Full Judgment Text
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PETITIONER:
IN RE: SHRI ’M’, AN ADVOCATE OFTHE SUPREME COURT OF INDIA.
Vs.
RESPONDENT:
DATE OF JUDGMENT:
17/10/1956
BENCH:
JAGANNADHADAS, B.
BENCH:
JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA
SINHA, BHUVNESHWAR P.
CITATION:
1957 AIR 149 1956 SCR 811
ACT:
Professional Misconduct-Appropriation by Advocate on record
of Surplus Paper Book Cost towards fees-Legality-Standard of
professional conduct-Trustee-Lien-Procedure-Supreme Court
Rules, 1950, (as amended), O. IV, r. 30.
HEADNOTE:
Facts. Shri ’M’, while an Agent of the Supreme Court, filed
a criminal appeal and later on became an Advocate on record
under the new rules of the Court which came into force on
January 26, 1954. He received a sum of Rs. 750 from his
client for costs of printing of the Paper Book and deposited
the same in the Punjab High Court from whose decision the
appeal arose. There was a surplus of Rs. 242-1-9 pies. He
withdrew the amount without informing his client, made no
demand of any fees as being due to him, did not lodge any
bill for taxation and appropriated the sum towards his
alleged fees. The client came to know of the withdrawal
from the Punjab High Court and when he confronted Shri ’M’
with the letter from that court Shri ’M’, who had denied the
receipt of the surplus amount, could no longer do so and
stated that he was entitled to a reasonable fee, had a lion
therefor and had appropriated the amount.
Held, that on the facts found the Advocate was guilty of
professional misconduct and must be suspended from practice.
The high standard of professional conduct contemplated by
rule 30 of Order IV of the Supreme Court Rules virtually
made an Advocate a trustee for his client in respect of all
his moneys which came into his hands except what was
specifically ear-marked for fees. Any lien which he might
have under the rules would not justify the appropriation of
any such money towards his fees without the express or
implied consent of the client or an order of Court.
Nor could an Advocate, in absence of a prior settlement of
fees, constitute himself a judge in his own cause and
determine what
812
would be reasonable fees payable to him. It might be that
in certain circumstances he was entitled to exercise a lien,
but he had to give reasonable intimation both of the fact of
moneys having come into his hands and of the exercise of his
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lien over them until his account was settled.
The principle of trusteeship applied with greater force
where the surplus money, as in the instant case, was meant
for a specific purpose, it being well settled that in
respect of such a money there could be no lien either under
the common law or the statute.
That in a case such as the present, the standard applicable
to an Agent under rules 31 and 32 of the old rules would be
the same.
In the matter of Mr. G., a Senior Advocate of the Supreme
Court, ([1955] 1 S.C.R. 490), followed.
Held further, that as the Supreme Court Rules did not
specifically prescribe any procedure for cases coming under
r. 30 of 0. IV of the Rules, in the instant case the
procedure substantially as in a warrant case under s. 251-A
(as amended) of the Code of Criminal Procedure should be
adopted as far as possible subject to such just and
expedient modifications as accorded with the rules of
natural justice.
JUDGMENT:
DISCIPLINARY JURISDICTION.
In the matter of summons under Order 4, Rule 30 of the
Supreme Court Rules, 1950 (as amended).
Purshottam Tricumdas, B. B. Tawakley, G. C. Mathur and K. P.
Gupta, for the Advocate.
M. C. Setalvad, Attorney-General for India, and B. Sen
Assisting the Court.
1956. October 17. The Judgment of the Court was delivered
by
JAGANNADHADAS J.-These proceedings before us arise out of a
summons under Order IV, rule 30 of the Supreme Court Rules,
1950, (as amended) issued to Shri ’M’, who was originally an
Agent of this Court and became an "Advocate on record" under
the new rules of this Court which came into force on January
26, 1954. The summons issued calls upon him to show cause
why disciplinary action should not be taken against him. It
arises on a complaint against him made to the Registrar of
this Court by one Attar Singh on December 5, 1955. The
substance of that
813
complaint is as follows. The complainant was the appellant
in Criminal Appeal No. 12 of 1950 in this Court. Shri ’M’
acted for him in connection with the appeal. A sum of Rs.
750 was supplied to Shri ’M’ for the printing charges
therein. This sum was deposited in due course in the Punjab
High Court from whose judgment the appeal arose’ There
remained an unspent balance of Rs. 242-1-9 out of it. Shri
’M’ withdrew that money from the High Court without the
authority and the knowledge of the complainant. When.,
later on, the complainant became aware of it, he demanded
refund of the same. Shri ’M’ first denied receipt of the
money, and thereafter refused to refund it (claiming, as
appears later. in the evidence, to have appropriated it
towards the balance of fees said to be due to him). This
complaint was in the usual course put up before his Lordship
the Chief Justice who directed the Chamber-Judge, our
learned brother, Bhagwati,J.,to enquire into it. Notices
were issued thereupon both to Shri ’M’ and the complainant
as well as to three other Advocates of this Court who
happened to be associated with that appeal. The enquiry
before the learned Judge was fairly elaborate. Thereat,
certain conclusions were reached on the basis of which
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charges were framed against Shri ’M’. The present summons
to Shri ’M’ is with reference to those charges and this
Bench has been constituted as a Special Bench under Order
IV, rule 30 of the Supreme Court Rules to deal with this
matter. The learned Attorney-General has appeared, on
notice, to assist the Court.
