SUNDARAMURTHY, ADVOCATE vs I.SAGAR @ MARY

THE opposite party, an Advocate, against whom the District Forum, Madras (North), has passed an award is the appellant. THE case of the complainant S.J. Sagar @ Mary is that she engaged the opposite party Advocate for filing a suit for specific performance of an agreement of sale and permanent injunction and also to get an interim injunction. THE opposite party representing that a sale deed has to be prepared in the necessary stamp papers and produced in the Court, received Rs. 40,000/- to purchase non-judicial stamp papers. He also received Rs. 8,000/- to purchase Court fee stamps to file the suit and Rs. 5,000/- towards fees and other Court expenses. Altogether, he received Rs. 53,000/- during the 1st week of January, 1992. THE opposite party did not file the suit as promised. But under pressure from her, the opposite party has finally filed a suit in O.S. No. 1878/92 on the file of the City Civil Court just praying for a bare injunction paying a Court fee of Rs. 30.50 only. While so, the vendor in the agreement had sold the flat to another person. Thus the opposite party committed professional mis-conduct and deficiency in service to the complainant and on account of that she has lost possession of the house property. On these grounds the complaint has been filed.

THE opposite party in his written version contended that he has not committed any professional mis-conduct or any deficiency in service. THE complaint is barred by limitation. THE opposite party has denied that he has received any money from the complainant for stamp papers or Court fee stamps. In fact in 1992, the complainant was due and owing to this opposite party a sum of Rs. 5,250/- for which the complainant gave a cheque which when presented was not honoured due to insufficient funds. THE complainant has taken back the papers relating to 3 cases given to the opposite party. THE complaint is false one and aimed at unjust gain. The District Forum on consideration of the evidence believed the case of the complainant. It passed an order directing the opposite party to pay to the complainant Rs. 53,000/- as amount received by the opposite party and also a compensation of Rs. 15,000/- with a cost of Rs. 350/-.

Now in the appeal the learned Counsel appearing for the appellant/opposite party contends that the order of the District Forum is against the evidence and the probabilities in the case and it is liable to be set aside. After hearing both sides and also carefully going through the records we find much force in this submission. The suit O.S. No. 1878/92 has been filed for bare injunction. The District Forum seems to state that the suit for specific performance and permanent injunction only should have been filed but the suit for bare injunction has been instituted only for the purpose of lesser Court fee, and the District Forum seems to be of the view that the opposite party himself has done so without the concurrence of the complainant. The learned Counsel for the appellant/opposite party contends that it must be borne in mind that the plaint has been verified and signed by the complainant and therefore there is no justification in what the District Forum has said. This contention of the learned Counsel appears to be quite acceptable. In para 11 of the plaint Ex. A1 of O.S. No. 1878/92 it is stated that the plaintiff has been given only a xerox copy of the agreement and the original agreement is with the vendor. It is quite possible that because the original agreement was not with the complainant but she was in possession of the flat, it was thought that at the moment it would be proper to file a suit for bare injunction. Therefore we do not think that it would be correct to say that the opposite party has in his professional misconduct filed a suit for bare injunction instead of filing a suit for specific performance and permanent injunction. In the written version, the opposite party has categorically denied the allegation in the complaint that he has received Rs. 40,000/- towards non-judicial stamp papers, Rs. 8,000/- to purchase Court fee stamps to file a suit and Rs. 5,000/- towards fees and other Court expenses. There is absolutely no evidence to show that the opposite party has received these amounts. Of course the complainant has sent a Lawyer''s notice Ex. A3 stating that the said amounts were received by the opposite party and in his reply Ex. A4 the opposite party has not in clear terms denied that, but a careful reading of this reply notice would show that he was very much worked up by the notice and he was more interested in asking the Counsel who sent the notice whether he himself was convinced with the representations of his client than by replying to the contents in the notice. Reading of the reply as a whole would reveal that at least indirectly the opposite party has denied that he has received any such amounts. Then it is quite understandable as to why the complainant should have paid Rs. 40,000/- for purchase of non-judicial papers even at the time of filing the suit for specific performance. Her saying that the opposite party told her that a sale deed had to be prepared and filed in the Court, is difficult to believe. Thus considering we find there is no truth in the complainant''s case. Therefore it follows that the. order of the District Forum cannot be upheld as correct.

IN the result, therefore, the appeal is allowed; the order of the District Forum is set aside; and the complaint is dismissed. However, there will be no order as to costs. Appeal allowed. ______________