Lawyer is comes under
Querist :
Anonymous
(Querist) 09 September 2011
This query is : Resolved
Dear to all,
I have a question , requested to participate in the same.(I am not Lawyer), so guide me.
Case History : I have give some amount for sugar factory for working as a employee(X Amount). But factory has not given the satisfactory service & salary( as committed). & Factory is return my despoited cheque. But as soon as i desposied chq. get bounced, -3 time.
I filled case on sugar factory in Barshi-Solapur(Maharastra) along with lawyer. i have paid the amount to lawyer to proceed the case in court. with this i have given the original cheq.(Bounced) to lawyer to stand the case. this is real story NOW WHAT HAPPEN
1) Lawyer has not summitted the Original chq. in Court (missed out by laywer)
2) We attend the hearing 10-12. Now what happens, lawyer not communicate the court hearing date and also lawyer not not present for hearing in court (Lawyer attendance sheet - copy is with us- that clearly indicates the non presence of lawyer to 10-12 hearings)
due to 1, 2 court dismissed the case.
But as soon as court dismissed case & we are shocks (court case hearing dates not communicate to us). Now to check the reality we go to lawyer - the lawyer says that
a)you dont worry case is so strong & we will win 100%,
b) Although Original chq. is misplaced by lawyer, that dosent matter, dont worry.
THEN WE RECORD(Via Tape Recorder) THE STATEMENT recorded is a) & b)as above mention. & FILLED CASE AGAINT LAWYER IN SOLAPUR CONSUMER COURT. BY PROVIDING THE EVIDANCE 1), 2) & RECORDED STATEMENT OF a) & b). CONSUMER COURT GIVEN DECISION FROM OUR SIDE.
SAME CASE IS FILLED/ APPEAL BY LAWYER IN BOMBAY COURT & DEW DELHI CONSUMER COURT- & WE WIN.
NOW HE FILED APPEAL IN NEW DELHI HIGH COURT. & SAYS THAT Lawyer would not come within the ambit of Section OF 2(1)(o) of the Consumer Protection Act, 1986.
Now my Question is
1) When we are giving money for defend the case & fails to fulfill the service due TO LAWYER'S Negligance ( Misuse of clients chq. / absent in court / ) such case we not claim under consumer act provision ??
2) If Lawyer not comes under Consumer Protection Act, 1986, then how lawyer can punished for his illegal activities.
3) If so HOW CAN THE LAWYER CAN PUNISHED
4) IS ANY LAW EXISTS WHICH PROTECT TO US ??? because we pay money to LAWYER
Please Guide me on the subject matter. Last ten years I am depress with fightening with this legal formalities.
Please note that I have 1 % knowledge of LAW & LEGAL
YOUR COMMENT WILL BE HIGHLY APPRICIATED.
5)
R.Ramachandran
(Expert) 09 September 2011
Please find attached two judgements (there are some more judgments also) which hold that Advocates are amenable to Consumer Protection Act.
Raj Kumar Makkad
(Expert) 09 September 2011
Apart from citation, I want to reply your query as under:
1. Lawyer comes within ambit of this Act.
2. Lawyer definitely comes under the Act and he can also be complained before Bar Council of his State.
3. As advised above.
4. Case lw has already been told to you by Ramachandran.
Advocate M.Bhadra
(Expert) 09 September 2011
Mr.R.Ramachandran rightly said that the Advocates are not covered under the Consumer Redressal Act.,you can complain to the State Bar council.
prabhakar singh
(Expert) 09 September 2011
Experts have rightly guided you.
Advocate. Arunagiri
(Expert) 10 September 2011
We can see the SC judgement on BSNL, when there is provision of arbitration the consumer court jurisdiction is barred. When there is a special act is there, it overrides the general act.
Similarly, when there is a provision for making complaint on the advocates, before the Bar Council, it is a special Act. So, this special act overrides the general law (i.e) consumer court.
So, the advocates can not be brought under the purview of Consumer Court.
R.Ramachandran
(Expert) 10 September 2011
Dear Mr. Minansu,
I said that according to the decisions attached by me, Advocates are amenable to Consumer Protection Act. In other words, Advocates are liable under Consumer Protection Act.
But unfortunately, you have said that: "Mr.R.Ramachandran rightly said that the Advocates are not covered under the Consumer Redressal Act." which is not true.
To the argument that there is a special act viz., Advocates Act to govern the Advocates, the Madras High Court has said that though Advocates Act is there to govern the Advocates, yet Advocates Act is inadequate when it comes to giving damages or compensation to the consumer. Therefore Consumer Protection Act is applicable.
M/s. Y-not legal services
(Expert) 10 September 2011
Sir, here the deficiency in service caused by the advocate.. If we complained before bar counsel mean its may be take a disciplinery action against the advocate, but here whats the remedy to the innocent's money. In case if its a contested case mean no problem. But here cheque was misplaced and case was dismissed for default.
