CASE 1

D.C. Appeal No. 16/1993

A vs. R 25(1) 1998 IBR135

Shri C.L. Sachdeva (Chairman) and Shri O.P. Sharma and Shri T.P. Singh (Members)
Judgement Dated 5th October, 1996

FACTS OF THE CASE

Complainant’s Case:

Complainant had executed a registered sale deed with an option to repurchase a house
property situated in Deeravalli village in favour of one Lanka Samba Shiva Rao. However,
the Complainant continued to be in possession and enjoyment of the property. Vendor made
attempts to take the possession of the property forcibly in collusion with the police and
Complainant filed a suit for injunction against him through his Advocate, i.e., the Respondent
at OS No. 87/85. Vendors also filed a counter suit at OS No. 89/85 against the Complainant
in the Sub-Court of Gudivada for foreclosure of the mortgage, claiming the above-mentioned
sale deed as mortgage deed. This was opposed by the Complainant in his Written Statement
wherein he claimed that the document is sham and nominal.

Meanwhile in OS No. 87/85 Court ordered for payment of deficit Court fee under sec. 24
(b) of the Andhra Pradesh Court Fees and Suits Valuation Act. The Complainant alleges that
the Respondent was negligent in conducting the case and did not inform the Complainant
regarding any progress of the case as a result of which the order of the Court for payment of
deficit Court fee could not be complied with. This resulted in rejection of the plaint. Even this
was not intimated to the Complainant by the Respondent. The Complainant further alleges
that there was no negligence on his part and he regularly kept in touch with the Respondent-
Advocate and asked him about the stages of both the suits. However, he did not get true reply
from the Respondent. On 23.9.1991 he came to know from some other persons that OS No.
87/85 was dismissed long back, on 15.4.1986, and that OS No. 89/85 was allowed. On
verification, the Complainant found the rumors true. On 24.9.1991 the Complainant met
Respondent-Advocate and requested him to return the papers of both suits with a “no
objection” to engage another Advocate.

OS No. 89/85 was posted on 27.9.91 for the examination of PW3. On 25.9.1991, the
Respondent-Advocate returned the Complainant’s papers in OS No. 89/85 only, and
promised to take adjournment on 27.9.1991. Accordingly, on 27.9.1991 he
obtained adjournment of OS No. 89/85 to 4.10.91. However, later the case was again
advanced and the evidence of PW3 was recorded. Against his own promise, Respondent-
Advocate cross-examined PW3.

Respondent’s Case:
Respondent-Advocate denied the averments of the complaint and blamed the Complainant
for non-payment of Court fee in OS No. 87/89.

PROCEEDINGS

The D.C. of S.B.C. framed as many as eight issues and heard the parties on 22.6.1995
assisted by their counsels. Both the parties also submitted their written arguments.
Respondent’s daughter who had joined the profession recently also filed a mercy
application.

The D.C. of S.B.C. after going through the records passed a speaking order with the
following observations:

1. When the Complainant sought “no objection” to change Advocates, the

Respondent should have given his no objection and retire from the case without
any hesitation.

2. It is unbecoming of an Advocate to keep his client in darkness about the

progress of the case. The Respondent did the same thing in this case. Therefore,
he could not make good deficit of Court fee and consequently the plaint in OS
No. 87/85 was rejected. The evidence of RW1 and RW2 in respect of the
financial capacity of the Complainant is not acceptable. Allegation that OS No.
87/85 was dismissed on 15.4.86 due to negligence of Respondent stands
established.

3. Respondent-Advocate has cross-examined PW3 in OS No. 89/95 without the

consent and knowledge of the Complainant, especially when Complainant had
lost confidence in the Respondent. It is accepted that the Respondent promised
to obtain adjournment in OS No. 89/85, but cross-examined PW3 therein in the
absence of the Complainant.

4. Respondent has admitted that he refused to file delay condonation application

in application for restoration of OS No. 87/85, which is unbecoming of him.

5. Evidence of the Complainant to the effect that Respondent-Advocate did not

return the records in OS No. 87/85 to the Complainant is accepted.

On the above grounds the D.C. of S.B.C. by its order dated 14.3.1993 debarred the
Respondent-Advocate from practice for a period of One year.

ORDER

D.C. of B.C.I. found no reason to differ with the order and reasons of the D.C. of S.B.C. In
the circumstances, the order passed by the S.B.C. was affirmed and the appellant was directed
to undergo the punishment imposed by the D.C. of S.B.C. The stay order of the S.B.C. was
vacated.

CASE 2

District Judge, Nainital vs. R 25(1) 1998 IBR139

B.C.I. Tr. Case No. 40/1991

Shri C.L. Sachdeva (Chairman) and Shri O.P. Sharma and Shri T.P. Singh (Members)

Judgement Dated 5th October, 1996

FACTS OF THE CASE

Proceedings under sec. 35 of the Advocates Act 1961 were initiated against the Respondent-
Advocate in D.C. Case No. 59/89 before the D.C. of Uttar Pradesh S.B.C. It appears from the
records that on account of dilatory tactics adopted by the Respondent-
Advocate, D.C. of S.B.C. could not dispose of the matter within 1 year. Therefore, the matter
stood transferred to the D.C. of B.C.I. under sec. 36 B of the Advocates Act, 1961.Several
notices were sent to the Respondent, but the Respondent did not appear. Hencethe case was
decided ex parte against him.

A copy of the judgement dated 2.12.1987 passed by the District Judge,Nainital in a Review
Petition in a Motor Accident Case was on record. From this judgement following facts
appeared.

