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P.S. VASAVAN PILLAI versus K.B. BALAKRISHNA PILLAI

High Court of Kerala

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P.S. VASAVAN PILLAI v. K.B. BALAKRISHNA PILLAI - CRL A No. 70 of 2000 [2006] RD-KL 39 (28 June 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 70 of 2000()

1. P.S.VASAVAN PILLAI
... Petitioner

Vs

1. K.B.BALAKRISHNA PILLAI
... Respondent

For Petitioner :P.S.VASAVAN PILLAI(PARTY IN PERSON)

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.R.UDAYABHANU

Dated :28/06/2006

O R D E R

K.R. UDAYABHANU, J.

CRL.A.NO.70 OF 2000

DATED THIS THE 28th DAY OF June 2006



JUDGMENT

The appellant is the complainant in C.C.No.232/1997, the proceedings initiated under Section 138 of the Negotiable Instruments Act which ended up in the dismissal of the complaint and acquittal of of the accused. It is the case of the complainant, a lawyer, that the impugned cheque for Rs.46,175/- was issued to him by the accused who was his client towards discharge of advocate fee due to him and that the same was dishonoured for want of funds in the account of the accused. It is his case that he was engaged by the accused to institute 10 civil suits in the year 1991 of which five were against the South Indian Finance and the same were decreed. Thereafter, the accused approached him and informed that he would like to file the execution petitions through another lawyer and voluntarily agreed to pay Rs.50,000/- as advocate fee. The accused further elaborated that he is fixing the fee at Rs.50,000/- taking into consideration the agreement in between himself and the complainant regarding the fees payable and also in view of the substantial "excess amount" that was awarded in O.S.No.1112/1991 in the file of the Sub CRL.A.70/2000 -2- Court, Trivandrum. Thereafter on 17-2-1997, he handed over the cheque for Rs.46,175/- explaining that he deducted Rs.3825/- as the amount that was spent by him towards office expenses in connection with the above cases . On accepting the cheque, the complainant handed over five sets of decrees and judgments to the accused. After the cheque got bounced, the complainant issued lawyer notice intimating dishonour and demanding payment for which the accused has sent a reply denying the liability. The proceedings were initiated within the statutory deadlines fixed under the statute. The evidence adduced in the matter consisted of the testimony of Pws.1 and 2 and Exts.P1 to P7. The defence examined Dws.1 to 4 and Exts.D1 to D6. When questioned under Section 313 Cr.P.C., it is the version of the accused that the complainant bargained for fees and fixed an amount by the complainant himself and insisted that the papers required for filing the execution petitions will be handed over only if the cheque is handed over. The trial court after considering the evidence adduced in the matter has found that the amount mentioned in the impugned cheque is not due to the complainant towards professional fee and that it is evident that he has stipulated for a fee contingent on the results of litigation and to share the proceeds thereof which is opposed CRL.A.70/2000 -3- to Rule 20 of the Bar Council of India Rules, 1975 and hence the above agreement also is opposed to Section 23 of the Indian Contract Act as an agreement contrary to public policy.

2. It is the contention of the appellant that the finding of the court is illegal and contrary to the evidence adduced in the matter and based on misconceived notions of law and hence liable to be set aside.

3. According to the appellant, once the cheque is dishonoured Section 138 is attracted and the amount due as advocate fee is a legally enforceable debt or liability as envisaged under the statute. According to him, taking into consideration of the agreement he was to be paid advocate fee at the rate of 10%of the suit amount which is permissible under Rule 37 of the Rules. Regarding Fees Payable to Advocates, according to him, Rule 37 prevails over Rule 20 of the Bar Council of India Rules. He has further contended that in the complaint he has just quoted the words of the accused as spoken to him that he shall fix the advocate fee as Rs.50,000/- taking into consideration the agreement regarding the fees payable and also the substantial "excess amount" he was awarded in O.S.No.222/1991. He has just accepted the offer of the accused and that the above gesture no way violates Rule 20 or Rule 37 of the above CRL.A.70/2000 -4- mentioned Rules.

