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Annada Devi Vs. Banchhanidhi Samantaray - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Ref. No. 2 of 1957
Judge
Reported inAIR1959Ori1
ActsLegal Practitioners Act, 1879 - Sections 13 and 14
AppellantAnnada Devi
RespondentBanchhanidhi Samantaray
Appellant AdvocateAdv. General
Respondent AdvocateM.S. Rao, ;N. Mukherji, ;S.C. Roy, ;M.K.C. Rao and ;U.C. Misra, Advs.
Cases Referred(D) and Bhataraju Nageshwara Rao v. Hon
Excerpt:
.....honourable profession to whose privileges he has been, admitted. 'it is not safe to rely on these accounts. the failure to keep such accounts will be treated as a reasonable cause for suspension of the certificate within the meaning of section 13(f) of the legal practitioners act,'this rule came into force on october 29, 1954 and hence applies to the present case. the madras high court took the view that even if a legal practitioner had not much work, he is bound to keep accounts for whatever work he may have, and failure to keep accounts amounts to professional misconduct, in re, r. a first grade pleader, vellore (1940) 2 mlj 1031: (air 1941 mad 63) (fb) (f). in view of the above discussion, i have no hesitation in coming to the conclusion that the pleader is guilty of unprofessional..........on a complaint made by shrimati annada devi wife of one udaynath das who engaged the pleader in money suit no. 386 of 1955 and execution case no. 201 of 1955 on behalf of her husband. annada devi, admittedly, was the decree-holder in execution case no. 201 of 1955 and her husband was the decree-holder in execution case no. 106 of 1956. money suit no. 386 of 1955 was filed by her for recovery of a sum of rs. 680/- against one baldev das in the court of the 1st munsif, cuttack.in the execution case no. 201 of 1955, admittedly, the pleader realised a sum of rs. 120/- between april 10, and september 1, 1956, from the judgment-debtor and did not make over the said amount to her.3. the defence of the pleader was that he retained the said sum as it was adjusted towards his dues on account of.....
Judgment:

G.C. Das, J.

1. This is a reference by the District Judge of Cuttack under Section 14 of the Legal Practitioners Act (Act XVIII of 1879) against the opposite party, Shri Banchhanidhi Samantaray, a pleader practising at Cuttack (hereinafter referred to as 'the pleader').

2. The proceeding was initiated on a complaint made by Shrimati Annada Devi wife of one Udaynath Das who engaged the pleader in money suit No. 386 of 1955 and execution case No. 201 of 1955 on behalf of her husband. Annada Devi, admittedly, was the decree-holder in execution case No. 201 of 1955 and her husband was the decree-holder in execution case No. 106 of 1956. Money Suit No. 386 of 1955 was filed by her for recovery of a sum of Rs. 680/- against one Baldev Das in the Court of the 1st Munsif, Cuttack.

In the execution case No. 201 of 1955, admittedly, the pleader realised a sum of Rs. 120/- between April 10, and September 1, 1956, from the Judgment-debtor and did not make over the said amount to her.

3. The defence of the pleader was that he retained the said sum as it was adjusted towards his dues on account of fees and expenses made out of pocket on behalf of the petitioner and her husband. In the explanation submitted to the District Judge on 14-12-1956, he gave an account of his dues in the aforesaid three cases which came to Rs. 297-11-6; deducting the sum of Rs. 120/- from the said dues, the balance still due to him was Rs. 177-11-6. After the initiation of his proceeding, a compromise was entered into between Annada Devi and her husband on one hand and the pleader on the other.

According to this compromise, the whole matter was settled on payment of Rs. 75/- by the pleader to the husband of the petitioner. A petition for withdrawing the proceeding was accordingly filed on 6-2-1957. The pleader in his deposition also admitted that he compromised the matter on payment of Rs. 75/- to the petitioner's husband. He, however, gave an explanation that at the intervention of some lawyers, he entered into this compromise and paid the sum of Rs. 75/-though on that date a sum of Rs. 177-11-6 was still due to him from the petitioner and her husband. Since the proceeding concerned the conduct of legal practitioner the learned District Judge despite the compromise proceeded with the enquiry.

