An Advocate vs Bar Council Of India And Anr.

 

Vande Matram! Here a case regarding professional misconduct of an advocate is discussed.

An Advocate vs Bar Council Of India And Anr.

Equivalent citations: AIR 1989 SC 245, JT 1988 (4) SC 376, 1988 (2) SCALE 1362, 1989 Supp (2) SCC 25, 1988 Supp 3 SCR 361

Bench: M Thakkar, B Ray

Act: Advocates Act, 1961, Part VII of BCI Rules.

Facts of the case:

1) Gautam Chand introduced appellant to Respondent no. 1. Respondent no. 1 had entrusted the suit of recovery of money to file in the Court of Additional City Civil Judge to appellant. Respondent no. 2 was junior of the appellant was practising along with him at his office at the material time. So the suit of recovery of money was entrusted to the Respondent no. 2 by appellant. At the point of time when the suit was withdrawn, respondent No. 2 was practising on his own having set up his separate office. On the docket of the brief pertaining to the suit, the appellant made an endorsement giving instructions to withdraw the suit as settled and brief was given to Respondent no. 2.

2) Allegations on appellant: The dispute in the suit was not settled at all and the respondent no. 2 without the knowledge and without the instructions of the Respondent no. 1 has filed a memo stating that the matter is settled out of Court and got the suit dismissed. The Respondent no. 1 has not received either the suit amount or the refund of court fee and he is not aware of the dismissal of the suit as settled out of court. Respondent no. 2 and appellant did not informed the Respondent no. 1 regarding the dates of hearing of the suit. When Respondent no. 1 enquired about the date of hearing the respondent no. 2 and appellant informed him that his presence is not required, so Respondent no. 1 did not attend the Court hearing on that day. When Respondent no. 1 himself went to the Court and verified he found that the suit is dismissed as settled out of court and latter learnt that even the half of the institution court fee is also taken by the respondent no. 2 within 10 days.

3) Appellant’s pleading: a) Gautam was client of appellant since long time. Gautam had business with Respondent no. 1 and one more person Anantraju.

b) Gautam executed an agreement of sell with Anantraju and gave him money for the same. Anantraju did not executed the sale deed within the stipulated period and extended period. So Gautam approached appellant for legal advice.

c) Appellant issued a notice to Anantraju to execute the sale deed .

d) Respondent no. 2 was acting as an advocate for respondent no. 1 and on the same day Respondent no. 2 issued a notice to Anantraju demanding certain amounts due on the three self bearer cheques issued by Anantaraju in course of their mutual transactions.

e) Gautam instructed appellant and Respondent no. 2 that he was in possession of the said cheques issued by Anantaraju and that no amount was actually due from Anantaraju to the Respondent no. 1.

f) Respondent no. 2 on behalf of Respondent no. 1 instituted a suit of recovery from Anantaraju on the basis of the aforesaid cheques. As property was fact of agreement to sale between Anantraju and complainant, a public notice was published in this regard on instructions of Respondent no. 1. The Court accepted his submissions and passed the order of attachment.

g) Anantraju and Gautam executed the sale deed during the subsistence of the order of attachment. Consistently, the appellant had reasons to believe the information of settlement of dispute conveyed by the three parties together. Appellant conveyed information of the settlement of dispute by his note made on the docket to Respondent no. 2 and Gautam delivered the papers to Respondent no. 2.

h) Then Respondent no. 2 filed a handwritten memo of withdrawal of suit and Court dismissed the case.

i) Respondent no. 1 gained knowledge of dismissal of suit and did not met appellant, did not immediately applied for the restoration of suit. An application for restoration was filed on the last date of limitation which is pending in the City Civil court.

Observations of Supreme Court:

1) No appropriate specific charge was framed against appellant. It would be extremely difficult for an Advocate facing a disciplinary proceeding to effectively defend himself in the absence of a charge framed as a result of application of mind to the allegations and to the question as regards what particular elements constituted a specified head of professional misconduct.

2) The parties would then become aware of the real nature and content of the matters in issue and would come to know (a) on whom the burden rests (b) what evidence should be adduced to prove or disprove any matter (c) to what end cross examination and evidence in rebuttal should be directed.

3) In substance the charge against the appellant was that he had withdrawn a suit as settled without the instructions from the complainant. The version of the appellant was that the suit which had been withdrawn had been instituted in a particular set of circumstances and that the Respondent no. 1 had been introduced to the appellant for purposes of the institution of the suit by an old client Gautam. Decision to file a suit on behalf of Respondent no. 1 against Anantraju was taken in the presence of Gautam. But in fact in the whole matter Respondent no. 1 is the nominee of Gautam and he himself had no real claim on his own.

4) It was admitted by Respondent no. 1 that he knew the defendant against whom he had filed the suit for recovery of money and that he did not know the defendant intimately or closely. He also admitted that the cheques used to be passed in favour of the party and that he was not entitled to the entire amount. He used to get only commission.

5) Here it has to be mentioned that the appellant had acted in an open manner in the sense that he had in his own hand made endorsement for withdrawing the suit as settled and sent the brief to his junior colleague. If the appellant had any oblique motive or dishonest intention, he would not have made the endorsement in his own hand.

6) The appellant has not been afforded reasonable and fair opportunity of showing cause inasmuch as the appellant was not apprised of the exact content of the professional misconduct attributed to him and was not made aware of the precise charge he was required to rebut. The impugned order passed by the Disciplinary Committee, therefore cannot be sustained.

7) Since Court do not consider it appropriate to examine the matter on merits without the benefit of the finding recorded by the Disciplinary Committee of the apex judicial body of the legal profession, Court consider it appropriate to remit the matter back to the Disciplinary Committee.

8) This matter is one of the ethics of the profession which the law has entrusted to the Bar Council of India. It is their opinion of a case which must receive due weight.

9) Bar Council of India must have an opportunity to examine the very vexed and sensitive question which has arisen in the present matter with utmost care and consideration, the question being of great importance for the entire profession.

10) Court is not aware of any other matter where the apex body of the profession was required to consider whether the bona fide act of an Advocate who in good faith acted under the instructions of someone closely connected with his client and entertained a bona fide belief that the instructions were being given under the authority of his client, would be guilty of misconduct.

11) This question will have to be determined in the light of the evidence and the surrounding circumstances taking into account the doctrine of benefit of doubt and the need to record a finding only upon being satisfied beyond reasonable doubt.

12) The Advocate concerned was suspended from practice for four years. The Bar Council had dismissed the appeal. Supreme Court had dismissed the Special Leave Petition summarily. And yet the whole matter was reviewed at the instance of the Bar Council and this Court was persuaded to grant the review.

Decision of Court:

Court allowed the appeal and

1) Set aside the order of Bar Council and remit the matter to Bar Council of India.

2) It will not be open to the complainant to amend the complaint or to add any further allegation.

3) The evidence already recorded will continue to form part of the record and it will be open to the Bar Council of India to hear the matter afresh on the same evidence.

Conclusion:

No advocate can withdraw a suit without knowledge of his client. If he does so it will account a professional misconduct.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

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