a sum of Rs.66,300/-, for court fee, Rs.1700/- as part of his fee, the agreed fee being Rs.10000/-, thereby totaling a sum of Rs.68000/-. As seen from the averments, the opposite party/ Revision petitioner, though collected the amount, has not filed case in time, paying proper court fee. Thereafter, he had filed a petition, before the court concerned, to condone the delay in filing the court fee, which was dismissed on 20.12.2006, thereby depriving the right of the complainant, to collect the amount. The complainant, when came to know about the negligent act, committed by the Revision Petitioner, issued a notice, which elicited a reply, and at present, we are not concerned about the details. After the exchange of notice or otherwise, aggrieved by the conduct of the advocate, since he had committed dereliction of duty, the complainant preferred a petition to the Bar Council of Tamil Nadu, accusing professional misconduct, against the Revision Petitioner, which was taken on file, and enquired.


6. The Bar council of Tamil Nadu, issuing notice, examining witness, marking documents, probably adopting the procedure prescribed, came to the conclusion that the Revision Petitioner is guilty of professional misconduct, in this view, the bar council of Tamil Nadu, ordered suspending the Revision Petitioner, from practicing before any court, or Tribunal etc, for 3 years in addition directing the Revision Petitioner, to pay a sum of Rs.83000/-, received by him, from the complainant, alongwith cost of Rs.10000/-, totaling a sum of Rs.93000/-, as per order dt.20.1.2009. Aggrieved by the said order, the Revision Petitioner, approached the Disciplinary Committee of Bar Council of India, wherein the order of suspension of Tamil Nadu Bar Council, was suspended, on condition that the Revision Petitioner shall deposit, Rs.93000/- with the bar council of India, within a period of one month, as per the order dt.24.2.2009.


7. Thus, when the matter is pending before the Disciplinary Committee of Bar Council of India, between parties, the complainant had approached the consumer forum, claiming the above said amount, not only alleging negligent act, but also deficiency in service. It is not known, whether written version has been filed or not, since we are not supplied with written version.


8. The main grievance of the Revision Petitioner, before us, was that, as such there is no cause of action, against the Revision Petitioner, that too, in view of the fact, the same matter is pending before the appropriate forum viz. Disciplinary Committee of the Bar council of India, and when such a case, based upon the same facts is pending, a consumer complaint is not maintainable, which is challenged by the respondent/ complainant, in person, filing detailed written submission.


9. By going through the averments in the complaint, as well as considering the dispute pending before the Bar Council of India, as rightly held by the District Forum, we are of the considered opinion, this case, has nothing to do, directly with the case pending before the Bar Council of India, though it may, in a way related to the case in hand. The complainant, preferred the petition before the Bar Council of Tamil Nadu, questioning the conduct viz., misconduct of the advocate, and informing how his right has been deprived of. Therefore, he has requested, the Bar Council of Tamil Nadu, to give appropriate relief, which was given by the Disciplinary Committee of Tamil Nadu Bar Council, as said above, only to the extent of Rs.93000/-, though it suspended the Revision Petitioner, for 3 years, from practicing, which does not include, promissory note amount, compensation for negligent act, etc., which was not the subject matter in the complaint, preferred before the Bar Council of Tamilnadu. Further, as repeatedly held by the State Commission, and the National Commission, there can be simultaneous proceedings also, since there is no bar. The Bar Council of Tamil Nadu, cannot decide the deficiency in service, as well as the negligent act also, as expected in the Consumer Protection Act, for which it has also no power to grant compensation, including for the recovery of the amount, which the complainant was deprived of, due to negligent act, committed by the advocate. Under the Tamil Nadu Bar Council Rules, the Disciplinary Committee, takes action against the advocate concerned, for professional misconduct, and accordingly, they punished the advocate, which will not give the desired relief to the consumer.


10. The complainant being a client of the opposite party/ advocate, as a consumer, cannot be disputed. In this case, payment of the amount, for court fee, as well as to some extent for fee, or promising to pay the fee, are admitted. Therefore, there is a relationship of consumer and service provider, between the complainant, and the opposite party, and as contemplated under Sec.3 of the Consumer Protection Act, the consumer forum, has role to play effectively, which cannot be decided by the Tamil Nadu Bar Council, or by the Disciplinary Committee of the Bar Council of India. The principle available under Sec.11 and 10 Civil Procedure Code, may not be applicable to the present nature of the case. Therefore, on the ground, the dispute in issue in both the case are one and the same, we cannot say, there is no cause of action, and therefore even staying the case is also not possible, which is not the case also.


11. The entire reading of the complaint discloses, cause of action, and by the conduct of opposite party prima-facie, the right of the respondent was deprived of, since the promissory note is barred by limitation. The fact, for the sin committed by the advocate, client had an opportunity to prefer case, or appeal, as the case may be, may not be a ground to relieve, the advocate, who committed negligent act, from the clutches of the Consumer Protection Act if provd. On this ground also, we cannot find fault with the complainant, as if he has not preferred revision, whereas he has filed consumer complaint, which he is entitled to, since such reliefs are made available to him, under Sec.3 of Consumer Protection Act.


12. Except there is no cause of action, and the pendency of the case before the Disciplinary Committee of Bar Council of India, is a bar, no other grounds are urged before us to reject the complaint, or to strike off the complaint, from the file of District Forum, Dindigul. No question of limitation also raised. As seen from the complaint, when he came to know about the misconduct committed by his lawyer, issued a notice, and that should be taken as the cause of action, and within two years, from the said date, the complaint was filed, and therefore there is no possibility of saying, the case is also barred by limitation, the date of cause of action being 1.3.2008, and the complaint has been filed in the year 2009.


13. As held by the Apex Court in 2007-3-I.W.234, in Kishore Lal Vs. Chairman, Employees State Insurance Corporation, the cause of action, for negligence arises, only when damages occur, and it is the matter for evidence. In this case, the complainant came to know, about the mis-conduct of the advocate, only after the dismissal of the IA, filed by him, to condone the delay, for which he has issued notice.


14. A Division Bench of the Hon?ble High Court of Madras, had an occasion to consider, whether the consumer forum has jurisdiction, to enquire into claim for damages, made by client, against advocate, for which the answer was given in the affirmative, as seen from Srimathi and others Vs. Union of India and others reported in 1996 (II) CTC 402.


15. The respondent also brought to our notice, certain decisions, that the pendency of a case

Please Login To View The Full Judgment!

before the Disciplinary Committee of Bar Council of India, will not be a bar to maintain a case, before the consumer forum, for different relief. In Jaswanth Rai Thaper Vs. Improvement Trust, Ludhiana, reported in IV (2006) CPJ 164 (NC) and in Jaidev Agarwal Vs. Haryana State Electricity Board & Another, reported in II (1997) CPJ 117 (NC), the National Commission has taken the view, that the pendency of a dispute, before the Civil Court, is not a bar for raising a dispute, before the Consumer Forum, and this being the position, when for different relief, the affected party has filed a case, that cannot be taken as bar, in view of the fact, at the instance of the complainant, a case came to be decided against advocate, by the Bar Council of Tamil Nadu, which is under challenge, before the Disciplinary Committee of Bar Council of India. For the above said reasons, we find no error, in the order of the District Forum, and the Revision Petition is devoid of merit, liable to be dismissed. 16. In the result, the Revision Petition is dismissed, confirming the order of the District Forum in I.A.No.8/2010 in CC No.50/2009 dt.5.10.2010. There will be no order as to cost.
O R