On a careful scrutiny of the account book, Ext. B series filed by the pleader, the learned District Judge found that the account given by him in the explanation does not tally with the details in this account-book. Eventually he came to the conclusion that the petitioner and her husband had no liability at all to the pleader in respect of the foregoing cases, much less to the tune of Rs. 297-11-6 or any substantial portion thereof. According to him, the pleader had no reason to retain the sum of Rs. 120/-which he admittedly realised in the execution proceedings. In the result, he found him guilty of unprofessional conduct in withholding the money realised on behalf of his client and in trying to avoid payment thereof to her, and recommended suspension for a period of one year by his order dated 13-2-1957.

4. There is no dispute now that a legal practitioner, is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has been, admitted. If he departs from the traditional high standard set up by this profession, he is liable to disciplinary action (Vide In the matter of 'G' a senior Advocate of the Supreme Court, AIR 1954 SC 557 (A) ). It is equally obligatory on the part of the legal practitioner and the Court to keep the prestige of the legal profession unsullied and to protect the reputation of the legal profession against any unjust attack. It has been often said that it is not enough that the doors of the temple of justice be kept open, but it is essential that the way of approach also be kept clean.

5. In order to find out whether the pleader is guilty of unprofessional conduct in the instant case, it would be necessary to find out how far the explanation offered by the pleader is reasonable and true. It would also be necessary to see whether the account given in the explanation is corroborated by the account-book maintained and filed by the pleader himself (Ex. B series). The significant facts that stand cut are that in the schedule attached to para. 3 of the explanation, the pleader mentioned a sum of Rs. 20/- towards his fees in respect of other matters, i.e., regarding a complaint filed through one Madan Mohapatra who was acting as the agent of the petitioner and her husband as also in connection with the notices given on their behalf. P. W. 1, the complainant admitted that such criminal case was filed through this pleader by Madan Mohapatra.

But she stated that all the fees in connection therewith had been paid to him. This amount of Rs. 20/- does not find place in Exts. B, B/l and B/2. It may be remembered that those are the only three items of account maintained by the pleader as far as Shrimati Annada Devi and her husband were concerned. The pleader in his explanation while making up the total balance due as Rs. 297-11-6 has added this sum of Rs. 20/- to it. But if the account as kept in Exts. B, B/l and B/2 are added up, the total comes exactly to Rs. 297-11-6. Accordingly, the learned District Judge is right in coming to the conclusion that this item of Rs. 20/- claimed in the written statement is not genuine. Secondly, at p. 9V of the account-book (Account No. 40), it is stated that 'Udayanath Das and Shrimati Annada Devi --fees for filing M. S. No. 386 of 1955 and 2 execution cases. Rs. 50/- to be paid by Udaynath Das -- previous balance Rs. 6-2-6 total Rs. 56-2-6.' It is curious that in the preceding pages this balance of Rs. 6-2-6 does not find place anywhere.

However, in Ext. B/2 the previous balance in item No. 16 has been shown as Rs. 56/- only instead of Rs. 56-2-6. This again is not in connection with money suit No. 386 of 1955, but in connection with execution case No. 201 of 1955. The explanation offered by the pleader was that the note at p. 97 was merely for his memory. Now if this sum of Rs. 50/- were to consist of Rs. 30/- for the money suit and Rs. 10/- each towards the fees for filing the two execution cases, as contracted for, they should have been mentioned in the accounts separately maintained for the respective cases. The first item in Ext. B (Account No. 42) is in respect o money suit No. 386 of 1955 and it shows expenses, Rs. 139-2-0 under dates 12-11-55 and 16-11-55 without any detail.

In the written statement, however, it was mentioned that Rs. 107-4-0 was the filing expenses including the court-fee of Rs. 101-10-0. If this sum of Rs. 30/- as fees for filing the said suit is added to it, the total comes to Rs. 137-14-0 only The pleader as O. P. W. No. 1 merely stated in his deposition that he had not maintained a detailed account of Rs. 138-2-0 in account No. 42 relating to money suit No. 386 of 1955 of the petitioner. No further explanation whatsoever has been given by him. His whole defence as appears from his earlier deposition was to the effect;

'Both the husband and wife contracted that they would pay Rs. 30/- as filing fee in the money suit. They contracted Rs. 10/- for each of the two execution cases for filing only. They also contracted to pay Rs. 5/- for each day of my attendance for all the three cases. They did not pay me for the court-fee or any other costs. I paid court-fee in the money suit from my pocket as they are neighbors and requested me to meet all costs'.