The rules of this Court do not provide for the procedure to
be adopted in such cases, except to say that "the Court
shall issue, in the first instance, a summons returnable
before the Court or before a Special Bench to be constituted
by the Chief Justice to show cause against specified
matters. There have been no precedents of this Court so
far, to indicate the exact procedure to be adopted. The
only previous case of, professional misconduct on summons
under Order IV, rule 30 of the Supreme Court Rules which
this Court had occasion to deal with, was that reported
106
814
in In the matter of Mr. ’G’ a Senior Advocate of the
Supreme Court(1). But that was a case in which action had
been duly taken against the Advocate by the Bombay High
Court in connection with alleged misconduct arising within
its jurisdiction. The summons issued to the Advocate by
this Court was with reference to the same matter but as
regards his position as a Supreme Court Advocate. (We
understand that there were also two such cases in the
Federal Court). In the normal course, and in view of the
rather elaborate enquiry which was held by our, learned
brother, Bhagwati J., we should have been content to confine
ourselves to a mere hearing of arguments on the material
recorded in that enquiry and come to our own conclusions
with reference to the charges set out in the summons. But
at the outset, objection was taken to our adopting such a
course. The validity of the summons was questioned. It was
said that under Order IV, rule 30 of the Supreme Court
Rules, the enquiry was to follow a summons which is contem-
plated as the first step therein. It was also said that the
enquiry having been in Chambers, the statements of witnesses
were not on oath. The learned Attorney-General was also
inclined to think that there was force in the objections
raised. After discussion in court with’.the Advocates on
both sides we felt it desirable to refrain from any decision
on the preliminary objection and to give the Agent
complained against, the opportunity of a fresh enquiry in
open Court on formulated charges. We accordingly directed
by our orders dated May 9, 1956, and September 13, 1956,
that evidence should be taken afresh before us and that
procedure, substantially as in a warrant case, should be
adopted as far as possible under the amended section 251-A
of the Criminal Procedure Code, subject to such
modifications therein as may appear to be just and expedient
in the circumstances of this case and without affecting the
rules of natural justice. We treated the enquiry in
Chambers as a preliminary enquiry and heard arguments on
both sides with reference to the matter of that enquiry. We
(1) [1955] 1 S.C.R. 490.
815
came to the conclusion that this was not a case for
discharge at that stage. We accordingly reframed the
charges framed by our learned brother, Bhagwati J., and
added a fresh charge. No objection has been taken to this
course. But it is as well to mention that, in our opinion,
the terms of Order IV, rule 30 of the Supreme Court Rules do
not preclude us from adopting this course, including the
reframing of, or adding to, the charges specified in the
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original summons, where the material at the preliminary
enquiry justifies the same. The fresh enquiry before us in
Court has proceeded with reference to the. following charges
as reframed and added to by us.
"You) CM) ’ once an Agent of this Court and thereafter an
Advocate on record of this Court, are guilty of professional
misconduct in that,
Firstly, you having deposited a sum of Rs. 750 in the Punjab
High Court towards the printing charges of the appeal paper
book in Supreme Court Appeal No. 12 of 1950 on behalf of
your client, Attar Singh, and having the custody of the
receipt issued by the Punjab High Court in respect of the
same, applied for. and obtained from the Punjab High Court
without the authority of your client Attar Singh the balance
of Rs. 242-1-9 in the month of March 1952.
Secondly, that after obtaining the said sum of Rs. 242-1-9
as above from the Punjab High Court you retained that sum
with you and did not return any part thereof to your client,
Attar Singh, even though he frequently called upon you to do
so and even though’, you are not entitled to recover from
him by way of your professional charges anything beyond a
sum of Rs. 72-15-6 by reason of your having agreed to
receive a sum of only Rs. 100 towards your fee and no more.
Thirdly, that you after receiving the sum of Rs. 242-1-9 in
March 1952, retained the said sum, without any intimation to
your client Attar Singh and without claiming any amount as
due from him by way of fees to you and without lodging a
bill for taxation against him for a period of over three
years".
816
The undisputed facts are as follows. The complainant, Attar
Singh, engaged a Senior Advocate of this Court Sardar
Raghbir Singh, who associated with himself Shri M. K. Madan
as the Junior Advocate and Shri ’M’ as the Agent in the
case. Criminal Appeal No. 12 of 1950 was filed by all these
three gentlemen with reference to a Vakalatnama executed by
the complainant, Attar Singh, in favour of the Agent, Shri
’M’. The complainant had to deposit a sum of Rs. 750 in the
Punjab High Court for the preparation. of the printed record
in the appeal. Shri ’M’ was entrusted with a bank draft for
the said amount. He deposited it in the Punjab High Court.
A receipt for the amount was issued in Shri ’M’s name. The
printed record in the case was made ready and dispatched to
the Supreme Court about the end of December, 1951.
Thereafter Shri ’M’ applied to the High Court for refund of
the unspent balance. He received from the High Court in
March, 1952, the sum of Rs. 242-1-9 as the unspent balance.
This amount has not been paid to the complainant by Shri ’M’
who claims to have appropriated it towards fees said to be
due to him.
Now the case of the complainant is this. When he filed the
appeal he was impecunious as be bad lost his job by reason
of his conviction. He approached Sardar Raghbir Singh,
Senior Advocate, through a relation of his and requested him
to arrange for the conduct of the appeal on his behalf and
to accept therefor a fee of Rs. 600 and no -more, for
himself, a ,Junior Advocate to assist him as well as for an
Agent to be in charge, all taken together. It is the
complainant’s case that Sardar Raghbir Singh agreed to the
same and was paid the said amount of Rs. 600 at the very
outset, i.e., a few days before the actual filing of the
appeal memorandum into this Court and that he (the
complainant) was not directly concerned with the fixing up
of the Junior Advocate and of the Agent or with the internal
distribution of the said sum of Rs. 600 as between the three
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persons. His case accordingly is that Shri ’M’ was not
entitled to any further amount by way of fees and that he
unautho-
817
risedly withdrew the amount and appropriated it towards
alleged fees. Attar Singh, the complainant, has been
examined in support of his case. Sardar Raghbir Singh and
Shri Madan have also been examined to substantiate it. The
evidence of. Sardar Raghbir Singh is that he was approached
by Attar Singh through a common friend, that he was asked to
accept a consolidated fee of Rs. 600,, that in consultation
with a Junior Advocate, Shri Madan, whom he knew well, he
accepted the engagement, that Shri Madan brought in Shri ’M’
as the Agent and that the amount of Rs. 600 was paid to him
by Attar Singh and was shared by the three Rs. 300 for the
Senior, Rs. 200 for the Junior, and Rs. 100 for the Agent.
