P.B. Mukharji, J.
1. This is a taxation matter coming on a Chamber Summons sent to me for disposal by way of transfer from the list of my learned brother Banerjee as question of taxation of fees paid to him as counsel has been raised in this appln.
2. The matter arises out of a mtge. Suit No. 298 of 1937 Gour Chand Mullick v. Praduymna Kumar Mullick. In that suit pltf. Gour Chand Mullick was appointed a Receiver. Pltf. Gour Chand Mullick employed Messrs. P.I. Mullick & Co , as the attorneys to act in that suit & signed a warrant of attorney in their favour. He also employed his said attorneys to act for him in his capacity as Receiver but he did not sign any fresh warrant of attorney as such receiver.
3. Two points arise for determination on this appln.:
(1) The Taxing Officer by his report dated 14-2-1949 has held that the costs incurred by Messrs. P.I. Mullick & Co., as Attorneys for the Receiver cannot be taxed unless there is a proper order of the Ct. directing such taxation & from whom & from what estate that costs will come & has held that the Taxing Officer cannot act on an implied retainer without a specific order to do so.
(2) The Taxing Officer has also disallowed two items of Counsel's fees: (a) he has disallowed 5 G. Ms. out of 10 G. Ms. paid to Mr. B.C. Ghosh, Counsel briefed on 4-1-1940 in respect of an appln. made in Chambers on behalf of the pltf. Gour Chand Mullick for payment to him as Receiver a certain sum of money. He has disallowed this item on the ground that there is no written consent of the said Gour Chand Mullick for payment of a fee of 10 G Ms. which was in excess of the maximum provided by the Schedule fixed in the Table of Fees given under Rule 32 (4) of the Taxation Rules under chap. 36 of the Original Side Eules of this Ct. (b) he has disallowed fees of 13 G. Ms. (10 G. Ms for the hearing & 3 G. Ms. for the consultation) being fees for hearing of the suit paid to Mr. S.N. Banerjee (Jr.) Counsel on 5-4-1938 Mr. Banerjee was briefed on the express instruction of the said Gour Chand Mullick at the
hearing of the suit before Lort-Williams J. The case was called on & part heard on 5-4-38 & then adjourned till 26-4-38 when the brief was withdrawn from him on the express instructions of the said Gour Chand Mullick & made over to Counsel Mr. N.C. Chatterjee. This item of fees was also disallowed on the ground that there was no written consent of the said Gour Chand Mullick to pay two fees which taken together were in excess of the maximum fees as provided by the table of fees shown under chap. 36, Rule 32(4).
(3). I propose to deal with the first point as to whether I should issue necessary directions for taxation of the Receiver's costs. That Gour Chand Mullick as Receiver employed Messrs. P. I. Mullick & Co. as his attorneys is to my mind beyond doubt. The letter of 28-4-1941 addressed to the attorneys Messrs. P.I. Mullick & Co. by one S Chatterjee who was a constituted attorney for the pltf. Gour Chand Mullick (as will appear from various proceedings affirmed by him as such) & who signed the letter for the pltf. Gour Chand Mullick is in the following terms. 'Dear Sirs,
Pradyumna Kumar Mullick,
I send herewith the Account Book & Statements including Vouchers. Please file the same & do the needful.'
4. In pursuance of such direction contained in the letter, Messrs. P. I. Mullick & Co. acted as the Receiver's attorneys & the said Gour Chand Mullick received the benefit of the services of such attorneys. The question therefore is whether the costs of the Receiver could be taxed although Gour Chand Mullick as Receiver did not sign a Warrant of Attorney & whether having regard to the fact that Messrs. P. I. Mullick & Co. actually acted as attorneys for the said Receiver & which Receiver received the benefit of the services of Messrs. P. I. Mullick & Co., attorneys & whether such costs could be taxed on the basis of an implied retainer.
