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In Re: an Advocate, TuticorIn Thayumanasundarathammal Complainant - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1943Mad493
AppellantIn Re: an Advocate, TuticorIn Thayumanasundarathammal Complainant
Cases ReferredKrishnamachariar v. The Official Assignee of Madras A.I.R.
Excerpt:
- - it is perfectly clear that the respondent did not hold a general retainer on behalf of the minor, but had merely been engaged in certain cases. 12. the seventh charge is to the effect that in spite of demand and without lawful cause the respondent had failed to return to thayumanasundarathammal the records and papers which she had entrusted to him and which had come into his hands in the course of his engagement. it does appear that thayumanasundarathammal did demand from the respondent the return of her papers and that he failed to comply with the demand......moneys received and spent in the name of the mother and in the name of the minor as required by 'rule 27 (note 1) of the rules under the legal practitioners' act.' there was no obligation on the part of the respondent to keep separate accounts. what the rules framed under the legal practitioners' act require is that he should keep accounts and that is what he did. in his book of account he showed what he had received and spent on behalf of the mother and what he had received and spent on behalf of her son. the entries were made separately. the respondent did all that was required of him. the charges which the district judge considered have been proved are charges 6 and 7. charge 6 reads as follows:that you filed fees certificate in the said o.s. nos. 32, 248 and 249 of 1929 in.....
Judgment:

Leach, C.J.

1. The respondent is an advocate of this Court. Seven charges of professional misconduct have been framed against him. They have been investigated by the District Judge of Tinnevelly, who has held that five of them, have not been substantiated but that two of them have been proved. The report of the District Judge now comes up for consideration by this Court. We agree with the District Judge that the five charges which he has decided in favour of the respondent have not been proved, but we disagree with him with his findings on the other two charges. On these charges we consider that the respondent is also entitled to a decision in his favour.

2. The petition on which these proceedings were instituted was filed by Thayumanasundarathammal, the widow of one Sankara Gomathi Chettiar, a merchant of Tuticorin. Sankara Gomathi Chettiar died on 28th July 1927 when his wife was 23 years of age. By her he had three children, the eldest of whom was a boy named Muthiah. Sankara Gomathi Chettiar left certain properties, but according to the report he was, at the time of his death, in embarrassed circumstances. At all material time the respondent practised at Tuticorin and between the month of July 1929 and the month of January 1932 he appeared in suits on behalf of the minor. Muthiah's maternal grandfather, Kashinatha, appears to have instructed the respondent in matters which affected the minor. The first charge is to the effect that while acting for the minor in two cases which are specified and representing him 'generally' the respondent accepted a vakalat from one Joseph Fernando of Tuticorin to appear in proceedings to enforce the payment of a decree which had been obtained against the minor as representing his father's estate. It is perfectly clear that the respondent did not hold a general retainer on behalf of the minor, but had merely been engaged in certain cases. In each case he was given a separate vakalat. There was nothing to prevent him appearing on behalf of Joseph Fernando against the minor and this District Judge has recognised. It may here be mentioned that included in the first charge is an additional charge of having misappropriated the sum of Rs. 2-8-0. There is no question of misappropriation here and it is very regrettable that this additional charge was framed.

3. The second charge is that in October 1929 the respondent received three sums aggregating Rs. 600 from one Karuthiah A. Fernando for payment to the minor, and that the respondent 'dishonestly or negligently' paid the money to Kashinatha, the maternal grandfather who had no authority to receive payment on behalf of the minor. The money was paid over to Kashinatha in order that he might take it to his daughter who was living in seclusion. His daughter, as the mother of the minor, was his lawful guardian. The District Judge has held that the respondent was not dishonest or negligent in doing this, and we agree with him. The money was eventually paid over to Muthukumaraswami Pillai, the brother of the respondent, to whom Karuthiah was indebted. The evidence shows that the payment over to Muthukumaraswami Pillai, was made with the consent of the minor's mother.

4. The third charge is divided into three parts. Charge 3 (a) is to the effect that the respondent in obtaining a consent decree in a suit in which the minor was concerned made a false statement and concealed a material fact from the Court. The suit was Section C. No. 129 of 1930 of the Court of the Subordinate Judge of Tuticorin. It was filed on behalf of the minor to recover from the firm of Aspinwall & Co. Rs. 750 alleged to be due for fibresupplied to them by the minor's father. The defence was that there had in fact been an overpayment to the extent of Rs. 95-15-0 in respect of the fibre delivered to the defendants. Sankara Gomathi Chettiar had dealt with Aspinwall & Co., for many years and they did not wish to have litigation with his son. They were willing to pay the plaintiff the sum of Rs.250 so long as it was treated as a bonus and was not mentioned in Court, but they wished to make it clear that they were not admitting any liability. The alleged untrue statement is this:

Now certain persons have examined the account books of both parties and the voucher produced by plaintiff relating to delivery of fibre. Plaintiff's father was responsible for short weight in respect of fibre supplied by him and it is learnt that there has been short weight. Therefore, in the interests of the minor, it is considered inadvisable to proceed with this case. Taking into consideration the long-standing dealings between the plaintiff and defendant and having regard to the plaintiff's condition the defendant agrees to forgo the amount due to him and the costs of this suit.