His evidence is that Shri ’M’ was not known to him
previously but that he was fixed by Shri Madan, that Shri
Madan informed him about Shri ’M’ having agreed to accept
the engagement for a fee of Rs. 100 without more and that in
pursuance of this arrangement the said sum of Rs. 100 was
paid over to Shri ’M’ and Rs. 200 to Shri Madan. The Junior
Advocate, Shri Madan, has been examined to substantiate that
it was he who fixed Shri ’M’ as the Agent in the case with
the arrangement that the Agent should charge only Rs. 100 as
his fee. The evidence of these three persons, Attar Singh,
Sardar Raghbir Singh and Shri Madan, is that all the above
took place a few days prior to the filing of the appeal into
Court. The appeal was admittedly filed on the 11th May,
1950. Shri ’M’ has offered himself as a witness on his own
behalf He admitted that be was fixed up as an Agent in the
appeal through Shri Madan at the request of Sardar Raghbir
Singh, but he says that he is not aware of any arrangement
between the complainant and Sardar Raghbir Singh or about
the payment of Rs. 600 by the complainant to Sardar Raghbir
Singh on the alleged arrangement. He says that, having been
taken as an Agent into the case by Sardar Raghbir Singh on
the recommendation of Shri Madan, he was paid at the time of
filing of the appeal only a sum of Rs. 50 by Attar Singh
himself as part payment of his fees and was promised that
reasonable fee
818
would be paid later on. He denies that there was any
understanding or arrangement that only a sum of Rs. 100 Was
to be paid to him and also denies that he was paid ’by
Sardar Raghbir Singh the sum of Rs. 100. To substantiate
that the alleged arrangement to accept only Rs. 100 could
not be true, he gives evidence that even the Junior, Shri
Madan, sent to him in August, 1952, a bill for Rs. 320 which
he says he passed on to Attar -Singh and of which he
purports to produce a copy. But Shri Madan denies that he
ever sent such a bill and Attar Singh denies that he
received any such.
The controversy on this part of the case is covered by
charge number two. The two material facts which have to be
determined are (1) whether the Agent, Shri ’M’, came into
this case on a definite arrangement that his entire fee for
the case was to be Rs. 100, and (2) whether he was in fact
paid the said sum of Rs. 100 by Sardar Raghbir Singh at the
outset. The complainant, Attar Singh, is Dot by himself a
direct witness either to the arrangement or to the fact of
payment of Rs. 100. The only material fact which he spoke
to on this part of the case is as to his arrangement with
Sardar Raghbir Singh. It was that he should fix up, a
Junior Advocate and ail Agent of his own choice, and accept
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the sum of Rs. 600 as fees for all the three of them
together without claiming anything more He says also that
the. said sum of Rs. 600 was paid by him to Sardar Raghbir
Singh at the very outset. Sardar Raghbir Singh admits the
payment. There is no reason to doubt that a sum of Rs. 600
was in fact paid by Attar Singh to Sardar Raghbir Singh a
few days before the actual filing of the appeal in May,
1950, though Shri ’M’ denies knowledge of it. On the
evidence as given before us,, Shri Madan is the only direct
witness to the arrangement with Shri ’M’ that a sum of Rs.
100 is to be paid to him and that he should claim nothing
more for the conduct of the entire case The arrangement
itself was not made in the presence of Sardar Raghbir Singh
but it is Sardar Raghbir Singh’s evidence that he was
informed about it by Shri Madan.
819
It is also Sardar Raghbir Singh’s evidence that in pursuance
thereof Shri ’M’ was paid by him Rs. 100. Thus on the
evidence, as given, Shri Madan is the direct witness for the
arrangement and Sardar Raghbir Singh is the direct witness
for the payment and each became aware of the other fact from
the conversations between them at the time and in the course
of events. The evidence of both these gentlemen has been
commented upon and criticised by the learned Advocate for
Shri ’M’. It has been pointed out that these two gentlemen
bad, in these proceedings, occasion to speak to the facts at
three stages, first in answer to letters of enquiry written
to each of them by the Registrar of this Court after the
complaint was filed and Shri ’M’ filed his answer thereto,
next when they were examined formally before the learned
Judge in Chambers, and now when they are examined before us
on oath. It is pointed out that there are substantial
variations and developments in their versions. The
explanation given by both of them for the variations is that
at the earlier stages they did not desire to be more
specific or categorical since they were given to understand
that the matter would somehow be adjusted, that they did not
want to harm Shri ’M’ and that the lines on which they were
to answer the enquiry from the Registrar, were discussed in
a conference between themselves and Shri ’M’ with his
Advocates. Shri ’M’ also admits that there was such a
conference. It is urged by the learned Advocate appearing
for Shri ’M’ that this very explanation offered by these two
gentlemen shows that their word, even before us, is not to
be taken at its face value. It is also pointed out that
neither of the Advocates could produce any accounts to sub-
stantiate the payments alleged to have been made, nor an
each record or note as to the amount of fees fixed for and
the arrangement with Shri ’M’ that has been spoken to., On
the other hand, they admit that they maintain no accounts at
all. It does not also appear that they maintain any
satisfactory diaries or other record which might have
corroborated their evidence. The learned Attorney-General
while
820
fairly conceding that there is good deal of room for comment
’about the evidence of these two gentlemen, urges that we
should attach greater value to their present evidence given
on oath particularly in view of the fact that both of them
admit the complainant’s story that Rs. 600 was all that was
intended to be paid for all the three together and they
categorically admit that they have themselves no further
claim against the complainant for the work done by them.,
The learned Attorney-General submits that it is unreasonable
to suppose that while both of them accepted comparatively
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small fees for the whole case, the Agent, Shri ’M’, was
promised ’a reasonable fee" without any fixation. He urges
further that on his own admission, Shri ’M’ can point to
nothing in the diaries or registers said to have been
maintained by him for his cases, which may substantiate his
version. He also urges that in view of the probabilities
and the evidence we should accept not merely that there was
a definite arrangement with Shri ’M’ to accept only Rs. 100
for the entire case but also that he was in fact paid the
said sum of Rs. 100 then and there. After having given our
consideration to the entire evidence on this part ’of the
case, we are of the opinion that we should dispose of this
case without coming to any definite conclusion on the
disputed facts, material for this issue. All that we need
say is that we are not quite happy about the evidence on
both sides bearing on this matter. We are inclined to
refrain from recording a categorical finding on this issue,
which if found against Shri ’M’, may amount virtually to a
finding of criminal misappropriation. We are willing to
dispose of this issue in favour of Shri ’M’ by giving him,
so far as these proceedings are concerned, the benefit of
doubt in respect of the disputed facts material to this
issue.