One Shri Mohsin Ali Khan s/o Mohd. Ali Khan of Bareilly filed a MAC No. 14/82
alleging that he was literally crippled and permanently disabled due to the injuries sustained
by him in an accident caused by a mini bus bearing registration No. USE 7725, which
was insured by New India Assurance Co. Later on, an application was filed by the L.R.s of
the Petitioner Mohsin Ali Khan alleging that Mohsin Ali Khan had died on 28.4.83 due to
the injuries sustained by him in the accident, and they prayed that they be included as
his Legal Representatives.

Another MAC No. 21/84 was also instituted by the said L.R.s of Mohsin Ali Khan
alleging that they were the dependants of Shri Mohsin Ali Khan who died in a road
accident on 11.9.1983 caused by a mini bus bearing registration No. USM 6949 which
was insured by M/s. Oriental Fire and General Insurance Co. Ltd.

If Mohsin Ali Khan had died on 28.4.83, MAC No. 21/84 is a false case. This case was
filed by the Respondent-Advocate who is no other than the brother of Mohsin Ali Khan.
It is clear that in collusion with the family members of Mohsin Ali Khan the Respondent-
Advocate had filed this false case to obtain an award from the Tribunal. Being Mohsin Ali
Khan’s brother, he very well knew that Mohsin Ali Khan had died on 28.4.83 and not
on 11.9.1983 as alleged in the petition. This fraud came to the light when M/s. Oriental
Fire & General Insurance Co. Ltd. applied for quashing of the award of MACT in MAC
No. 21/84, and got the same quashed. District Judge, Nainital referred the case to U.P.
S.B.C. for initiating misconduct proceedings against the Respondent.

PROCEEDINGS

The D.C. of B.C.I. framed the following issues:

1. Whether the Respondent has stated any falsehood before the MACT, Nainital for
illegal gains?

2. Whether the Respondent has committed any fraud in misrepresenting the facts
deliberately before the tribunal?

3. Whether the Respondent has committed any professional misconduct?

From the above facts, the D.C. of B.C.I. made the following observations:

“In recent past it has been experienced that in the cases of Motor Accident Claim, the
role of the lawyers in some of the cases has not been up to the mark. Cases of
misappropriation of money by the lawyers awarded by the way of compensation were
frequently being brought to the notice of B.C.I. as a result of which necessary
amendments were made in the practice of preparation of the cheques in the name of the
claimant’s counsel to the claimants themselves, which has now been adopted. Facts of
the above noted case are peculiar in nature and the same cannot be dealt softly and
casually. The charged Advocate who has taken the matter very lightly, though serious in
nature and has not led any effective evidence in support of his defence, a word of
apology cannot exonerate him from the charge levelled against him.”

ORDER

Under the circumstances, committee was of the view that the charged Advocate should
be debarred for a period of two year from the date of notification of the order.

CASE 3

A vs. R
23(1) 1996 IBR 135

D.C. Appeal No. 24/1990

Shri D.V. Patil (Chairman) and Shri R.S. Chahar and Shri Khazan Singh (Members)
Judgement Dated 4th June, 1993

FACTS OF THE CASE

Complainant’s Case: Complainant was a General Power of Attorney-holder of his

mother-in-law, one Mrs. Mary Raymond, during her life time, and her L.R. after her
death. Respondent was the Advocate of the said lady and he had prepared her will. The
will was in the custody of the Respondent. The Respondent had passed a receipt to that
effect. Subsequently Mrs. Raymond changed her Advocate and the new Advocate requested
the Respondent to hand over the will to him. Respondent refused to hand over the will.
Therefore Mrs. Raymond got a new will prepared by the new Advocate. Even thereafter, the
Complainant made several requests to the Respondent to hand over the will to him, but all his
efforts were fruitless. Thus, the act of the Respondent was mischievous, and had Mrs.
Raymond died intestate, it would have resulted in serious damage to her.

PROCEEDINGS

D.C. of Karnataka S.B.C. rejected the complaint holding that there was no prima facie
case. This order was set aside by the B.C.I. and hearing was ordered.Both parties were heard
by the D.C. of Karnataka S.B.C. and the complaint was dismissed holding that the will had
become res nullius and the Respondent was not liable to return it. D.C. of S.B.C. gave special
emphasis on the fact that there was considerable delay in filing the complaint. It also
observed that the complaint arises out of animosity between parties. In any case, it was held
that the Complainant nowhere alleged the misuse of the will by the Respondent, and he could
not prove that its non return caused any loss or damage to the Complainant or Mrs. Raymond.

D.C. of B.C.I. differed on all these views expressed by the D.C. of Karnataka S.B.C. The
said will was the property of Mrs. Raymond and she was entitled to recover the same from
the Respondent during her life time. After her death the Complainant who was her Legal
Representative was entitled to recover it. This was not disputed by the Respondent.
Therefore, non-return of will amounted to breach of trust on the part of the Respondent.
Mere refusal to return the will was sufficient to make the Respondent liablefor misconduct
and it was immaterial whether or not the will was misused by him, or
whether or not the non-return of the will resulted into any loss or damage to Mrs. Raymond
or to the Complainant. B.C.I. also observed that mere delay in complaint or strained relations
between the parties per se would not make the complaint false.

ORDER

In the result, the appeal was allowed and order of the D.C. of the Karnataka S.B.C. was
set aside. The Respondent was held guilty of misconduct. He was suspended from practice
for a period of one year.

