AMBALAL SOMCHAND SHAH vs NARSINHBHAI G.PATEL

BY way of this complaint, the complainant has prayed for following reliefs against the opponent : "Rs. 6,48,285/- to the complainant for the monetary loss suffered by him. Further interest on Rs. 6,07,000/- for a period since 1.3.1998 till payment. Rs. 25,000/- as compensation to the complainant for the mental torture and agony suffered by him. Rs. 15,000/- as costs to the complainant."

BRIEFLY stated, the allegations of facts appearing in the complaint are : The opponent is a Chartered Accountant carrying on the profession as such and also as Tax Consultant and Financial Advisor in the name and style of ''Narsinhbhai G. Patel & Company. The complainant is stated to have been the beneficiary of professional services rendered by the opponent for consideration. In this respect it has been alleged that one Suraj Sales Corporation, a partnership firm consisting of its partners viz. [1] the complainant, [2] Pushpaben Punjabhai Patel, [3] Manjulaben Jashbhai Patel and [4] Hiteshbhai Natvarlal Patel hired the services of the opponent as Tax Consultant and Financial Advisor. The professional fee were being paid by cheque every year. The complainant''s firm came into being in the year 1973 as Sole Distributor of the product range of submersible pumps and variety of other electrical motors. Punjabhai Patel, Pushpaben''s husband and Shri Jashbhai Patel, Manjulaben''s husband were partners of Shri Unnati Industries, which concern manufactured and marketed the aforesaid products for which the complainant''s firm was having exclusive rights as sole selling agents. It has been alleged by the complainant that in fact, aforesaid Punjabhai Patel and Jashbhai Patel used to manage the affairs of the complainant''s firm Suraj Sales Corporation. It has further been alleged that at a later stage Shree Unnati Electricals came into being in the year 1985 manufacturing identical products. That firm was a partnership firm consisting of One Rakeshbhai Punjabhai Patel [Punjabhai''s son] and Pulkit Jashbhai Patel [Jashbhai''s son]. The complainant''s firm Suraj Sales Corporation were given exclusive rights as sole selling agents and distributors of the products of the said new firm. It has been alleged that as per the oral terms mutually agreed upon between the partners of Suraj Sales Corporation, the complainant had 15% share, Smt. Pushpaben had 40% share, Smt. Manjulaben had 35% share and Shri Hiteshbhai had 10% share in the profits. Besides, the complainant was entitled to 5% overriding commission on the invoice value of direct sales procured by the personal efforts of the complainant. The said overriding commission was to be directly parted with by aforesaid Unnati Industries and Shree Unnati Electricals.

In or around March, 1995, the complainant decided to retire from the firm on account of his ill-health and old age. He accordingly expressed his desire to the other partners resulting into a meeting being convened in the office of the opponent. Except Hiteshbhai N. Patel others attended the meeting since Hiteshbhai had already retired from the firm a day before the meeting. After going through the books of accounts carefully, the opponent, after due discussion, clarification and consent of all concerned worked out the amount that was due and payable to the complainant as its retiring partner. The settlement amount was mutually worked out at Rs. 10,57,000/- including complainant''s dues from Unnati Industries and Shri Unnati Electricals. The details of settlement terms were on the spot provided by the opponent and duly signed by Shri Punjabhai Patel, Jashbhai Patel and the complainant himself since such a document was required to be furnished before the Income-tax authorities. Punjabhai and Jashbhai Patel disbursed an amount of Rs. 5,50,000/- to the complainant as part payment of the aforesaid settlement amount as per the particulars set out in para 7 of the complaint. Accordingly, the payments were made during the period between August, 1995 and May, 1996. It is the complainant''s case that the other partners namely Pushpaben Patel and Manjullaben Patel were required to pay balance amount of Rs. 5,07,000/- to the complainant and their respective husbands Punjabhai Patel and Jashbhai Patel were promising to pay that amount on their behalf on or before September, 1996.