4. This charge was framed as the result of observations of Stodart J. in a judgment delivered by him on 17th January 1940 in disposing of two civil revision petitions and three second appeals, which were heard together. It is not necessary to state the circumstances in which those cases arose or to examine in detail what the learned Judge has said there. It is sufficient to say that there is no evidence of any false statement made by the respondent. The charge of concealment of a material fact is in connexion with the payment by Aspinwall & Co. to the plaintiff of Rs. 250. This was not mentioned to the Court because Aspinwall & Co. expressly prohibited its disclosure. We consider that there was full justification for the respondent taking the course which he did in that case. He made no false statement. In charge 3 (b) the respondent is alleged to have made in a written statement filed in O.S. No. 319 of 1933 of the District Munsif Court of Tuticorin another false statement. In the written statement there was this averment:

The allegation that the defendant in Section C. No. 129 paid Rs. 300 into the hands of second defendant is false. It is true that the said suit was settled by defendant on payment of Rs. 300 but the payment was to the plaintiff's mother directly.

5. O.S. No. 319 of 1933 was instituted by the minor against the respondent and his brother Muthukumaraswami Pillai to recover what he alleged had been overpayments made to them by his maternal grandfather acting on his behalf. The sum of Rs. 300 mentioned in the written statement is a mistake for the Rupees 250 received from Aspinwall & Co. in settlement of S.C. No. 129 of 1930. This, of course, was a mere slip. The statement which is said to be false is the statement that the money was paid to the minor's mother direct. It is true that it was not. It was paid by Aspinwall & Co. to the respondent who immediately handed it over to Kasinatha to take to his daughter. Kasinatha, accompanied by the respondent's clerk, immediately took the money to his daughter and an hour and a half later they brought back the petition of compromise duly signed by her. All that can be said here is that the respondent's memory was faulty, but the matter is one of no moment. The money was received by the plaintiff's mother and received by her within a few minutes after it had been paid over by Aspinwall & Co. The third part of the third charge is one of misappropriation. Here the respondent is accused of having misappropriated the Rs. 250 paid by Aspin-wall & Co. This charge must be read with charge No. 4 as that charge has been framed as an alternative charge to charge No. 3(c). Charge No. 4 reads as follows:

That you were privy to a scheme which enabled the next friend of the minor Muthiah Pillai to take away the money without the leave of the Court and without security as required by Order 32, Rule 6, Civil P.C.

6. In disposing of charges 3 (a) and 3 (b) we have said sufficient to indicate that there is no substance in either charge 3 (c) or charge 4. As in the case of charges 3 (a), (b) and (c) charge 4 would not have been framed but for what Stodart J. had said in his judgment of 17th January 1940. In dealing with the petition against the respondent, the Court cannot go into the question whether the civil revision petitions and the second appeals which were dealt with in that judgment were rightly decided, but inasmuch as the learned Judge did make observations which reflected on the respondent's integrity, and those reflections have been made the foundation of some of the charges under consideration it is proper that the Court should express its opinion on the evidence before it. The evidence which was before the learned Judge is the evidence before us to day, and we find ourselves unable to agree with what the learned Judge has said with regard to the respondent. In saying what he did Stodard J. was in effect disagreeing with what the trial Judge and the first appellate Judge had said. The findings of fact of the Subordinate Judge who heard the first appeal were conclusive. Stodard J. refused to be bound by those findings, because he considered that the Courts below had been strongly influenced by the 'wrong assumption' that the case of the plaintiff as set up at the trial was inconsistent with the case stated in the plaint. The District Munsif and the Subordinate Judge dealt with the case on the evidence on the record. That evidence is the evidence here and as we have indicated we can see no justification for the reflections made by the learned Judge on the respondent.

7. The fifth charge is that the respondent having been employed by Thayumanasun-darathammal to act for her in her own suit and in a suit filed by her as the next friend of her minor son Muthiah, had omitted to keep separate accounts of moneys received and spent in the name of the mother and in the name of the minor as required by 'rule 27 (Note 1) of the Rules under the Legal Practitioners' Act.' There was no obligation on the part of the respondent to keep separate accounts. What the rules framed under the Legal Practitioners' Act require is that he should keep accounts and that is what he did. In his book of account he showed what he had received and spent on behalf of the mother and what he had received and spent on behalf of her son. The entries were made separately. The respondent did all that was required of him. The charges which the District Judge considered have been proved are charges 6 and 7. Charge 6 reads as follows:

That you filed fees certificate in the said O.S. Nos. 32, 248 and 249 of 1929 in contravention of the rule that the giving of a promissory note does not entitle a legal practitioner to certify that he has received his fee.