CASE 4
C vs. A, 19(3&4) 1992 IBR 125

B.C.I. Tr. Case No. 127/1988

Shri K.J. Shethna (Chairman) and Shri B.N. Sharma and Shri Ajay Kumar (Members)

Judgement Dated 30th June 1990

FACTS OF THE CASE

Complainant’s Case: Respondent was running a Solicitor’s Firm. He was hand in glove
with an impostor who represented himself to the public as a financier.
Complainant approached that impostor for a loan of Rs. 7,00,000. The impostor took him to
theRespondent. Respondent represented that he was a reputed Advocate, and therefore,
worked only for genuine Financial Institutions. He told that the parties have to pay him 3.5%
of the loan amount as fees and 2% towards stamp duty that would be required at the time of
disbursing the loan. Thus, he demanded, in all, 5.5% of the loan amount in
cash. He said that payment in cash will speed up the procedure and the disbursement could be
made early. Therefore, the Complainant paid Rs. 38,500 to the Respondent, which is 5.5% of
Rs 7,00,000.

Later on, the Respondent-Advocate told the Complainant that as the responsibilities were too
heavy, he would proceed with his legal work only if the Complainant paid him Rs. 10,000
towards his fees. Complainant reluctantly paid the amount as demanded by the Respondent.

But instead of disbursing loan to the Complainant, the financier initiated a false police case
against the Complainant himself. Complainant approached the Commissioner of Police, and
with his help, the financier was booked to law. But the police advised the Complainant to
proceed against the Respondent through the S.B.C. This is not the only such case against the
Respondent. The Respondent has committed many such frauds.

PROCEEDINGS

The following issues were framed by the D.C.:

1. Whether the Respondent-Advocate is engaged in a finance racket to induce and deceive

innocent loan seekers?

2. Whether the Respondent-Advocate has defrauded the Complainant?

3. Whether the Respondent-Advocate has committed any misconduct?

Complainant examined 42 witnesses including himself, and got three documents marked. The
Respondent examined himself as his witness and got four documents marked.
From the evidence there was no doubt in the minds of the members of the D.C. of B.C.I.
that the Respondent-Advocate in collusion with the impostor deceived innocent people, and
also that he had defrauded the Complainant among others. Several objections
raised by the Respondent on the technicalities were overruled by the D.C. of B.C.I.

Once the fact of fraud was proved, there was no doubt that the Respondent had committed
professional misconduct.The Respondent did not show any regret or remorse. The
misconduct committed by the Respondent was of a very serious nature. There were no
extenuating circumstances.

ORDER

Therefore, the D.C. of B.C.I. ordered for removal of the name of the Respondent from the
Roll of Advocates. He was also ordered to pay Rs. 2,000 to the Complainant towards the cost
of the proceedings.The D.C. of B.C.I. relied upon the judgements of the Supreme Court
reported in AIR 1963 SC 1313 and AIR 1985 SC 28 for giving the punishment in the cases
of misconduct.

CASE 5

F vs. K19(3&4) 1992 IBR 149

B.C.I. Tr. Case No. 39/1989

Shri K.J. Shethna (Chairman) and Shri B.N. Sharma and Shri H.C. Sharma (Members)

Judgement Dated 28th March 1992

FACTS OF THE CASE

Complainant’s Case: As per the averments of the complaint, the Complainant had filed
a suit for partition against 14 persons in the Court of Civil Judge (Junior Division),
Malegaon. He was represented by the Respondent-Advocate. The suit was dismissed by
the Civil Judge (Junior Division), Malegaon, and the Complainant preferred an appeal
against the said order and the appeal was allowed by the appellate Court. The appellate
Court ordered partition and remanded the suit to the trial Court for final decree
proceedings.

Defendant No. 5 in the suit for partition, Shri Md. Ali AyubAsghar filed application for
final decree. In these proceedings he was represented by the Respondent-Advocate.
Hence, the Complainant alleges that the Respondent has committed professional
misconduct by changing sides in the case.

Respondent’s Case: Respondent admitted the facts pleaded by the Complainant. But
according to the Respondent, Defendant No. 5 (Md. Ali AyubAsghar) was not at lis with
the Complainant. In fact, both of them together approached the Respondent for filing of
the suit. In fact they were to file the suit together as co-plaintiffs. But, at the time of
filing of the suit Md. Ali AyubAsghar was not available. Therefore, he was impleaded as
proforma Defendant. In fact, Defendants No. 1 to 4 are the real Defendants. Hence, he
has not, in fact, changed sides, as in that suit for partition, the Complainant and
Defendant No. 5 therein had common interest. Further, when the Respondent filed final
decree application on behalf of Defendant No. 5 Md. Ali AyubAsghar, Complainant
raised objections. Immediately thereupon the Respondent retired from the case. This
shows his bona fides.

PROCEEDINGS

On the basis of the pleadings of the parties, the D.C. of the B.C.I. framed the following
issues:

1. Whether Respondent has committed any professional misconduct as alleged in

the complaint?

2. To what relief, if any, is the Complainant entitled?

The parties examined themselves as their respective witnesses. The Complainant produced 3
documents while the Respondent produced only one document. They did not examine any
independent witnesses. They supported their pleadings and got the documents marked during
the course of their evidence.Rule 33 of the B.C.I. Rules which lays down the Restrictions on
Senior Advocates and Standards of Professional Conduct and Etiquette reads as under:

“An Advocate who has, at any time, advised in connection with the institution of a
suit, appeal or other matter or has drawn pleadings or acted for a party, shall not
act, appear or plead for the opposite party.”