The matter arising under charge No. 1 may also be shortly
disposed of. The question under that charge is whether, for
withdrawing the unspent balance from the Punjab High Court,
Shri ’M’ had the requisite authority. In support of the
alleged authority, be relies both on specific authority
given to him orally
821
by or on behalf of the complainant, Attar Singh, and also on
the authority in his favour for the withdrawal as implied
from the wording of the Vakalatnama executed in his favour
by Attar Singh. The evidence in support of the specific
oral authority is his sole statement before us on oath. He
deposes that he was authorised by the relation (or pairokar)
of the complainant, Attar Singh, (who used to go to him in
connection with the appeal) to withdraw the unspent balance
from the High Court. He stated that he was unable to give
the name of the pairokar but that he was sitting in Court,
while be was giving evidence before us. The alleged
relation or pairokar has not been examined as a defence
witness. In the proceedings before our learned brother,
Bhagwati J., his version on this part of the case is
contained in paragraph 8 of his affidavit dated the 5th
March, 1956, which is as follows:
"I requested Attar Singh to remit funds for prosecuting
appeal on 21-12-51 and with his permission ,wrote to the
High Court on 17-1-52 for refund of the balance out of Rs.
750. Thus I received Rs. 242-1-9 from High Court in March,
1952".
This clearly indicates that his ’Case then was that he had
the permission of Attar Singh himself for withdrawal of the
balance. But when examined before our learned brother,
Bbagwati J., be said as follows:
"Somebody asked me to get the money from the High Court to
meet the expenses. Subsequently I wrote to the High Court".
in answer to the specific question who that somebody was he
said "I do not remember exactly who it was". He did not
then say that he was the complainant’s relation or pairokar.
In his cross-examination before us he says "His (Attar
Singh’s) relation came to me and told me that I should get
the money from the High Court". When further cross-examined
with reference to his previous statements he said that when
he used the-phrase "with his permission" in his affidavit he
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meant to indicate the, agent or pairokar of Attar Singh and
when further pressed as to who that relation was and whether
he knows his name be was unable
107
822
to give any satisfactory answers. His evidence on this part
of the case is highly unsatisfactory and can not be
accepted. We have. no hesitation in coming to the
conclusion that he has not proved the specific oral
authority, which he has pleaded, for the withdrawal of the
balance amount.
What is next relied upon in support of the authority is the
Vakalatnama executed by Attar Singh in his favour. The
vakalatnama is in form No. 3 of the Fifth Schedule of the
Supreme Court Rules, 1950, before their amendment in 1954.
What is relied upon is that this form authorises the Agent
not only to deposit moneys but also to draw moneys. It is
also urged that an Agent has the power by virtue of the
specific wording of the vakalatnama "to do all things
incidental to his acting" for his ’client in connection with
the appeal. It is urged that the deposit of printing
charger and the withdrawal of the unspent balance of the
printing charges are all acts incidental to acting for a
client in connection with his appeal. On the other side it
is pointed out that the form itself, indicates that the
acting is to be in connection with the work in the Supreme
Court since it is headed "in the Supreme Court of India" and
that the authority arising under this vakalatnama cannot
extend to acts to be done in the Punjab High Court. We do
not’ consider it necessary to decide about the exact scope
of the power exercisable under the vakalatnama with
reference to the form that has been employed. There is the
outstanding fact in this case that the amount has been in
fact paid by Shri ’M’ direct into the Punjab High Court on a
letter issued by the High Court to him. There is also the
fact that the receipt for the said amount has been issued by
the High Court to him and in his name. There is the further
fact that the unspent balance has been paid by the High
Court directly to him without requiring any further written
power or authority, apparently because he was the depositor
and was therefore presumably entitled to withdraw the
unspent balance. In view of these facts it would appear
that the High Court itself was under the impression that the
withdrawal was within the
823
scope of Shri ’M’s authority as an Agent for the appeal in
the Supreme Court. This impression, if wrong, was one that
may well have been shared by Shri ’M’ equally with the High
Court. In these circumstances, while we definitely hold
that the specific oral authority set up has not been proved,
it appears to us that ’no serious notice need be taken of
this charge.
What remains is charge No. 3 which is as follows:
"That you after receiving the sum of Rs. 242-1-9 in March
1952, retained the said sum, without any intimation to your
client Attar Singh and without claiming any amount as due
from him by way of fees to you and without lodging a bill
for taxation against him for a period of over three years".
The questions which require consideration under this charge
are (1) whether Shri ’M’ intimated Attar Singh about the
withdrawal of the unspent balance of printing charges, (2)
whether Shri ’M’ intimated Attar Singh that any fee remained
due and made any demand in that behalf, and (3) whether Shri
’M’ was justified in retaining the amount towards fees with-
out lodging a bill for taxation against his client.
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It is now necessary to recall the relevant facts and
enumerate some further facts. Criminal Appeal No. 12 of
1950 was filed into this Court on May 11, 1950, by the
Agent, Shri ’M’, on the basis of a vakalatnama signed by
Attar Singh without date and accepted by Shri ’M’ on May 11,
1950. Attar Singh says that when he signed the vakalatnama
there were blanks therein and that after signing, he gave
the vakalatnama with the blanks to Sardar Raghbir Singh. It
is his evidence that having fixed the engagement with Sardar
Raghbir Singh and paid the money into his bands, he went
away leaving the actual filing of the appeal, on a later
date, to Sardar Raghbir Singh. Shri ’M’ who accepted the
vakalatnama on May 11, 1950, and who filed the appeal memo-
randum into Court on the same date with the signatures
thereon, also of Sardar Raghbir Singh and Shri Madan, admits
that the blanks in the vakalatnama were filled in by him in
his own handwriting. But he says that Attar Singh was also
present at the time of
824
his acceptance of vakalatnama and the filing of the appeal
and that Attar Singh then paid him a sum of Rs. 50 without
any settlement of fees. He says further that when he
accepted the engagement he was given to understand by Sardar
Raghbir Singh that he would be paid reasonable fee. This
was at the time when the appeal was filed in Court and
presumably in the presence of Attar Singh according to him.
