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TMI Blog2002 (11) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... was done by him. According to the petitioner, the bills for the professional work done by him were absolutely reasonable considering the fact of the number of years of practice which he has put in and considering the fact of the work which he was doing for the companies. The petitioner has further averred that the companies have no defence of any nature and that they are liable to pay the bill amounts claimed by the petitioner as the debt. According to the petitioner, since the companies have failed to pay the aforesaid debt it shows their financial insolvency and, therefore, he prayed for winding up of the companies. According to the petitioner, such companies have no right to exist and continue and if allowed to be continued they shall incur further liabilities which they would not be in a position to discharge. He has further alleged that the scheming directors of the companies shall fraudulently misappropriate the properties of the companies and make it appear that the companies do not have sufficient finance and put their creditors in a helpless condition. On the basis of the aforesaid allegations, the petitioner prayed for appointment of the provisional official liquidator wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner for filing the suits. From this reply it is clear that the company has never refused to pay the alleged debt which the petitioner is claiming from the company. What the company wanted from the petitioner was a statement of account, as both of them appear to have a long standing relationship of advocate and client. I do not find anything wrong on the part of the company in requesting its advocate to furnish a full statement of account of tally with its own record to find out what amount was actually payable to the petitioner. It is an admitted position by the petitioner that he has been doing the professional work for the company as well as its sister concerns. It is also an admitted position that the company has been making payment towards the court fees and also some advance payment to him at the time of filing of the suits. If in such circumstances the company wanted to settle the entire account with the learned advocate after getting the statement from him it cannot be said that the company has failed and neglected to make payment of its debt. Every client has right to get full details and information from his advocate in respect of the payment of court fees an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s absolutely no case made out even to prima facie substantiate such serious statements of allegations made against the running business of companies. There is nothing on record to show that the companies' net worth is much lower than their liabilities or that they have lost their substratum to enable this court to consider the case for winding up of the companies. The petitioner as a responsible senior member of the Bar ought to have avoided to make such serious allegations in order to recover his professional fees of Rs. 54,500 from these companies. I am of the considered opinion that the petitioner has not been able to make out a case for winding up of the companies under section 433(e) or (f) of the Act. It is not at all just and equitable to entertain such a petition filed by the petitioner who has equally efficacious alternative remedy of filing a civil suit to recover his alleged professional fees. The petitions therefore are liable to be dismissed. 4. Shri Kanchan the learned advocate for the company has made a serious grievance against the petitioner that not only the petitioner did not furnish the accounts but also retained the briefs and files which he was holding on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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." (p. 255) 5. The point in respect of right of an advocate to retain the files entrusted to him by his client for the professional work performed by him on behalf of the client has been very well settled in the aforesaid judgment of the Supreme Court. This point has been further crystallised by the latest judgment of the Supreme Court in the case of R.D. Saxena v. Balram Prasad Sharma [2001] 105 Comp. Cas. 83; (K.T. Thomas and R.P. Sethi, JJ.). The Supreme Court has dealt with the point exhaustively and has commented upon the rights and duties of the professional lawyer in the noble profession. It would be of great importance and immense value to imbibe upon the learned advocates in that regard. I have, therefore, reproduced below various observations of the Supreme Court contained in the said judgment in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o services by an advocate for retention of documents of his client purportedly in exercise of his lien over such case-file papers. ** ** ** Thus, looking from any angle, it cannot be said that the case papers entrusted by the client to his counsel are the goods in his hand upon which he can claim a retaining lien till his fee or other charges incurred are not paid. In 'G' a Senior Advocate of the Supreme Court, In re AIR 1954 SC 557, this Court observed that it was highly reprehensible for an advocate to stipulate for or receive a remuneration proportioned to the result of litigation or a claim whether in the form of a share in the subject-matter, a percentage or otherwise. An advocate is expected, at all times, to conduct himself in a manner befitting his status as an officer and gentleman by upholding the high and honourable profession to whose privilege he has been admitted after his enrolment. If an advocate departs from the high standards which the profession has set for itself and conducts in a manner which is not fair, reasonable and according to law, he is liable to disciplinary action. In 'M' an Advocate, In re AIR 1957 SC 149, 163 this court observed : 'As has been lai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the rules made in that behalf. It is high time for the legal profession to join heads and evolve a code for themselves in addition to the mandate of the Advocates Act, rules made thereunder and the rules made by various High Courts and this Court, for strengthening the belief of the common man in the institution of the judiciary in general and in their profession in particular. Creation of such a faith and confidence would not only strengthen the rule of law but also result in reaching the excellence in the profession." (pp. 90-97) 6. The right to claim and the liability to pay the fees is yet to accrue to become a debt payable by the companies as contemplated by section 433 of the Act. Besides, the debt as fees is yet to be ascertained. It is therefore beyond any pale of doubt that the petitioner had no right to retain the papers as a condition to receive the professional fees according to his own bills. The petitioner as a practising advocate of this noble profession needs to be reminded of what Justice Krishna Iyer has said that, "law is not trade, briefs no merchandise". The petitioner could not have retained the briefs as merchandise as a charge over them to get his fees a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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