MOHAN CHOUKSEY vs RAKESH AGRAWAL

THIS appeal is directed against the order dated 24.12.2001 passed in Case No. 314/2000 by the District Consumer Disputes Redressal Forum, Bhopal (for short the ''District Forum''), whereby the complaint for deficiency in service in not filing the revision before the National Commission payment was allowed with an order to return the amount of Rs. 1,500/- with interest thereon at the rate of 10% p.a. from 12.11.1997 alongwith Rs. 500/- as costs of the proceedings.

FACTS giving rise to this appeal are thus: The appellant is in legal profession and practising as an Advocate at Bhopal. The respondent filed a complaint against the appellant under Section 12 of the Consumer Protection Act, 1986 (for short the ''Act'') alleging that the respondent on telephonic instructions appointed appellant as a Counsel to prepare and file Revision before the National Commission against the order dated 20.10.1997 passed in Appeal No. 77 of 1996 Rakesh Agrawal & Ors. v. Raju Pudir, M/s. Sonia Enterprise by the State Commission of Madhya Pradesh. The appellant demanded an amount of Rs. 5,000/- as an advance, which was paid to him by demand draft No. 136777 dated 12.11.1997. However, the appellant did not prepare the revision within the time prescribed hence, the respondent engaged a Counsel at Delhi and filed the Revision before the National Commission, Delhi. The appellant also did not return the fee of Rs. 35,000/- and Rs. 1,500/- expenses received and assured that the amount would be adjusted in future cases. The respondent approached the appellant for filing a complaint against Punjab National Bank, Vidisha before this Commission as the choice for appointing the appellant as lawyer was due to the fact that the appellant had already an amount of Rs. 5,000/- as an advance for providing legal services. The appellant filed complaint No. 26/1999, M/s. Span Fine Chemical v. Punjab National Bank. As this Commission was not convinced to admit the complaint, therefore, the appellant called the respondent to discuss and for that sent a post-card which was received on 12.7.1999. The respondent reached Bhopal to meet and discuss wherein the appellant handed over a certified copy of the order sheet dated 24.6.1999 passed in Original Complaint No. 26/1999 wherein the complainant was permitted to withdraw the complaint with liberty to present the complaint in appropriate Forum of competent pecuniary jurisdiction. The respondent was taken aback and asked the appellant how damages of Rs. 16.48 lacs can be reduced to Rs. 5.00 lacs only. The appellant in fact hidden the facts as respondent was called to discuss while the complaint was already dismissed as withdrawn. The complainant thereafter taking into consideration the conduct and inefficiency of the appellant approached a Counsel of High Court in the said matter for filing the complaint before this Commission and asked the appellant to return all original documents/papers. On that the appellant stated that he has not received the original documents/papers from the State Commission. Thereafter, respondent wrote letters dated 26.11.1999, 31.1.2000 and 13.3.2000 to return the amount of Rs. 5,000/- which was not returned, that gave rise to cause of action. The respondent, therefore, claimed Rs. 5,000/- paid as an advance with interest thereon at the rate of 18% p.a. from the date of payment i.e. 12.11.1997 alongwith Rs. 25,000/- as compensation and costs of litigation. The appellant filed defence version in that took the plea of limitation and on merits contended that the amount of Rs. 5,000/- included Rs. 3,500/- the amount of fee of Appeal No. 77/1996 and Rs. 1,500/- was for preparation of revision translation of documents, etc. On 12.11.1997 revision was prepared and the documents, etc. were translated but the appellant did not deliver the certified copy of the order not paid the expenses and fee for filing revision before the National Commission at Delhi. On the other hand, respondent filed a revision through a Counsel at Delhi as respondent was in possession of certified copy of the order. In such circumstances, cause of action for alleged non-presentation of revision and for refund of amount arose on 12.11.1997 or at the most adding it a period of one month for filing the revision, hence, the complaint was filed by the respondent on 16.5.2000 is barred by time. If there was any grievance against the appellant for non-filing of revision, the respondent would not have engaged him to file a new complaint case before this Commission. This shows that the respondent never wanted to incur expenditure by engaging a Counsel of Bhopal for filing the revision at Delhi. Therefore, Counsel was engaged at Delhi who filed the revision.