5. I have no hesitation in issuing direction for taxation of the costs of the Receiver. In the first place it has to be observed that this was a mtge. suit & having regard to the pltf's stake in the property in suit as a mtgee. he was appointed the Receiver without any remuneration & without security. Indeed this was not a case where a stranger or an independent person is appointed a Receiver but the pltf. is appointed a Receiver because he is the pltf. & because he is most interested in the preservation of the property pending final determination of the suit. As pltf. he has already signed a Warrant of Attorney & in my opinion, in a case like this, that is a sufficient Warrant for taxation of costs incurred by the pltf. as a Receiver, In the second place a proper retainer may on the facts & circumstances of a case be implied as Cordery says in the law relating to Solicitors, Edn. 4, p. 91 : 'An authority may however be implied when the client acquiesces in & adopts the proceedings.' The learned author also points out further on the same page 'a proper retainer may also be implied. Thus the receipt of a fund out of Ct. produced by an action is equivalent to a retainer in the action.'
6. Here on the facts & circumstances of the case presented before me I find that the Receiver not only acquiesced in but adopted the proceedings taken by Messrs. P. I. Mullick & Co. as the Receiver's attorneys & in fact obtained benefits. In that view of the matter, it is a just & fit case in my opinion where I can imply a retainer & I do so all the more readily because the said Gour Chand Mullick is dead.
7. The act of authorising or employing a Solicitor to act on behalf of clients constitutes the Solicitor's retainer by that client. A retainer in my opinion need not be in writing although it is always advisable to have a writing. Where there has been no written retainer the Ct. in my opinion may imply the existence of a retainer from the acts of the parties in a particular case. As Stirling J. points out in Blyth v. Fladgate, (1891) 1 Ch. 337 at p. 355 : (60 L. J. Ch. 66) :
'It is quite plain that no formal or express retainer was ever given by him to them but that wag nor, necessary for although no such express retainer has been given, the relation may subsist & its existence may be inferred from the acts of the parties. If any authority for that proposition be required it will be sufficient to refer to the decision of the Ct. of Appeal in the case of Bean v. Wade, (1885-2 Times L. R. 157).'
The law is also clearly laid down to the same effect in 31 Hals. pp. 87 to 88, Articles 126 and 127.
8. The law in India is not different. An examination of Rules of the Original Side of this Ct. shows that none of them makes it obligatory that a retainer must be in writing. Rule 66 of chap. 2 requires that no suitor of this Ct. having an attorney shall be at liberty to file a Warrant of Attorney in favour of another attorney except with the consent of the former Attorney without the leave of the Ct. or of a Judge first had & obtained. But that rule does not enjoin that a retainer should always be in writing. Rule 69 of chap. 2 makes the provision that no Warrant of Attorney shall be filed unless it satisfies the requirements mentioned therein. But in my opinion these Rules do not require a retainer to be always in writing & there is nothing in the Rules to exclude an implied retainer. That being so English Rules & practice which permit & recognise implied retainers will be followed as provided by Rules 2 & 3 of chap 36.
9. I, therefore, order taxation of the costs incurred by Messrs. P. I. Mullick & Co. as attorneys for the Receiver Gour Chand Mullick & such costs will come out of the estate of Gour Chand Mullick which has come into the hands of the resps. as his heirs & legal representatives & I direct the Taxing Officer to act accordingly.
10. I proceed now to determine the second question on this appln. in respect of counsel's fees which have been disallowed by the Taxing Officer. The fees disallowed are two items--one is the fee of 5 G. Ms. disallowed in respect of fee of Mr. B.C. Ghose & the other is the fee of 13 G. Ms. of Mr. S.N. Banerjee (Jr.). The resp.'s attorney has contended before me that such fees being in excess of the limits prescribed by the Ct. were rightly disallowed by the Taxing Officer as there was no written consent of the said Gour Chand Mullick. It is beyond doubt that these fees were actually paid to counsel.
