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The Advocate General Vs. Rustamji B. Sunawalla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Civil Application No. 537 of 1911
Judge
Reported in(1912)14BOMLR691
AppellantThe Advocate General
RespondentRustamji B. Sunawalla
Excerpt:
advocate-unprofessional conduct-stipulation for inam-supplemental fee-disciplinary jurisdiction-high court.;it is unprofessional for an advocate to stipulate with his client for an 'inam' or a present, in addition to the agreed fee, in case he is successful in the case.;a barrister cannot get rid of his original obligation by endeavouring at the last moment to extort from his client a supplemental fee. - - 350. from this it appears clear that he wholly failed to carry out the arrangement which he admits in paragraph 6 of his affidavit, and has pocketed a considerable sum of money without having done anything for it. 200 that his client was so poor that she could not supply 195 farthings and to mr. 31. turning now to the other charge of stipulating for an inam or present in the event of..........him had been carried on, stating that unless she paid another rs. 100 he would not appear on the appeal. sunawalla applied for a review of judgment in which he submitted that the learned judges were wrong in holding that he broke his promise and did not appear at the time of the hearing of the appeals as agreed; that they ought to have held that he did not break his promise and that he was not bound to appear in the circumstances of the case; and that they ought to have held that it was arranged between sunawalla and shankaramma in august 1911 that he would not and could not appear at the hearing of the appeals unless a further advance of rs. 100 was made and paid to him within a certain time. the ground of the application for review was the discovery of a postcard dated the 27th of.....
Judgment:

Russell, J.

1. In this matter the Advocate General of Bombay presented a petition against R. B. Soonawalla, an advocate this Court, charging him with gross misconduct as an advocate.

2. The effect of the petition is that in February and March 1911, the said R. B. Soonawalla defended twelve persons in the Sessions Court at Sholapur, who were charged with sedition etc; three were acquitted, the rest convicted and sentenced. Thereafter the said R. B. Soonawalla was engaged by Shankaramma Tamboli, the mother of one of the nine convicted persons, namely, Allabux Tamboli, to conduct his appeal and those of the other persons, for a round sum ultimately fixed at Rs. 350.

3. Paragraph 4 of the petition sets out what R. B. Soonawall; was to do for that sum. Paragraph 6 of the R. B. Soonawalla' affidavit of the 17th October 1911, admits that it was arranget that he should take up the appeals for that sum under the conditions(a)to (e) in that paragraph, which we read at length Rs. 350 was paid to the said R. B. Soonawalla in instalments the last one of Rs. 30 having been paid on the 6th of July 1911 The said R. B. Soonawalla obtained copies from the Session! Court of Sholapur, and paid a sum of Rs. 40 to the said Court and drafted petitions of appeal for the said nine persons which they signed respectively in their respective jails and which were despatched to this Court by the jail authorities.

4. This High Court admitted the appeals of the said nine persons on reading their said petitions, but the said R. B. Soonawalla did not apply for the admission thereof or any of them. Or the 30th of August 1911 the appeals came on for hearing in this Court, but there being no appearance for any of the ac cused they were dismissed.

5. On the 31st of August 1911, the said R. B. Soonawalla by a post-card informed Shankaramma that all the appeals were dismissed. A rule having been granted the case came on for argument on 18th October 1911, when the Advocate General supported it and the said R. B. Soonawalla showed cause in person. The facts were practically admitted, and from the correspondence that has been put in it appears that prior to the 6th of July 1911, when the last instalment was paid, the said R. B. Soonawalla had originally demanded Rs. 400 for all this work, and made repeated applications for the payment of the Rs. 350.

6. On the 16th of April 1911, he wrote to Shankaramma inter alia to say that he would have to go to Bombay three times; and on the 25th of April he wrote inter alia to say that 'the day on which I shall receive Rs. 125 from you, I shall go to Bombay and file all your appeals.'