Regarding withdrawal of the complaint, it was submitted that the State Commission was not convinced as the claim was exaggerated in the complaint. The complainant authorized the appellant to file complaint, to act on his behalf, to argue on merits to take decision, to make compromise and to withdraw the complaint. In fact withdrawal of complaint gave rise to a cause of grudge against the appellant for filing the complaint on concocted ground of deficiency in service of not preparing and filing the revision.

THE District Forum after appreciation of evidence held that the appellant was engaged to file a compliant, which was withdrawn as State Commission was not convinced about the valuation of the complaint which was exaggerated, hence, after consultation with the complainant, the complaint was withdrawn which is evident from Annexure C-3 for which the appellant was authorized, therefore, it cannot be said that the appellant was deficient in his legal services and committed any misconduct. However, in respect of payment of Rs. 5,000/- by demand draft on 12.11.1997 recorded a finding that the appellant has admitted receipt of Rs. 1,500/- towards preparation and filing of revision and Rs. 3,500/- towards fee of the appeal. THE appellant has not filed prepared draft of the revision and translated documents. THE cause assigned for not filing revision that the certified copy of order was not given by the respondent to the appellant is not clear from any of the correspondence. In the circumstances, the appellant failed in discharge his duties in not preparing the draft of revision which was deficiency in legal service, hence, ordered to return the amount of Rs. 1,500/- with interest thereon at the rate of 10% p.a. from 12.11.1997 and Rs. 500/- as costs of the proceedings. After hearing learned Counsel for the appellant and considering the written submissions of the respondent and on perusal of record, we are of the opinion that the complaint prima facie was barred by time. The cause of action in fact for not preparing or preferring the revision inspite of payment of Rs. 1,500/- towards expenses arose on 12.11.1997. Even for arguments sake revision was not preferred, the appellant of which has filed the draft of revision and copies of the documents translated in appeal, in that case too the complaint ought to have been filed within a period of two years from the date of arising of cause of action. The correspondence after dismissal of the Complaint Case No. 26/1999 for return of the amount will not give fresh cause of action from 28.7.1999.

ON merits, admittedly, the revision has been filed through a Counsel at Delhi within the prescribed period of limitation, which shows that the certified copy of the order passed in Appeal No. 77/1996 was with the respondent. It is the respondent who thought it proper to get the revision filed by the Delhi Counsel to save expenses, convenience and may be for better representation and conduction of the case, this of course was the choice of the respondent and not of the appellant. Therefore, the explanation of the appellant is quite reasonable as the revision was not filed because it is the respondent who did not supply the certified copy of the order to the appellant nor paid the travelling expenses and got the revision filed by a Delhi Counsel, hence, the appellant in the absence of delivery of certified copy and for non-payment of travelling expenses cannot be blamed for not preparing and filing the revision. The fact is also to be considered that if the respondent was dissatisfied with the services of the appellant as revision was filed by the Delhi Counsel he could not have entrusted the brief to the appellant for filing a fresh complaint with an understanding that the amount paid would be adjusted towards fee and expenses in filing the complaint before the State Commission. However, the claim in the complaint was exaggerated so as to invoke the jurisdiction of this Commission, the State Commission was not convinced. On that the appellant withdrew the complaint at the instructions of the respondent which actually gave rise to a cause to grind the axe and to file the complaint which in fact prima facie is barred by time and has to be dismissed on merits as we do not find any deficiency in legal services rendered by the appellant for the reason also that the respondent''s case that the amount paid was to be adjusted in the fee of the complaint case. In the circumstances, on the other hand, it is the appellant who has been deprived of his fee of the complaint case. In view of the above and the fact that the District Forum has not found any deficiency in legal service in withdrawing the complaint, the order of the District Forum for return of the amount of Rs. 1,500/- for preparation, translation of documents and for filing the revision alongwith interest cannot be sustained and is set aside.

IN the result, the appeal is allowed. The order of the District Forum is set aside and the complaint is dismissed with no order as to costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case. Appeal allowed.