Attar Singh denies that he was present or paid Rs. 50 to
Shri ’M’ at the time of filing the appeal or that he met
Shri ’M’ at all at the time. On his evidence, if accepted,
Shri ’M’ could have no expectation of any further payment of
fees. About an year later there was the payment of Rs. 750,
towards the printing charges: It is admitted that the amount
was supplied by means of a draft in favour of the Deputy
Registrar of the High Court given to Sardar Raghbir Singh,
by the brother-in-law of Attar Singh. This was passed on to
Shri ’M’ who sent it on to the High Court. A receipt dated
July 19, 1951, was issued therefor by the High Court in Shri
’M’s name., It is in evidence that the printed record was
received in the Supreme Court in December, 1951. Intimation
of the same was presumably given to the Agents concerned in
due course. Shri ’M’ applied to the High Court-in January,
1952, for refund of the unspent balance of the printing
charges and received an amount of Rs. 242-1-9 in March,
1952. The appeal was set down for hearing in May, 1952. It
is the evidence of Attar Singh that on receiving intimation
that the appeal was coming up for hearing he came down to
Delhi from Bombay, where he was employed at the time, and
found that Sardar Raghbir Singh had left for China and was
not available for arguing the appeal. His evidence is that
he enquired from the wife of Sardar Raghbir Singh who told,
him to meet Shri ’M’ which he did. He says that they came
to the conclusion that Shri Umrigar, an Advocate of this
Court, was to be engaged to argue the appeal. Thereupon
Shri Umrigar was fixed up. The appeal was not actually
taken up in May, 1952, as expected. The engagements of both
Sardar Raghbir Singh and Shri Madan were termi-
825
nated sometime in August, 1952, by Shri ’M’ under
instructions of Attar Singh. The appeal came up for
hearing, later on, in November, 1952. It was Shri Umrigar
who argued the appeal. Admittedly Shri ’M’ was also present
at the hearing and instructed Shri Umrigar. The judgment in
the appeal was delivered on the 5th December, 1952, allowing
the appeal and remanding it for further hearing by the
Sessions Court, as an appellate court, on the evidence on
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record. It would appear that nearly two years later, i.e.,
on November 24, 1954, Attar Singh applied to the Punjab High
Court stating that he had paid Rs. 750 for the printing
charges of the. record in his appeal and that some balance
was lying to his credit out of the said amount and
requesting that the same may be remitted to him. He
received a reply thereto from the Deputy Registrar of the
Punjab High Court dated October 17, 1955, intimating that
the unspent balance of Rs. 242-1-9 was refunded to his
counsel, Shri ’M’ of the Supreme Court, and advising him to
contact him in this behalf. It is in view of this
information that Attar Singh ultimately filed on December 5,
1955, a complaint on which the present proceedings were
initiated.
The evidence of Attar Singh on this part of the case is
quite simple. He says that some time after the appeal was
filed i.e., in or about January 1951, he went away to Bombay
in connection with private employment which he had obtained
there and that he came to Delhi again only in May, 1952, on
receiving intimation that his appeal was expected to be
taken up. He says further that since the appeal was not
taken up in May and went beyond the long vacation he got
himself transferred to, and remained in, Delhi since about
May, 1952. He says that he came into direct contact with
Shri ’M’ only from May, 1952, and that he had not met him
till then. It is also his evidence that he was never told
by Shri ’M’ about the unspent balance being available or of
his having withdrawn the same. He was also not told that
any fees had yet to be paid. He was under the impression
that no further fee was due to Shri ’M’ and that his
826
fees must have been paid up at the outset by Sardar paid up
at the outset by Raghbir Singh. There was no demand by Shri
’M’ from him at any time for balance of fees, not even at
the time when his appeal was heard by this Court for two or
three days. Towards the end of 1954, he was greatly in need
of money on account of the further proceedings in his appeal
consequent on the remand. He then felt that he might
enquire from the High Court about the availability of any
unspent balance out of the printing charges deposited and
get back the same and meet his needs. He accordingly wrote
a letter to the High Court in November, 1954. He bad to
send a number of reminders. He ultimately received the
reply dated October 17, 1955, from the High Court nearly an
year after his first enquiry. According to Attar Singh,
before he wrote to the High Court enquiring about the
unspent balance, he approached Shri ’M’ and enquired from
him. It was on his advice that he wrote to the High Court.
His evidence further is that when he actually received the
letter from the Deputy Registrar of the High Court dated
October 17, 1955, be again met Shri ’M’ about the unspent
balance and enquired of him whether he had received the
amount, but that Shri ’M’ denied having received any money.
He says that thereafter he confronted him with the reply he
had received from the High Court and that on seeing it Shri
’M’ was astonished and told him to come later on. He states
that when he went to him again, Shri ’M’ told him that he
will return the money after two days, but that ultimately he
evaded him. It was after this that at the suggestion of
some friends, he lodged the complaint with the Registrar of
this Court.
As against this, Shri ’M’s evidence is as follows. When the
printed record wits received from the High Court, and he got
intimation of the same, he wrote a letter dated December 21,
1951, to Attar Singh intimating that the printed record bad
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been received in the Supreme Court, that further steps have
to be taken and that he is to supply him with funds there-
for. He says that thereafter Attar Singh’s relation came to
him in January, 1952, and told him to write
827
to the High Court to get a refund of the unspent balance of
the printing charges. He admits that he received the refund
in March,, 1952, and says that he appropriated the same
towards his fee. He also says that when in May, 1952, Attar
Singh came in connection with the expected hearing of the
appeal, he told him about the unspent balance having been
received by him and that later on, i.e., after the hearing,
of the appeal was over, he told him that the bill for the
work, done by him in connection with the appeal would be
about Rs. 500. He denies the version of Attar Singh that he
was not aware of the unspent balance having been drawn and
that for the first time he contacted Shri ’M’ in 1954 for
the unspent balance and wrote to the High Court on his
advice for refund of the balance, if any. He denies
specifically that Attar Singh met him in this connection a
number of times and wrote reminders to the High Court at his
instance. He also denies categorically that he was
confronted by Attar Singh with the letter received by him
from the High Court and that he then told him all that had
happened.’