4. It has pointed out by counsel for the respondent/accused (and also observed by the court below) that the complainant/lawyer is in the habit of sharing the proceeds of litigation which is evident from Ext.D6 judgment in O.S.No.1275/92 in the file of the II Additional Sub Court, Trivandrum which also is a judgment dismissing the claim of the complainant against another two of his clients having a similar contention. The court dismissed the suit pointing out that the agreement violated Rule 20 of the Bar Council of India Rules. It has also pointed out that the respondent has produced before this Court the judgment in O.S.No.151/2000 in the file of the II Addl.Munsiff Court, Trivandrum as per which the civil proceedings initiated by the complainant against the present accused for realisation of the very same amount covered by the impugned cheque was dismissed for the same reason that the agreement is violative of Rule 20 of the Bar Council of India Rules and Section 23 of the Indian Contract Act. On the other hand, the appellant has produced the copy of the memorandum of appeal that he has filed over the decision in O.S.No.1251/2000 and hence it is contended that the decision of the civil court has not become final. CRL.A.70/2000 -5-

5. With respect to the compliance of the statutory formalities under the N.I.Act and as to the fact that the the cheque was dishonoured for want of funds in the account of the accused etc. the evidence adduced and the findings entered into that the appellant has complied with the same stands undisputed. The only contention raised is with respect to the alleged agreement regarding the fees charged by the complainant that the same is not in tune with the law and that would render the liability alleged as not legally enforceable. According to PW1, the complainant , it was the accused himself who told him that in view of the agreement regarding the fees and the "excess amount" awarded in O.S.No.112/1991 that he is fixing the fees as Rs.50,000/-. DW1, the accused has denied any such voluntary offer on his part. According to him, the complainant insisted that unless cheque for Rs.50,000/- was handed over, the copies of decrees and judgments that is required for instituting the execution proceedings will not be handed over to him. Of course, during the cross examination he has admitted that the complainant has conducted altogether 10 cases, five against South Indian Finance and five against T.V.R.funds. According to him, the complainant told him that the cheque will be returned after the fees is paid on getting the decree amount got CRL.A.70/2000 -6- realised in execution proceedings. According to him, the amount so far was not realised as the respondent in the above suits were declared as pauper. According to him, the complainant calculated the fee as Rs.50,000/- after reducing the amounts paid by the client/accused on different occasions and also asserting that more amounts then due has been decreed and hence he should be paid Rs.50,000/-.

6. DW2 is a former client of the complainant and in whose car shed the complainant had housed his office for a certain period. According to DW2, it was he who introduced the accused to the complainant and at the time of entrustment of the cases to the complainant he was also present. It is his version that there was no agreement regarding the fees. He has also stated that the suits were decreed ex parte. Of course, the complainant has disputed the version of DW2. DW3 also claims to be an erstwhile client of the complainant and according to him, he was also present when the accused entrusted the cases to the complainant. He has stated that there was no agreement regarding fees at the time. The version of DW3 has also been disputed by the complainant. DW4 is the counsel who conducted the execution proceedings in the five suits, the decrees of which are Exts.D1 to D5. According to him, the amounts have CRL.A.70/2000 -7- not so far been realised as the decree debtor has been declared as pauper.

7. It is evident from the pleadings and evidence in the matter that the appellant/complainant has agreed to take his fee also on the basis of the alleged substantial "excess amount" that was awarded in O.S.No.1112/1991 in the file of the Sub court, Thiruvananthapuram. As to whether in the above situation he has violated the stipulations contained in Chapter II of the Bar Council of India Rules which provides the parameters of "the Standards of Professional Conduct and Etiquette" and particularly Rule 20 thereof that "an advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof". The contention that he just quoted the words of the accused/ client and that he just accepted the offer of his client are contentions that would not help him in the matter. In the circumstances, the evidence of DW1, the accused, appears more convincing and credible. The same is supported by the versions of DWs.2 and 3. It is the version of the above witnesses that they were present at the time of entrustment of the cases with the appellant and that there was no such particular agreement that the fee will be charged at 10% of the suit amount. Both the above witnesses are persons who are CRL.A.70/2000 -8- quite familiar with the complainant and were his former clients although it is contended by the complainant that subsequently DW2 is ill-disposed towards him. I find that the evidence of DWs.2 and 3 stands unspiked as such. It would also appear from the testimony of PW1, the complainant that he has not been paid any fee for conducting 10 cases which were instituted in the year 1991 or earlier. DW1, the accused is also not very firm in his statements that the cheque represented amounts as demanded by the complainant after deducting the amounts paid by him. No details as to the exact fee due or chargeable is evident from the version of either PW1 or DW1. Strictly the burden as per the provisions of the Negotiable Instruments Act is on the accused. But the fact is that it would be the appellant who could properly enlighten the court in this regard considering his expertise in the matter. It appears that he ought to have mentioned the details of the amount due, even if his case that the agreement was to charge 10% of the suit amounts as the fee. Only then it can be found that the amount for which the cheque was drawn is towards a legally enforceable debt or liability. The same is lacking in the present case.