Guest
(Expert) 10 September 2011
I endorse the views, dated 10th September of Shri Ramachandran. In fact Advocates Act does not deal with the deficiency in service on the part of an advocate. That covers to the instances of professional ethics and conduct/misconduct on the part of an advocate.
prabhakar singh
(Expert) 10 September 2011
I frankly agree with Mr. Tom that when it comes to service deficiency,the jurisdiction under consumer protection Act can be invoked
because what an advocate renders is obviously
service.The Act does not make any exception to any class of service and advocate Act can notcompensate monetary losses and damages of a consumer who had consumed legal services of an advocate.
Advocate. Arunagiri
(Expert) 10 September 2011
I reproduce the order of the SC that the Advocates can not be dragged to the consumer court.
Reference:
BAR OF INDIAN LAWYERS v. D.K.GANDHI & ANR SLP(C) NO. 3053 of 2008, SLP(C) NO 11539 of 2008, SLP(C) NO. 8786 of 2008, Date: 13/04/2009 by the two Judges Bench of the HON’BLE MR. JUSTICE LOKESHWAR SINGH PANTA HON'BLE MR. JUSTICE B. SUDERSHAN REDDY; the case is converted to Civil Appeal No. 2647/2009(Delhi High Court Bar Association v. D K Gandhi and Anr.
Order:-
The Supreme Court has held that advocates are not liable to be dragged to consumer courts for allegedly providing unsatisfactory services to their clients. A bench of Justice Lokeshwar Singh Panta and Justice B Sudarshan Reddy gave the ruling, while suspending the country's apex consumer court order that held advocates to be within the ambit of the Consumer Protection Act, 1986, and liable to be dragged to consumer courts.
Guest
(Expert) 10 September 2011
Dear Arunagiri,
Please refer to your latest views of date. The said case of D.K. Gandhi does not provide the final judgment of the SC. It is just a stay of the impugned order of the National Consumer Disputes Redressal Commission, New Delhi during the pendency of the appeals on prayer for interim relief.
It is understood that the Supreme Court has given only temporary ruling ( STAY, but NOT FINAL) after a cursory and preliminary examination of the relevant laws and said it would give final hearing after a detailed examination of the issue. It is also understood that the case is now converted in to Civil Appeal No. 2647/2009 and has been listed before the appropriate bench as the Delhi High Court Bar Association v. D K Gandhi and Anr. The same was listed for 06.09.2011 as scheduled to be heard in the SC.
Would you kindly like to advice on the matter if the final judgment has come and what is that?
Advocate. Arunagiri
(Expert) 10 September 2011
Mr.Dhingra,
Even if the temporary ruling, the ruling as of now is that advocates can not be brought under the purview of Consumer Court.
I do understand that it came in the Registrar Court 1, as Item No.101. It was not yet listed before the court.
I am of the feeling that the advocates can not (not should not) be brought under the purview of Consumer Court.
I will be happy If you can provide me the updates of SC case. I think it may take some few more month.
Guest
(Expert) 10 September 2011
Dear Arunagiri,
I am a knowledge seeker in this case. Practising advocates can well help to chase the issue. However, I am of the view that any temporary stay order on any matter cannot be taken as the final ruling, unless followed by some by permanent order. I am also of the view that delebrate deficiency of service on the part of any class of service provider should not be exempt from the purview of the Consumer Protection Act.
Advocate. Arunagiri
(Expert) 10 September 2011
Dear Mr.Dhingra,
I am also knowledge seeker. I would be very happy if we could exchange our views.
Unlike other professions, the advocates are called as the court officers. The advocates are elevated as the High Court Judges. I stress elevation. Even though the advocates are not employees in the judicial service, their appointment as High court judge is said as elevation.
The advocate is assisting the court in arriving at a conclusion. He can not get employed and also practice.
Such a stringent conditions are not for any profession.
That is why I say, the advocates should be exempted from the consumer court.
Guest
(Expert) 11 September 2011
Dear Shri Arunagiri,
That is fine, as knowledge is shared by all of us for the benefit of one and all. So every one can be termed as knowledge seeker, provided he is really knowledge hungry and intends to enhance his own as well as the community's abilities.
Definitely, I would like to share the information about the said case, if I receive that first.
However, you would like to appreciate that the present question did not pertain to the status of the advocates in the courts, but the deficiency of service on the part of any advcocate towards his client in his individual capacity, as a service provider to his specific client from whom he has charged fee for his service. So, naturally his responsibility is of dual nature individually towards court as well as towards his own client, entirely separate from what he is ought to do to assist the court.
It is also well known to all of us that the Advocates Act deals only with the professional misconduct BUT NOT with deficiency of service, advertantly or inadvertantly, on the part of the advocate.
We also know that a particular stay order applies only to that particular case on which interim stay has been granted and also for some specific period of time or till some final judgment is delivered on that.
We also know that even on judgment on that particular case, the said judgment does not automatically become universally applicable to all such type of cases until specifically ordered by the competent court or the law itself is not amended appropriately by an act of the Pariament.