The question before us is which of these versions is to be
accepted. Was there any intimation by Shri ’M’ to Attar
Singh that be withdrew the unspent balance and did he demand
from him the alleged balance of fees? Admittedly, there was
no written intimation and no specific written demand. The
only writing from himself to his client that Shri ’M’ relies
on, is a letter dated December 21, 1951. He produces an
alleged copy thereof which is as follows:
"S. Attar Singh
C/o Gurdwara Sisganj,
Delhi.
Dear Sir,
Your appeal pending in the Supreme Court No. 1.2 of 1950 is
ripe for further steps as the record has been printed and
dispatched by the High Court, Simla.
Now you have to supply me with funds for drafting petition
of appeal, statement of case, affidavits of service of
notices and typing charges.
828
Since the record has reached the Supreme Court on 12th
December 1951, you are to file petition within 30 days of
receipt of this date.
Please treat this as very urgent, otherwise the appeal
shall be dismissed for non-prosecution".
It may be noticed that the wording of this letter does not
in terms state that what is being demanded is his own fees.
Paragraph 2 of the letter may well be understood by a lay-
man, as asking for nothing more than expenses to be
incurred. Attar Singh deposes that he never received the
letter. It is clear from the evidence that Attar Singh was
not in Delhi at the time and it is curious that the letter
is addressed to him at Sisganj Gurdwara Delhi. Shri ’M’ has
been cross-examined on this and in our opinion, he has not
been able to give any satisfactory explanation. He says
that the address was furnished by Sardar Raghbir Singh. But
Sardar Raghbir Singh was not asked about it. Assuming the
letter to be true, it is obvious that it would not have been
received by Attar Singh. Clearly no money has been
remitted, nor any written communication received, in
response, to this letter. If the letter is true, one would
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have expected some further letter to have been written to
him with, the correct’ address on proper enquiry. It is to
get over this difficulty that the story has been put forward
by Shri ’M’ of a relation of Attar Singh having contacted
him in January, 1952, and instructing him to withdraw the
unspent balance, if any, of the printing charges. There is
nothing to show that these alleged instructions were by way
of response to the above letter. It is not a little
surprising that the said relation does not appear to have
cared to ascertain whether any money was in fact available
or was received. But it is unnecessary to dwell on ’this
any further because we have already noticed the entire
evidence relating to these alleged instructions of the
relation and seen how unsatisfactory it is. We are clearly
of the opinion that the story of instructions by the rela-
tion is wholly unreliable. In that view, assuming, without
deciding that the letter of December 21, 1951 , is true, it
is all the more significant that there, are no
829
further reminders to Attar Singh to his correct address
right up to May, 1952, i.e, when the appeal became ready for
hearing, though in the interval Attar Singh was not in
Delhi. It is also surprising that even after the disposal
of the appeal and up to the stage of the complaint, Shri ’M’
did not make any written demand or send any bill for the
fees to Attar Singh. It is only in the reply dated December
16, 1955 to the complaint, filed before our learned brother,
Bhagwati, J., by Attar Singh that a reference is made to his
bill of about Rs. 550 against Attar Singh for the work done
by him on his behalf. The bill was in fact produced at a
later date on March 5, 1956, along with his affidavit filed
before Bhagwati, J. In paragraph 9 of that affidavit he says
"I, as agent, had lien over the sum of Rs. 242-1-9 which was
appropriated towards my bill for Rs. 542-15-9 (herewith
attached). Rs. 250 is still ’due to me from Attar Singh".
That bill has also been marked before us as an exhibit on
behalf of Shri ’M’. It is the evidence of Shri ’M’, as
already stated, that when he accepted the engagement he was
given to understand that he would be paid a reasonable fee
but that there was no settlement at the time. He is not
very clear in his evidence what was the aggregate reasonable
fee which he was entitled to. But from the statement in his
evidence that he informed his client after the appeal was
finished, that his bill would be Rs. 500 it may be presumed
that his case is that he was entitled to the amount of his
bill as exhibited. If so, there should have been no
difficulty in his applying to the Court for taxation against
his client. We have been informed that such a course is
permissible under orders of the Court, even in a criminal
matter. But Shri ’M’ admits that be took no such step in
spite of the fact that a large and substantial balance
should have been due to him according to his case. When
asked to explain why he did not do so, his answer is as
follows:
"Because the appeal was remanded and it is a general
practice here that when the case is finished the clients do
pay the balance. So we do not insist
108
830
further. Generally when the appeal or a matter is finished
I do not make complaints or file suits or do anything for
the balance of fees because mostly these matters create
fuss. I did not, in this matter, press for the balance".
It may be noticed that in the bill the total of the items
of out-of-pocket expenses is Rs. 22-15-6, leaving a balance
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of Rs. 27-0-6 out of the amount of Rs. 50, which on his own
showing, he had received from his client. All the rest of
the bill submitted by him is a claim for fees for various
items of work said to have been done. If it be true, as he
says, that he sent in December, 1951, a letter to Attar
Singh demanding fees, it is all the more surprising that he
never made any further written demand either during the
pendency of the appeal or at least sent a bill after the
disposal thereof, for the balance of the fees, whether or
not he would have felt it advisable later on to take the
matter to court ’for taxation. This admitted inaction
renders it probable that, having obtained the refund of a
substantial amount of over Rs. 200 after December, 1951,
without the specific oral instructions or the knowledge of
his client or his agent as we have already found-he has kept
discreetly silent, without intimating to the client the fact
of his having received the balance and without making a
demand against him for the fees. It is only now that he
claims a lien on the said amount for a bill which he puts
forward, and pleads justification for the retention and
appropriation of the amount on the basis of that bill,
Learned counsel for Shri ’M’ very strongly urges that the
evidence of Attar Singh that he was not informed by Shri ’M’
about having obtained refund of the unspent balance and that
at no time was any demand made to his knowledge for the
balance of fees should be rejected as being utterly
improbable. He urges that the evidence of Shri ’M’ that he
orally intimated to him the fact of his having obtained re-
fund of the unspent balance, and of his making constant oral
demands for the balance of fees should be accepted. He
suggests that it is Attar Singh who discreetly evaded
raising the question about the balance
831
of fees due, with full knowledge that some amount had
already been received by Shri ’M’ and that a much larger
amount would be found due on a regular bill. He urges that
if there is no reasonable proof of the arrangement that Shri
’M’ was to receive only Rs. 100 and of the fact of payment
thereof, it is very unlikely that a professional gentleman
like Shri ’M’ would go on working in the appeal without
making even an oral demand for fees unless he was permitted
by the client to withdraw and appropriate the amount. He
strongly urges that the conduct of Attar Singh himself on
this part of the case gives room for considerable suspicion.
