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The Government Pleader Vs. Bhagubhai Dayabhai - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai
Decided On
Case NumberCivil Application No. 204 of 1912
Judge
Reported in(1912)14BOMLR700
AppellantThe Government Pleader
RespondentBhagubhai Dayabhai
Excerpt:
.....disposal of the winding up petition'.this order was made in a contentious proceeding to which the bhaidas group were parties. this order did not satisfy pranjivandas who appealed against it unsuccessfully. meantime he tried to induce the district judge to modify the order, also unsuccessfully. he seems to have been perfectly frank with his clients ;his conduct was absolutely consistent with honesty: so we will explain as best as we can the reasons for our opinion. but bethinking himself that he had better enquire on the point, asked for time. 10. we think his failure to refuse the vakalatnama was a neglect of duty but we do not think it necessary in this matter to do more than point this out. bhagubhai's is not merely misbehaviour, it is misbehaviour of a peculiarly wanton and offensive..........and several other creditors who formed a group which, for brevity's sake, may be called the bhaidas group. mr. bhagubhai who previously had represented pranjivandas in the suit and execution proceedings came into the winding up proceedings to represent pranjivandas in them and to press his client's claim to obtain satisfaction of his decree out of the company's assets, in preference to or in priority over the general body of creditors. in an order dated 23rd july the district judge of surat said ' as to whether the attached properties should be allowed to be sold for the decrees (one abdeally as well as pranjivandas had a decree) or not, we think it is proper to postpone orders pending the disposal of the winding up petition'. this order was made in a contentious proceeding to.....
Judgment:

Heaton, J.

1. This is a case in which Mr. Bhagubhai Dayabhai, a pleader of the Surat Courts, is charged with misbehaviour and neglect of duty within the meaning of those terms as used in Section 56 of Bombay Regulation II of 1837.

2. A good deal of argument in the case has been based on the supposed analogy of pleaders and barristers and the supposed resemblance between general retainers in the case of barristers and the retainer described in the second clause of Section 50 of that Regulation. It seems to me that the analogy is false and the resemblance is unreal. By the custom of the mofussil a pleader employed by a party to a proceeding before a Court is bound faithfully and exclusively to serve that party throughout the whole proceeding. This practice is based on, and we think, implied in, the words of Section 50, Clause 3 and Section 53, Clause 3, of the Regulation. The pleader in the mofussil is not merely an advocate--he is the confidential legal adviser of his client and does for him those things which in the Presidency towns are often done by solicitors. For legal advice, for the prosecution of legal proceedings in all their stages, the client depends on the pleader.

3. This dependence makes the position of the pleader peculiarly onerous and binds him to give exclusive attention to the interests of the client throughout any proceeding in which he is engaged.

4. The proceeding, we are concerned with here, is one relating to the winding up of a Company under the Indian Companies Act; a more complicated affair than the simple matters in which pleaders were for the most part employed in 1827 when the Regulation relating to them was framed. But the principle is the same; exclusive devotion to the interests of the client throughout the proceedings. No doubt it is possible in winding up proceedings for a single pleader to represent several independent creditors of a Company whose interests are not identical. Clearly, however, a pleader must not represent two different creditors whose interests are known to conflict. It is said that Mr. Bhagubhai allowed himself to represent two creditors whose interests were known to conflict.

5. The facts are these:--prior to the winding up order one Pranjivandas for whom Mr. Bhagubhai acted as pleader had obtained a decree and was taking out execution against the Company. The winding up proceedings were promoted amongst others by one Bhaidas and several other creditors who formed a group which, for brevity's sake, may be called the Bhaidas group. Mr. Bhagubhai who previously had represented Pranjivandas in the suit and execution proceedings came into the winding up proceedings to represent Pranjivandas in them and to press his client's claim to obtain satisfaction of his decree out of the Company's assets, in preference to or in priority over the general body of creditors. In an order dated 23rd July the District Judge of Surat said ' As to whether the attached properties should be allowed to be sold for the decrees (one Abdeally as well as Pranjivandas had a decree) or not, we think it is proper to postpone orders pending the disposal of the winding up petition'. This order was made in a contentious proceeding to which the Bhaidas group were parties. This order did not satisfy Pranjivandas who appealed against it unsuccessfully. Meantime he tried to induce the District Judge to modify the order, also unsuccessfully. In these proceedings he defined his opponent to be the Official Liquidator. The Bhaidas group were not referred to. Nevertheless in so far as the interests of Pranjivandas conflicted with those of the general body of creditors they conflicted with the interests of the Bhaidas group.

