DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (NORTH)
ROOM NO.2; OLD CIVIL SUPPLY BUILDING; TIS HAZARI: DELHI
CASE NO. 39/2011
Mr. Abhinav Prakash,
R/o: B-5/13, Rana Pratab Bagh,
Delhi-110 007 ….Complainant
1. M/s Just Dial Pvt. Ltd.,
(Through its Managing Director),
Corporate Office at Palmcourt Building–M,
5th Floor, Beside Goregaon Sports Club,
Link Road, Malad (West),
A-39/40, Sector 16,
2. State Bank of India,
(Through its Branch Manager),
Tis Hazari Branch,
Delhi-110 054 …Opposite Parties
O R D E R
The complainant has filed the present complaint against the O.Ps under section 12 of the Consumer Protection Act. The facts as alleged in the complaint are that complainant is a practicing advocate having Enrollment No.D/2259/2005 and having his office at Chamber No.735A, Western Wing, Tis Hazari Courts, Delhi. It is alleged in the complaint that OP No.1 through its branch office at Noida has contacted the complainant through its employees namely Ms.Jyoti Chauhan and Sh. Rahul Kaushik and lured the complainant for “enhancement of his work by forwarding prospective clients to him from the entire country”.
Complainant agreed to take annual package of Rs.15,000/- but insisted to see the performance for first three months. Accordingly he paid Rs.4136/- including service tax to OP No.1 vide cheque dated 08.08.2009 on the assurance by the representative of OP No.1 that it will increase work of the complainant by providing prospective clients. However, it is alleged that complainant has not got a single reference through OP No.1 and the assurance given by OP No.1 proved to be false and baseless. OP No.1 again approached the complainant for further payments after expiry of first quarter which was refused by the complainant as he was not satisfied with the performance of OP No.1. It is alleged that after some time when complainant visited his bank (OP No.2) to get his passbook updated, it was found that from 16.10.2009 onwards there was ECS debit of Rs.1379/- every month from his A/c No.10945976982 and a total amount of Rs.15,169/- has been debited illegally by OP No.2 and remitted to OP-1 (Just Dial). Complainant immediately on 28.08.2010 asked OP-2 to stop his future ECS debits and further requested the OP-2 to expedite the process and take appropriate action against OP-1. Complainant also made a complainant to the SHO, PS Subzi Mandi to take strict action against O.Ps. It is alleged that conduct of the O.Ps in withdrawal of Rs.15,169/- from the account of the complainant without his consent is deficiency in service on the part of O.Ps. On these grounds complainant prays that O.Ps be directed return the entire amount, which has been debited by O.P No.2 through ECS and paid to OP No.1, along with interest apart from cost and compensation as claimed.
2. O.P No.1 appeared and filed written statement. It has not been disputed that complainant, who is an advocate, has availed the services of OP No.1 for enhancement of his work by getting calls of prospective clients. It has also not been disputed that complainant has paid Rs.4136/- on 08.08.2009 as initial payment. However, its case is that there was a legal contract between complainant and OP No.1(Just Dial) vide which OP-1 has offered its services and the same has been accepted by the complainant by signing the contract-cum-invoice-cum-receipt form dated 08.08.2009 and the terms and conditions thereon along with ECS mandate form and addendum etc. It is alleged that complainant who is a practicing advocate after going through all the documents had signed the same. It is also alleged that complainant himself in his own handwriting had filled the contract form and ECS form dated 8.8.2009 authorizing the O.P for ECS payment. Copy of the contract dated 08.08.2009 including terms and conditions along with duly signed ECS mandate form have been filed on record by the OP-1 as Annexure OP-1/B. It has been denied that OP-1 has not provided even a single reference to the complainant. It is alleged that about 400 calls were
forwarded to the complainant between 24/8/2009 to 26/11/2010. However, it is alleged that it is not the fault of OP-1
if the same enquiries forwarded by OP-1 to the complainant were not converted into complainant’s clients. On these facts it is submitted by the OP No.1 that complainant has no cause of action to file the present complaint, therefore the same be dismissed.