In the present case it was admitted that Respondent had filed suit on behalf of
the Complainant. The certified copy of the plaint was on record. Para 4 of the plaint
specifically stated that Defendants No. 1 to 4 had acted against the interest of the
plaintiff and Defendants No. 5 to 14. Para 5 of the plaint discloses that the cause of
action to file the suit arose when Defendants No. 1 to 4 denied the claim of the
Complainant.

Therefore, it was clear that the interests of Complainant and Md. Ali AyubAsghar were
common and not distinct in that suit. Therefore, there was nothing to show that the
Respondent had violated the provisions of Rule 33.

ORDER

In the result, the complaint was dismissed.

In support of its decision, the D.C. has relied upon two decisions of the Madras High
Court reported in AIR 1938 Mad 276 and AIR 1916 Mad 344 respectively.

CASE 6

M.P. vs. B.P.16(1) 1989 IBR 102

B.C.I. Tr. Case No. 2/1988

Smt. Ramani Natarajan (Chairman) and Shri R. Muthu Krishnana and Shri D.V.
Patil (Members)Judgement Dated 25th March 1989

FACTS OF THE CASE

Complainant’s Case:

The name of Complainant’s wife was recorded in revenue records as the tenant of a land.
Parents of the Respondent have nothing to do with the said land. The Respondent filed a
consolidation case under sec. 9(a)(2) of the Consolidation of Holdings Act, in the Court of
Consolidation Officer, Naugarh, Dist: Basti. Complainant’s wife was impleaded as a
defendant in that case. But no notice was served upon her. On the other hand, a fictitious
compromise signed by some impostor was filed by the Respondent. On the basis of this false
compromise petition, a compromise decree was drawn and records were accordingly changed
in the names of the Respondent’s parents. Complainant’s wife has never signed the
compromise. Hence the Respondent has committed professional misconduct in bringing
about such a fictitious compromise.

Respondent’s Case:

All these allegations were denied by the Respondent. He was not the lawyer for his parents
and has nothing to do with the compromise. In the above-mentioned case the relations
between the parties have been strained, and hence to harass the Respondent this false
complaint has been filed against the Respondent. Both the parties stated that the compromise
has been challenged by the Complainant and the same is pending before the superior officer.

PROCEEDINGS

The only issue before the B.C.I. was:

Whether the Respondent was in any manner concerned with the alleged compromise?

The rival parties chose not to lead oral evidence. They filed their evidence through their
respective affidavits. Complainant did not produce any other evidence. The Respondent
produced the copies of vakalatnamas filed by two different Advocates, one on behalf of
his father and the other on behalf of his mother. He also filed a copy of the compromise
and a copy of order of the Consolidation Court. The order made it further clear that the
Respondent was in no way concerned with the case.

ORDER

On the basis of the material before it, it did not appear to the D.C. of the B.C.I. that the
Respondent was guilty of misconduct. As a result, the complaint was dismissed with an
observation that Complainant would be at liberty to file fresh complaint if he found any
new evidence in the course of the matter pending before the Superior Officer in respect
of the compromise petition.

CASE 7

Mrs. H.S. vs. B.D., 16(2) 1989 IBR 245

B.C.I. Tr. Case No. 29/1981

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)

Judgement Dated 26th February 1988

FACTS OF THE CASE

Complainant’s Case:

Complainant is the Managing Director of M/s Hotel Niru Private Limited. The Respondent
was working for a solicitor’s firm. Complainant’s case entrusted to the firm was conducted
by the Respondent. It was a case under sec. 636(2) of the Companies Act. Later on
Complainant’s husband and another director of Hotel Niru Private Limited entrusted another
case to the same Solicitors Firm. This case was in respect of lease and sub-lease of an
immovable property. Fees and expenses of both these cases were paid to the solicitors for as
per their demand.

Later on, the Respondent separated from the said Solicitors Firm and started to independent
practice. Subsequently, the Solicitors Firm failed to get the lease and sub-lease deed
registered, and the Respondent contacted the Complainant’s husband and offered to get the
work done if it is entrusted to him. Complainant’s husband agreed and paid the fees
demanded by the Respondent. Respondent demanded more money after some time and the
same was paid to him by the Complainant’s husband. The Respondent made a third demand
for money which was refused by the directors of Hotel Niru Private Limited. On this the
Respondent approached the High Court and the initiated a winding-up proceedings against
Hotel Niru Private Limited in the capacity of a creditor. The directors came to know about
these proceedings only when the Official liquidator appointed by the Court visited the Hotel
premises with the winding up order. Surprised by this, especially as no money was due to
Respondent from the Company, the Complainant approached the Respondent. The
Respondent told her that he would get the proceedings dropped if the Complainant paid him
Rs. 10,000 in cash. Under the
pressure of coercion and undue influence the Complainant paid Rs. 10,000 to the
Respondent as per his demand. But the Respondent issued a receipt for only Rs. 7,600,
and told that that was the amount claimed by him in the winding-up proceedings.
Complainant’s request for a separate receipt for Rs. 2,400 was not entertained by the
Respondent.

Complainant got an application for vacating the winding up order through another
Advocate. On the same day Respondent met her in the High Court lounge and told her
that he had come to know that she had filed an application for vacating the winding-up
proceedings. He also threatened that he would oppose the Complainant’s application
and get it dismissed. He offered to sign “no objection” on the application, provided the
Complainant paid him Rs. 5,000. The Complainant gave the amount through cheque,
and to cover up his misconduct the Respondent issued a receipt stating that the amount
was towards his profession and charges. Thus, the Complainant was cheated and
blackmailed by the Respondent and thereby the Respondent has committed misconduct.