6. After these proceedings on 10th October Mr. Bhagubhai on behalf of Pranjivandas applied to the District Judge, in the matter of the winding up, naming the Official Liquidator as his opponent, for leave to execute his decree by selling certain goods which had been attached, on condition that the sale proceeds were deposited in Court. This application was granted on the 14th October.

7. On October 28th the Bhaidas group who previously had been represented by a different pleader, employed Mr. Bhagubhai to represent them in the liquidation proceedings. They knew Mr. Bhagubhai already represented Pranjivandas and they instructed him that he was not to represent them--to put it broadly--where the peculiar interests of Pranjivandas might conflict or apparently conflict with theirs. Such we take to be the effect of the understanding. The Vakalatnama was in terms general and to that extent misleading to one who read it in ignorance of the conditions when it was executed.

8. It is said, and in our opinion rightly said, that Mr. Bhagubhai ought not to have accepted this Vakalatnama. He seems to have been perfectly frank with his clients ; his conduct was absolutely consistent with honesty: but in our opinion he acted unprofessionally. He thinks not; so we will explain as best as we can the reasons for our opinion. The basis of it has already been stated : having undertaken to act for Pranjivandas in the liquidation proceedings, it was his duty to act for him and exclusively in his interests throughout. So far, we think, Mr. Bhagubhai will agree. The interests of Pranjivandas did, in certain material particulars, conflict with the interests of the general body of creditors including the Bhaidas group. Mr. Bhagubhai could not, therefore, act for the Bhaidas group throughout the proceedings. That is admitted ; he did not attempt it; he only became their pleader in the liquidation proceeding on the express understanding that he could not act for them throughout. This being so he was wrong to act for them at all if it was apparent at the time (as admittedly it was) that he could not act for them throughout. It is absolutely a question of principle. Did he professionally do right or wrong The defence set up is that he was right absolutely--that it was open to him to accept the Vakalatnama with limitations. It is not asserted or suggested in defence that the Bhaidas group could not get another pleader or that there were other special circumstances which brought another equally important principle into play. The defence is a denial of the principle that a pleader must not accept a Vakalatnama when he knows that he cannot act for his client throughout the proceedings.

9. What followed is of interest as showing that disregard of this ( principle is likely to lead to an embarrassing situation. Later on the District Judge heard Mr. Bhagubhai argue an application on behalf of Pranjivandas to be paid the sale-proceeds then deposited in Court. The Judge seeing that this might not be to the interests of the general body of creditors thought that the Bhaidas group should have notice of the application. He asked Mr. Bhagubhai whether that group objected. Mr. Bhagubhai replied they did not; but bethinking himself that he had better enquire on the point, asked for time. Time was given. He made enquiry and informed the Court that the Bhaidas group as a body did not consent to Pranjivandas's application. Now this was an embarrassing position, to every one concerned ; to the Judge, who was appealing to one pleader to ascertain the views of two antagonastic parties for both of whom that pleader held a Vakalatnama; to Pranjivandas whose pleader was pledged to his interests, but who also gave information in the interests of some of his opponents ; to the Bhaidas group whose pleader could not represent them in the matter ; and finally, could he have realised it, to Mr. Bhagubhai himself. We do not say that any real harm ensued but the position was one which ought not to arise; and it did arise because Mr. Bhagubhai allowed himself to take a Vakalatnama from clients in whose interest it was known to be impossible for him to act throughout the liquidation proceedings.

10. We think his failure to refuse the Vakalatnama was a neglect of duty but we do not think it necessary in this matter to do more than point this out. The circumstances do not require a punishment.