It is pointed out that though the appeal was disposed of in
December, 1952, he makes no enquiry for the unspent balance
until after nearly two years. It is urged that he has no
satisfactory account how he then came to know that there was
a balance at all, the payment of which he might obtain from
the High Court. It is submitted that his story that it was
at the instance of Shri ’M’ himself that he wrote to the
Punjab High Court making enquiries about the balance is
utterly improbable, We are not, however, impressed with the
soundness of these comments. We see no difficulty in
accepting the explanation of Attar Singh that he came to
think of the possibility of obtaining the unspent balance,
if any, which may be available to him, only when he was
hard-pressed for money for the further conduct of his
criminal appeal as a result of the remand. It may or may
not be that the letters of Attar Singh to the Punjab High
Court enquiring about the unspent balance were written on
the advice of Shri ’M’, but the fact remains that for an
adequate reason as given by him he did start enquiries in
this behalf so late as two years after the disposal of the
appeal. On this part of the case what is really significant
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is that at the earliest opportunity which Shri ’M’ had, he
did not put forward his present specific case, of intimation
of the refund and of demand of the fees. Para 5 of the
complaint of Attar Singh dated December 5, 1955, states as
follows:
"I had throughout been making enquiries from
832
Shri ’M’ and he has consistently denied having received any
money from the High Court".
In his reply dated December 16, 1955, Shri ’M’ has contented
himself with a bare denial as follows:
"Para 5 of the application is emphatically denied and not
admitted".
Even in his later statement, in the form of an affidavit
dated March 5, 1956, filed before Bhagwati, J. all that he
says is that "on December 21, 1951, he requested Attar Singh
to remit funds for prosecuting the appeal and that with his
permission wrote to the High Court on January 17, 1952, for
the refund of the balance. He has attempted to explain that
by "his permission" he meant "his pairokar’s permission".
We have found that, on the evidence and probabilities, the
story of pairokar’s permission cannot be accepted as
reliable. The story of his having directly informed Attar
Singh about his having got the balance occurs for the first
time in the cross-examination before Bhagwati, J., wherein
he says that he told him about it at the time of the hearing
of the appeal. But even there he says that he did not at
that time ask for anything further. There he admits that it
is only when Attar Singh asked him to refund the money that
he told him that he should pay him the balance due. Now, it
is in this Court in the cross-examination of Attar Singh
that the story of his having informed Attar Sing about his
obtaining from the High Court refund of the unspent balance
and of his having demanded the fees due to him, all at the
time of hearing of the appeal,-has been put forward in the
following questions and answers.
"Q. In fact, at the time when your appeal was heard Mr. ’M’
had told you that Rs. 242, had been recovered from the High
Court?
A. It is far from true.
Q. He also told you that his fees has got to be
paid?
A. No.
Q. You said nothing about it because you knew that more
fees than Rs. 242 would be due to Mr. ’M’?
A. The question does not arise".
833
The further cross-examination of Attar Singh is as follows.
"Q. I am putting it to you that your talk that you showed
the letter of the 17th October, 1955 to Mr. ’M’ is a pure
fabrication?
A. No, it is correct.
Q. I will tell you what had happened. You had asked ’M’,
’M’ had told you (this is my case) that he had recovered Rs.
242 and when you said ’what about Rs. 242 he said ’you have
got to pay my fees’, which would come to much more, and
therefore thereafter there was no further talk between you
both?
A. Nothing was talked by Mr. ’M’ to me then, nor up till
now".
This belated case about intimation of withdrawal of unspent
balance and about demand for fees having been made at the
time of the bearing of the appeal, cannot be accepted as
true. His admission before Bhagwati, J. that even at the
time of the hearing of the appeal (which admittedly took two
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or three days) he did not ask for anything further must be
accepted as correct. If so that would make it very probable
that the first information to Attar Singh about the fact of
Shri ’M’ having obtained refund of the unspent balance of
the printing charges was only when the High Court intimated
the same to him. It follows that the first oral demand for
the fees by Shri ’M’ to Attar Singh, may have been when he
was confronted with the letter of the High Court. This is
what he admitted in the enquiry before Bhagwati, J.
It may further be noticed that Shri ’M’ states in his
evidence as follows:
"After I received this money (unspent balance) I
appropriated it towards my fee. There was no settlement of
fees between me and my client. Raghbir Singh never told me
that I should get only Rs. 50 or Rs. 100".
He was cross-examined whether the appropriation was with the
consent of the client, as appears from the following.
"Q. Coming to May, 1952, when you said you told the client
that you had received money did you
834
tell him that you appropriated the money
A. Yes.
Q. No question therefore remained of any lien. The money was
appropriated towards fees.
A. This is all opinion whether it was lien or
appropriation. It was lien. So I appropriated it.
Q. You had lien.
A. Yes.
Q. You appropriated with the client’s consent.
A. The consent was there".
How unsatisfactory his answers are as to the client’s
consent for appropriation even on his own case that the
amount was appropriated is noticeable.
