2001 (3) TMI 1017 - HC - Companies Law

Summary

Issues:
- Dual capacity of an advocate acting as a constituted attorney and advocate in a case

Analysis:
1. The appeal was against the rejection of the plaint in a copyright infringement suit by a cable TV operator in India. The defendant objected to the institution and conduct of the suit, claiming that the plaintiffs' advocate was acting in a dual capacity as a constituted attorney and advocate, which was against the law.

2. The Single Judge rejected the plaint, stating that the firm representing the plaintiffs was deemed to have all partners as advocates, and thus, the advocate who was also a constituted attorney could not represent the plaintiffs. The judge held that a firm of advocates cannot act as a recognized agent under a power of attorney granted by the client, deeming the practice opposed to law.

3. The appellants argued that the rejection of the plaint under Order 7 Rule 11 CPC was incorrect, as the situation did not fall under any grounds for rejection. The respondent argued the suit was barred under law, justifying the rejection under clause (d). The court found that the objection raised was about the manner of institution of the suit, not a bar under any law, making the plaint maintainable.

4. The factual basis of the impugned order was challenged by the appellants, providing evidence that the advocate was a sole proprietor and the constituted attorney was not a partner in the firm. The court found that the roles of the constituted attorney and the advocate were distinct and separate, with no merging of roles, allowing for their dual representation.

5. The judgment cited a previous case where a partnership firm had accepted dual roles, but clarified that in this case, the firm was a sole proprietorship, and there was no legal bar to the advocate being appointed as a constituted attorney. The impugned order was set aside, restoring the plaint and interim orders, with each party to appear before the Single Judge.