Deficiency of Service by lawyer
Clayton Mendonca
(Querist) 11 February 2010
This query is : Resolved
1) Senior Citizen hired a young lawyer for fighting two cases at the same time in Mangalore District Court. One case was disputing a probate of a Will. Second was a partition Suit related to the properties mentioned in the Will.
2) The first case was judged and decreed after one year. The second case is still running since three years.
3) In the first case, lawyer did not attend the Court for fighting the case even once over a period of one year and the judgement went against the old man.
4) In the second case, hearing dates were scheduled for about 10 times over a period of three years. But the lawyer is marked absent on all these dates.
5) The lawyer kept telling the illiterate old man that the two cases have become one and that his presence in Court is not required for both the cases. The old man believed the lawyer hundred percent.
6) The son of the old man was abroad for the last three years and when he returned for his holidays, he found out the actual status of the two cases.
6) When the lawyer was confronted with these facts by the son, the lawyer refused to meet him and tries to avoid him.
What is the recourse for the old man now? How can he get justice for himself? The judgement of the first case and the court papers of the second case clearly mention that the lawyer did not attend even a single Court hearing. So, there is enough proof to show to the Court about deficiency of Service by the young lawyer.
Please remember that the old man is now 79 years old and has become very depressed. Also, we came to know that the lawyer is currently studying to give exams for becoming a Magistrate. It is a very clear case of corruption as can be seen from circumstantial evidence. How can we let such a corrupt person become a Judge?
Do let me know how we can get justice for this old man? And, at the same time, ensure that a corrupt person does not become a judge.
Waiting eagerly for your reply.
Thanks a lot in advance and regards,
Clayton Mendonca. B.Tech (Electronics Engg.), IIT, Bombay
A V Vishal
(Expert) 11 February 2010
Suggest for strong action against such rogue advocates, advise you to file a complaint against the advocate with the local bar council
Raj Kumar Makkad
(Expert) 11 February 2010
File a consumer complaint agianst him in DCDRF as well as file a petition against him before Bar Council of your State so that his license for practicing may be got cancelled. Mention all the facts in detail and file your affidavit in support of the contents of your petition. You should also send a copy to District & Sessions Judge praying him to recommend strict action against such black sheep.
R.R. KRISHNAA
(Expert) 11 February 2010
Well, Supreme Court has clearly held that (recently) a lawyer is not liable for deficiency in service and hence a consumer complaint is not maintainable.
But if the lawyer has done any professional wrong then a complaint before bar council can be done provided such professional wrong is punishable under the provisions of the Advocates Act.
Parveen Kr. Aggarwal
(Expert) 11 February 2010
Firstly you obtain certified copies of all the relevant documents on the file of the two cases and then serve a legal notice on the advocate liable for deficiency in rendering services. At the same time, you avail your remedy of appeal etc. for the case lost and properly pursue the pending case. After service of notice, if the advocate does not comply therewith, you can have three remedies against him:
1. To file a complaint against him the Bar Council of the State where he is enrolled as the facts narrated by you clearly makes a case of professional misconduct.
2. To initiate proceedings for recovery of compensation from him for the losses sustained by his client, and
3. To launch prosecution for the offence of cheating and other offences.
All the three proceedings can be proceeded with simultaneously.
Clayton Mendonca
(Querist) 12 February 2010
Thanks a lot to Advocates A V Vishal, Raj Kumar Makkad, R. R. Krishna and Parveen.
1) The old man is a resident of Mangalore. And the Bar Council is in Bangalore. It would be a bit difficult to pursue this case for the 79-year old man. The son has gone back abroad for his job after his short vacation.
2) Even I had read about the recent Supreme Court case whereby it was decreed that a lawyer cannot be hauled to a Consumer Court. So, this option seems to be out.
3) The first probate case was decreed about 18 months back. Can an appeal be filed in the Bangalore High Court now? The Law of Limitation it seems is about 60 days for filing a High Court appeal against probate. What are the chances for Condonement of Delay in filing an appeal?
4) As a last resort, what is the Law of Limitation to file a complaint in the Karnataka Bar Council. It is about 18 months now and the son of the old man is expected back in Mangalore next year. The son can then pursue the complaint assuming it does not cross the Law of Limitation.
Please suggest some practical solution for the 79-year old, illiterate old man.
Thanks in advance to all you Advocates.