11. The next matter is more flagrant. The District Judge called on Mr. Bhagubhai to explain his unprofessional conduct in accepting a Vakalatnama for the Bhaidas group. Mr. Bhagubhai sent a written reply on the 4th January 1911. On the 25th January he sent a further written application in the matter to the District Judge in which he stated that he believed the proceedings to have been initiated by the District Judge suo motu from motives, described in the application but which I need not set out. These motives as described are scandalous and shocking. Similar motives were attributed to the Judge in subsequent applications made to him. In this Court we have not heard one single word of apology or regret from or on behalf of Mr. Bhagubhai. He still apparently believes that these scandalous allegations are true. If he is so misguided, so ready to attribute evil where none need be surmised, he should at least have the decency to refrain from expressing these noxious beliefs in applications presented in the Court of the Judge whom he insults. Conduct such as Mr. Bhagubhai's is not merely misbehaviour, it is misbehaviour of a peculiarly wanton and offensive kind. Various defences were made such as that we had no jurisdiction, that the pleader spoke as an accused person and had the license of such. He was a pleader and was writing to the Court as a pleader throughout; so there is no substance in these defences.

12. Mr. Bhagubhai is ordered to deliver up his Sanad to the Registrar of this Court to be endorsed. He should be informed that the Sanad will not at present be returned to him and he will not be allowed to practice as a pleader. When he has satisfied this Court that he has made such public apology to the Court of the District Judge, Surat, and personally to the Judge whom he insulted as the occasion requires, he may apply for the return of his Sanad. This Court will then consider and deal with the application as it thinks fit. Costs on Mr. Bhagubhai.

13. ON June 21st, Bhagubhai tendered his apology in Court, and applied for a return of his Sanad. The Court thereupon delivered the following judgments.

Batchelor, J.

14. We have heard this application by the pleader Mr. Bhagubhai who petitions the Court that as he has now made the apology, which by our previous order he was directed to make, the Court should restore to him his Sanad as a pleader.

15. We observe that in the apologies which Mr. Bhagubhai has seen fit to submit in deference to our order, he has taken care to insert words apparently of justification to the effect that the insulting statements used by him towards the Judicial Officer whom he maligned were used in 'excitement and on the spur of the moment.'

16. The record of the case shows that these words are not true and that so far from the insulting statements having were once uttered in an access of excitement or under a sudden impulse, the fact is that they were repeated on divers occasion after Mr. Bhagubhai's attention had been drawn to them, and indeed after he had once expressed regret for them.

17. Even now Mr. Bhagubhai's main contention before us has been that the insulting imputations were made by him under a mistaken notion that he was, as of right, entitled to make them and that is a totally different defence from the defence suggested by the use of the phrase as to excitement on the spur of the moment.

18. Mr. Bhagubhai, however, expresses his consent to the deletion of these words to which we have objected, and I am, therefore, prepared to accept these apologies with the offending words deleted, as a sufficient compliance with our previous order.

19. I must, however, express my inability to follow Mr. Bhagubhai when he supposes that a tepid and ungracious apology such as this is sufficient entirely to remove the effects of the reiterated insults which he lodged at high judicial officers. There was nothing in our previous order to lead him to suppose that any apology, still less such an apology as he has tendered would be an end of the matter and would have the immediate effect of restoring him to his status as a practising pleader. It appears to me that the recovery of that status must still be deferred and that this Court must mark by a proper penalty its sense of the grave and scandalous misconduct of which Mr. Bhagubhai has unfortunately rendered himself guilty.

20. I think it no excessive penalty to order that his Sanad be retained for a period of six months from this date, and that he do pay the costs of this application.

Heaton J.

21. I concur. I would only add this that apparently the form of the order we made has been looked upon, at any rate, by Mr. Bhagubhai himself, as expressing some idea that as soon as an apology was made he would be allowed to continue to practice as a pleader. But the true meaning of the order was that until an apology was made we were not prepared to consider that he should ever be allowed to practise as a pleader. As soon as the apology was made and the ground cleared in that way, then we were prepared to consider for how long we should suspend him from practice and I quite agree with my learned colleague that the period of six months is one that does not err on the side of severity.


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