3. OP No.2 (SBI) also appeared and filed written statement. It has not been disputed that complainant is having savings bank with O.P bank. Its case is that complainant had authorized OP No.2 to debit his account for making payment to OP No.1 (Just Dial) through ECS (Debit) and acting on the instruction of the complainant, it has debited Rs.1379/- every month and the same were credited to OP No.1 (Just Dial). It is alleged that complainant took annual package of Rs.15,000/- from OP No.1 for enhancement of his work and when no expected results came in his favour, he is trying to shift the liability upon OP No.2. It is submitted by OP No.2 that it has released the amount from the account of the complainant under authorization given by the
complainant to it, hence there is no deficiency of service on the part of OP No.2. Dismissal of the complaint has been prayed for.
4. Complainant has filed his affidavit in evidence testifying all the facts as alleged in the complaint. Documents have been exhibited as Ex.CW-1/A to CW-1/E. On the other hand, OP-1 has filed affidavit of Sh. Liyaqat Ali, Regional Manager-Administration affirming all the facts contained in the written statement. Documents have been exhibited as Ex.OP-1/A to
OP-1/C. OP-2 has also filed affidavit of Sh. Roop Kishore, Manager, SBI, Tis Hazari Branch, Delhi testifying all the facts as mentioned in the written statement. Parties have also filed their written submissions.
5. We have carefully gone through the record of the case and also heard submissions of Ld. Counsels of the parties.
6. Complainant has been asked specifically as to how he is ‘consumer’ within the meaning of section 2(1)(d) of the Act and how services hired by him are legal in view of the Rules of ‘Standards of Professional Conduct and Etiquette’ framed by Bar Council of Delhi? Complainant has argued that he had paid money to OP-1 for services needed by a lawyer. He has argued that if services are illegal, such sites as that of OP-1 should be banned and also Bar Council should take action in this regard. He has argued that he had paid Rs.4136/- and subsequently even though he had not given any authority, OP-2 transferred money from his account to the account of OP-1. It is argued that OP-2 had no right to transfer the amount from his account to OP-1 in as much as OP-1 failed to enhance his clientage. He has argued that OP-1 and OP-2 entered into collusion, therefore they are bound to refund the money illegally deducted from his account.
7. On the other hand, it is argued on behalf of OP-1 that agreement had been entered into between complainant and OP-1 whereby the OP-1 had agreed to refer clients to him and atleast 1000 leads were forwarded to the complainant and if he was not able to materialize the leads into clientage, it is not, in any manner, the deficiency of service on the part of OP-1. It is argued that by the agreement in writing complainant has paid Rs.4136/- to OP-1 and subsequently given authority to OP-2 to transfer balance amount from his account through ECS transaction, therefore there is no deficiency of service on the part of OP-1.
8. It is argued on behalf of OP-2 (SBI) that complainant had given ECS mandate (Ex.OP-1/B) and as per the mandate along with
declaration signed by him the bank was obliged to transfer the mandated amount to OP-1.
9. I may mention that the Bar Council of Delhi has framed ‘Standards of Professional Conduct and Etiquette’. As per item No.36, an advocate is under obligation not to solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, “touts” or solicit work by personal communications, interviews not warranted by personal relations, etc. From the rule of ‘Standards of Professional Conduct and Etiquette’ a lawyer is debarred from soliciting work directly or indirectly or through “touts”.
What is a “tout”? In our opinion “tout” means a person who brings clientage to a lawyer for reward in terms of money. In the present case the complainant has entered into writing a contract with OP No.1 (Just Dial) which he himself has argued, was for “enhancement of his work”. For that purpose, he had paid a fee of Rs.4136/- and as per agreement the total amount to be paid by him was Rs.15,000/- for which he had also given ECS mandate to OP No.2(SBI) which is Ex. PW-1/B. In the addendum to the terms of service it has been mentioned that complainant shall not have the right to terminate the Contract except by prior written notice or three months issued to JustDial after a minimum period of 9 months from the contract’s effective date. It has also been mentioned in the said terms of service that complainant shall not withdraw the ECS mandate during the
validity of the contract. Complainant had also signed a declaration to this effect. It is, therefore, clear that ECS mandate for monthly payment of amount agreed in the contract has been given to the O.Ps. OP-1 has also placed on record copy of the agreement entered into between complainant as Ex.PW-1/A.