7. On the 12th of May 1911, he writes :-'Out of the balance of Rs. 125 Rs. 55 have been received. A balance of Rs. 70 remains to be received. You must send that amount in three days. Nine appeals have been drawn-up and made ready. When I receive Rs. 70 from you I will file the appeal in Bombay after getting the signatures.'

8. On the 25th of June 1911, he tells her that the appeal has been filed and the same admitted and demands Rs. 30.

9. On the 5th of August 1911, he wrote the letter of that date p. 81 of the paper book.

10. From the Exhibits A to F, put in by the Advocate General, it appears that after the appeal had been admitted R. B. Soonawalla put himself in communication with two pleaders of the High Court, Bombay, Mr. Talyarkhan and Mr. Vidwans, and remitted them a sum of Rs. 35 only respectively, but they both of them declined to undertake the case, because naturally they feared that if the said R. B. Soonawala did not appear on the appeals they might have to conduct them themselves, and they could not undertake to do so for less than a fee of Rs. 200 respectively.

11. R. B. Soonawalla has told us that it cost him Rs. 40 to take copies of depositions from the Sholapur Court. He offered to ' pleaders Rs. 35 as aforesaid. He says it took him several days to draw up the appeals, but how much that cost him, he has not informed us.

12. The result is that he broke his promises to attend in Bombay, contained in the letters above referred to; that he did not appear in the High Court at the hearing of the appeals ; that he did not offer to the pleaders respectively more than Rs. 35 although Rs. 100 had been arranged for the pleader's fee. He admits that he did not return or offer to return any of the rest of the Rs. 350. From this it appears clear that he wholly failed to carry out the arrangement which he admits in paragraph 6 of his affidavit, and has pocketed a considerable sum of money without having done anything for it.

13. We listened with great care to all that R. B. Soonawalla had to say; but most of it was absolutely irrelevant. His only answer is that he wrote nine or ten letters to Shankaramma after the payment of the last instalment telling her that unless she paid another Rs. 100 he would not appear for her on the appeal. Unfortunately for him, however, in our opinion, the letter dated the 5th of August 1911, which has already been read, is wholly inconsistent with his ever having written to Shankaramma to that effect. His story is also, in our opinion, wholly inconsistent with his postcard to Shankaramma dated 31st August 1911, p. 32. The only construction that we can put upon that postcard is that he intended to represent that he had been in Bombay when the appeals were dismissed. And if his story is true that he wrote repeated letters to Shankaramma asking for further moneys, it must have been mentioned in that postcard that it was in consequence of his not having received those moneys that he did not appear to conduct the appeals.

14. Shankaramma is now dead. She was very anxious-and naturally so-about her son's appeal, and knowing, what we do now, of the conduct of the said R. B. Soonawalla we can only characterize his letter of the 5th August 1911, as wicked and unfeeling.

15. It will hardly be believed that on the day when these appeals were dismissed, namely, the 30th August 1911 the said R. B. Soonawalla in answer to a question from the Court was unable to say where he actually was on that day. In our opinion, his conduct under hereinbefore mentioned circumstances in not being present to argue the appeal for his client amounted to gross misconduct in the conduct of his profession. The second ground on which the Advocate General asks us to deal with the said R. B. Soonawalla is one which arises out of Clause (e) of paragraph 6 of his affidavit, namely, that in case the judgments were reversed or sentences reduced Shankaramma would pay Rs. 100 in each successful appeal. And in his letter dated 21st June 1911 to her he says :-'I shall write to you a letter two days before the day fixed for the hearing. Please communicate this to all. I shall take the amount of inam after I win the case.' From this it is evident that he had arranged to get, in addition to the fee agreed upon, ' Inam' or a present if he was successful. In our opinion such conduct on the part of an advocate is disgraceful. It would be looked upon as such by any one of the Inns of Courts in England; and looking at the ignorance and simplicity in many cases of the people in this country it is, if anything, more objectionable here than in England.