Clayton Mendonca
A V Vishal
(Expert) 12 February 2010
There must be a local bar council in Mangalore where you can complain against the errant advocate. Further, only on strong grounds for reasonable cause can there be condonation. Further, if the will is administered as per the probate then the entire case tends to become infructous, hence in best interest of the person it is advisable to seek immediate guidance of a local advocate practising in the high court who can advise properly after studying the docs/case file held by you.
R.R. KRISHNAA
(Expert) 12 February 2010
Lawyers not liable under consumer Act: SC: 14 April 2009
NEW DELHI: The Supreme Court on Monday stayed a ruling of the apex consumer forum holding that services rendered by an advocate to his client in the course of litigation be covered under the provisions of Consumer Protection Act.
A Bench comprising Justices L S Panta and B Sudershan Reddy stayed the ruling of National Consumer Disputes Redressal Commission (NCDRC), which was challenged by a large number of advocate bodies after lawyers raised a hue and cry over the prospect of being sued by clients for deficient service.
The appeals were filed by Bar of Indian Lawyers, Delhi High Court Bar Association and Bar Council of India. One of the lawyers' bodies represented by advocate Jasbir Malik argued that lawyers rendered legal assistance and not service to the clients.
One Devender Kumar Gandhi had filed a complaint before District Consumer Redressal Forum alleging deficiency of service against his lawyer M Mathai. The district forum on June 1, 2000, held the lawyer liable and asked him to pay Rs 3,000 as compensation for mental agony and another Rs 1,000 as cost.
On the appeal filed by the lawyer, the state commission reversed the finding and said that lawyers were not liable to be proceeded against as the services rendered by them did not come within the ambit of the consumer law.
However, the NCDRC set aside the state commission's verdict and held that if there was deficiency in service rendered by lawyers, complaint under Consumer Protection Act was maintainable against them.
http://timesofindia.indiatimes.com/india/Lawyers-not-liable-under-consumer-Act-SC/articleshow/4396828.cms
Parveen Kr. Aggarwal
(Expert) 13 February 2010
1. For a complaint before the Bar Council it is not necessary to attend each and every date of hearing. So the complaint can be made through post.
2. Even if remedy of Consumer Forum may not be available even then a negligent advocate will remain liable to compensate his client for the losses suffered by the litigant due to his negligence. The remedy of civil court by filing suit for recovery may be taken resort of.
3. If all the facts stated by you are brought to the notice of the High Court condonation of delay is possible.
4. The complaint can be filed before the Bar Council even now and till it reaches the stage of evidence his son will return.
When you are available you can help him in prosecuting his remedies as you are interested in justice for this old man.
Clayton Mendonca
(Querist) 13 February 2010
Thanks Adv A V Vishal, Krishna and Parveen.
What is the Law of Limitation to file a complaint against deficiency of Service against the lawyer in the Karnataka Bar Council?
1) The exact statement in the judgement of the probate case "The petitioner filed a P. and S. C. for grant of Probate. The defendant objected to the grant of probate and hence it was converted as suit. The defendant has filed objection denying the execution of the Will. But, after conversion of the suit, the defendant did not file written statement. The defendant has not cross-examined the plaintiff and the witnesses of the Will. The defendant has not participated in the proceedings after registration of the suit. The defendant has not argued the case also. The defendant did not lead any evidence to support the objections. Hence Probate is granted due to lack of any objections by the defendant or his advocateâ€.
2) The printout of the Court proceedings in the second case, which was a partition case says that the same advocate of the defendant was absent for hearings on 21-6-2007, 7-8-2007, 28-8-2007, 26-9-2007, 19-12-2007, 28-2-2008, 23-7-2008, 6-11-2008, 4-2-2009, 27-5-2009, 15-9-2009, 30-9-2009, 1-12-2009 without informing the plaintiff. i.e. over a period of 2 years, the advocate did not present himself in the Court to fight the case. The old man who trusted his lawyer and treated him actually like a God was duped miserably.
1) The above two proofs would be enough to convince even an ordinary person that the lawyer was bribed by the opposite party. Can we use the above evidence to file the complaint in the Bar Council?
2) Also, what is the Law of Limitation to file a complaint against deficiency of Service against the lawyer in the Karnataka Bar Council? We would like to wait till the son of the old man comes again for his next vacation.
Thanks in advance for your suggestions and advice.
Clayton
Clayton Mendonca
(Querist) 18 February 2010
Waiting for expert suggestions.
Thanks is advance,
Clayton