IT is the case of the complainant that Income-tax returns for the Assessment Year 1995-96 were to be filed. The complainant gave his personal file and required books of accounts, statement and documents to the opponent in or around 1st week of June, 1996. The file given by the complainant to the opponent contained the aforesaid important documents evincing settlement of complainant''s dues in Suraj Sales Corporation, Unnati Industries and Shri Unnati Electricals as stated above. That was the important document on the strength of which the complainant would be entitled to recover balance amount of Rs. 5,07,000/- from the remaining partners of Suraj Sales Corporation, Unnati Industries and Shree Unnati Electricals. The complainant wanted to take out that document while furnishing photocopy to the opponent but the opponent asked the complainant to let the original agreement remain with him [in file] and the same would be returned very soon. The complainant had no reason to doubt the bona fides of the opponent. In this fashion, the original agreement remained with the opponent. IT has been alleged that the remaining partners of Suraj Sales Corporation managed to take the aforesaid document directly from the opponent in connivance and with ulterior motive of avoiding payment of Rs. 5,07,000/- to the complainant. The opponent was obliged and duty bound to return the individual file of the complainant as a professional Chartered Accountant. IT has, therefore, been alleged that the opponent failed to employ due care and caution by not returning the original fie and document as aforesaid to the complainant causing monetary loss in the sum of Rs. 5,07,000/- to the complainant. That is how, alleges the complainant, the opponent was guilty of deficiency in rendition of professional service, was negligent in not returning the document in question to the complainant and in fact connived with other partners of Suraj Sales Corporation and other firms depriving the complainant of his important document. The complainant has, therefore, prayed for the aforesaid reliefs which includes relief of interest @ 18% p.a. and compensation. IT may be noted that at the earlier point of time, the complainant had filed Consumer Case No. 278 of 1996 before the learned Consumer Disputes Redressal Forum, Vadodara for the same cause of action in respect of the same subject matters claiming the same amount of compensation and the learned Forum had an occasion to reject the complaint on the ground of jurisdiction inter alia on the ground that such a complaint could not be entertained as it did not display any consumer dispute. The opponent has filed his written statement at Exh. 5. While denying the allegations contained in the complaint, the opponent has asserted that the complaint is not maintainable at law, that it suffers from the vice of limitation and that the complainant could not be said to be consumer in respect of the transaction set out in the complaint. The opponent has asserted that no fees have been received from the complainant as the opponent was never dealing with individual cases of the partners. It has been positively asserted that the complaint has been filed to harass the opponent on the eve of his life. According to him there was no occasion for the complainant to hand over any document to the opponent.

AT the outset it may be noted that at the time of the evidence of the opponent, opponent had handed over copies of the documents concerning dissolution of the firm in the name and style of Suraj Sales Corporation to the complainant. We have heard the learned Advocates for the parties. We have gone through the evidence placed on record and the pleadings of the parties. Following points arise for determination in this complaint. 1. Can the complainant be said to be a consumer in the eye of law in respect of the transaction alleged in the complaint ? 2. Do the grievances voiced in the complaint amount to consumer disputes required to be resolved by this Commission under the provisions of the Consumer Protection Act, 1986 ? 3. Is the complaint within the period of limitation ? 4. Is the complainant entitled to any compensation from the opponent ? 5. What order ?

Our answers to the aforesaid points for consideration are as under : 1. No 2. No 3. Yes 4. No 5. As per final order REASONS :

IF the averments made in the complaint are broadly considered, it has to be noted that what the complainant alleges is that there was a meeting in the office of the opponent for resolution of disputes/settlement of accounts between the partners or their representatives of Suraj Sales Corporation and other sister concerns since the complainant expressed his desire to retire from the said firm of M/s. Suraj Sales Corporation. At the meeting so held in the office of the opponent, the accounts were settled and Rs. 10,57,000/- were accepted to be due and payable by other partners to the complainants. A writing to that effect was made. All that happened in or around March, 1995. But the payments are alleged to have been made thereafter till up to June, 1996. In this background, it has further been alleged that the opponent retained the important document of settlement/retirement of the complainant reflecting settlement of accounts. In our considered opinion, these facts do not constitute relationship of consumer and provider of services between complainant on the one hand and the opponent on the other hand on the face of the allegations. Besides, the dispute reflected by such facts will also not amount to consumer dispute as envisaged by Section 2[1][e] of the Consumer Protection Act, 1986. It is not the complainant''s case that there was any deficiency in service in respect of filing of Income-tax or Sales Tax returns of the firm of Suraj Sales Corporation, for whom, admittedly the opponent used to render professional service for consideration. The allegations, as noted hereinabove, made in the complaint may at best tantamount to holding of a meeting for settlement of disputes between the parties at the place of the Tax Consultant. At best, it might have happened that the opponent had the occasion of assisting the parties to settle their disputes. Thus, he might have acted as a conciliator or mediator or in such similar position. In our considered opinion such relationship, by no stretch of imagination be said to be a relationship between a consumer and provider of services. There is no averments worth the name in the complaint that for the aforesaid meeting alleged to have been held at the office of the opponent, there was any consideration which had flown from the complainant to the opponent. On that count also the complaint cannot be entertained. It has further been alleged by the complainant in his complaint that the statements of accounts were also worked out at the aforesaid meeting. It is interesting to note that even after the alleged meeting and the resolution of the inter-se disputes between the partners, payments have been made till up to June, 1996. The complainant has not come out with any grievance during this period to say that he was not in possession of any of the documents on the strength of which he was receiving payment from other partners. Be that it may, all the aforesaid allegations of facts have their roots in some or other negotiations and even if it is presumed that the opponent participated therein to assist the parties, the opponent could be treated to have acted as a conciliator/mediator without there being any consideration in that respect flowing from either the complainant or any of the other partners.