Thus, the amount of Rs. 139-2-0 must necessarily include at least a sum of Rs. 30/- as filing fee but this has been accounted for in the shape of previous balance of Rs. 56/- in account No. 44 in execution case No. 801 of 1955. Hence, it is manifest that the sum of Rs. 30/- has been entered twice over in Exts. B and B/2. Again in the same paragraph of the written statement Rs. 15/- was claimed as expenses in respect of the execution case No, 106 of 1955.

Account No. 43 (Ext. B/l) relating to this case only mentions six days' adjournment of (he execution case and against all these dates a sum of Rs. 15/- has been shown. No details whatsoever are available. If the sum of Rs. 10/- was to be paid for the filing of this execution case, as has been deposed to by O. P. W. No. 1, one would naturally expect that this sum of Rs. 10/- should have been mentioned in the body of this account. According to his own showing, this again would be over and above Rs. 297-11-6. Further account No 44 (Ext. B/2) similarly does not mention the sum of Rs. 10/- as fee for filing that execution case. If the assertion of the pleader is true, then another sum of Rs. 10/- ought to have been added to Rs. 227-11-6.

Both P. Ws. 1 and 2 stated unambiguously that a consolidated sum of Rs. 10/- for each of the twoexecution cases had been fixed and had been paid to the pleader. This, the absence of Rs. 10/- as fee for tiling the execution cases in both the account Nos. 43 and 44 goes to substantiate the case of the petitioner and her husband that the fee for filing the execution cases had been paid to the pleader. It appears also that a sum of Rs. 50/- out ot Rs. 56/-in account No. 44 is lictitious. No detail whatsoever, as I have stated earlier, has been given regarding the balance of Rs. 6/-. The very appearance of the account-book is rather suspicious.

The account-book contains certain notes and begins from the reverse side and is an account for the years 1952-56 (Vide pp. 1 to 101). At p. 101 the account No. 41 relates to First Appeal No. 107 of 1956 tiled by one Fakir Behera through this pleader. The details of the account of the other clients beginning from page 1 upto page 101 have been maintained with meticulous care, whereas the details as regards the petitioner and her husband are wanting. It is significant that the accounts up to the year 1958 have been maintained year by year after which the last three pages of the account-book appears to have been utilised for writing out the accounts of the petitioner and her husband.

This, at p. 103 the account No. 42 for money suit No. 386 of 1955 has been entered after several items of the account for the year 1956 have been made up (Vide accounts Nos. 38, 39 and 41) it is in between the accounts Nos. 39 and 41 the account No. 40 showing the previous balance of Rs. 56-2-6 in connection with money suit No. 386 has been shown (sic). Besides, the learned District Judge is right in pointing out that several blank pages are to be found alter each account previously maintained. But there is not such blank page as far as these accounts are concerned. Account No. 44 (Ext. B/2) has been scored through at several places. This shows that an attempt has been made to tally the figures with the total amount mentioned in the written statement. For these reasons a natural suspicion arises that the accounts Ext. B series arc not genuine and have been subsequently entered after several items of accounts for the year 1956 were made out.

As I have stated earlier, the accounts mentioned in Ext. B series itself do not tally with the accounts given in the written statement.

6. Exts. 1 and 1/a are two letters admittedly written by the pleader to Annada Devi. On the back of these two letters, there were certain endorsements to the effect that the money required under those letters had been sent to the pleader through his son which he denies. The pleader, on the other hand, filed a letter, Ext. A admittedly written by the petitioner to him. This according to him was a reply to his second letter Ext. 1 dated 21-2-1956. Ext. A does not bear any date. Nothing regarding Ext. 1 has been suggested to the petitioner (P. W. 1) when she was in the witness-box. In Ext. 1 the pleader required Rs. 5-2-9 for the expenses to be incurred on that date, whereas Ext. A. only refers to Rs. 2/- which she promised to send after withdrawing the amount from the postal savings bank account.

In this connection, I may mention that the petitioner filed an account-book, Ext. 2 and the learned District Judge has observed: 'It is not safe to rely on these accounts.' We do not propose to rely on it either. The fact, however stands that the pleader asked for Rs. 5-2-9 in Ext. 1 and the petitioner promised to send only Rs. 2/- by Ext. A. Hence these two letters cannot be co-related. Again no explanation is coming forth from the pleader regarding the amount of court-fee of Rs. 2-13-0 in Ext. 1/a. Another letter, Ext. C dated 16-11-1955, written to the pleader by the husband of the petitioner from Gudari in the district, of Koraput was tiled in which it is mentioned that: 'I am expected at Cuttack next month. I will pay the rest.' From this, an attempt was made to show that the petitioner and her husband owed money to the pleader. Curiously Ext. C has not been put to the husband of the petitioner, P. W. 2 while he was in the witness box.