8. The conduct of the appellant in the matter, I find exceeds the scope of the provisions of the N.I.Act and centers round the issue of CRL.A.70/2000 -9- professional misconduct as envisaged under Rule 20 of the Bar Council of India Rules. The contention of the appellant that he is entitled to charge the fee as per agreement as provided under Section 37 of the Advocate's Fee Rules and that the above provision overrides Rule 20 of the Bar Council of India Rules is fallacious and rather absurd. The same is the case of the contention of the appellant that such an agreement is not violative of Section 23 of the Indian contract Act. The Full Bench of the Bombay High court as early as in 1954 has considered all the possible contentions in the matter and held that contract between a lawyer and his client is still a contract and applicability of considerations of public policy is the same as in the case of any other contract and that if such an agreement is opposed to public policy, the agreement become invalid under the provisions of Section 23. An agreement of such nature amounts to gross professional misconduct. The standards of professional honesty and integrity and of rules of professional conduct must never be relaxed or scaled down. It is on the observance of these primary rules lies the strength and the importance of the status of the Bar. An advocate is bound to give best of his professional skill to the cause of his client without discarding detachment which is an attitude of aloofness and CRL.A.70/2000 -10- objectivity which as an officer of the court it is essential for him to maintain so that he will not become personally involved in the pecuniary results of the litigation. If an advocate enters into an agreement to charge fees on percentage basis, he becomes, not professionally, but personally and pecuniarily interested in the results of the litigation, thereby surrendering his position as an advocate and becoming a litigant in the garb of an Advocate. The principles in the matter are the bedrocks of his profession and that he cannot afford to have a personal stake in the result of the litigation. Otherwise he does grave disservice to the cause and course of justice and falls from his standards and becomes prone to adopt questionable methods to gain his object.(In re K.L.Gauba, AIR 1954 Bombay 478).

9. The ratio of the decisions in the matter is that any such agreement with the client has to be carefully watched and when extortionate, unconscionable and made for improper object, ought to be held invalid and disciplinary proceedings initiated. Such agreement obstructs or affect administration of justice and sully its course and is adverse to the interest of the purity of the administration of justice. Contentions raised by the appellant herein as noted above has to be CRL.A.70/2000 -11- rejected as unsound and even dangerous as observed by the Bombay High court in the above case. Majesty of law depends not only on the efficiency, integrity, impartiality and independence of the judiciary; it also needs the assistance of a strong, competent, fearless and honest Bar. It is the privilege of the Bar and indeed their duty to press their clients cases strenuously and to the best of their ability. But he cannot and should not identify himself too much with his client. A lawyer who becomes personally interested in the subject matter of the suit is no better than the litigant himself and becomes a litigant masquerading as a lawyer in professional robes. Such type of agreements are highly reprehensible and has been unanimously contemned and amounts to taking in due advantage of the client. Conducting a case at his own cost and charging the fees sharing a part of the subject matter and result of litigation is impermissible. It has been observed that if such a practice is tolerated, it results the contamination of the springs of justice, and once the springs of justice are contaminated, the rule of law is shaken to its foundation and the effect of this on the social structure will be far reaching and appalling. The purport of Rule 20 is to insist that the lawyer should not forsake the etiquette and ethics of his profession. A lawyer making agreements to share the profits CRL.A.70/2000 -12- of litigation would even be inclined to misguide the client to agree to compromises and a client not being an expert in legal technicalities would be led by his advocate. It appears that the lawyer in the instant case did not learn his lessons although in a previous matter he got snubbed for a similar type of conduct, which is evident from Ext.D6 judgment. This Court in X.Thottakath v. State (AIR 1974 Kerala 190) has also disapproved a similar type of conduct on the part of the lawyer. The evidence in the matter would indicate that the appellant insisted for the fees stipulated by him which is also based on "excess amount" awarded by the court in one of the cases conducted by him as a precondition for handing over the copies of decrees and judgments of the cases conducted by him which is specifically in violation of Rule 20 of the Bar Council of India Rules and hence the amount claimed by him is not at all towards a legally enforceable debt or liability. I find that there are no valid grounds to allow the appeal. In the result, the appeal is dismissed.

ks. K.R.UDAYABHANU, JUDGE

CRL.A.70/2000 -13- ks. CRL.A.70/2000 -14-

K.R.UDAYABHANU, J

Crl.A.No. 70 of 2000

JUDGMENT

28th JUNE 2006.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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