10. From the terms and conditions and modalities, it is clear that OP No.1 was engaged in providing service by referring the “clients” to the lawyers. Both the complainant and the OP-1 call it as “service”. The “service” was not free. Complainant had undertaken to pay Rs.15,000/- for a specified period for referral of clientage to him by OP No.1. The total amount payable to OP-1 was Rs.15,000/- out of which complainant has paid Rs.4136/- initially and for the rest of the amount ECS mandate had been given for monthly remittance from his account maintained with OP-2. In our opinion, for all practical purposes, OP-1 has acted as a “TOUT” inasmuch as to its own admission it has referred clientage against monetary consideration of Rs.15,000/- for period of contract. We are also of the opinion that complainant, knowing fully well that such contract was against public policy and amounted to deviation from the ‘Standards of Professional Conduct and Etiquette’, as propounded by Bar Council of Delhi, availed the ‘service’ of the OP-1.
11. The grievance of the complainant is that OP-1 failed to enhance his work. In our opinion, the ‘Standards of Professional Conduct and Etiquette’ are the part of rules framed by Bar Council of Delhi under the Advocate Act and are of statutory nature. They are binding on one and all lawyers enrolled with Bar Council of Delhi and one cannot deviate from the said standards. If one deviates from such standards, it is nothing but professional misconduct on his/her part. Surprisingly enough, complainant has argued that it is for the Bar Council of Delhi to ban such sites. However, the Bar Council of Delhi has framed rules propounding ‘Standards of Professional Conduct and Etiquette’ and complainant has acted in violation thereof. We have asked the complainant as to how he entered into a contract which is direct violation of ‘Standards of Professional Conduct and Etiquette’ framed by Bar Council of Delhi? The Standards of Professional Conduct and Etiquette framed by Bar Council of Delhi being statutory in nature are the part of public policy. No dispute regarding contract in violation of public policy can be entertained by any adjudicating authority assigned with the duty of determining rights and liabilities of the parties. In our opinion the services which amounted to “toutism” and is against the rules framed by
Bar Council of Delhi can neither be enforced nor a lawyer can take benefit thereof.
12. So far as liability of OP-2(SBI) is concerned it is admitted case that complainant has given ECS mandate to deduct amount from his account. He had signed a declaration to this effect, therefore if OP-2 has acted on the mandate given by the complainant, which was not withdrawable during the validity of contract and unless it was given in writing and accepted by the OP-1. The relevant clause (M) of ECS mandate form is as follows:-
“The Auto Debit Instructions/ECS Mandate will be valid for a minimum period of one year from date of signing this mandate and will continue thereon till the time I inform company in writing to discontinue the mandate and the same is accepted by the company.”
13. In view of the above clause, OP-2 cannot be held liable for transfer of amount from the account of complainant to OP-1 on the basis of said mandate as OP-1 has not consented to withdrawal thereof.
14. On the basis of facts referred to above and law as discussed above, we are of considered opinion that the complainant himself is guilty of committing professional misconduct by resorting to availing the services of “TOUT” providing references of cases to the complainant against financial consideration. Such contract being contract against public policy cannot be enforced by forum nor the complaint can be entertained.
15. A copy of this order be sent to Bar Council of Delhi with request to take appropriate measures to ban sites or companies which provide service of “touts” to Practicing lawyers against consideration. Secondly, the Bar Council of Delhi is also requested to issue instructions that lawyers should maintain ‘Standards of Professional Conduct and Etiquette’ so that sanctity of the noble profession of law could be maintained.
12. In view of the above, we hold that complainant is not entitled for any relief. Complaint is, therefore, dismissed.
Copy of the order be sent to the parties by Registered post and the file be consigned to record room.
Announced this 19th day of August, 2013.
(BABU LAL) (D.R. TAMTA) (MRS.SHAHINA)
President Member Member