Full Judgment Text
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PETITIONER:
C.S. VENKATASUBRAMANIAN
Vs.
RESPONDENT:
STATE BANK OF INDIA
DATE OF JUDGMENT: 21/11/1996
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
The appellant is an Advocate. Appearing for the State
Bank of India as its counsel, he filed the suit, viz., O.S.
No. 8/1985 on the file of Sub-Court, Coimbatore to recover a
sum of Rs. 2.42 crores and odd against RMT Drill (P) Ltd.
and its partners. It is not in dispute that the appellant
had issued a Public notice in which he had claimed that C.V.
Ramaswami son of Venkatasubba Naidu and others had lost the
title deeds and that they intended to alienate the land
described in the original sale deed No. 669 dated February
21, 1972 and invited objections. It is not in dispute that
the said persons had hypothecated the properties covered by
the sale deed with the respondent-Band and had deposited the
title deeds with the respondents and that the appellant had
knowledge of it as counsel of the Bank having been engaged
in that title suit with the Bank. Obviously, therefore,
after going through the publication, the respondents lost
confidence in the appellant who had acted against the
interest of the Bank. So, the officers had asked him to give
"No Objection Certificate" so as to enable them to engage
another counsel. Though they were right in saying that he
was not diligently appearing on behalf of the Bank in the
suit, without imputing motives to the appellant to claim his
fees. He insisted that until the fees are paid he would
decline to appear and refuse to give consent necessitating
the Bank to file petition to revoke power and permission to
engage another counsel.
It would appear that he also insisted upon an apology
from the officer by writing the letter. In the circumstances
stated above, the officer rightly had not given any apology.
The question is: whether the Court should have given a
conditional leave to the counsel to appear on behalf of the
respondent-Bank for conducting the suit. Shri F.S. Nariman,
learned senior counsel for the appellant contended that
under Order III, Rule 4(2), CPC read with Rule 20-A of the
Civil Rules of Practice it is open to the parties either to
change the counsel or engage a new counsel with the consent
or with the leave of the Court. Until the leave is granted,
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the counsel who entered appearance on behalf of the parties
is entitled to remain on record. As a condition for his
withdrawal from record and giving consent to another counsel
to appear on behalf of the respondent-Bank, the appellant is
entitled to insist upon payment of the fees. That was not
acceded to by the trial Court and in the revision the High
Court in the impugned order in CRP No. 711/96 dated March
29, 1996 has confirmed the order of the Subordinate Judge.
Until the proceedings are concluded the appellant has no
right to collect the fees as a matter of course. We find no
force in the contention of Sri Nariman. The appellant cannot
insist payment of fee as a condition to give consent. The
conduct of the counsel led to loss of confidence in him by
the respondent, Therefore, the respondent-Bank is entitled
to change the counsel. But in view of the facts and
circumstances that the respondent had lost faith and
confidence in the appellant to the successful conduct of the
suit, they necessarily had to change the Advocate and the
appellant had wrongly refused to give consent. The Court was
right that he is not entitled to payment of the fees as a
matter of right. The appellant cannot insist upon the
payment of the fees until the proceedings are concluded. He
may be left free to recover the same from the respondent.
However, we think that in view of the fact that
admittedly he appellant had done the work till the
settlement of the issues and also he led the evidence on
behalf of the Bank partly and that the trial of the suit on
behalf of the Bank was partly concluded, on the facts and
circumstances, we think that one-fourth of the scheduled
fees under the Tamil Nadu Legal Practitioners’ Fees Rules,
1973 may be just and proper. Therefore, the respondent is
directed to give unconditional consent to engage the
Advocate. Equally, the respondent is directed to pay over
one-fourth of the scheduled fees to the appellant. It is not
a pre-condition to give his consent. We have adopted this
course to avoid multiplicity of proceedings.
The appeal is accordingly disposed of. No costs.