IN above view of the matter as appearing in the complaint itself, we find that the complainant can hardly be said to be a consumer and the dispute, if any, envisaged by the averments made in the complaint can hardly be said to be a consumer dispute. It is not in dispute that the complainant had an occasion to file a complaint before the learned Forum. It is also not in dispute that the learned Forum rejected the complaint inter alia on the ground that it was beyond the pecuniary jurisdiction of the Forum. It would thus appear that considerable time passed when the matter remained pending before the learned Forum. Soon after the complaint was returned/rejected by the learned Forum, the present complaint has been filed. If the time which passed during the pendency of the complaint before the learned Forum is taken into consideration, it cannot be said that the present complaint is not within the period of limitation or is barred by limitation. In our considered opinion, from the facts so appearing in the matter of filing of complaint before this Commission there is a reasonable and sufficient cause in favour of the complainant in filing this complaint at a later point of time. We, therefore, find that the complaint does not suffer from the vice of limitation and if it so suffers from the vice of limitation, it deserves to be condoned as per the provisions contained in Section 24A of the Consumer Protection Act.

In so far as merits of the matter are concerned, it would not be necessary to deal with the same in this complaint. However, with a view to complete the present order, we proceed now to consider the material placed on record.

APART from the accounts filed by the respective parties, there is a notice correspondence referred to by them in this complaint. We need not repeat the allegations of facts appearing in such correspondence. However, certain letters do reflect receipt of one or the other papers by the complainant from the opponent. One such communication is dated 2.9.1996 referred to in communication dated 16.9.1996. The same acknowledges receipt of acknowledgement of Income-tax Department for the assessment year 1993-94, statement of Income-tax for the Assessment Year 1993-94 and acknowledgement for the Assessment Year 1994-95, statement of income for the Assessment Year 1994-95, acknowledgement for the Assessment Year 1995-96 and statement of income for the Assessment Year 1995-96. Then, there is a communication dated 23.8.1996 addressed from the office of the opponent to the complainant and appearing at Exh. 20. It recites that on personal visit between the complainant and the opponent at Kirti Fertilizer on 12.8.1996, the opponent informed the complainant to go to the office of the opponent on 22.8.1996 and take the papers set out in letter dated 12.8.1996. But since the complainant did not go to the office of the opponent, he was informed in writing to go to the office of the opponent on 26.8.1996 or 27.8.1996 during office hours between 10 a.m. and 12 noon. In spite of the aforesaid state of affairs, letter dated 22.9.1996 was written calling for the income tax file of the complainant. Exh. 17 is the original communication/acknowledgement dated 2.9.1996. In the background of aforesaid material placed on record and referred to on behalf of the parties, the evidence as appearing in the cross-examination of respective parties may now be briefly considered. In his cross-examination, the complainant admitted some of the aforesaid communications which were then exhibited. The complainant had to explain that he received the documents as stated in Exh. 17 but he did not receive the rest of the documents. The witness Bhanubhai Himatlal Shah has admitted in his cross-examination that he is related to the complainant [complainant''s wife''s sister''s husband]. He admitted the acknowledgement having been signed by the complainant in his presence in respect of the documents received by the complainant from the opponent. Exh. 18 is oral evidence of Mr. Jasbhai Motibhai Patel, husband of one of the partners of Suraj Sales Corporation [Manjulaben]. In his cross-examination on behalf of the complainant he admitted that the firm was dissolved by understanding/settling the accounts and no civil suit or civil dispute was alive between the parties. There was no notice correspondence also between the parties. It may be noted here that the complainant had not followed up the matter against his partners even till the date on which he has filed this complaint and even till date aforesaid witness gave his evidence. Not one question has been asked with respect to outstanding amount of Rs. 5,07,000/- to the aforesaid witness. The opponent has also produced xerox copies of the income tax returns of Suraj Sales Corporation for the assessment years 1994-95 and 1995-96 including the statement of accounts at list Exh. 24. No comment has been made with regard to this document also. But the opponent has been cross-examined on behalf of the complainant. Reference has been made to certain communications which have been exhibited at Exhs. 20, 21 and 22 and the witness deposed that in compliance with Exh. 22, file of income-tax was handed over to the complainant personally by taking his signature. The complainant''s individual income-tax return was filled in from the office of the opponent till up to 31.3.1995. The opponent denied about having received any papers concerning the dissolution of the firm and accounts resultant upon such dissolution. However, a xerox cop of deed of dissolution was handed over to the complainant in the Court itself as reflected in Para 5 of the cross-examination since at that point of time, the complainant expressed that he did not receive such document that was with a view to see that this complaint ended there and then even on facts. Copy of the deed of dissolution appearing in the file of the opponent was accordingly handed over by the opponent to the complainant. At this stage it might be noted that the complainant pursued his grievance regarding certain statements/understanding of accounts having yet not been received by him. We are not convinced about this submission for it is abundantly clear upon the appreciation of the evidence that from time to time statements of accounts, copies of Income-tax returns and other documents were in fact received by the complainant from the opponent and one of the documents evincing such receipt at Exh 17. In our considered opinion, continuation of such a lis by the complainant against the opponent clearly appears to be vexatious. We would have proceeded to order cost while passing final order but for the old age of the complainant.

IN view of what is stated above, we answer the points for determination other than limitation against the complainant and pass following order. ORDER This complaint is dismissed, with no order as to costs. Complaint dismissed.