We are, therefore, of the opinion that the following facts
have been proved. Without the knowledge of or intimation to
Attar Singh, Shri ’M’ obtained in March, 1952, from the High
Court the unspent balance of printing charges deposited by
him on behalf of his client Attar Singh amounting to the sum
of Rs. 242-1-9. He retained the same without any intimation
to his client and without making a demand or lodging a bill
for any amount as due from-him by way of fees. The fact of
his having obtained the refund became known to Attar Singh
for the first time only by the letter of the Punjab High
Court to him and it was only when Shri ’M’ was confronted
with the same that he raised the question of payment of fees
with Attar Singh. Prior thereto he denied receipt of any
such moneys when asked by his client about it and did not
make any demand for fees. In fact he appropriated the
amount, on receiving it, without any demand for fees or
lodging a bill for taxation and without the knowledge and
consent of the client.
The question that next arises for consideration is whether
on these facts Shri ’M’ is guilty of professional
misconduct. It is urged before us that any Agent has a lien
on the moneys of his client coming into his hands for the
reasonable fee that may be due to him if as may be assumed
for the purposes of this case the fee was not settled
originally. It is urged that in this case Shri ’M’ has done
nothing more than exercising that lien and appropriating the
835
amount which legitimately came into his hands towards what
he considered as reasonable fee due to himself leaving the
settlement of any further fee that may be due to him to the
good sense and the good will of the client on the
termination of the case. It is urged that on this view his
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action is bona fide. It is pointed out that while, it may
be, that such conduct is not consistent with the highest
professional standards, it cannot be treated as amounting to
professional misconduct. It is urged that it is not every
conduct which may be considered unjustifiable or improper
that amounts to professional misconduct if in fact the agent
or advocate honestly believed that he was justified in
adopting the course he did, so long as ’such a course is
not, in terms, prohibited by any positive rules framed by
competent authority to regulate the conduct of agents and
advocates in such matters. We are unable to accept this
contention. As has been laid down by this Court In the
matter of Mr. "G", a Senior Advocate of the Supreme Court
(supra) "the Court, in dealing with cases of professional
misconduct is not concerned with ordinary legal rights, but
with the special and rigid rules of professional conduct
expected of and applied to a specially privileged class of
persons who, because of their privileged status, are subject
to certain disabilities which do not attach to other men and
which do not attach even to them in a non-professional
character.................... "He (a legal practitioner) is
bound to conduct himself in a manner befitting the high and
honourable profession to whose privileges he has so long
been admitted; and if he departs from the high standards
which that profession has set for itself and demands of him
in professional matters, he is liable to disciplinary
action". It appears to us that the fact of there being no
specific rules governing the particular situation, which we
are dealing with, on the facts found by us, is not any
reason for accepting a less rigid standard. If any, the
absence of rules increases the responsibility of the members
of the profession attached to this Court as to how they
should conduct themselves in such situations, having regard
to the very high privilege that
836
an Advocate of this Court now enjoys as one entitled, under
the law, to practice in all the courts in India. We are
conscious that at the time when the relevant facts happened
in this case Shri ’M’ was only an Agent. But at the time
when he was confronted with the letter of the Punjab High
Court intimating receipt of the unspent balance, he had
already become an Advocate on record and we have to deal
with this case with reference to rule 30 of Order IV of the
amended Supreme Court Rules. That rule says "Where.... the
Court is of opinion that an Advocate has been guilty of
misconduct or of conduct unbecoming of an Advocate, the
Court may take disciplinary action as provided therein".
Even under rules 31 and 32 of Order IV of the Supreme Court
Rules prior to the amendment, the position would be the same
in so far as a matter of the kind with which we are dealing
is concerned. It is true that under rule 32 of the old
rules which refers to disciplinary action against agents,
the phrase "conduct unbecoming of an Advocate" is not to be
found. But that is probably only because in certain matters
the Agent’s position in relation to his client may differ
from that of an Advocate. But we have no reason to think
that in respect of a matter such as the one we are concerned
with, the standard applicable to an Agent or to a present
"Advocate on record" is anything different. We have no
doubt in our mind that the high standards of the profession
demand that when the moneys of the client come into the
possession of an Agent or an Advocate, otherwise than as
earmarked fees, he has to treat himself as in the position
of a trustee for the client in respect of the said moneys.
Even if he has a lien on such moneys, it would be improper
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for him to retain, i.e., to appropriate the same towards his
fees without the consent, express or implied, of his client
or without an order of the Court. It may be that in certain
circumstances he is entitled to exercise a lien, but he has
to give reasonable intimation both of the fact of moneys
having come into his hands and of the exercise of his lien
over them until his account is settled. If there has been
no prior settlement of fees he. cannot constitute
837
himself a judge in his own cause as to what would be the
reasonable fee payable to him. This position of trusteeship
in respect of moneys of the client in his hands is all the
greater where the moneys represent the unspent balance of
what was given for a specific purpose, such as for payment
of printing charges, as in this case. On any such unspent
balance, it is well settled, that he has no lien either
under the common law or by the statute. (See Cordery’s Law
relating to Solicitors, 4th Edition, page 456 and Halsbury’s
Laws of England, 2nd Edition, Vol. 31, page 239, para 265).
In this case it appears to us that the retention and
appropriation of the money by Shri ’M’ without intimation to
the client and without sending a bill to him for his fees or
applying for taxation even after disposal of the appeal
constitutes professional misconduct. This is aggravated by
the facts emerging from the evidence of Attar Singh who,
Shri ’M’ admits, has no animus against him, and whose evi-
dence on this part. of the case we see no reason not to
accept. That evidence shows that when in 1954 Attar Singh
enquired of Shri ’M’ he denied knowledge of the unspent
balance and that when confronted with the letter received
from the Punjab High Court he admitted receipt and demanded
fees but evaded the situation without fairly and frankly
facing it.
Shri ’M’ appears to have been enrolled as an Agent in 1949
and he says that when, at the instance of Shri Madan and
Sardar Raghbir Singh he accepted the engagement in May,
1950, it was his third or fourth engagement as Agent. There
may, no doubt, be cases where an unscrupulous client may
take advantage of and exploit a beginner in the legal
profession. But we are satisfied that this is not such a
case.
We are clearly of the opinion that Shri ’M’ is guilty of
professional misconduct. We direct that he should be
suspended from practice for a period of two years.
Order accordingly.
109
838