Respondent’s Case: The Respondent denied all the allegations made in the complaint as
false, baseless and scandalous, and intended to malign him and harm him
professionally simply because he had insisted upon and realised his professional fees
from the Complainant.

The Respondent was the Director in the Department of Company Affairs. The
Complainant was an old and close friend of his niece. She was introduced to him by his
said niece for the purpose of attesting passport applications of the Complainant and her
husband, which he had done.

After his retirement Complainant joined the profession and started his practice as
lawyer. Subsequently the Complainant and her husband approached him and requested
him to give advice to their Company, Hotel Niru Private Limited, on regular basis for a
period of 1 year. They requested him to pull the Company out of its past troubles, as well
as keep it out of troubles in future, by his expertise and experience in the field of
company affairs. It was also agreed that they would pay him a fee of Rs. 100 per sitting.
For a long period of time he was not paid any amount and therefore he prepared a bill
for Rs. 3,500 and delivered it to the Complainant through his junior. But the payment
was not made even this time.

In the meantime, the Registrar of Companies, New Delhi launched prosecution against
the company and also against the Complainant and her husband for non-compliance of
the requirements of Companies Act. This case was filed before the Metropolitan
Magistrate. This case was also entrusted by the Complainant to the Respondent and he
pursued it. For this he charged a fee of Rs. 1,100 which was never paid.
Complainant and her husband entrusted to the Respondent the work preparing two
lease deeds and getting them registered. One of them required an application under sec.
27(2) of the Urban Land Ceiling Act. The application was rejected by the competent
authority. First Appeal preferred by the Respondent against the order was also rejected
and the Respondent was successful in the Second Appeal. Thereafter the Respondent got
the two deeds registered and he submitted a Bill for Rs. 7,600. In this way he had
rendered professional service to the Complainant’s company which was worth Rs.
12,600. But the amount was never paid in spite of many reminders. As the money suitfor
recovery of the amount would be dilatory, in the Respondent initiated winding-up
proceedings. As the notices issued to the company came unserved, citation was issued
in two leading newspapers and after waiting for the representation of the company, the
High Court issued ex parte order for winding up of the company.

Only then the Complainant approached Respondent with his niece, who is her close
friend, and not alone as averred in the complaint. She paid him Rs. 7,600 and promised
to pay the balance of Rs. 5,000 on the next day. Accordingly, she paid the balance of Rs.
5,000 through a cheque in the Court lounge. Therefore, this is a false case and the
Respondent has not committed any misconduct as averred in the complaint.

PROCEEDINGS

In her evidence Complainant supported her case and denied to have gone to meet the
Respondent when he was a Central Government officer for attestation of any passport
applications. She also denied the entire case of the Respondent.

The serious allegations made by the Complainant against the Respondent was to the
effect that she was forced to pay him a sum of Rs. 10,000 in cash under pressure,
coercion and undue influence by the Respondent, and that he issued a receipt for only
the Rs. 7,600. However there was no substantial evidence to this effect. It was only her
self-serving statement to this effect was on record. On the other hand, the Respondent
has not only categorically denied the case of the Complainant but also had led the
evidence of his niece who was an eyewitness. The D.C. of B.C.I. found it difficult to
believe that being a well educated lady and Managing Director of a company she was
forced to pay amount in excess of the receipt given to her. She could have a deposited
the money in the High Court, had the Respondent demanded more money than she was
bound to pay him. The documents filed by the Complainant did not show any case in
support of the Complainant. The Complainant had produced a receipt and a no-
objection certificate for vacating the winding-up order. Both documents were signed by
the Respondent on the same date as could be seen from the date on them. Therefore,
there was no occasion for the Respondent to force her to part with Rs. 5,000 next day for
issuing no objection certificate. Further, if the cheque was issued under coercion, the
Complainant could have written to the bank to stop payment. The cheque was delivered
to the Respondent after the bank hours and on the same day during the post lunch
session of the High Court the winding-up proceedings in the High Court were dropped.
The cheque was encashed only on the next day. She had ample of time to stop the
payment.

Therefore the D.C. of the B.C.I. was satisfied that not only has the Complainant dismally
failed in proving her case, but the true state of affairs were truthfully brought out in
detail by the Respondent in his defence.

ORDER

In the circumstances the complaint was dismissed. And as it was a case of a dishonest
and a malicious prosecution, the Respondent was entitled to a heavy cost which was
ordered by the B.C.I.

In this case the Respondent filed an application under sec. 340 Cr.P.C. r/w sec. 193
I.P.C. and sec. 42(2) of the Advocates Act. Under sec. 42(2), Advocates Act, the
proceedings before the D.C. of the Bar Councils are deemed to be judicial proceedings
within the meaning of sec. 193 and 223 of I.P.C. Therefore, if the D.C. finds it a case of
giving false evidence and fabricating false evidence for the purpose of being used in the
proceedings before it, the D.C. can direct the filing of criminal complaint. In this case,
for the reasons recorded therein, the D.C. of B.C.I. found it not a fit case for exercise of
its jurisdiction under sec. 42(2) of Advocates Act.