16. We, therefore, find the said R. B. Soonawalla guilty on both the charges which have been brought against him, and we direct that he be forthwith suspended for the rest of his life from practising as an advocate.

17. The rule is, therefore, made absolute with costs to be paid by R. B. Soonawalla throughout.

18. The opponent applied for review of the order passed.

19. The review application was heard by Scott C. J. and Russell and Chandavarkar JJ.

Basil Scott, C.J.

20. On the 19th of October 1911 R. B. Sunawalla was on the petition of the Advocate General suspended for life from practising as an advocate being found guilty on two charges : first, in not being present in the High Court to argue an appeal of certain convicted persons, who had engaged him to represent them, under circumstances amounting ' to gross mis-conduct in the conduct of his profession; and, secondly, for arranging in addition to the agreed fee for an inam or present if he was successful. In coming to a conclusion on the first charge the Court rejected as untrue a statement by Sunawalla that he had in the month of August written several letters to Shankaramma, by whom the negotiation with him had been carried on, stating that unless she paid another Rs. 100 he would not appear on the appeal. Sunawalla applied for a review of judgment in which he submitted that the learned Judges were wrong in holding that he broke his promise and did not appear at the time of the hearing of the appeals as agreed; that they ought to have held that he did not break his promise and that he was not bound to appear in the circumstances of the case; and that they ought to have held that it was arranged between Sunawalla and Shankaramma in August 1911 that he would not and could not appear at the hearing of the appeals unless a further advance of Rs. 100 was made and paid to him within a certain time. The ground of the application for review was the discovery of a postcard dated the 27th of August which, he contended, proved his demand for a further sum to supplement the agreed fee.

21. On the 7th of February 1912 the application for review was granted. The case has now been re-heard upon both the charges which formed the basis of the original decision with the addition of further evidence on behalf of Sunawalla.

22. The two main questions as to which there is a dispute are : first, whether Sunawalla agreed to file and conduct the appeals for an all round charge of Rs. 350 ; and, secondly, whether he demanded a further sum of Rs. 100 in August as a condition of appearing to argue the appeals and whether Shankaramma agreed to pay that further sum.

23. The argument addressed to us on behalf of Sunawalla with regard to the first point was that the agreement for Rs. 350 was based upon an understanding that the expense of journeys and pleaders' fees could be met by Rs. 100 and that the cost of c(sic)s could be met by another Rs. 100 and that when it was found that the pleaders whom he approached would require Rs. 200 there was a mistake of fact established material to the agreement and that the agreement was no longer binding. The Advocate General on the other hand contends that the letter of the 16th of April in which reference is made to the cost of copies and vakils' charges contains merely a detailed estimate for the purpose of enforcing his claim for an all round sum of Rs. 400. This, we think, is the correct view. Sunawalla's references to the all round fee are as follows : In his letter of the 14th April he says '' in all I must have Rs. 450.' In his letter of the 16th April he says 'the work will not be done for the amount stated by you. The work will not be done without Rs. 400; I let go Rs. 50 to you.' In his letter of the 25th April he says 'first of all I had asked Rs. 400 from you but you refused and then the amount was fixed at Rs. 350. Out of the same a total sum of Rs. 200 will be spent for the expenses of copies and pleaders' costs.'

24. How Sunawalla himself understood the agreement is shown by his statement in his affidavit of the 17th October that on the 12th of April 1911 he went to Sholapur and applied for copies of judgment and that on that date it was arranged between him and the Sheristedar of the Sholapur Court that he should get all the copies of depositions for Rs. 40 and he was asked to deposit Rs. 10 which he did and the balance of Rs. 30 was sent by money order before the copies were sent to him. Similarly, though he stated to the Court he only offered the High Court pleaders Rs. 35 each, he wrote on the 20th of July to Mr. Talyarkhan in reply to his request for Rs. 200 that his client was so poor that she could not supply 195 farthings and to Mr. Vidwans that he had received no fee to conduct the appeals except to draw them up and get copies from the lower Court. It is clear that Sunawalla was trying to secure for himself as much as he could out of the sum of Rs. 350 agreed to be paid.