11. The payment to Mr. B.C. Ghose is clearly proved from the entries of the Cash Book of Messrs. P. I. Mullick & Co. dated the 4-1-40 & 23-1-40. On 4-1-40 the Brief was delivered to Mr. Ghosh & on the same day cheque was received by the Solicitors from client Gour Chand Mullick. That appears from the entries on 4-1-40 in the cash book. The entry under the date 23-1-40 in the cash book of Messrs. P. I. Mullick & Co. proves that 10 G. Ms. were paid to Mr. B. C. Ghose on that date. I have no hesitation in accepting such entries & in holding that in fact the fees of 10 G. Ms. were actually paid to Mr. B. C. Ghosh.
12. The proof in respect of payment of the fees of 18 G. Ms. to Mr. S. N. Banerjee (Jr.) is also in my opinion beyond doubt. The Back Sheet of Mr. Banerjee has been produced before me which shows that the brief was delivered to him on 4-4-38 & was part heard before Lort-Williams J. on 5-4-38 & adjourned for a fortnight. There is also the discharge of the learned Counsel's signature of the brief in acknowledgment of the payment of the fees of 13 G. Ms. The entries in the cash book of Messrs. P. I. Mullick & Co. under the dates 2-8-1938 & 30-8-1938 prove beyond all doubt the payment of 13 G. Ms. to Mr. Banerjee. I, therefore, have no hesitation in holding that the fees of 13 G. Ms. were actually paid by Messrs. P. I. Mullick & Co. to Mr. Banerjee.
13. The resp.'s attorney contends that although in fact such payments have been made I cannot allow these payments to be taxed because chap. 36, Rule 32 (4) does not permit such taxation except on the production of the written consent of the client. 14. In dealing with this point I must say at once that on the facts I have stated before the consent of client is clearly proved by the fact of client's making the payment which is fully established by the entries in the cash book of the attorneys Messrs. P. I. Mullick & Co. The Taxing Officer in my opinion followed the correct procedure because he is not in a position to allow fees higher than those mentioned in the Table under Rule 32 except on the production of the written consent of the client. So far as Mr. Ghosh's fees are concerned I hold client's consent was there but it was not a consent in 'writing'. But while Rule 32 in chap. 36 of the Original Side Rules of the Ct. defines the powers of the Taxing Officer it is in my opinion not intended to take away the power of the Ct. in a proper case to allow fees greater than the maximum authorised by the Rules & this Ct. has jurisdiction & it has always exercised such jurisdiction to allow fees paid to counsel in excess of the maximum laid down in the Rules when the consent of the client to such payment is proved although such consent is not in writing. If any authority is needed for this proposition reference may be made to the judgment of Ban-kin C. J. in the decision of the Ct. of Appeal in Ramjas v. Orr Dignam and Co., : AIR1932Cal233 as well as to the observations of Sanderson C. J. in Romesh Chandra v. Jadab Chandra, in the Court of Appeal reported in : AIR1924Cal753 . To the same effect is the observation of Sanderson C. J. in another decision of the Ct. of Appeal in Sailendra Nath v. Dharani Mohan, 49 Cal. 618 : (A. I. R. (9) 1922 Cal. 402).
15. As the consent of client to pay the fee of 10 G. Ms. to Mr. Ghosh is proved by the client actually making the payment to the attorneys for the purpose of payment to the counsel I order taxation of the fee of 10 G. Ms. paid to Mr. B.C. Ghose although there is no consent in 'writing' of the client & such fees are to be paid by the resps. as heirs & legal representatives of the said Gour Chand Mullick deceased out of the estate of the said deceased in their hands & I direct the Taxing Officer to act accordingly.
