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Mani J. Meenattor, Advocate Vs. the Popular Bank Ltd., (In Liquidation) Represented by the Official Liquidator - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberAppeal Suit No. 131 of 1970
Judge
Reported inAIR1976Ker35
ActsKerala Advocates' Fees Rules, 1969 - Rule 35
AppellantMani J. Meenattor, Advocate
RespondentThe Popular Bank Ltd., (In Liquidation) Represented by the Official Liquidator
Appellant AdvocateC.K. Sivasanka Panicker and ;A.G.P. Panicker, Advs.
Respondent AdvocateT.V. Ramakrishnan, Adv. and ;Adv. General
DispositionAppeal allowed
Excerpt:
- .....for his appearance in the case after remand on the basis that under rule 35 of the advocates' fees rules he is entitled to be paid one-third of the fee allowable to him under the said rules on the full amount of the value of the subject-matter of the claim made against the directors of the bank. the liquidator as per his report no. 398 sought the directions of the company court in regard to the fee payable to the advocate (appellant) the learned judge by his order dated 23rd january,1970 took the view that since no evidence was taken and no arguments were heard in the case subsequent to the remand there was no 'hearing' of the case within the meaning of rule 35 of the fees rules and that hence under the rules no fee was allowable to the advocate for his appearance in the case. it is.....
Judgment:

Balakrishna Eradi, J.

1. This appeal has been filed by an advocate of this court who was appearing for the Official Liquidator in a proceeding under the Banking Regulation Act, 1949 which was disposed of by the Company Judge. The proceeding in question was initiated on two applications filed by the Official Liquidator under Sections 542(1) and 543(1) of the Companies Act, 1956 read with Section 45H of the Banking Regulation Act seeking to make the Directors of the Popular Bank Ltd. (in liquidation) liable for misfeasance. Those applications were originally allowed by the court with certain directions. On appeals filed by some of the Directors against the said decision of the learned single Judge the Division Bench allowed those appeals in part and remanded the matter to the learned single Judge for determining the individual liability of the Directors in the light of the directions contained in the appellate judgment. The subject-matter of the present appeal relates to the claim of the advocate for payment of fees to him in respect of the conduct of the proceedings by him before the learned Company Judge subsequent to the remand. After the case came before the learned Company Judge pursuant to the order of remand it was posted on a number of occasions commencing from 5-3-1969; many adjournments appear to have been necessitated by the fact that there was a negotiation for settlement of the matter outside court. But the proposal for such settlement was first made on 23-6-1969 prior to which date the case had been posted before court on seven different dates. It is not disputed before us that the appellant did appear before court on behalf of the Liquidator on all those days. After the negotiations for settlement culminated in an agreed compromise the appellant moved the court on behalf of the Liquidator for sanction to enter into the compromise and the said application was allowed by the Company Judge on 15-12-1969. Pursuant thereto a decree was passed in terms of the compromise. He thereafter wrote to the Liquidator claiming a sum of Rupees 2717/- for his appearance in the case after remand on the basis that under Rule 35 of the Advocates' Fees Rules he is entitled to be paid one-third of the fee allowable to him under the said Rules on the full amount of the value of the subject-matter of the claim made against the Directors of the Bank. The Liquidator as per his report No. 398 sought the directions of the Company Court in regard to the fee payable to the advocate (appellant) The learned Judge by his order dated 23rd January,1970 took the view that since no evidence was taken and no arguments were heard in the case subsequent to the remand there was no 'hearing' of the case within the meaning of Rule 35 of the Fees Rules and that hence under the rules no fee was allowable to the advocate for his appearance in the case. It is against the said order that this appeal has been filed before us by the advocate.

2. As is clear from the facts narrated above, the advocate had to appear and did, in fact, appear in the case before the Company Court op a number of occasions after the remand and he had also filed the necessary petition on behalf of the Liquidator for entering into a compromise and obtained orders from the court sanctioning the compromise. With great respect to the learned Judge, we are unable to share his view that fees will be payable to an advocate appearing in the case during the stage after remand only if evidence had been taken or arguments have been actually heard. The expression 'hearing' occurring in Rule 35 has been used in a very comprehensive sense and it would not be correct to give it a technical interpretation and assign to it only a narrow content, The words 'hearing after remand' used in the rules have, in our opinion, to be understood as referring to the conduct of the case after remand and this is abundantly clear from the fact that in referring to the fee payable under the Rules for the conduct of tie matter in the court of first instance prior to the remand the words used are 'fee allowable for the original hearing'. Any other interpretation, in our opinion, would lead to manifest hardship and we do not think that it is the intention of the rule that even if counsel has appeared in the matter on a number of occasions after remand he is to be disentitled to any fee for such appearance if the case happened to be ultimately decided op a compromise entered mto between the parties and sanctioned by the court. The very fact that the Rules themselves provide for payment of fees to counsel at a reduced rate -- See proviso to Rule 6 (2) -- when a case is compromised is sufficient to show that it is not the intention of the framers of the rule that fees should be payable only where arguments have been advanced and that the expression 'hearing' is not to be understood in such a limited sense.

3. In view of the fact that the case ended in a compromise decree without its having been actually argued the advocate is entitled to one-half of the fees mentioned in Rule 35 which would work out to one-sixth of the fee allowable under the Rules in respect of the original hearing. That was the stand which the Liquidator had taken in the report submitted by him before the Company Judge and we consider that the position so taken up by the Liquidator was quite correct.

4. We accordingly allow the appeal, set aside the order of the learned singleJudge and direct the Liquidator to pay to the appellant a sum of Rs. 1352.50 by way of fees due to him for the conduct of B. C. A. No. 1 of 1959 after its remand by the appellate bench. We do not make any order as to costs in this appeal.


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