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SUPREME COURT OF INDIA
BELA M. TRIVEDI, PANKAJ MITHAL, JJ.
Bar of Indian Lawyers through its President Jasbir Singh Malik – Appellant
Versus
D.K. Gandhi PS National Institute of Communicable Diseases and Another – Respondents
Civil Appeal No. 2646 of 2009
With
Delhi High Court Bar Association through its President – Appellant
Versus
D.K. Gandhi PS National Institute of Communicable Diseases and Another – Respondents
C.A. No. 2647 of 2009
With
Bar Council of India through by its Secretary S. Radhakrishnan – Appellant
Versus
D.K. Gandhi PS National Institute of Communicable Diseases and Another – Respondents
C.A. No. 2648 of 2009
With
M. Mathias – Appellant
Versus
D.K. Gandhi PS National Institute of Communicable Diseases – Respondent
C.A. No. 2649 of 2009
Decided On : 14-05-2024
Per Bela M. Trivedi, J.
(A) Consumer Protection Act, 1986 – Section 2(1)(o)[Consumer Protection Act, 2019 – Section 2(42)] – Deficiency in service – There was not a whisper in statement of objects and reasons either of CP Act, 1986 or 2019 to include Professions or Services provided by Professionals like Advocates, Doctors etc. within purview of the Act – Professionals could not be called Businessmen or Traders, nor Clients or Patients be called Consumers – Terms ‘business’ or ‘trade’ having a commercial aspect involved, could not be used interchangeably with term ‘Profession’ which normally would involve some branch of learning or science – Profession as such would require knowledge of an advanced type in a given field of learning or science, or learning gained by a prolonged course of specialized study – Legislative draftsmen are presumed to know law and there is no good reason to assume that legislature intended to include Professions or Professionals or services provided by professionals within ambit of CP Act – Any interpretation of Preamble or scheme of Act for construing ‘Profession’ as ‘Business’ or ‘Trade’; or ‘Professional’ as ‘service provider’ would be extending scope of Act which was not intended, rather would have a counter productive effect – Impugned Judgment passed by NCDRC set aside. (Paras 15, 18, 42 and 43)
(B) Consumer Protection Act, 1986 – Section 2(1)(o)[Consumer Protection Act, 2019 – Section 2(42)] – Deficiency in service – If services provided by all Professionals are also brought within purview of the Act, there would be flood-gate of litigations in commissions/forums established under the Act, particularly because remedy provided under the Act is inexpensive and summary in nature – As such, very object of providing timely and effective settlement of consumers’ disputes arising out of unfair trade and unethical business practices would be frustrated – In the process of overall depletion and erosion of ethical values and degradation of professional ethics, instances of professional misconduct are also on rise – No professional either legal, medical or any other professional enjoys any immunity from being sued or from being held liable for his professional or otherwise misconduct or other misdeeds causing legal, monetary or other injuries to his clients or persons hiring or availing his services – Fact that professionals are governed by their respective Councils like Bar Councils or Medical Councils also would not absolve them from their civil or criminal liability arising out of their professional misconduct or negligence.(Paras 19 and 20)
(C) Advocates Act, 1961 – Section 35 – Consumer Protection Act, 1986 – Section 2(1)(o)[Consumer Protection Act, 2019 – Section 2(42)] – Whether Legal Profession is sui generis or is different from other Profession – Indian legal system is product of history – Legal profession cannot be equated with any other traditional professions – It is not commercial in nature but is essentially a service oriented, noble profession – After attainment of independence and adoption of Constitution of India, judicial administration and constitution of law courts remained fundamentally unchanged – Concept, structure and organisation of courts, substantive and procedural laws, adversarial system of trial and other proceedings and function of judges and lawyers remained basically unaltered and rooted in common law traditions in contradistinction to those prevailing in civil law or other systems of law – Role, status and capacity of an Advocate to represent his client has also remained by and large unaltered – Having regard to role, status and duties of Advocates as Professionals, legal profession is sui generis i.e., unique in nature and cannot be compared with any other profession. (Paras 26, 29, 30 and 42)
Per Pankaj Mithal, J. (Separate Assenting View)
Consumer Protection Act, 1986 – Section 2(1)(o)[Consumer Protection Act, 2019 – Section 2(42)] – Deficiency in service – Consumer protection laws of almost all countries are based upon same resolution of UNO which forms foundation for framing Consumer Protection Act in India – Practice of common law countries evidences exclusion of lawyers from umbrella of consumer protection laws – Legal profession is a regulated profession in India – Advocates Act, 1961 regulates conduct of lawyers in India and is a complete code in itself – Consumer protection laws in all countries may somewhat have universal application and be confined to ‘consumers’ only i.e. to persons who buys any goods for consideration or hires or avails of any service for consideration, impliedly excluding professional services especially that of a lawyer whose profession is sui generis – In doing so, in India also services of professionals more particularly that of lawyers have to be excluded from consumer protection law in accordance with intention expressed in enacting the same – Legislature in India as in some other countries, had not intended to include services rendered by professionals especially lawyers to their client within purview of Consumer Protection Act, 1986 and re-enacted in 2019 – View taken by NCDRC to the effect that in respect of deficiency in service rendered by lawyers, complaint in Consumer Protection Act, 1986 would be maintainable, is incorrect and stands overruled – Impugned judgment passed by NCDRC set aside. (Paras 13, 23, 24, 25, 26, 27 and 28)
Facts of the case:
Point in issue is whether a complaint alleging “deficiency in service” against Advocates practising Legal Profession, would be maintainable under Consumer Protection Act, 1986 as re-enacted in 2019?