8. Rule 95 of the Civil Rules of Practice of this Court states that unless the Court otherwise orders, and except in the case of an advocate or pleader appearing on behalf of the Government or the Agent of the Court of Wards, no fee shall in any case be entered as recoverable in a decree or order except on production of a certificate signed by the advocate or pleader, that he has received such fee. There is an explanation to this rule and it is in these terms:

The fact of a promissory note or other agreement to pay the fee having been given or made by the client does not entitle the advocate or pleader to certify that he has received the fee.

9. Rules have also been framed under the Legal Practitioners' Act, 1879, and Rule 30 is similar to Rule 95 of the Civil Rules of Practice. To Rule 80 is added a similar note. No corresponding rule has been framed under the Bar Councils Act, but on 16th January 1933, the Bar Council, having considered the judgment of Ramesam J. in In re A.V. Subba Rao A.I.R. 1930 Mad. 413 passed the following resolution:

Resolved though there is no legal prohibition, the Bar Council views with disfavour the practice of taking; promissory notes for fees. The Bar Council is also of opinion that the explanation to Rule 95 of the Civil Rules of Practice correctly lays down the principle.

10. In In re A.V. Subba Rao A.I.R. 1930 Mad. 413 Ramesam J. observed:

There may be cases in which the fee due to a vakil may be otherwise adjusted, by which I mean an adjustment amounting to more than a mere agreement to pay, though no actual money has passed. In such cases the fee certificate cannot be said to be false. When a promissory note especially a negotiable instrument is given it may be equivalent to payment and I doubt if Note 2 to Rule 30 in Legal Practitioners Rules is strictly correct.

11. It is obvious from this statement that the learned Judge was of the opinion that a practitioner could file for purposes of taxation a certificate of payment when he had not, in fact, received his fee in cash but had in lieu received a promissory note. This is an opinion which we do not share. It would be wrong for a practitioner to present such a certificate. In fact, it would amount to professional misconduct if a legal practitioner, whether an advocate or a pleader, filed a certificate stating that he had received the amount of his fee when he had merely received from his client a written promise to pay. Of course, if he disclosed in his certificate that what he had received was a promissory note and not cash there would be nothing improper. It would be then for the Court to decide whether the fee should be allowed on taxation and it is inconceivable that the fee would be allowed, especially in view of Rule 95 of the Civil Rules of Practice of this Court and Rule 30 of the Rules framed under the Legal Practitioners' Act. In Shiva Narain Jaia v. Judges of the High Court of Judicature at Allahabad the Privy Council held that an advocate was not guilty of professional misconduct when, in the honest belief that he was entitled to do so, he stated in his certificate of fees that he had received Rs. 140 in cash and Rs. 735 by means of a promissory note, and the certificate in that form was accepted by the District Judge. This was an appeal to the Judicial Committee from an order passed by the Allahabad High Court suspending an advocate for three months in the circumstances mentioned. The Privy Council held that the order was wrong. The judgment there does not affect the principle that an advocate will be guilty of professional misconduct if he files a certificate to the effect that he has received his fee in cash, whereas in fact he has received a promissory note in lieu of cash. In that case there was a full disclosure of the position. In this case the respondent filed a certificate indicating payment of his fee in cash whereas he had merely received a promissory note. He says that he did it in the bona fide belief that he was acting properly, and as the decision of Ramesam J. in In re A.V. Subba Rao A.I.R. 1930 Mad. 413 had not then been overruled this explanation must be accepted. It follows that we disagree with the District Judge that the respondent's action in the circumstances was improper. With the judgment in this case before him the respondent will no doubt act differently in future.

12. The seventh charge is to the effect that in spite of demand and without lawful cause the respondent had failed to return to Thayumanasundarathammal the records and papers which she had entrusted to him and which had come into his hands in the course of his engagement. It does appear that Thayumanasundarathammal did demand from the respondent the return of her papers and that he failed to comply with the demand. He claimed that he was entitled to a lien on the papers in respect of his outstanding fees, although when the proceedings were started he indicated his willingness to hand back the papers to her. She did not, however, take advantage of this offer and consequently her complaint does not appear to have been a serious one. In Krishnamachariar v. The Official Assignee of Madras A.I.R. 1932 Mad. 256 this Court held that an advocate has no lien apart from an express agreement with his client. It is not necessary to consider here whether this decision is open to question, because even if the respondent wrongly claimed a lien it would not make him guilty of professional misconduct. The honesty of the respondent in claiming a lien cannot be disputed. If he made this claim wrongly, as according to Krishnamachariar v. The Official Assignee of Madras A.I.R. 1932 Mad. 256 he did, then the client's proper remedy was by way of suit. There can be no professional misconduct when an advocate puts forward a claim bona fide. In In re a pleader A.I.R. 1942 Mad. 553 this Court pointed out that in this country an advocate combines the functions of a solicitor and a barrister in England and, as he fulfils both roles, he must be subject to the disabilities of both. As he fulfils the role of a solicitor it may be argued that he is entitled to the advantages of a solicitor. In a suitable case the decision in Krishnamachariar v. The Official Assignee of Madras A.I.R. 1932 Mad. 256 may have to be re-considered. For the reasons given the charges against the respondent must be dismissed, and we will add that he leaves the Court without any stain on his character.


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