25. As regards the second question of fact Nasarwanji Mancherji in his affidavit filed for the purpose of the review application says : 'In the month of August last Mr. Sunawalla wrote to me stating that as the vakil wanted Rs. 200 for his fees to instruct Mr. Sunawalla in the High Court, I should ask Shankaramma to send Rs. 100 more. A letter to the same effect was sent by Mr. Sunawalla to the said Shankaramma who showed it to me when I informed her about Mr. Sunawalla's request. After consulting me she went to Poona to see Mr. Sunawalla personally and when she returned she told me she would collect Rs. 100 from the relatives of the accussd persons and send the same to Mr. Sunawalla. Soon after that Mr. Sunawalla again wrote to me stating that he could not appear at the hearing of the appeals. I again sent for her and handed her the letter and informed her of the contents. In reply to the letter of Mr. Sunawalla lastly mentioned I sent him a post card of the 27th August 1911 intimating to him that I would inform Shankaramma as to what had been written by him.' This postcard has been produced and contains the passage 'I shall inform Shankaramma according to what you have written.' The fact that Shankaramma went to Poona about the 15th or 20th of August to see Sunawalla is also spoken to by Shankaramma's son in his affidavit of the 18th September 1911.

26. This evidence establishes that Sunawalla in August did demand a further Rs. 100 from Shankaramma, that she went to Poona to see Sunawalla personally about the demand and on her return told Nasarwanji she would collect Rs. 100 from the relatives of the accused and send it. This does not point to any thing more than a promise to collect the money and when collected to send it. It does not establish a promise by Shankaramma to pay it herself or any understanding that if the money were not sent Sunawalla should not appear in the appeals.

27. In the light of these findings of fact we have to consider the conduct of Sunawalla.

28. His contentions are as already set out that he did not break his promise to appear at the hearing of the appeals and that he was not bound to appear in the circumstances of the case and that it was arranged in August that he would not and could not appear unless a further advance of Rs. 100 was made or paid within a certain time.

29. We think he did break his promise to appear at the hearing of the appeals. A barrister does not get rid of his original obligation by endeavouring at the last moment to extort from his client a supplemental fee. Sunawalla did not even offer to return the papers and the unexpended balance of the fee he had received so that she could instruct some one else. He had written to her on the 5th of August telling her not to be anxious everything would be alright, that although the day of hearing of the appeal had not been fixed he had got information that the appeal would be heard after ten days or twelve days. It was about ten days later that Shankaramma went to Poona to see him and it appears to us that a demand for Rs. 100 made under such circumstances was nothing less than an attempt to levy blackmail. His postcard of the 31st of August informing Shankaramma of the dismissal of the appeals is inconsistent with the suggestion that his obligation towards his client had come to an end.

30. Sunawalla has, however, shown by the fresh evidence adduced that the negotiations for an additional fee did in fact take place and that, therefore, his statement to the Court was not altogether false and that he had in his own mind some reason for waiting for payment before going to Bombay to argue the appeal. Unjustifiable though this view was, we take it into consideration in determining how we should deal with him as an advocate.

31. Turning now to the other charge of stipulating for an inam or present in the event of success in addition to the agreed fee : it is objected that this charge should not have been entertained as it was not mentioned as a cause of complaint by the Advocate-General in his petition. At this trial, however, Sunawalla can plead no surprise or unpreparedness: the charge was formulated in October last and the re-hearing has now taken place in the succeeding February. We adhere to the remarks of the Court as to this charge which were made on the first hearing. We direct that Sunawalla's name be removed from the roll of advocates of this Court but we hereby reserve him liberty to apply for admission at the end of three years though without in any way prejudicing the results of that application.

Russell, J.

32. I concur.


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