Findings of Court:
It is essential that consumer protection laws in all countries may somewhat have universal application and be confined to ‘consumers’ only i.e. to the persons who buys any goods for consideration or hires or avails of any service for consideration, impliedly excluding professional services especially that of a lawyer whose profession is sui generis.
Result : Appeals disposed of.
BELA M. TRIVEDI, J.
1. An important question of law pertaining to the Legal Profession as a whole that has fallen for consideration before this Court is - whether a complaint alleging “deficiency in service” against Advocates practising Legal Profession, would be maintainable under the Consumer Protection Act, 1986 as re-enacted in 2019? In other words, whether a “Service” hired or availed of an Advocate would fall within the definition of “Service” contained in the C.P. Act, 1986/2019, so as to bring him within the purview of the said Act?
2. The present set of Appeals emanate from the impugned order dated 06.08.2007 passed by the National Consumer Disputes Redressal Commission (NCDRC), New Delhi in Revision Petition No. 1392/2006, in which the NCDRC has held inter-alia that if there was any deficiency in service rendered by the Advocates/Lawyers, a complaint under the Consumer Protection Act, 1986 (for short “CP Act, 1986”) would be maintainable.
FACTUAL MATRIX
3. The short facts in C.A. No. 2649/2009, arising out of the impugned order passed by the NCDRC are that:
(i) The appellant is an Advocate by profession. The respondent Mr. D.K. Gandhi had hired the services of the appellant as an advocate for filing a Complaint in the Court of Metropolitan Magistrate, Tis Hazari Court, Delhi, against one Kamal Sharma under Section 138 of the Negotiable Instruments Act, as the cheque for Rs. 20,000/- issued by the said Kamal Sharma in favour of the respondent D.K. Gandhi was dishonoured.
(ii) During the course of the said complaint case, the accused Mr. Sharma agreed to pay the sum of Rs. 20,000/- for the dishonoured cheque besides Rs. 5,000/- as the expenses incurred by the complainant. It was alleged by the respondent (complainant) that though the appellant had received from the accused Mr. Sharma the DD/pay order for Rs. 20,000/- and the crossed cheque of Rs. 5,000/- on behalf of the respondent, the appellant did not deliver the same to the respondent and instead demanded Rs. 5,000/- in cash from the respondent. The appellant also filed a suit for recovery of Rs. 5,000/- in the court of Small Causes, Delhi raising a plea that the sum was due to him as his fees. Subsequently, the appellant gave the DD/pay order for Rs. 20,000/- and cheque for Rs. 5,000/- to the respondent, however, the payment of cheque for Rs. 5,000/- was stopped by the accused Mr. Sharma at the instance of the appellant. The respondent therefore filed a complaint before the District Consumer Disputes Redressal Forum, Delhi seeking compensation of Rs. 15,000/- in addition to the amount of cheque of Rs. 5,000/- as also Rs. 10,000/- for the mental agony and harassment along with the cost. The appellant resisted the said complaint by filing a reply on 03.03.1998 raising a preliminary objection to the effect that the District Consumer Forum had no jurisdiction to adjudicate the dispute raised in the complaint as the Advocates were not covered under the provisions contained in the CP Act.
(iii) The District Forum, however, rejected the said preliminary objection, holding that it had the jurisdiction to adjudicate upon the dispute between the parties and further decided the complaint in favour of the respondent. The appellant being aggrieved by the said order had filed an appeal before the State Commission, which by the order dated 10.03.2006 allowed the same holding that the services of lawyers/advocates did not fall within the ambit of “service” defined under section 2(1)(o) of the CP Act, 1986. The NCDRC, however in the Revision Application preferred by the respondent passed the impugned order as stated hereinabove.
(iv) Being aggrieved by the said impugned order passed by the NCDRC, the present set of appeals has been filed by the Bar of Indian Lawyers, Delhi High Court Bar Association, Bar Council of India, and by the appellant M. Mathias.
SUBMISSIONS
4. Since the issues involved in this batch of Appeals pertain to the Advocates practising in the various courts/tribunals
The definition of “service” in both enactments (repealed and new) are more or less similar and what has been said of “service” as defined in section 2(1)(o) of 1986 Act would apply ex proprio vigore ....
The impugned rule restricting enrolment of advocates engaging in other professions is a reasonable restriction under the Advocates Act and Articles 19(1)(g), 14, and 21 of the Constitution, ensuring ....
When a person avails a service for a commercial purpose, to come within meaning of ‘consumer’ as defined in C.P. Act, he will have to establish that services were availed exclusively for the purposes....
The legal profession must maintain its integrity and cannot be commercialized; advertising and solicitation of legal services are strictly prohibited.
Dominant purpose of import of high tech machine is to earn profit – Complainant is not consumer & Complaint not maintainable.
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