CASE 8

N.S. vs. K.V.16(2) 1989 IBR 258

D.C. Appeal No. 14/1988

Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members)

Judgement Dated 3rd September 1988

FACTS OF THE CASE

Complainant’s Case:

Complainant is also an Advocate of High Court and is a senior member of the bar with 33
years of experience. On 12 November 1986, at about 1.50 p.m. when he was going to the Bar
Association, the Respondent-Advocate informed him that he had made a mention of a case
before the judge. In that case the Complainant represented the petitioner and the Respondent
represented the Respondent therein in the capacity of a Government Pleader. Complainant
said that he had no notice of the mention and that “he will see to it”. On this, the Respondent
somehow got infuriated and without any reason or justification abused the Complainant and
used vulgar words. Without any reason or justification the Respondent insulted the
Complainant and used the filthy, vulgar and abusive language against the senior member of
the bar. This has lowered the dignity of the profession and therefore Respondent has
committed misconduct.

Respondent’s Case:

The Respondent filed his defence denying the allegations made in the complaint. He
contended that he mentioned a particular case to be posted before the judge and to this the
Complainant said that “he will see to it” and menacingly gesticulated. Since the Complainant
had said that “he will see” and referred to him, he got angry and there was heated exchange
of words between them. But he never used anyabusive language against the Complainant.
Anyway, he expressed his deep regret for what all happened between them.

PROCEEDINGS

From the pleadings of the parties the B.C.I. framed the following issues:

1. Whether the Respondent used abusive language against the Complainant?

2. Whether the use of those words amounted to Professor misconduct?

The S.B.C. found both the issues against the Respondent and found him guilty of misconduct.
The apology tendered by the Respondent was not accepted by the Complainant. In the
circumstances, the D.C. of S.B.C. passed order suspending the
Respondent from practice for a period of six months.

In his evidence that Complainant stated that he enrolled himself as an Advocate of Madras
High Court and had a good practice. He was a freedom fighter. He has no grudge or
grievance against the Respondent and there were no ill feelings. He admitted that he had said
“I will see to it”. But contended that he did not warrant use of foul language on the part of the
Respondent.

In the cross-examination a suggestion was made to the Complainant that he had

some personal cases under the Urban Land Ceiling Act, and had approached the
Respondent who is a Government Pleader for a favour. When he did not oblige the
Complainant had filed this false complaint to prevent him from appearing in those cases as
Government Pleader. This was denied by the Complainant.

In his evidence the Respondent stated that he too was an Advocate on the bar of a long-
standing and hence he was appointed as the Government Pleader. He represented
as Government Pleader in many cases in which the Complainant was personally interested
and Complainant lost in several cases because of the Respondent’s vigilant representation in
those cases. Therefore, Complainant had grudge against the Respondent.
As to the incident which took place on the alleged day, Respondent said that there was heated
exchange of words and regretted about them if they had hurt the Complainant’s feelings in
any manner.

From the records of the case D.C.s of the Bar Council’s came to the conclusion that
the Respondent uttered vulgar words against the Complainant. In Chapter II of the Rules
framed under section 49(1)(c) of Advocates Act, 1961, with reference to the Standards of
Professional C and Etiquette, it has been stated in the preamble that:

“An Advocate shall, at all at times, comport himself in a manner befitting his status as an
officer of the Court, a privileged member of the community, and a gentleman, bearing
in mind that what may be lawful and moral for a person who is not a member of the bar, or
for a member of the bar in his non-professional capacity may still be improper for
an Advocate. Without prejudice to the generality of foregoing obligations, an Advocate
will shall fearlessly uphold the interests of his client, and in his conduct conform to the
ruleshereinafter mentioned both in letter and spirit. The rules hereinafter mentioned
contain canons of conduct and etiquette adopted as general guides; yet the specific mention
thereof shall not be construed as a denial of others equally imperative though not specifically
mentioned.”

Accordingly, an Advocate is expected to maintain the highest standards of behaviour, both to

his client and colleagues. Even assuming that there is no professional misconduct, there is
certainly “other” misconduct. The apology tendered by the Respondent was not accepted by
the Complainant as he felt humiliated and hurt by the words used by the Respondent and also
by the questions put to him in his cross examination. As the Respondent had tendered
unconditional apology and withdrawn the suggestions made to the Complainant in the cross-
examination it appeared to the Bar Council that the Respondent was really repenting in for
his behaviour. Hence it was felt to be not necessary to suspend him from practice and
that reprimand was sufficient.

ORDER

D.C. of the B.C.I. upheld the order of D.C. of the S.B.C. on misconduct but set aside the
suspension order and reprimanded the Respondent under section 35(3)(b) for the offence
committed by him.

CASE 9

Bar Council of Maharashtra vs. G.L.16(3&4) 1989 IBR 520

B.C.I. Tr. Case No. 10/1986

Shri C.L. Sachdeva (Chairman) and Shri N.K. Jain and Shri S.C. Chawla
(Members)Judgement Dated 6th May, 1988
FACTS OF THE CASE

The Respondent-Advocate was legal adviser to the Government of Maharashtra, i.e.,

M.S.R.T.C. In that capacity, he accepted some illegal gratification and was arrested,
tried, convicted and punished under sec. 161 I.P.C. r/w sec. 5(1)(d) and sec. 66 (2) of the
Prevention of Corruption Act. His appeal was rejected by Bombay High Court and his
application for Special Leave to Appeal was summarily rejected by the Supreme Court.
After serving the sentence, the Respondent continued to practise.

After about 8 years Bar Council of Maharashtra received an anonymous letter alleging
the above facts and made an inquiry with the High Court. The Additional Registrar of
Bombay High Court confirmed the facts. Up on this, the S.B.C. initiated disciplinary
proceedings against the Respondent, which stood transferred before the D.C. of B.C.I. as
they were not completed within the statutory period of one year.