16. The next item is the fees of 13 G. Ms. paid to Mr. Banerjee (Jr.). It is necessary to deal with-certain facts so far as this item is concerned. By letter dated 20-6-1938 client Gour Chand Mullick wrote to his attorneys Messrs. P. I. Mullick & Co. in the following terms :
'Please deliver the brief to Mr. N. C. Chatterjee in the above suit on my behalf. Mr. S.N. Banerjee (Jr.) is not entitled to hearing fee. He is only entitled to a fee for adjournment of the case on the basis of an explanation as is provided in Rule 34, Chap. 36 of the H. C. Rules. I am informed that under this rule Mr. Banerjee cannot claim his fees for more than 3 G. Ms. Please pay him 3 G. Ms.'
This is 'consent in writing' to pay 3 G. Ms. out of 13 G. Ms. & must, therefore, be allowed without controversy. With regard to the balance of the fees of 10 G. Ms client relied on the explanation of of Rule 34, Chap. 35. In my judgment Rule 34 has no application whatever to the facts of this case. The reason why that rule does not apply is because it was not a case of simple adjournment but as the learned counsel's endorsement on the Brief shows & which I have quoted above the suit was actually part heard & adjourned for a fort-night. In such a case as that Rule 34 in my opinion does not apply. Messrs. P. I. Mullick & Co. replied to that letter on 22-6-1938 in the following terms :
'We have considered the Rule referred to in your above letter & obtained the views of the Asst, Taxing Officer. Mr. S.N. Banerjee (Jr.) cannot be called upon to forgo his fees you having required him to return the same.'
17. In my opinion the contentions of the appcts. are sound. If client has engaged a counsel & if the attorney of the client has in fact delivered the brief to the counsel the counsel is entitled to his fees if the attorney withdraws the brief from the counsel on the instruction of his client provided of course the counsel was agreeable to appear or work on the brief. Delivery of the brief to the counsel entitles the counsel to the fees marked on the brief so long as the counsel is prepared to discharge has obligations in respect of the brief. The fact that the brief was withdrawn by the attorney on the instruction of the client & the counsel had not to work out the brief cannot in my opinion in such circumstances as I have stated deprive the counsel of his right to the fees. If, therefore, in such a case counsel insists on his fees as he has a right to do & if the attorney pays him I do not see why the attorney should not be reimbursed ' by client. (2 Halsbury, Hailsham Edn. pp. 516-7). 18. Strictly speaking, the refusal of the client in this case to pay this item of fees cannot in my opinion really be brought under the Rule governing maximum fees under Rule 32 (4) of chap. 36 The fee of 13 G. Ms. by itself in this case payable to Mr. Banerjee (Jr.) was not in excess of the Table of Fees. It became in excess because of the client's desire to change one counsel for another & as the latter counsel has to be paid his fees the fee payable to Mr. Banerjee (Jr.) was said to be in excess of the maximum prescribed by the Table of Fees. In my opinion Rule 32 (4) was not intended to apply at all to such a case as this.
19. Even if it did, this Ct. under Rule 9 of Chap. 36 in my opinion has the power to allow such fees & to direct by whom such fees are to be paid.
20. There is one other fact which is relevant on this point & that is the order of 9-8-1943 made by Edgley J. the relevant provision of which runs as follows :
'The Taxing Officer in taxing such costs (meaning costs of the suit) do allow costs of two counsel wherever employed by the pltf. at the hearing of the suit or in interlocutory applns. to the pltf's. attorneys as against his own clients'.
The attorney for the resps. has contended that there was some dispute about this order. But whatever that dispute may have been at one stage it is conceded that there is no longer any dispute in respect of the same & no steps have been taken to vary or discharge that order. That the client Gour Chand Mullick in fact employed two counsel, one after the other cannot be disputed.
21. In that view of the matter, I order taxation of the fee of 13 G. Ms. paid as fees to Mr. Banerjee (Jr.) & such fees are to be paid by the resps. as heirs & legal representatives of Gour Chand Mullick deceased & out of the estate of the said deceased in their hands & direct the Taxing Officer to act accordingly.
22. There will be an order in terms of the Summons.
23. Certified for counsel & the resps. would be-entitled to retain their costs out of the estate of' Gour Chand Mullick.