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TMI Blog1956 (10) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... .,JJ. JUDGMENT 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 complaint is as follows. The complainant was the appellate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s questioned. It was said that under Order IV, rule 30 of the Supreme Court Rules, the enquiry was to follow a summons which is contemplated 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in this. When he filed the appeal he was impecunious as he had 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 therefore a fee of Rs. 600 and no more, for himself, a Junior Advocate to assist him as well a for an Agent to be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mehow 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 substantiate the payments alleged to have been made, nor any record or note as to the amount of fees fixed for each 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 he 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, Bhagwati J., he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore 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 scope of Shri 'M' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 terminated 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, allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He had 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, he 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 was received from the High Court, and he got intimatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 have expect 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he 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 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 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 Decem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hearing 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 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh standards of the profession demand that when the moneys of the client come into the possession of an Agent or an Advocate, otherwise that 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 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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