OPINION OF THE B.C.I.

Sec. 24A(1) of the Advocates Act, 1961 provides as under:

“No person shall be admitted as Advocate on a State Roll -

a) if he is convicted of an offence involving moral turpitude;

b) if he is convicted of an offence under the provisions of the Untouchablity (Offences) Act,

1955 (22 of 1955);

c) if he is dismissed and removed from employment or office under the state on any charge
involving moral turpitude.”

Explanation: In this clause, the expression “State” shall have meaning assigned to it under art.
12 of the Constitution:

Provided that disqualification for enrolment as aforesaid shall cease to have effect after a
period of 2 years has elapsed since his release or dismissal or, as the case may be, removal.”

The bare reading of section 24A(1)(b) will reveal that if a person is convicted of an
offence involving moral turpitude he is the disqualified from becoming an Advocate. But
this disqualification ceases to have effect after two years from his release. B.C.I.
interpreted this provision as to be applicable to an already enrolled Advocate also.

The Respondent was convicted of an offence envisaged under sec. 24A(1)(b) of

Advocates Act, 1961. Hence he was disqualified from continuing on the Rolls of Maharashtra
S.B.C. from the date of conviction till the lapse of two years from the date of his release. But
he did not inform the fact of his conviction to the S.B.C. He ought to have intimated this fact
to the S.B.C. immediately after his appeals were rejected. B.C.I. observed that the conduct of
the Respondent was highly depreciable and deplorable, and deserved extremely deterrent
punishment.

However, Respondent was an old aged person, of 75 years age, and was suffering
from various diseases. He started practice only after about to 2½ years after his release. He
has not been accused of any misconduct, etc thereafter, and in fact was rendering free
services to certain organisations. He had a family dependent upon him. Keeping in mind
all the circumstances and especially the fact that there was a lapse of 8 years from the
date of his release, B.C.I. was inclined to take lenient view.

ORDER

Under the circumstances, Bar Council felt that it would serve the ends of justice if the
Respondent was reprimanded with admonition instead of punishment. It was also made
clear that this decision was not forming the precedent as the view was taken only in the
special facts and circumstances of the case.

CASE 10

D.R.M. vs. S.A.M. and I.M.K.16(3&4) 1989 IBR 532

D.C. Appeal No. 23/1988

Shri V.C. Mishra (Chairman) and Shri B.N. Sharma and Shri Viresh Mishra (Members)

Judgement Dated 16th July, 1989

FACTS OF THE CASE

Complainant’s Case:

Complainant has levelled three charges against the Respondents:

1. They have acted and the pleaded in a case in which they themselves have the pecuniary
interest, which is prohibited by Rule 9 of the Rules framed under Sec. 49 (1) (c) of the
Advocates Act, 1961.

2. They have agreed to share the proceeds of the litigation.

3. They have lent the money to their clients for the purpose of legal proceedings in which
they are engaged by their clients.

B.C.I. opined that there was no evidence on record to substantiate the second and
third charges. Therefore it elaborately dealt with the first charge only and preferred to
discuss the cases of the two Respondents separately.
Respondent No. 2’s Case:

The allegations against Respondent No. 2 was that well before the beginning of his practice
he was a party to an agreement for sale. This agreement for sale was in respect of a joint
family property and the Respondent No. 2 was one of the vendees. The vendor in the
agreement of sale filed the suit against theother members of the joint family for partition and
possession of their share in the property. During the pendency of the suit the said vendors
transferred their share in the joint family property to three persons, one of whom happened to
be the wife of Respondent No. 1. Even on that date Respondent No. 2 was not an
Advocate. Subsequently he became Advocate and appeared for the Defendants in that suit.
Before so appearing in the suit he gave up his right under the said agreement for sale and
as such he did not have any pecuniary interest in the subject matter of the suit. Therefore no
case is made out against him.

Respondent No. 2’s Case: Respondent No. 1 proved that his wife had her own power
loom and is an Income Tax payer, and that she had purchased the property out of her
own funds.

PROCEEDINGS

Rule 9 of the B.C.I. Rules on Standards of Professional Conduct and Etiquette reads as
under:

“An Advocate should not act or plead in any matter in which he is himself pecuniarily
interested.

Illustration:

I. He should not act in bankruptcy petition when he himself is also a creditor of the
bankrupt.

II. He should not accept a brief from a company of which he is a director.”

B.C.I. observed that this rule has to be interpreted in a pragmatic manner having regard to the
object of framing this rule. In the opinion of the B.C.I. the object of framing this rule is to
prohibit an Advocate from appearing in a case in which his pecuniary interest is liable to
affect the performance of his duties as an Advocate in that case. If the Advocate is a creditor
of the bankrupt, he cannot conduct the case fairly as an Advocate for the bankrupt because he
will be benefited by losing the case. Similarly a director of the company who is also an
Advocate for the company will be tempted to charge excess fee and get it sanctioned as the
director of the company. Rule 9 does not prohibit an Advocate from appearing in a case in
which he is a party, on his own behalf. Therefore there is no reason to say that he is
prohibited from appearing for his own relation such as his wife or children. It would be
unreasonable to interpret Rule 9 to say that the near relations like a parents, wife, children,
brothers or sisters, etc. of an Advocate of are compelled to engage another Advocate and
cannot avail as the professional competence of an Advocate who is their near relation and in
whom there are likely to have much more confidence.

