AKHILESH VIJAYVERGIYA vs STERLING COMPUTERS LTD

-THIS revision is directed against the order dated 24. 4. 1999 of M. P. State Consumer Disputes Redressal Commission, Bhopal disposing of the appeal filed by respondent Nos. 1 and 2 in terms of the settlement noticed in the joint application filed by the parties.

FACTS giving rise to this revision lie in a narrow compass. Petitioner/complainant had purchased from respondent No. 1/opposite party No. 1 a computer with printer for Rs. 41,000 on 8. 2. 1990. On 5. 7. 1991, the petitioner handed over the printer to respondent No. 2/ opposite party No. 2, Marketing Executive of respondent No. 1-Company for repairs. Respondent No. 2 assessed the repairing charges at Rs. 2,500 out of which amount of Rs. 2,000 was paid by the petitioner and the balance amount was to be paid at the time of taking delivery of the printer after repairs. After writing many letters by the petitioner to respondent No. 2, the petitioner was told on 29. 10. 2001 to collect the computer after making payment of Rs. 3,300. Alleging deficiency in service on the part of respondents, a complaint was filed by the petitioner seeking certain reliefs which was contested by the respondents. It was stated that as the head of the printer was changed the petitioner was liable to pay extra expenditure of Rs. 3,300 which he was not prepared to pay. By the order dated 13. 9. 1993 the complaint was allowed by the District Forum with direction to the respondents to return the repaired printer after receiving the balance amount of Rs. 500 from the petitioner and pay jointly or severally the compensation @ Rs. 1,700 p. m. from 1. 10. 1991 till the date of delivery of printer. Dissatisfied with this order, the respondent Nos. 1 and 2 filed appeal which was disposed of by the order under challenge by the State Commission. Review application No. 18 of 2000 seeking recall of the order dated 24. 4. 1999 filed by the petitioner was dismissed vide order dated 31. 3. 2000 by the State Commission as being not maintainable under law. Mr. Mohan Chouksey, Advocate who represented the petitioner before the State Commission, was allowed to be impleaded as respondent No. 3 in the present revision by the order dated 20. 5. 2004.

Respondent Nos. 1 and 2 who were deemed to be served with notices in revision by the order dated 26. 7. 2006 did not contest the revision.

THRUST of argument advanced by Mr. R. P. Dubey, Advocate for the petitioner was that respondent No. 3 had entered into compromise with respondent Nos. 1 and 2 despite specific instructions given to contest the appeal on merit and the impugned order based on compromise thus not being binding on the petitioner deserves to be set aside. In support of the submission, he invited our attention to the letter dated 6. 5. 1999 (copy at page 28) sent by respondent No. 3 to the petitioner, legal notice dated 24. 8. 1999 (copy at pages 29 and 30) issued to respondent No. 3 by Mr. Suresh Sahni, Advocate on behalf of the petitioner, letter dated 25. 9. 1999 (copy at page 31) sent by respondent No. 3 to the petitioner and telegraphic notice sent by Mr. Sahni to respondent No. 3. Reliance was also placed on the decision in D. P. Chadha v. Triyugi Narain Mishra and Others, I (2001) SLT 13=89 (2001) DLT 49 (SC)=air 2001 SC 457 and Ruby Sales and Services (P) Ltd. and Anr. v. State of Maharashtra and Ors. , (1994) 1 SCC 531. It was pointed out that the joint application filed for recording compromise was not signed by the petitioner. Copy of the order dated 24. 4. 1999 was enclosed with the said letter dated 6. 5. 1999. This letter notices that pursuant to the instructions given the matter had been settled with the appellants/respondent Nos. 1 and 2 who have handed over the printer and Rs. 6,000 in cash and petitioner may collect the printer and the cash on any date. Paras 1 to 7 of the above legal notice dated 24. 8. 1999 served on respondent No. 3 on behalf of the petitioner being material, are re-produced below: 1. That in the matter of appeal No. 199/95 duly titled M/s. Sterling Computers Ltd. and Anr. v. Akhilesh Vijayvargiya filed before the State Consumer Disputes Redressal Commission, Bhopal, my client hired your services to represent my client before the State Consumer Disputes Redressal Commission, Bhopal in the aforesaid appeal.

That you informed my client on the last date of hearing that the appellants are prepared to replace the printer to which my client told you in the explicit terms that he is not prepared to enter into any sort of compromise and you were instructed by my client to contest the appeal on merit.