So, the present stay order cannot be treated as the court ruling against the judgment of the Consumer Forum, as only the final judgment on the Civil Appeal No. 2647/2009 can only be the decisive factor, that too after the judgment is delivered, and not before that.
Querist :
Anonymous
(Querist) 11 September 2011
Dear to all. I would like to comment on Mr.PS Dhingra-Statement :
If Consumer court (State)& New Delhi has rejected the apeal of Lawyer & give the results from our side, then what will our stand in High Court?
Plz guide me because we dont get lawyer against lawyer to defend the case.
Regards
girish shringi
(Expert) 11 September 2011
If you do not get the Lawyer against Lawyer,contact any NGOs,who support the consumer cause.
Guest
(Expert) 12 September 2011
Dear Anonymous,
First of all I would like to know, what do you mean by the "FROM OUR SIDE," i.e., lawyers or consumers, as being an anonymous author, it is not understood whethwer you are speaking on behalf of the lawyers or the consumer?
Advocate. Arunagiri
(Expert) 12 September 2011
I think he is speaking on behalf of consumer only. That is why he says he need a lawyer against lawyer.
Guest
(Expert) 13 September 2011
Dear Arunagiri,
I appreciate your understanding, but the query dated 11th September provides some confusion, as to whether the present query was from the poster of the original question, dated 9th Septemeber or from some other person, as in both cases the word "anononymous" has been used as the name of the poster.
Since the discussion has become quite interesting due to its controvercial nature, any body would be interested to put some supplementary query in his own interest.
In the first query the querist has already stated, "WE WIN" in the cases at Bombay Consumer Forum as well as in New Delhi. On the other hand, the poster of the present query, dated 11th September states "IF Consumer court (State)& New Delhi has rejected the apeal of Lawyer." In fact the word "IF" created some doubt.
I hope there would be no harm if the querist himself clears the position, as the reply has necessarily to differ from the point of view of the petitioner or defendant.
Every body knows that none of the advocate may perhaps be ready to fight on behalf of the petitioner, and even if court nominates some lawyer to fight the case due to lawyers refusing to fight such a case for the appellant, even the nominated lawyer is not likely to fight the case wholeheartedly and sincerely on behalf of the appellant. Even out of some fear, you have also deleted the attachment earlier made by you, which contained the interim order of the SC along with the judgment of the Central Consumer Redressal Forum.
IF THE QUERIST IS REALLY THE APPELANT, HE DEFINITELY NEEDS SOLUTION TO HIS PROBLEM.
OK. let him clear the position as already pointed out.
Querist :
Anonymous
(Querist) 13 September 2011
Mr.Dhingra
Case is filed by us against lawyer in Consumer court In dist. level. ,(District level we win). Lawyer appeal in State level Consumer &National Consumer Court-Delhi. His appeal is rejected& given decision that appeal is rejected & lawyer has responsible for loss caused by negligence in service against consumer act
Now lawyer filled appeal in SC. as per his appeal in SC ,he mention that lawyer not comes under section xxxxxx i.e consumer act.
Till the all process we dont get any lawyer to defend our case. Whatever we did ,all are done by us & only basis of the strong objective evidences.
Now my qust.is
''i want punishment against frod / misconduct / providing unsatisfactory services/loss of customer trust & money. (The section / law under which he is guilty is not important for me.
My questionis :
If lawyer is not comes against consumer act, then how he is punished for misconduct. & what will be the provision???.
If he comes under consumer act, then what will be the Our stand in SC on filed appeal ?
Querist :
Anonymous
(Querist) 13 September 2011
Cont. to Previous attachment............
If we appoint some lawyer it is his duty to 1) to present the customer's case 2) Prevent the customer given proof, evidances from misuse from himself(& Should not get benifits from customer evidances), 3) Present every hearing in court, 4) Lost customer's evidances which is given as a trust on Lawyer. 5) If any customer absent should be inform to customer for present in court hearing process as well as inform to customer for hearind date. 6) If he is enable to attend the court hearing , should inform written to court, 7) If Lawyer is not so competant, shoud inform to to customer & request to inform customer to handover case to other lawyer.
SAID LAWYER FAILS ALL ABOVE REQUIREMENT. HENCE DOING ALL THESE ACTIVITY FROM LAST 10 YEARS WITHOUT ANY DIRECT HELP OF LAWYER.
Guest
(Expert) 22 September 2011
Hi dear anonymous,
I think I have already given some reply to similar question of yours either in the forum or through PM. Hope you would have seen that.
I can understand that none of the lawyers would like to stand against any other lawyer in your case to prove that the lawyer also comes within the domain of Consumer Protection Act. So, you would have to make an extensive search for a rational lawyer stand for you against the HC case, or would have to fight yourself vigorously to stress upon your points. In addition to the 7 points noted by you in your last post, in defending your case, you may also like take cue of some points from 3rd and 4th paragraphs of my reply dated 11th September, as addressed to Shri Arunagiri.
