N.B. Mirzan vs The Disciplinary Committee Of The Bar Council of Maharashtra and another

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

N.B. Mirzan vs The Disciplinary Committee Of The Bar Council of Maharashtra and another

Equivalent citations: AIR 1972 SC 46, (1972) 4 SCC 412, 1972 (4) UJ 164 SC

Bench: S Sikri, D Palekar, A Ray

An appeal under Section 38 of the Advocates Act, 1961

Facts of the case:

1) The appellant, Mr. N. B. Mirzan, was an Advocate on the roll of the Bar Council of Maharashtra. Respondent no. 2 was the client of the appellant.

2) Respondent no. 2 made several allegations of professional misconduct against the appellant which were referred by the State Bar Council to its Disciplinary Committee.

3) Decision of State Disciplinary Committee: After a detailed inquiry into the allegations, the State Disciplinary Committee came to the conclusion that professional misconduct had been established on three counts which involved moral turpitude. The Committee, therefore, directed that the appellant should be suspended permanently and should not be allowed to appear before any Court, authority, or person in India.

4) Appeal was filed to the Bar Council of India by the appellant. The appeal was heard by the Disciplinary Committee of the Bar Council of India.

5) Decision of Disciplinary Committee: The Disciplinary Committee confirmed the findings of the State Disciplinary Committee but, as regards the punishment, it directed that the appellant be suspended from practice for five years and to pay to Respondent No. 2 a sum of Rs. 850/-within two months. If the amount was not paid, the punishment imposed by the State Disciplinary Committee striking out the appellant's name from the roll of Advocates would stand confirmed.

6) Appellant approached Supreme Court to challenge the decision of Disciplinary Committee of Bar Council of India.

7) Facts of the case of Respondent no. 2: Respondent no. 2 engaged appellant in case of obstructionist notice issued to him by the Presidency Small Cause Court, Bombay. The following transactions were done during the case:

a) Rs. 190/- for court-fee stamps, no formal receipt was issued. This is professional misconduct because no court fee stamps were necessary to be paid by respondent No 2 in an obstructionist notice and it was a false demand.

b) Rs. 975/- required for deposit in the above suit byway of rent and a receipt was issued by the appellant for this amount. This is professional misconduct because no order could possibly be passed by the Court asking an obstructionist to make a deposit in Court towards rent and it was a false demand.

c) Rs. 250/- necessary for payment to some Judge or officer for getting the rent bill transferred in the name of respondent No. 2 in respect of the premises which were the subject matter of the above suit and a receipt was issued by the appellant for this amount. This is professional misconduct because there could be no proceedings for transferring the rent bill in the name of respondent No. 2 in the absence of any negotiations with the landlord and it was a false demand.

All these transactions were done based on false demand of the appellant which is nothing but the misappropriation of the client’s money.

d) Further the landlord filed suit in the City Civil Court, Bombay against respondent No. 2 and his brother for ejectment and mesne profits. A written statement was filed admitting that no rent had been paid by respondent No. 2 to his landlord. City Civil Court passed an order directing respondent No. 2 to deposit in Court the amount due for arrears of rent. But an amount of Rs. 975/- given to appellant for deposit of rent which was more than sufficient for making the deposit by the order of the City Civil Court. Appellant gave notice to respondent No. 2 to come with the money for the purposes of deposit and the trouble started. No money transaction was incurred at this stage but respondent no. 2 came to know that his money has been misappropriated.

e) Before filing the complaint, a settlement was brought between appellant and Respondent no. 2 and the appellant undertook to pay to respondent No. 2 Rs. 1,000/-by installments of Rs. 150/-per month. The appellant sent the first installment of Rs. 150/-by money order.

Opinion of Supreme Court:

a) First transaction of Rs. 190/- was not having any receipt. Appellant impliedly denied the demand and receipt of Rs. 190/-since, admittedly, there was no formal receipt for it. But after examining witness Noor Mohammad who introduced Respondent no. 2 to the appellant, it was proved that Rs. 190/- were paid to the appellant for purchasing court fee stamps. This explanation has been rejected by both the Disciplinary Committees. Thus court opined that “We are, therefore, satisfied that the appellant had demanded and received Rs. 190/-for the purchase of court fee stamps in the beginning of his engagement as an Advocate, though, in fact, he did not have to purchase any court fee stamps.”

b) The amount of Rs. 975/- had been received by the appellant for making a deposit in Court against expenses or rent. It is further admitted by the appellant that no order had been made by the Court for the deposit of rent. The Court opined that “It is obvious that he obtained this amount on a false pretext and, when such a demand is made on a false pretext, the inference Would naturally follow that the demand had been made with a view to misappropriate the amount.”

c) Regarding Rs. 975/-, the appellant put forward the defence that this amount had been actually returned to respondent No. 2 in the court premises when the Obstructionist notice was discharged. In support of this, the appellant produced an alleged Receipt. Both the Disciplinary Committees were inclined to the view that this was a suspicious document if not a false document. Respondent No. 2, admitted that, when demanded by the appellant, he had put his thumb impression on a blank cartridge paper so that they could be used during his absence for the purpose of the litigation. After examining the witness regarding this receipt on ledger paper. Both the Disciplinary Committees have held that the receipt of payment given back to respondent no. 2 was not a genuine document and Supreme Court was also satisfied with this finding.

d) Money order of Rs. 150/- was the first installment of the settlement between appellant and respondent no. 2. For this appellant admitted that Respondent no. 2 requested him for a loan when respondent no. 2 visited him with a social worker. Out of pity, the appellant sent the money order for a loan. The explanation was regarded by both the Committee as false because under the circumstances of the case and because of the bitter disputes between the parties, it was extremely unlikely that the appellant would make any loan to respondent No 2. The story of the loan has been rejected by both the Committees. The court opined that “We, therefore, agree with the concurrent finding of both the Committees that the appellant had demanded and received Rs. 975/-from respondent No. 2 on a false representation that the amount was required to be deposited in Court and thereafter misappropriated the same.”

e) Amount of Rs. 250/- was demanded and received by the appellant from Respondent no. 2. For this appellant pleaded that he had been instructed by respondent No. 2 to file a declaratory suit for transferring rent bill in his name. The obstructionist proceedings were still pending and one does not know what kind of proceedings could be taken in a court of law for transferring the rent bill. Seeing that the story was unconvincing, the appellant changed his case later and started that this sum of Rs. 250/-was paid to him towards the court fees in respect of the intended declaratory suit, his fees, and other pocket expenses. The amount had been screwed out by the appellant on a false representation for the purposes of misappropriation.

Punishments:

The State Disciplinary Committee had permanently debarred the appellant from practising as an Advocate, but, in appeal, the Disciplinary Committee of the Bar Council of India has taken a more lenient view and suspended the appellant from practice for five years on condition that he pays respondent No. 2 Rs. 850/-within two months.

Order of Supreme Court:

As the result, the appeal fails and is dismissed with costs.

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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