That my client''s brother-in-law, namely, Mr. R. P. Vijay who is a leading practising lawyer at Rajasthan High Court, Jaipur Bench also contacted you over the telephone on 23. 4. 1999 when he was informed by my client on 22. 4. 1999 about the proposal of compromise advanced by you to my client on the last date of hearing and my client''s brother-in-law, namely, Mr. R. P. Vijay, Advocate also conveyed you the desire of my client to not to enter into any compromise in the matter and you assured that the matter shall be got decided on merit.

That it is quiet shocking and rocking to read the order dated 24. 4. 1999 passed by the State Commission, Bhopal, wherein, it has been stated that a joint application was filed by the parties and you signed it for and on behalf of my client wherein you have stated that, "the new printer has been supplied to the complainant and the amount of Rs. 6,000 has been paid today to the Counsel for the respondent-complainants. "

That in all sum and reality the printer in question was never supplied to my client even till date and you have deliberately made a false statement before the State Commission for and on behalf of my client to injure my client and in order to bestow illegal favour on the appellants.

That your conduct/action (s) in prosecuting the appeal for and on behalf of my client was not only dubious but was also against the all cannons of professional propriety and sobriety.

That your action by way of entered into the compromise with the appellants against the explicit instructions of may client smacks of your vested interest in the matter and it further stands fortified for the reason that the District Consumer Forum had passed the order in favour of my client the way back on 13 9. 1993, where the appellants were directed that the printer would be returned to my client after its due and requisite repair and it was also ordered that the appellants jointly and severally would pay the damages from 1. 10. 1991 @ Rs. 1,700 per month and the Advocate fee of Rs. 25,250 was also ordered to be paid by the appellant to my client. This is quiet surprising that as to how my client would agree for such a meagre sum for the reason that my client for prosecuting the appellants for their deficiency in service has already incurred an expenditure of more than Rs. 20,000. I, hereby, call upon through this legal notice to explain within a period of fortnight of the receipt of this notice as to why you should not be held liable for deliberately causing loss (es) to my client and also why a complaint be not lodged before the Competent Authority for the professional misconduct. "

ALONG with the said letter dated 25. 9. 1999 the respondent No. 3 had forwarded the demand draft of Rs. 6,000 to the petitioner also informing him that he may collect the printer from his office or it can be sent by courier. In aforesaid telegraphic notice, it was stated that the respondent''s letter dated 25. 9. 1999 did not answer the specific allegation of professional misconduct levelled against him in the notice dated 24. 8. 1999 and so, the specific reply thereto be sent latest by 15. 1. 2000 failing which action was threatened to be initiated against respondent No. 3. It was pointed out by Mr. Vivek Aggarwal, Advocate appearing for respondent No 3 that the legal notice dated 24. 8. 1999 was sent after more than three months of the receipt of copy of the order dated 24. 4. 1999 and review application too was filed with delay some time in February, 2000. This delay would show that the case set up by the petitioner in regard to his giving instructions not to compromise the appeal is an afterthought. Mr. Aggarwal further submitted that the Vakalatnama executed by the petitioner in favour of respondent No. 3 fully authorized respondent No. 3 to enter into settlement with respondent Nos. 1 and 2. To be only noted that respondent No. 3 has not refuted the charges levelled in the legal notice dated 24. 8. 1999 despite second notice sent by telegram. In absence of rebuttal of the charges, there seems to be no reason to disbelieve the petitioner that the appeal was compromised by respondent No. 3 contrary to the instructions given by him and his brother-in-law. On ground of alleged delay in serving legal notice and filing review application, it can be inferred that the case of the petitioner against respondent No. 3 is an afterthought as contended. Vakalatnama executed by the petitioner in favour of respondent No. 3 cannot be used as a shield to cover up the unauthorized act in compromising the appeal contrary to instructions to the detriment of the petitioner by respondent No. 3 against whom complaint made to State Bar Council is stated to be pending. The petitioner cannot be made to suffer for the betrayal of confidence by respondent No. 3. Aforesaid order dated 24. 4. 1999, therefore, deserves to be set aside and case remanded to the State Commission for appeal being decided afresh on merit. Consequently, while accepting revision the order dated 24. 4. 1999 is set aside and case remanded to the State Commission for appeal being decided on merit. Parties will appear for directions before the State Commission on 21. 5. 2008. Revision Petition dismissed.