ORDER

Therefore B.C.I. upheld the order of the S.B.C. and held that the Respondent No. 1 was
not guilty of misconduct. Both the Respondents were held not guilty of misconduct and the
appeal was dismissed. Though the complaint appeared to be wholly mala fide, taking the
lenient view B.C.I. made the costs easy on the parties.

CASE 11

G. vs. O.15(1&2) 1988 IBR 197, C.D. vs. S.S.

B.C.I. Tr. Case No. 16/1986

Shri C.L. Sachdeva (Chairman) and Shri V.C. Mishra and Shri O.P. Sharma (Members)

Judgement Dated 24th January, 1988

FACTS OF THE CASE

Complainant’s Case: The Respondent-Advocate represented the Complainant in an appeal

and the Complainant paid Rs. 3,500 in three instalments to the Respondent towards fees and
expenses. After filing the appeal and getting it admitted the Respondent did not give any
information to the Complainant in respect of its progress even when the Complainant met her
from time to time. She also did not return the papers when she was asked to. The
Complainant sent two notices through registered post but the same were returned to the
Complainant unclaimed.

Respondent’s Case: Respondent admitted that Complainant was referred to her by another
Advocate, the reference was without any instructions and papers either fromthe Complainant
or from the Advocate. Therefore she requested the Complainant to bring
papers without which she could not give her advice. But the Complainant did not comply
with the Respondent’s request. Finally Respondent wrote a letter dated 2.7.1975 calling
up on the Complainant to see her along with all the papers failings which she would be
forced to retire, and also stated that if further instructions and papers are not given, her
duties in the case ended without any outstanding claims whatsoever. Respondent
further denied that she had taken the fees as alleged in the complaint and that she was
attending the Complainant in the appeal.

PROCEEDINGS

The Complainant produced a copy of the notice dated 19.9.1977 given to the Municipal
Corporation by the Respondent on behalf of the Complainant. In that it was
clearly mentioned that the Respondent had filed an appeal on behalf of the Complainant
and the same had been admitted, and stay was granted. This showed that the Respondent
had acted as an Advocate for the Complainant in the appeal. As such she was not entitled to
withdraw from the engagements as an Advocate once accepted without sufficient cause and
unless the reasonable and sufficient notice was given to the Complainant Rule 12 Section II
in Part VII runs as under:“An advocate shall not ordinarily withdraw from engagements once
accepted, without sufficient cause and unless reasonable and sufficient notice is given to the
client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been
earned.”

The letter produced by the Respondent as the notice by the Complainant wasdated 2.7.1975
whereas the notice given by her on behalf of the Complainant to the Municipal Corporation
was dated 19.9.1977. Hence it was not taken into account Further, the Respondent falsely
denied that she was not representing the Complainant in the appeal.
Therefore, it was held that the Respondent had withdrawn from the case without giving
sufficient reason and notice.

ORDER

The D.C. of the B.C.I. held that the Respondent had committed professional misconduct
within the provisions of section 35 of the Advocates Act. But as the matter was a long
pending one, D.C. of the B.C.I. gave the punishment of only reprimand under sec. 35(3)
(b).

CASE 12

A.K. vs. R.S.15(1&2) 1988 IBR 200

D.C. Appeal No. 41/1986

Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members)

Judgement Dated 17th October, 1987

FACTS OF THE CASE

Complainant’s Case:

In the judgement in a suit conducted by the Respondent-Advocate before the Complainant,

the Complainant made certain remarks against the Respondent Advocate. The Respondent
issued a notice under sec. 80 Code of Civil Procedure. In the notice the Respondent claimed
damages from the Complainant for making such remarks in the judgement. The Complainant
took a serious note of the same and represented the matter to the High Court with the
observation that the Respondent had committed professional misconduct in so sending notice
to him. The High Court directed him to refer the matter to the Andhra Pradesh S.B.C..
Therefore the S.B.C. initiated suomotuinquiry against the Respondent.

Respondent’s Case:

The Respondent admitted that he had issued the notice to the Complainant, but that was
because of anxiety. He did not have any intention to proceed against the Complainant. He
also brought it to the notice of the B.C.I. that he had been prosecuted for contempt of court
and in those proceedings he had tendered his apology to the High Court. He also said that he
was about 70 years of age and actually did not mean anything against the Complainant.

PROCEEDINGS

The D.C. of the S.B.C. felt that the Act on the part of the Respondent was highly unethical. It
opined that if the Advocate was aggrieved by the findings of the Complainant he should have
taken some other recourse for getting the relief. He should not have sent notice to the
Presiding Officer. It referred to the duty of the Advocate under section 49(1)(c) in Chapter II
of Part VII. Rule 1 clearly states the limit by which the Advocates can conduct himself as a
member of a noble profession. Hence he was held guilty of professional misconduct and was
reprimanded.

D.C. of the B.C.I. also formed the opinion that the Respondent-Advocate had exceeded
his limits. But it accepted his submission that the same was done only in a state of anxiety
without any intention to insinuate the Complainant. The Respondent had already tendered his
apologies to the High Court. Under these circumstances B.C.I. was of the opinion that the act
of the Respondent was only a bona fide mistake not amounting to professional misconduct.

ORDER

Therefore the appeal was allowed setting aside the order of the Andhra Pradesh S.B.C.. The
D.C. of the B.C.I. expressed that the Respondent should behave himself properly in future,
and should not indulge in any such activities. It cautioned him that he should behave as a
member of the noble profession.