Hence it is difficult to come to any conclusion from Ext. C as to what amount reference has been made therein whether in connection with the above three cases or in connection with something else. Further from Exts. 1(a) and C it is clear that there was no such agreement between P. Ws. 1 and2 and the pleader that the latter would meet the costs in all the three cases as against the future realisation, if any, in the suit and the execution cases. On the other hand these letters go a great way to substantiate the case of the petitioner that she was paying all along the expenses that were being made in connection with the aforesaid three cases. This view of mine is also confirmed by the conspicuous omission of the details regarding the expenditure in connection with the above three cases in the account book.

There being no other relationship except the relationship of a pleader and client, it sounds rather strange that the pleader would run the risk of incurring such heavy expenditure without taking anything in writing from the petitioner or her husband. His accounts, as I have discussed in detail, do not carry any conviction. For the reasons stated above, I am rather inclined to think that the pleader has submitted a false explanation.

7. In the case of State v. Nrushingha Naik (S) AIR 1955 Orissa 102 (B) a Special Bench of this Court held that once a pleader is engaged, a confidential relationship is established and the pleader occupies a privileged position which debars him from claiming more than a fair and just remuneration. If he receives any money on behalf of his client in the course of his employment, he does so as a trustee and is bound to return the same. He cannot claim any lien on the money so received unless it be expressly stipulated. In the absence of an express agreement, no advocate or pleader is entitled to retain the moneys of his client and claim a lien to hold it until his own accounts are settled.

In any event, it is the duty of the pleader to keep complete and accurate accounts so that there may be no dispute between him and his client. Even if such a lien in favour of the pleader existed it does not extend to appropriation of the client's money in exercise of the lien. He has no right to appropriate it and drive the client to a suit. The above observations apply in all fours to the facts of the present case. This view has been reiterated by this Court in the case of State v. Mahendranath Dutta. (S) AIR 1957 Orissa 49 (C).

8. The standard of proof, I may mention here, required in cases under the Legal Practitioners Act to prove the charge of unprofessional conduct is the same which is required in order to convict an accused on a criminal charge Vide Amarsingh of Sabalpore v. Madan Mohan Lal, (S) AIR 1956 Raj 58 (D) and Bhataraju Nageshwara Rao v. Hon'ble Judges of the Madras High Court, AIR 1955 SC 223 (E). In order to obviate all difficulties, a new rule regarding maintenance of regular accounts was introduced in 1954 under Part VII of Chapter 1 of G. R. C. O. (Civil), Vol. 1. The Rule thus inserted was numbered as Rule 23A and is as under:

'It shall be the duty of every pleader or Moktar to keep regular accounts of all moneys received and disbursed by him in connection with each suit, appeal or case in which he is engaged as pleader or Moktar. The failure to keep such accounts will be treated as a reasonable cause for suspension of the certificate within the meaning of Section 13(f) of the Legal Practitioners Act,'

This rule came into force on October 29, 1954 and hence applies to the present case. If the account is not regularly and accurately maintained, it would amount to non-maintenance of the accounts. The Madras High Court took the view that even if a Legal Practitioner had not much work, he is bound to keep accounts for whatever work he may have, and failure to keep accounts amounts to professional misconduct, In re, R. a first Grade Pleader, Vellore (1940) 2 MLJ 1031: (AIR 1941 Mad 63) (FB) (F). In view of the above discussion, I have no hesitation in coming to the conclusion that the pleader is guilty of unprofessional conduct, under Clauses (b) and (f) of Section 13 of the Legal Practitioners Act, 1879.

9. The learned District Judge has recommended suspension for one year, but in our opinion in the circumstances, the ends of justice will be adequately met if we direct the pleader to be suspended for a period of six months only. In the result the Reference is accepted, and Shri Banchhanidhi Samantaray, Pleader practising at Cuttack, is directed to be suspended for a period of six months. But there will be no order for costs.

R.L. Narasimham, C.J.

10. I agree.

S. Barman, J.

11. I agree.


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